TasCOSS Submission on OPCAT Implementation Bill 2021 September 2021
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About TasCOSS TasCOSS’s vision is for one Tasmania, free of poverty and inequality where everyone has the same opportunity. Our mission is two-fold: to act as the peak body for the community services industry in Tasmania; and to challenge and change the systems, attitudes and behaviours that create poverty, inequality and exclusion. Our membership includes individuals and organisations active in the provision of community services to Tasmanians on low incomes or living in vulnerable circumstances. TasCOSS represents the interests of our members and their service users to government, regulators, the media and the public. Through our advocacy and policy development, we draw attention to the causes of poverty and disadvantage, and promote the adoption of effective solutions to address these issues. Please direct any enquiries about this submission to: Adrienne Picone Chief Executive Officer Phone Number: (03) 6231 0755 Email Address: adrienne@tascoss.org.au
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Introduction Thank you for the opportunity to comment on the OPCAT Implementation Bill 2021 (The Bill). The Optional Protocol Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is designed to improve state practice in the prevention of torture. Its implementation therefore needs to be robust, particularly Part IV of OPCAT which requires states to nominate a body or bodies to fulfil the role of a ‘National Preventive Mechanism’ (NPM). The NPM regularly examines the treatment of persons deprived of their liberty in places of detention for the purposes of preventing torture and other cruel, inhuman or degrading treatment or punishment as well as performing various educative functions. TasCOSS welcomes the change in approach since the Custodial Inspector Amendment (OPCAT) Bill 2020, which as we commented in our submission would not result in Tasmania having an effective NPM. It is clear that the Bill reflects many of the views and concerns of several stakeholders including TasCOSS and as a result would create a significantly strengthened NPM. We have made, however, several recommendations to ensure the Tasmanian NPM as far as possible fulfils the State’s obligations under OPCAT. These relate primarily to the NPM model, resourcing and protection against reprisals.
Key Issues NPM bodies The Bill provides for the Custodial Inspector to perform the role of NPM. Noting the under-resourcing of the Office of the Custodial Inspector (see below), and in consideration of the views of the UN Subcommittee on the Prevention of Torture (‘SPT’), the Commonwealth Ombudsman and the Australian Human Rights Commission about the importance of including civil society organisations in a NPM 1 TasCOSS does not consider it appropriate that the Custodial Inspector performs that role. We recommend that the Government engages with civil society organisations and other relevant stakeholders to determine which model will ensure the NPM is as effective and consistent with the stated objectives of OPCAT as possible. A NPM model which allows for the involvement of various community groups and organisations is also more consistent with the general objectives of OPCAT, which are focused on the prevention of torture and improvement of protections against harmful treatment. Alternative models for NPM include an expansion of the existing powers of the Ombudsman to include the responsibilities of the NPM, or the establishment of a new and separate entity to perform this role. Other jurisdictions might also be instructive – for example New Zealand has a multi-body NPM while
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Commonwealth Ombudsman (September 2019) Implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) BASELINE ASSESSMENT OF AUSTRALIA’S OPCAT READINESS, p43 3.14 https://www.ombudsman.gov.au/__data/assets/pdf_file/0025/106657/Ombudsman-Report-Implementation-of-OPCAT.pdf; Australian Human Rights Commission (2020) Implementing OPCAT in Australia, p11. https://humanrights.gov.au/sites/default/files/document/publication/ahrc_2020_implementing_opcat.pdf ; Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, SPT Report to the NPM of Germany, CAT/OP/DEU/2 (2013)
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Norway’s NPM includes a civil society advisory body. 2 We note that TasOPCAT has made a submission exploring alternative models. Recommendation: The Government engage with Tasmanian civil society organisations and other relevant stakeholders about alternative options for a NPM. Resourcing Regardless of what model is adopted it is imperative that the Tasmanian NPM is adequately resourced to undertake its key function of preventive work, as well as other functions including: visiting places where it has determined liberty is or may be deprived and examine treatment of people deprived of their liberty; advise on recommendations to States authorities and submit proposals on existing and new legislation; educate on NPM functions and participate in training and development in schools, universities and professional circles; cooperate through meaningful dialogue with government and stakeholders including other NPMs.3 As we noted in our previous submission, the Custodial Inspector is on the public record stating that they are under resourced and cannot perform their functions adequately. This is reiterated in its most recent annual report.4 The UN recommends that: The mechanism’s legal framework should also provide for outward-facing functions of the NPM, such as submitting proposals and observations on existing and draft legislation, advocacy, awareness raising and capacity building, and require a separate budget line in the State budget for the funding of the NPM, in order to ensure its continuous financial and operational autonomy.5 Other Australian jurisdictions have provisions for resourcing the NPM in their OPCAT Bills. For example, the South Australian OPCAT Bill includes a provision that: ‘The NPM must be provided with the resources reasonably required for exercising their functions under this Schedule and the OPCAT Implementation Act 2021.’6 We recommend the Bill be amended to include a similar provision and that the State Government ensure that future State Budgets, commencing with the 2022/23 Budget, include adequate provision for the establishment and functions of a NPM.
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Opcat-2013_web.pdf (hrc.co.nz); The Civil Ombudsman Act https://lovdata.no/dokument/NL/lov/2021-06-18121/KAPITTEL_4#KAPITTEL_4 3
OHCHR, 2018
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Custodial Inspector Annual Report 2021-21 Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (12 December 2019) Report on the visit made by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for the purpose of providing advisory assistance to the national preventive mechanism of Turkey, CAT/OP/TUR/1, paragraph 21. 6 OPCAT Implementation Bill 2021 https://www.legislation.sa.gov.au/LZ/B/CURRENT/OPCAT%20IMPLEMENTATION%20BILL%202021/B_AS%20INTRODUCED%20I N%20HA/OPCAT%20IMPLEMENTATION%20BILL%202021.UN.PDF 5
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Recommendations: • A provision guaranteeing the Tasmanian National Preventive Mechanism is provided with ‘the resources required for exercising their functions’ should be added to the Bill. • Future State Budgets commencing in 2022/23 should provide funding for the NPM and its functions. Protection against reprisals The UN Office of the High Commissioner for Human Rights notes in its Practical Guide on The Role of National Preventive Mechanisms that: The relevant legislation (such as the legislative act establishing NPMs) should guarantee the prohibition of ordering, applying, permitting or tolerating any sanctions against any persons or organizations for having communicated with the NPMs any information, whether true or false, and no such persons or organizations shall be otherwise prejudiced in any way. 7 Western Australia and South Australia both include provisions in their OPCAT Bills protecting against reprisals. TasCOSS considers this is an essential aspect of the Bill if Tasmanians and Tasmanian organisations are to feel that they will not be discriminated against or otherwise treated unfairly if they make reports about alleged breaches of OPCAT. Recommendation: The Bill should include a provision to ensure people providing the Tasmanian National Preventive Mechanism with information are adequately protected for reprisals. Aboriginal Tasmanian engagement and people with disability Noting that Aboriginal and Torres Strait Islander people and people with disability are over-represented in places of detention and are also particularly vulnerable to harm in places of detention, TasCOSS believes the Tasmanian NPM should have representation from these groups. Recommendation: Part 2, Section 12 (4) of the Bill (‘Staff’) should be amended to include the need for the Tasmanian National Preventive Mechanism to make efforts to recruit and retain Aboriginal Tasmanians and people with disability as a priority. ‘Persons deprived of liberty’ v ‘detainees’ TasCOSS welcomes the inclusion in the Bill of places of inspection beyond primary places of detention. We therefore recommend the Bill replace ’detainee’ with ‘person or persons deprived of their liberty’ to reflect the fact that the NPM will inspect places where people are deprived of their liberty but are not detainees. Recommendation: Replace ‘detainee’ with ‘person or persons deprived of their liberty.’ 7
United Nations Office of the High Commissioner for Human Rights (2018) Preventing Torture, The Role of National Preventive Mechanisms, A Practical Guide, Professional Training Series No. 21. p 19.
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Inclusion of full text of OPCAT TasCOSS recommends the full text of OPCAT as a Schedule to the Bill. While this does not make the protocol part of Tasmanian law, it would signify Parliament’s commitment to meeting its OPCAT obligations. Recommendation: The full text of OPCAT is included as a Schedule in the Bill. Mapping While out of scope of the Bill, TasCOSS notes that OPCAT intersects with a range of other oversight and reporting mechanisms including in aged care, disability, Out of Home Care and primary places of detention. We therefore recommend the Government undertake a mapping exercise to establish all places where people may be deprived of their liberty and which oversight bodies therefore might need to become OPCAT-compliant NPMs. This exercise would also determine gaps in oversight that the NPM can address. Recommendation: The Tasmanian Government undertake a mapping exercise to establish all places where people are or may be deprived of their liberty and where there are gaps in oversight.
Conclusion TasCOSS does not support establishing the Custodial Inspector as a NPM and we urge the Government to consider alternative models that incorporate the expertise of civil society organisations. We further believe the Bill needs to include provision to adequately resource the NPM and to provide for protection against reprisals for anyone who reports to the NPM. We also propose amendments that would better align the Bill with the intention of OPCAT and provide better human rights protections for all Tasmanians.
Recommendations • • • • •
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The Government engage with Tasmanian civil society organisations and other relevant stakeholders about alternative options for a NPM. A provision guaranteeing the Tasmanian National Preventive Mechanism is provided with ‘the resources required for exercising their functions’ should be added to the Bill. Future State Budgets commencing in 202/23 should provide funding for the NPM and its functions. The Bill should include a provision to ensure people providing the Tasmanian National Preventive Mechanism with information are adequately protected for reprisals. Part 2, Section 12 (4) of the Bill (‘Staff’) should be amended to include the need for the Tasmanian National Preventive Mechanism to make efforts to recruit and retain Aboriginal and Torres Strait Island staff and people with a disability as a priority. Replace ‘detainee’ with ‘person or persons deprived of their liberty.’ The full text of OPCAT is included as a Schedule in the Bill.
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The Tasmanian Government undertake a mapping exercise to establish all places where people are or may be deprived of their liberty and where there are gaps in oversight.
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