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Introduction

1. On 21 December 2017, the Australian Government ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).  This is a major advancement in human rights protection in Australia.

2. OPCAT requires independent inspections of all places of detention in Australia.

3. By ratifying OPCAT, Australia has signalled to the world that it will comply with the treaty. The next step is to implement OPCAT by incorporating the terms of the treaty as necessary into Australian law, policy and practice. Australia has invoked article 24 of OPCAT, which allows for a three-year period to introduce measures to fully implement the treaty.

4. Each country has some discretion or flexibility in determining precisely how to implement a treaty in its own legal system. This reflects that a treaty needs to be adapted to local conditions to ensure that it is effective in achieving its aims. OPCAT is no different. The Australian Government is now working with the states and territories to determine the best way to implement OPCAT in Australia.

5. In this context, in February 2017, the then Attorney-General asked Australia’s Human Rights Commissioner to lead a consultation process with civil society regarding how OPCAT should be implemented in Australia.  The Commission is conducting this consultation in two stages. This document forms the basis of the second round of consultation by the Commission.

6. The first stage of this consultation took place before Australia ratified OPCAT. The focus of this initial consultation was on five questions on which the Government sought feedback regarding OPCAT implementation, prior to ratification. In September 2017, the Commission communicated an Interim Report to the Attorney-General, setting out its preliminary views on these five questions (the Interim Report). The Interim Report is published as an appendix to this Consultation Paper.

7. In this second stage of consultation with civil society, the Commission invites comments on the proposals set out in the Interim Report, as well as a further set of questions regarding how OPCAT should be implemented in Australia. The two stages of the Commission’s consultation are intended to be complementary.