Alison Barrett writes:
Public health, Indigenous, legal and human rights groups have expressed “profound concern” over the “clear breach” of Australia’s obligations under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
The United Nations Subcommittee on Prevention of Torture (SPT) suspended its visit to Australia after being denied access to detention facilities in NSW and inpatient units in Queensland last week. The visit had been “compromised”, according to Head of the Delegation Ms Aisha Shujune Muhammad, speaking on ABC Radio National’s Law Report this week.
Muhammad said the SPT members were surprised by the denied access in NSW and QLD – “we really did not expect this from Australia”.
By registering with the OPCAT, Australia has promised that “it will give us unfettered access to places of deprivation of liberty to people in those facilities and to documentation relating to those people and those facilities”, Muhammad told the program.
In 15 years of undertaking such visits, this is the fourth time that the UN SPT has made the decision to suspend a visit, according to Muhammad.
“Australia does need to step up to its international obligations” on human rights, Muhammad said.
Change the Record, a First Nations-led coalition of legal, health and family violence prevention experts, was “extremely concerned” by the NSW Government decision to block the SPT from visiting places of detention, Co-Chair Cheryl Axleby told Croakey.
“First Nations peoples continue to be subjected to discrimination, violence and harassment in police and prison custody in NSW, with no independent oversight or accountability. This cynical move shows just how important it is for OPCAT to be implemented in full, now, in all jurisdictions.”
Obstructed mandate
While arguments have been put forward that SPT could continue the visit in other states and territories, Muhammad explained that they do not see Federal states and territories separately – “we see the state party as being Australia as a country”.
Not being provided access to facilities in some states is “an obstruction to our mandate”.
According to freelance journalist Denham Sadler in The Justice Map, the “Federal Government has so far refused to provide ongoing funding to the states to implement their obligations under OPCAT” which are aimed at adhering to human rights in places of detention.
Muhammad said the decisions by NSW and Queensland Governments indicated a lack of understanding about what the SPT does, emphasising that they are not here to inspect or investigate but look at systems in place – they are also bound by strict confidentiality obligations.
Of the previous three visits that SPT has suspended, one was “terminated on the grounds of systemic non-cooperation”. The other two visits resumed soon after, according to Muhammad.
While unable to provide a timeline, Muhammad said “there’s still the possibility of resuming the visit [in Australia] in due course, but SPT has to be given assurances of unfettered access”.
The Queensland Government announced this afternoon it will introduce legislation by the end of the year that would allow the SPT to visit its inpatient units.
Statement of concern
A statement of concern, led by the Australian Lawyers for Human Rights organisation, “strongly condemned” the decisions to deny SPT access to the facilities in NSW and QLD.
“OPCAT is designed to protect the fundamental human rights of people detained in places including, but not limited to, prisons, juvenile detention centres, immigration detention centres, hospitals, mental health facilities, aged care facilities and facilities for people with disability,” the statement said.
Therefore, it is imperative that the SPT has unobstructed access to these places of deprivation of liberty, “which is focused on a proactive approach to preventing the torture and ill treatment of vulnerable adults and children”.
Signatories of the statement include Australian human rights, lawyers, disability, social service and activist groups and individuals who call on “all jurisdictions across Australia to consider the recommendations of the Australian Human Rights Commission’s Road Map to OPCAT Compliance and, where they are yet to legislate, commit to the urgent introduction of overarching legislation to translate Australia’s OPCAT obligations into domestic law.”
Health sector response
Many health organisations have so far been quiet on the issue. Among the health-related organisations that have signed the statement of concern are the Public Health Association of Australia, Australian Council of Social Services and some state subsidiaries, People with Disability, First Peoples Disability Network Australia and Dementia Alliance International.
Croakey asked the National Mental Health Commission, Royal Australian College of General Practitioners, The Royal Australian and New Zealand College of Psychiatrists, Victorian Mental Illness Awareness Council and Victorian Aboriginal Legal Service for comment on the suspended visit.
NMHC and RACGP declined to provide a comment.
CEO of VALS Nerita Wright said in a statement:
It is incredibly disappointing that the UN’s SPT committee was forced to suspend its visit to Australia due to the behaviour of a few recalcitrant state governments.
Three Aboriginal people died in Victoria’s prisons in the last 12 months. Earlier this year, at the Coronial Inquest into the passing of Veronica Nelson, there was shocking evidence about the treatment of people in prison and the poor quality of healthcare in custody. It’s clear the current oversight system is not working.
Many Victorian politicians have gone on the record to highlight the importance of OPCAT and independent detention oversight.
Victoria’s commitment to preventing torture should not be limited or abandoned because of the failing federal process.
Victoria has increased spending on prisons and police at double the rate of other states over the last decade. If they have money to build more and bigger prisons, then they have the responsibility to spend some of that money ensuring people are not tortured in those prisons.
Victoria should show leadership and establish world class independent detention oversight. They have a responsibility to get this right and get it done quickly.”
CEO of VMIAC Craig Wallace told Croakey:
VMIAC are deeply concerned and disappointed to hear access visits were blocked to the UN Subcommittee on Prevention of Torture (SPT) in Queensland and NSW.
Australia ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in 2017 and the obligations have been known since then.
OPCAT is viewed as an important preventative measure to support human rights in a range of institutions in this country. Significant to VMIAC, many types of prisons or detention facilities have high numbers of people experiencing poor mental health, either before they were there, or subsequently due to poor conditions in these facilities. Also important to anyone who cares about the rights of mental health consumers is that OPCAT is one of the broader mechanisms that enable access to disability care homes, mental health facilities and also aged care facilities.
This clear breach of Australia’s obligations under OPCAT will be a significant blow to both local and global community trust in how the full scope of facilities under this treaty are run and operated. The Government must ensure due process and access to all site visits moving forward.
The subcommittee can return under the treaty, but the Government needs to give assurances any visits will not suffer similar setbacks.”
RANZCP President Associate Professor Vinay Lakra told Croakey:
Our emphasis remains that everyone should be provided good quality care, that there should be systems in place to monitor system interventions…that it happens consistently across the country in all jurisdictions. And that it also happens in all facilities including forensic facilities, detention centres and acute inpatient unites.”
Croakey also reached out to Health Minister Mark Butler’s office, who directed us to the Attorney Generals Department.
Attorney General Mark Dreyfus said in a statement on Monday:
The Australian Government regrets the decision of the United Nations Subcommittee on Prevention of Torture (SPT) to suspend its visit to Australia.
It is disappointing that the New South Wales Government refused to allow the SPT to visit any state-run places of detention across that state.
The SPT experienced some difficulties in accessing specific places of detention in jurisdictions other than NSW. These difficulties were unfortunate, but attempts were made to resolve issues in good faith. Access to Commonwealth-run places of detention were facilitated in all cases.
Australia has been a party to the Convention since 1989 and ratified the Optional Protocol in 2017. No state or territory objected to ratification. No state or territory has requested funding to facilitate the SPT’s visit, which had its costs met by the UN.
The decision of the SPT to cancel its visit, more than halfway through its scheduled time in Australia, is a development that could have been avoided. The SPT had carried out a number of successful visits to places of detention across the country.
The suspension of the visit does not change the Australian Government’s commitment to promoting and protecting human rights domestically and internationally. It is vital that places of detention in Australia maintain the rights of those who are held within their walls. Australia does not resile from efforts to raise global human rights standards and hold others to account. Likewise, we remain willing to face scrutiny of our own human rights record.
I assure the Australian people and the international community that the Australian Government’s commitment to human rights endures. The Government will continue to raise these matters with states and territories.”
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