Australia and the OPCAT

UNCAT articles 2(1) and 16(1).

Adopted 18 December 2002 by General Assembly resolution A/RES/57/199.

See <http://www2.ohchr.org/english/bodies/cat/opcat/index.htm>.

To date, the SPT has conducted visits to places of detention in 14 countries. A recent increase in its membership has increased its capacity somewhat, but it is still estimated that it will be able to visit each State Party to the OPCAT at most once every 8–10 years. See, eg, Casale Silvia , ‘Mechanisms for Custodial oversight: The United States and Europe’ (2006) 22 Washington University Journal of Law and Policy 217, 224.

See, eg, Nowak Manfred & McArthur Elizabeth , The United Nations Convention Against Torture: A Commentary (Oxford University Press, 2008) 557–567.

See, eg, Weber David , ‘Perth Man Tasered more than 40 times in a week,’ ABC Online, 10 December 2010 <http://www.abc.net.au/am/content/2010/s3089736.htm>; Needham Kirsty ‘Outrage over “beanbag rounds” fired at detainees,’ Sydney Morning Herald, 17 March 2011.

Wynne Emma , ‘Prison guard given record fine over Ward death,’ ABC News Online, 5 October 2011, http://www.abc.net.au/local/stories/2011/10/05/3333163.htm.

For an overview of how Australian law fails prisoners, see, eg, Groves Matthew , ‘International Law & Australian Prisoners’ (2001) 24 University of New South Wales Law Journal 1, 11.

See, eg, Nicholas Cowdery AM QC, ‘Reforming the Criminal Justice System’ (Speech delivered at the Public Defenders Criminal Law Conference 2011, Sydney, 26 February 2011) <http://www.odpp.nsw.gov.au/speeches/Public%20Defenders%202011.pdf>.

For example, the Office of the Correctional Investigator of Canada costs approx 0.15% of the annual budget of Correctional Service of Canada; the WA Office of the Inspector of Custodial Services costs approx 0.4% of the budget of Department of Corrective Services. See Harding Richard , 'Ratifying and Implementing OPCAT: Has Australia missed the boat? (Speech delivered at Implementing Human Rights in Closed Environments, Melbourne, 21 February 2012) <http://www.law.monash.edu.au/castancentre/events/2012/harding-ratifying-and-implementing-opcat-summary.docx>.

See, eg, Human Rights Council 18th Session, Statement by Australia on Human Rights Situations that Require the Council's Attention (23 September 2011): <http://www.geneva.mission.gov.au/gene/Statement233.html>.

See, eg, Human Rights Law Centre, ‘Australia's Treatment of Prisoners and Prison Conditions’: <http://www.hrlrc.org.au/files/FZEAUHUITS/Factsheet%20-%20Prisons.pdf>.

Victoria Ombudsman , Whistleblowers Protection Act 2001: Investigation into conditions at the Melbourne Youth Justice Precinct (October 2010).

See, eg, Brough v Australia (UN Human Rights Committee Communication 1184/2003 on mistreatment of Aboriginal juvenile in NSW correctional facilities — Views of 17 March 2006).

See, eg, ACT Human Rights Commission, Human Rights Audit on the Operation of ACT Correctional Facilities under Corrections Legislation (July 2007) <http://www.hrc.act.gov.au/res/CorrectionsAudit2007.pdf>.

See, eg, WA Corruption and Crime Commission, The Use of Taser Weapons by WA Police (4 October 2010) <http://www.ccc.wa.gov.au/Publications/Reports/PublishedReports2010/FullReport–UseofTaserWeaponsbyWAPOL.pdf>.

Wynne , above n 7; see also ‘Finding of Inquest into the Death of Mulrunji,’ (Queensland Coroner's Court, 2006) <http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/86642/cif-doomadgee-mulrunji-20060927.pdf>.

See, eg, Australian Human Rights Commission, Immigration detention at Villawood: Summary of observations (2011) <http://www.hreoc.gov.au/human_rights/immigration/idc2011_villawood.html>.

For example, the Ward and Mulrunji cases (see above n 7 & n 17).

Concluding Observations of the UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on Australia's Third Periodic Report under article 19 of the Convention, UN Doc CAT/C/AUS/CO/3 (22 May 2008), [26] & [34].

United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review, UN Doc A/HRC/17/10, [86.5], see also [86.89] & [86.91].

See Committee Report, Recommendation 1 <http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/opcat/report.htm>.

See, eg, Zifcak Spencer , Mr Ruddock Goes to Geneva (UNSW Press, 2003).

See, eg, Statement by Australia to the Human Rights Council: Seventh Session, 5 March 2008, <http://www.foreignminister.gov.au/releases/2008/fa-s046_08.html>.

See, eg, Department of Foreign Affairs & Trade Signed, Sealed and Delivered — Treaties and Treaty Making: Officials' Handbook (10th ed, July 2010) [13].

See APT, Implementation of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Federal and other Decentralised States (March 2011) <http://www.apt.ch>.

[2012] ATNIA 6.

See JSCOT Report 125 (21 June 2012), <http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/28february2012/report.htm>, Ch 6 (in particular [6.9, 6.29] and Recommendation 6).

See, eg, Applying Human Rights in Closed Environments: A Strategic Framework for Compliance (November 2011), <http://www.law.monash.edu.au/castancentre/projects/hrce-publications.html>.

Metherell Mark , ‘Nursing home hunger scandal,’ Sydney Morning Herald (Sydney), 22 December 2008.

‘Nursing home abuse “horrifying”: Roxon’, Sydney Morning Herald (Sydney), 28 March 2010; also Browne Rachel , ‘Alarm at violence in aged care,’ Sydney Morning Herald (Sydney), 28 March 2010. The report in question is available at: <http://www.health.gov.au/internet/main/publishing.nsf/Content/ageing-reports-acarep.htm>.

See, eg, ‘Nursing home re-accredited after sexual assault scandal,’ ABC News Online, 15 July 2010.

According to the ‘2010–11 Report on the Operation of the Aged Care Act 1997’ <http://www.health.gov.au/internet/main/publishing.nsf/Content/E228F68AF9AFA341CA257952001C7917/$File/ROACA%202010-11.pdf>, the Aged Care Accreditation Agency already conducts audits and unannounced visits, and conducted 5066 such visits in the reporting year. This suggests it may be suitable to become part of the NPM.

A similar exercise in France identified no fewer than 5778 such places — see APT, Optional Protocol Implementation Manual (Revised, 2010) 202, http://www.apt.ch/en/resources/the-optional-protocol-implementation-manual/.

See, eg, Harding Richard and Morgan Neil , Implementing the Optional Protocol to the Convention against Torture: Options for Australia, 2008 <http://www.hreoc.gov.au/human_rights/publications/opcat/index.html>.

For an exploration of how the OPCAT might apply to such places, see Edwards Alice , ‘The Optional Protocol to the Convention against Torture and the Detention of Refugees’ (2008) 57 International and Comparative Law Quarterly 4, 789.

See JSCOT, above n 28, Ch 6 (in particular [6.31 and 6.42]).

See, eg, Human Rights Commission, Implementing the Optional Protocol to the Convention against Torture in Australia Seminar, 25 November 2009, Sydney <http://www.humanrights.gov.au/human_rights/opcat/opcat_seminar2009.html#Heading213>.

Harding Neil , Proposal for Australia to ratify OPCAT: Submission to the Joint Standing Committee on Treaties (March 2012) 7–8.

See, eg, UN Committee Against Torture, above n 20, [9].

See, eg, Australia's Response to the Committee's Concluding Observations on Australia's Fourth Periodic Report, CAT/C/AUS/CO/3/Add.1 (29 May 2009), [2].