Govt to sign UN treaty against torture

The Federal Government is set to sign an international treaty to stop torture.

Under the Optional Protocol to the United Nations Convention against Torture, member countries are subject to international and national visits to places like prisons and immigration detention centres.

A spokesman for Attorney-General Robert McClelland has confirmed Labor's commitment to the Optional Protocol on torture.

He says Labor will be consulting the states and territories as to how achieve its ratification.

The spokesman says the move has been long-standing Labor policy.

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Australia and the Optional Protocol to the UN Convention against Torture

Summary September 20, 2007

A. Preliminary Observations: The APT and the Optional Protocol

The Association for the Prevention of Torture (APT; www.apt.ch) is a non-governmental organization based in Geneva, Switzerland. It has been working in torture prevention for 30 years.

The APT has been closely involved throughout the process of negotiating and adopting the OPCAT. In fact, the main idea behind the OPCAT – that we can prevent torture and other forms of ill-treatment by adopting a system of regular visits to all places of detention – originated with and was proposed in 1973 by the founder of APT, Jean-Jacques Gautier.

Since December 2002, APT has been leading an international campaign to promote the OPCAT, in coordination with various other international and regional institutions.

B. Implementation of the Optional Protocol: Current Situation

As of today, 34 States are parties to the Optional Protocol and 31 others have signed it. Those figures may appear modest, but given that the Protocol has been open for ratification only since February 2003, the pace has in fact been rapid.

After the OPCAT came into force on June 22, 2006, a UN Subcommittee on Prevention of Torture (SPT) was elected, in December 2006, by the first 20 States Parties to the Protocol. The Subcommittee is composed of 10 independent experts.

The SPT intends to make its first visits during the last quarter of 2007. Its resources, which are limited for the moment, will expand once 50 States have ratified the Protocol. At that point, the number of experts on the SPT will be increased to 25.

It seems to be agreed that the Subcommittee will operate in more or less the same way as the European Committee for the Prevention of Torture (CPT), which has periodically conducted inspections of the same nature in all of the 47 Member States of the Council of Europe since 1989.

Most of the States Parties are actively working to implement the OPCAT at the internal level. The OPCAT provides that States Parties undertake to designate or establish "one or several preventive mechanisms" (art. 17) within one year from the date of ratification.

Even when the SPT has 25 experts, it will be able to do only a few inspections a year throughout the world, and this suggests that it will visit States Parties only once every four to five years, in the best case scenario. That makes the work done at the national level even more important.

The Protocol gives States the latitude they need to determine for themselves what form these national prevention mechanisms (NPM) will take. However, regardless of how the mechanism is structured, it must meet a certain number of guarantees, which are set out in Part IV of the Protocol. Those mechanisms may be unitary, decentralized or multiple.

C. Australia and the Optional Protocol: the case for ratification

(1) Ratification and implementation of the OPCAT will help Australia comply with its existing international obligations.

As a State party to the UN Convention against Torture, Australia has undertaken to adopt all necessary measures to prevent acts of torture or other forms of ill-treatment being committed on its territory (art. 2). Although independent inspection systems cannot guarantee that abuse will not recur, they clearly have a deterrent effect which reduces the risk, as has been pointed out by numerous experts.

The inspection mechanisms to be designated under the OPCAT will have a trickle-up effect if inspections are done before complaints are made. As a result, the authorities who manage the facilities will be able to determine what remedial measures should be applied. In so doing, broader systemic issues will be addressed, which in turn will lead to a decrease in the number of complaints.

(2) Inspection of detention facilities is not an unknown concept in Australia, and this can only facilitate implementation of the OPCAT.

In Australia, there are already a number of expert bodies of the federal or regional level responsible for inspecting various categories of detention facilities, including the Human Rights and Equal Opportunities Commission (HREOC) and the Commonwealth Ombudsman. These bodies can be put to contribution when the time comes for Australia to define the nature of its national preventive mechanism(s) under the OPCAT.

(3) Implementation of the OPCAT would extend protection to all categories of detained people.

Australia-based human rights institutions involved in detention monitoring lack either (or both) the mandate and resources to provide for the full coverage of all people deprived of their liberty throughout the country. Until now, visits in Australia have largely been sporadic and complaints-driven. Implementing the OPCAT would help to fill the protection gaps which exist nowadays in Australia.

(4) There is a risk of torture or other cruel, inhuman or degrading punishment or treatment in every country in the world. Implementing the Protocol will help to reduce that risk in Australia.

While Australia is undeniably not at the top of the list of States where such mistreatment is engaged in against individuals who are deprived of liberty, events do occur that periodically remind us of the need for vigilance. Although the European States are all subject to inspections by the European CPT, a majority of them, including the most influential ones (United Kingdom, France, Spain, Italy and Germany), have recognized that signing or ratifying the OPCAT is appropriate and useful, even though they are also not States where torture is systematically practised.

(5) Arguments invoked by Australia to justify its non-support of the OPCAT were largely based on misconceptions which do not reflected the reality.

In 2004, when the Joint Standing Committee on Treaties held hearings on the OPCAT, the Australian government essentially justified its refusal to support the Protocol by saying its logic ran against that of its own 2000 review of the UN treaty body system, which aimed at rationalizing the resources allocated to this machinery. The Australian government felt that, in that context, setting up a new mechanism seemed to make little sense. This was reinforced by the perception that the OPCAT had little added value, as the UN Convention against Torture already granted the Committee against Torture (CAT) the power to conduct in-country missions to investigate allegations of torture.

It is worth recalling that the Subcommittee’s task is significantly different from that of the Committee against Torture and, for that matter, of all other UN human rights treaty bodies. The CAT spends most of its time in Geneva examining country reports, and only carries out country visits when it receives “reliable information which appears to it to contain well-founded indications that torture is being systematically practised” in a State party . The wording used by the drafters of the Convention leaves little doubt as to the exceptional nature of this provision. Such a regime can hardly be compared with the comprehensive preventive system the Subcommittee on Prevention and its national counterparts are to form.

The UN Subcommittee on Prevention will not examine reports. It will spend most if its time in the field, visiting places of detention and providing advice to States and national preventive mechanisms on measures likely to further enhance protection against all forms of ill-treatment. While it is true that the SPT has the power to perform unannounced visits to any State party to the OPCAT, in reality, a State will be made aware of the visit of the Subcommittee, if only for practical reasons.

(6) There has always been significant support for the OPCAT in Australia.

When the Joint Standing Committee on Treaties conduced an inquiry into the Optional Protocol in 2003-2004, it received 20 written submission, 17 of which urged the Committee to recommand ratification.

Of the 16 parliamentarians who sat on the JSCOT in March 2004 when the decision was made not to recommend the Commonwealth Government to take binding treaty action at the time with respect to the OPCAT, no less than 7 disagreed and filed a dissenting report, in which they challenged the substantive concerns of the Government, saying that ratification of the OPCAT “is likely to result in fewer complaints being taken to HREOC and the UN and […] enhance and strengthen existing international mechanisms”.

(7) The OPCAT favours constructive dialogue over denunciation.

It is worth highlighting the fact that the Subcommittee will operate in a constructive and confidential way, and that its reports shall not be made public unless the State itself agrees to it, or blatantly refuses to cooperate with the Subcommittee or to take steps to improve the situation in the light of the recommendations.

8) Australia has always given indefatigable support for international instruments and mechanisms adopted to combat torture.

For several years, combating torture has been one of the priorities of the foreign policy of the Australian government in the field of human rights. Ratifying and implementing the OPCAT, an instrument meant to further protect people deprived of their liberty, would be in line with this traditionally very coherent policy. Furthermore, as a State party to the Protocol, Australia will have the possibility to exert its influence in the development of the SPT’s modus operandi, and put forward Australian nationals as candidates for a seat on this body.

(9) Ratification of the OPCAT by Australia will strengthen its reputation on the international stage.

In addition to the benefits becoming party to the OPCAT would yield for both Australia and Australians, a ratification by such an influential State would certainly have a positive impact on other countries of the Asia-Pacific region. As of September 2007, three Asia-Pacific States (Cambodia, Maldives and New Zealand) have ratified the OPCAT, while an additional one (East Timor) has signed it. Although States such as Indonesia, the Philippines and South Korea have made public their intention to become party to the OPCAT, this objective has yet to materialize.

Australia could use the renewed moral authority it would hold by virtue of its status as a State Party to promote this instrument among its neighbours, and in particular among those experiencing acute problems relating to mistreatment in detention facilities.

D. Conclusion

Given the importance of combating torture and other forms of ill-treatment and the fact that Australia has numerous independent monitoring mechanisms, whose expertise could be used in the internal implementation of the OPCAT and that have already indicated their support for ratification, the APT believes Australia is in a favorable position to implement the OPCAT at the domestic level.

While only 3 States had ratified the OPCAT at the time the Joint Standing Committee on Treaties conducted its inquiry, the situation has now changed significantly, something that calls for a revision of policy. Indeed, more than 30 States are now party to the Protocol, and the Subcommittee, which came into being following the entry into force of the instrument in June 2006, has been elected and is about to start its activities in the field. The time is ripe for Australia to join that community of States and make its influence felt, for its own benefit and that of neighbouring nations.