OPINION
SA’s proposed scheme to monitor places of detention needs to be improved ASSOCIATE PROFESSOR LAURA GRENFELL, ADELAIDE LAW SCHOOL
T
hose who are out of sight should not be out of mind. In recent years South Australia has seen failures in its systems designed to safeguard those who are in vulnerable situations and out of public sight– think of our child protection system and our older persons’ mental health system. The failures identified by the Chloe Valentine and Oakden inquests revealed instances of abuse and neglect which could be fairly described as cruel, inhuman or degrading treatment. SA cannot afford to be complacent by devising schemes which are ill-conceived and the subject of little, to no, consultation. An external mechanism to proactively monitor our state’s closed facilities is warranted given that systems can often fail to adequately uphold agreed-upon standards (or lack adequate standards) for those who are in care or detention. Every jurisdiction in Australia is currently in the process of establishing such a mechanism because, after abuses at the NT’s Don Dale Youth Detention Centre received international attention, the federal Coalition government ratified an international agreement, the Optional Protocol to the Convention against Torture (OPCAT), in late 2017. OPCAT is designed to complement our existing state mechanisms such as the Ombudsman SA
24 THE BULLETIN October 2020
which investigates, in a reactive manner, complaints made by those in detention. For the new scheme to benefit our state, it needs to work alongside our existing oversight bodies, to be fully independent (and perceived as such), and have clear power to access all relevant information and places of detention. In mid-May this year, the South Australia government introduced a half-baked scheme to meet the state’s OPCAT obligations. It was one of a raft of amendments in SA’s Correctional Services (Accountability and Other Measures) Amendment Bill 2020 which passed the House of Assembly on 22 July and is currently in the Upper House. (The amendments are largely the same as those introduced into the SA Parliament by the then Labor government in late 2017 before Australia ratified OPCAT.) It would not be surprising if you were unaware of this development: the introduction of this particular legislative response to OPCAT was not reported in the media. More critically, it was preceded by zero consultation with key stakeholders in the state despite the amendments being described in the second reading speech as “significant”. This is in the face of the fact that for years these stakeholders have been tirelessly calling for a local OPCAT
mechanism - known as a national preventive mechanism (NPM) - and contributing to national consultations headed by the Australian Human Rights Commission as well as the Commonwealth Ombudsman (who has been designated as the coordinator of the NPMs being established in each jurisdiction). These NPMs will work with the international monitoring body, the UN Subcommittee on the Prevention of Torture (SPT) which will conduct supervisory visits to each Australian jurisdiction every 4-8 years. The proposed new monitoring scheme of “official visitors” will replace the state’s so-called “independent inspectors scheme” which has languished for more than a decade due to its poor design. The state’s proposed new OPCAT-style scheme has some strengths: it sets out that the Governor will appoint a diverse group of remunerated visitors including at least one legal practitioner, one woman and one Aboriginal or Torres Strait Islander person (it excludes only those persons who become a member of an Australian parliament, become a bankrupt or who is convicted for an offence or serving a prison sentence). Previously the inspectors were volunteers, most of whom are justices of the peace. Since at least 2012 the government has been made aware, via an audit report of Ombudsman SA, that
