Australia's Resistance to Implementing the Monitoring Mechanisms in the Optional Protocol to the Convention Against Torture: Restrictive Practices and People With Disabilities 'in the Community'

The Optional Protocol to the Convention Against Torture (OPCAT) establishes oversight mechanisms to prevent torture and other cruel, inhuman, or degrading treatment or punishment in places of detention.1 Australia ratified OPCAT in 2017, but has since failed to fully implement it. This article considers the mandate of OPCAT to prevent torture and other cruel, inhuman, or degrading treatment of people with disabilities subject to restrictive practices. This article focuses on Australia’s oversight obligations under OPCAT as they apply to restrictive practices for people with disabilities living in the community, in their own homes. We argue that inaction by the Australian Government in this specific area evinces a misplaced assumption that OPCAT oversight is inappropriate or unnecessary in these ostensibly personal and private places. Part I describes relevant Australian restrictive practices legislation, and reviews literature demonstrating that the use of restrictive practices heightens risks of inhuman treatment and torture. Part II provides an outline of the applicable international human rights obligations under OPCAT, the Convention Against Torture, Inhuman or Degrading Treatment and the Convention on the Rights of Persons with Disabilities. Part III explains Australian governments’ failure at state and federal levels to acknowledge that “private” homes, where people with disabilities are made subject to restrictive practices, may in fact be places of detention. Part IV examines the porous boundaries between public and private spaces which allow for assumptions that “homes” cannot be places of detention and are therefore inherently safe. Finally, Part V argues for acknowledgement by Australian governments—both state and federal— of their immediate obligation to apply OPCAT in homes where it is clear restrictive practices are, or may be, used.