Australia’s lack of progress in fufilling its obligations under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (OPCAT) is facing international scrutiny, reports Steven Caruana.
He is coordinator of the Australia OPCAT Network, a coalition of over 200 non-government organisations, academics, statutory officer holders and interested individuals concerned with the effective implementation of oversight to Australian places of detention.
Steven Caruana writes:
Last month, the United Nations Subcommittee on Prevention of Torture (SPT) published a press release signifying it would be visiting Australia in the ‘second half of this year.’ The SPT had planned to visit Australia in early 2019 but its mission was thwarted by the onset of the COVID-19 pandemic.
With international borders slowly reopening, the SPT has once again turned its sights to Australia, and with good reason.
The SPT signified that their visit serves a dual purpose: to fulfill a ‘mandate to protect people deprived of liberty in a variety of settings…’; and to ‘…support the establishment of the [National Preventive] mechanism in countries where it does not yet exist.’ While both purposes are equally important, it is the latter that is particularly significant in the Australian context.
Despite having ratified the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (OPCAT) in 2017, Australia’s progression towards fulfilling its treaty obligations have been considerably listless, prompting the Australian Human Rights Commissioner to describe it as ‘simply not good enough.’
Signatories to the treaty are provided one year at ratification to create a mechanism to regularly monitor the situation of people deprived of their liberty throughout the country. Its aim is not only to identify harmful systemic practices, but to prevent them from occurring through constructive dialogue, public reporting, broader education around human rights and commentary concerning legislative reform.
Due to the federated nature of government in Australia, the Commonwealth opted to extend the one-year deadline to four years as the treaty allows, to negotiate the terms and resourcing of the National Preventive Mechanism (NPM) with the state and territories who would largely shoulder the bulk of the work.
In that four-year period, the Commonwealth, Western Australia, Tasmania, and the Australian Capital Territory nominated existing statutory oversight bodies to fulfil the role. The Northern Territory nominated an interim NPM, and South Australia opted to create a new mechanism for oversight of prisons but has not yet legislated or designated for other places of detention. New South Wales, Queensland and Victoria however have shown strident resistance towards designating their NPMs in a stalemate with the Commonwealth over funding.
In a response to questions at Budget Estimates in 2021, the New South Wales Attorney General, Mark Speakman, brazenly remarked that ‘[t]he implementation of the …(OPCAT) is an initiative of the Commonwealth Government. NSW did not support the ratification of OPCAT before resourcing concerns were addressed and does not support implementation until those concerns are addressed.’
More recently, the Queensland Minister for Children and Youth Justice, Leanne Linard, also articulated that ‘[u]ntil ongoing funding for OPCAT is resolved with the Commonwealth, Queensland will not make a formal commitment to implement OPCAT.’
In an attempt to break the stalemate, the previous Government announced funding over two years from 2021-22 to support the states and territories to meet the treaty obligations. The announcement did not, however, achieve the desired result and as Australia faced its looming deadline for compliance, the previous Government requested an additional year extension from the United Nations, citing COVID-19 as the reason for the delay.
In June this year, the United Nations Committee against Torture in conjunction with the SPT, granted Australia the extension, making it only the second country to have ever been given additional time.
However, the extension did not come without conditions; Australia is expected to have a mechanism in full compliance with the OPCAT by January 2023 and is required to report to the Committee against Torture in October of the progress it has made.
The timing of the SPT visit raises some very concerning questions for Australia’s human rights reputation given the prior remarks made by various state and territory governments.
When asked about the funding impasse earlier this year, New South Wales Attorney General Mark Speakman stated ‘[i]t cannot go on indefinitely because, sooner or later, there will be OPCAT inspectors who will want to come here. I think that will bring the issue to a head.’
At a 2021 Estimates Hearings in Western Australia, Corrective Services Minister, William Johnston, also stated ‘If some strange person that the state government does not know turns up to a prison on a Saturday night and asks to get in, they are going to have a problem. We are very happy to have OPCAT in Western Australia – we think it is a great step forward – but we need to understand how it is going to be executed.’
In 2019 the Victorian Ombudsman costed her office performing the NPM role for the entire state to require ‘approximately 12 Full Time Equivalent staff and have an operating budget of approximately $2.5 million.’
In that same year Greens Senator Nick McKim aptly reminded the previous Government, in the context of it reopening the Christmas Island Immigration Detention Centre to house one Sri Lankan family, that ‘six months of operational cost to keep Christmas Island open ($30 million) is roughly equivalent to funding the WA Office of the Inspector of Custodial Services for seven years.’
In 2019 the Commonwealth Ombudsman recommended that ‘[g]overnments should consider the extent (if any) to which legislation is required to be introduced to support the visiting and unfettered access functions of the SPT.’
The Australian Human Rights Commission made a stronger argument urging for primary legislation which would ‘…provide a clear foundation for SPT visits and ensure SPT access to facilities and information; and secure the continued, long-term and effective operation of OPCAT.’
Without both an overarching legal framework for OPCAT compliance and a funding agreement, the current Government may face a situation where some states and territories will blatantly refuse to allow the SPT to visit their places of detention despite the commitment to unfetted access.
The SPT visit may indeed ‘bring the issue to a head’, forcing the Government to agree to ongoing funding or face the likelihood of intense international embarrassment, particularly at a time where we should be celebrating our commitment against torture, with the recent election of an Australian and the first female Special Rapportur Against Torture mandate holder, Dr Alice Edwards.
What has perhaps been the most overlooked aspect of the politicisation of the OPCAT debate are those to whom it seeks to protect.
OPCAT provides a framework to improve not only the conditions of those we detain but aims to makes these institutions safer for the staff who work within them.
OPCAT applies not only to prisons, youth detention and immigration detention but equally extends to aged care, hotel quarantine, disability group homes and mental health settings. Institutions that every Australian is invariably connected to in one way or another at various stages of our lives.
OPCAT should not merely be seen as some distant international agreement, it’s a commitment to ensuring domestically we never see again what we saw happen at the Don Dale Youth Detention Centre or the Oakden Older Persons Mental Health Service.
The time for decisive action on this matter is well and truly upon us.
Steven Caruana is coordinator of the Australia OPCAT Network, a coalition of over 200 non-government organisations, academics, statutory officer holders and interested individuals concerned with the effective implementation of oversight to Australian places of detention. Steven is additionally the Specialist Advisor on Immigration and OPCAT for the Australian Human Rights Commission. Steven is an Official Visitor to New South Wales mental health units and was formerly a detention monitor for both the Office of the Inspector of Custodial Services Western Australia and the Office of the Commonwealth Ombudsman. Steven is a Churchill Fellowship recipient and has reported on OPCAT implementation experiences abroad.
Previously at Croakey:
- Looking in on the inside: why OPCAT is needed for Australian prisons, detention centres
- Scrutinising efforts to improve scrutiny of conditions for children and adults in detention