OPCAT’s impact on Australia’s immigration detention system, onshore, offshore and at sea

Australia’s commitment under the Optional Protocol to the Convention against Torture (OPCAT) to prevent torture and other cruelty by allowing independent monitoring of places of immigration detention extends to regional processing centres on Nauru and Manus Island, as well as to any place where asylum seekers are detained at sea, Kaldor Centre Senior Research Associate Madeline Gleeson writes in a new article in the Australian Journal of Human Rights.

Australia ratified this major international treaty in December 2017. OPCAT is designed to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment, by establishing a system of regular visits by independent international and national bodies to places where people are or may be deprived of their liberty, including prisons, mental health facilities and immigration detention centres. 

As part of a special edition of the Journal examining various aspects of OPCAT’s implementation, Gleeson examines immigration detention. She considers where, in an immigration context, people are or may be deprived of their liberty – not just in closed detention facilities, but also in transit zones and temporary accommodation, in other countries (‘offshore’), and at sea. Notably, Gleeson argues that it may be logistically impossible for Australia to comply fully with its OPCAT obligations unless key features of Australia’s current boat ‘turnback’ operations are reviewed, in particular, the practice of detaining asylum seekers on Australian or other vessels. 

The article, ‘Monitoring places of immigration detention in Australia under OPCAT’, also reviews how Australia’s preventive inspection regime might operate, noting the role of various bodies that already oversee the Australian immigration detention network, including the Commonwealth Ombudsman, the Australian Human Rights Commission, UNHCR and the Australian Red Cross. Gleeson highlights a number of important questions yet to be resolved. How will adequate resourcing and independence be guaranteed for the Commonwealth Ombudsman, which has been tasked not only with coordinating all the Australian inspection bodies but also with visiting federal immigration facilities itself? And how will Australia’s OPCAT obligations be reconciled with the current secrecy provisions governing certain immigration matters? 

To read Gleeson’s full article on the issues and challenges for Australia’s implementation of its OPCAT obligations in relation to places of immigration detention, please visit the journal.