*** This article was updated on 23 February to include comment from Amnesty International Australia***
The Federal Government is under pressure to act following the news that the United Nations Subcommittee on Prevention of Torture (SPT) has terminated its visit to Australia after the Queensland and New South Wales Governments blocked inspections in their states.
The health sector has been urged to engage with the issues of concern surrounding the UN Optional Protocol to the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (OPCAT).
Advocates note the significance of the issues for the health and wellbeing of people in prisons, immigration detention and a range of health-related institutions and aged care and disability facilities, reports Jennifer Doggett.
Jennifer Doggett writes:
A leading international human rights lawyer has urged the Federal Government to introduce national legislation compelling the states to allow inspections under a global human rights treaty that aims to improve protection of human rights for people in detention.
The call by Chris Sidoti, formerly an Australian Human Rights Commissioner and Australian Law Reform Commissioner, follows the news this week that the UN Subcommittee on Prevention of Torture (SPT) has terminated its visit to Australia after the Queensland and New South Wales Governments blocked inspections in their states.
“Australia as a whole is now in breach of its obligations under OPCAT because of the failure of the NSW and Queensland Governments to permit inspections by the international committee. Although the two States are responsible for the violation, the national government bears the international responsibility,” Sidoti told Croakey today.
“There is an easy but essential way out. The national parliament must legislate urgently to establish a national monitoring mechanism with full powers of inspection of all detention facilities, federal, state and territory, and to extend those powers to the international committee. This is now urgent and the obvious thing to do,” he said.
Adding to concerns about human rights abuses, the Queensland Government announced that it would override its own human rights act to charge children with criminal offences if they breach bail.
Croakey has previously reported on Australia’s repeated failures to meet our obligations under OPCAT.
On February 20, the SPT released a statement announcing its decision to suspend is planned visit to Australia after several postponements since Australia ratified the optional protocol in 2017.
“Despite the good cooperation the Subcommittee has with the Australian Federal Authorities following our initial mission, there is no alternative but to terminate the visit as the issue of unrestricted access to all places of deprivation of liberty in two states has not yet been resolved,” said Suzanne Jabbour, the newly re-elected Chairperson of the SPT stated.
Health sector radar
Steven Caruana, Coordinator of the Australia OPCAT Network, told Croakey that the SPT decision sends a clear message they are not happy with Australia’s failure to comply with our OPCAT obligations but it does not let Australia off the hook.
“The planned visit has been terminated but the SPT can decide in the future to instigate another visit. The ball is now back in our court and the Government needs to address the issues with NSW and Queensland, while also showing full commitment to OPCAT by establishing NPMs,” he said.
Caruana added that OPCAT is a critical issue for the health sector and one that should be on the radar of all health groups.
“OPCAT covers a range of health-related institutions, including mental health units and forensic disability units where oversight is very much needed,” he said.
“It also has the potential to cover aged care and disability facilities where we know from Royal Commissions there have been serious and widespread incidences of harm and misconduct.”
Caruana believes that OPCAT would be a good mechanism to being some external scrutiny to the healthcare provided in detention environments, including prisons and immigration facilities, which are supposed to provide a comparable standard of care to that available to the general community but in reality do not. He also suggests that it would be a useful way of building knowledge and an evidence base for future reforms in these areas.
Professor Megan Williams, a Wiradjuri woman and a researcher and advocate for healthcare for people in prison and the prevention of incarceration for Aboriginal and Torres Strait Islander people, described the SPT decision as a “lost opportunity” for hearing directly from and about the experiences of Aboriginal and Torres Strait Islander people and organisations.
This has “grave consequences”, particularly in preventing or creating the conditions for deaths in custody.
“This works against government commitments to reduce deaths of Aboriginal and Torres Strait Islander people in prisons,” Williams told Croakey.
“Data is sorely missing about experiences of Aboriginal and Torres Strait Islander people in prisons, and the UN has an important role in guiding the types of data needed, and its availability.
“If it’s a matter of being short on resources to visit, including the sentiment in NSW of being short on resources to implement actions to meet its commitments, then that is all the more reason to have the UN visit, to engage all levels of governments and identify whose responsibility is what.”
Williams is also a member of the AIHW National Prisoner Health Information Committee, Corrective Services NSW Aboriginal Advisory Council and Deadly Connections advisory board, and Chair of Croakey Health Media.
Williams added that she thinks about individual people in prison and their families, and what message we send about their wellbeing and lives.
“Cancelling or even postponing a visit can look simply like ‘this doesn’t matter’ even if there are other reasons potentially justifiable for cancelling. Clearer communication is needed to families and communities and those acting to have OPCAT implementation plans and actions happen,” she said.
In Queensland
Williams also highlighted the compounding impact of the SPT decision with that of the Queensland Government to charge children with a criminal offence for breaching bail conditions.
“The network of advocates for reform that supports wellbeing, health, community connections and community solutions is strong, but still does not seem to be heard by governments whose power is so strong to go backwards in the direction that worsens wellbeing and community responses to complex issues,” she said.
“Queensland has children in jail; its data about how these children are faring is available within government but in very limited ways, so people in Queensland Government decision making positions do not have access to it in timely ways, or to make informed and holistic decisions.”
Williams said there were few ways to hold the Queensland Government to account for worsening the lives of children in prison and their families.
“If the Queensland Government does not publish its data about wellbeing of children they jail for any reason, including breach of bail, the public remains naïve and can pretend nothing bad is happening,” she said.
“Nowhere in the world does data say prison helps children and their families to prevent the reasons any crime might occur, which is often linked to poor wellbeing and poor determinants of health. But data does show prisons contribute to the worsening of determinants of health over time.
“If the data that governments and researchers have access to were made publicly available, the community and decision makers would be shocked.”
Amnesty International Australia has called on the Queensland Government to put children’s rights first and drop proposed legislation to detain kids who breach bail contrary to its promised reforms to keep children in the community and out of custody, including the risk of being remanded in harmful adult watch houses.
“The idea that the Queensland Government is willing to override its own Human Rights Act to see children as young as 10 charged with the same offence as an adult for breaching bail conditions is abhorrent and incompatible with international standards to protect children by only detaining them as a last resort,” Amnesty International Australia Indigenous Rights Campaigner Kacey Teerman said in a statement.
“This decision to criminalise breach of bail for children that will disproportionately affect First Nations’ kids amounts to appalling disregard for their welfare and could trigger a human rights emergency in a broken system already ignoring the harm being done to First Nations children.
“What kind of country are we living in if we don’t make every effort to keep children out of detention before trial and at risk of being held in harmful adult watch houses exposed to adult detainees. The damaging effect this has on a child’s mental health and well-being cannot be undone.
“This announcement is a shameful backflip that dismantles the Queensland government’s former promises to put its energies into diversion programs and bail support services to keep children in the community instead of remanded in custody.”
Teerman said the Queensland Government’s move to amend legislation in blatant contravention of children’s rights highlights how inadequate human rights protections are in Australia as the only liberal democracy in the world without a national human rights protection.
Disappointing
The Australian National Preventive Mechanism (NPM) said that the SPT’s decision was a “disappointing outcome”, leaving Australia and Rwanda as the only countries where the SPT has decided to terminate a visit.
“Australian governments, detaining authorities, civil society organisations and other oversight bodies have lost a valuable opportunity to work cooperatively with the SPT to progress our shared goal of protecting the human rights of people in detention.”
The NPM statement also said that Australia’s existing network of NPM bodies remains firmly committed to its work of identifying risks of ill-treatment in places of detention and making recommendations for improving the treatment and conditions of people who are detained.
It called on all Australian governments to appoint NPMs, legislate their role and powers, and resource them fully to discharge their mandate to carry out preventive visits to places of detention.
Responding to the SPT’s decision, Human Rights Commissioner Lorraine Finlay and Commission President Emeritus Professor Rosalind Croucher AM called on Attorneys-General from across the country to meet urgently to reaffirm Australia’s commitment to OPCAT and to outline immediate and tangible steps for ensuring Australia complies with its OPCAT obligations.
“This decision by the UN SPT reflects poorly on our country’s commitment to protecting the human rights of people in detention and is detrimental to Australia’s international standing. It brings Australia a step closer to being placed on the UN’s Article 17 OPCAT non-compliance list, a collection of countries whose OPCAT compliance is substantially overdue,” they said.
“This outcome could severely damage Australia’s reputation as a leading advocate for a rules-based international system.”
Maggie Munn, Gunggari person and Acting Executive Officer of Change The Record, highlighted the missed opportunity that the visit provided to drive improvements to Australia’s poor human rights records in detention settings.
“The rates with which human rights abuses occur in this country within detention facilities, prisons, and hospital or care settings is outrageous and we had an opportunity to shine a light on that and bring about change with the United Nations SPT visit. That this opportunity no longer exists because of state governments playing politics and refusing the entry of the delegation to these facilities is an appalling stain on Australia’s human rights record.
“Legal, advocacy, health and community services sectors have long called for our governments to implement OPCAT and to put an end to the human rights abuses that continue to cause harm to so many. States and territory governments must stop playing politics with people’s lives, and start upholding international human rights laws,” Munn said.
Shameful
Amala Ramarathinam, Acting Managing Lawyer at the Human Rights Law Centre, added that the decision was “a stain on Australia’s human rights record” and called on Australia to implement the OPCAT treaty immediately if it wants to be taken seriously on the international stage.
“Australia’s youth legal system is in crisis and we have again recently heard harrowing accounts of the brutal treatment and systemic abuse of children in youth prisons in NSW, NT, WA and Tasmania. Governments have known for decades that robust and independent oversight of all places of detention is sorely needed. Their continued failure to implement anti-torture mechanisms is a callous and dangerous disregard of the rights and lives of people behind bars,” she said.
President of the Australian Lawyers for Human Rights, Kerry Weste, warned that Australia’s failure to protect the human rights of people in detention left those most vulnerable to torture, cruel, inhumane or degrading treatment or punishment at heightened risk and also sent a dangerous signal to other countries.
“How can Australia credibly promote human rights in the region and globally while in flagrant breach of our own obligations?” she asked.
Weste said that the ALHR condemns “in the strongest possible terms” conduct that necessarily serves to obstruct or impede the preventive mandate of the SPT which is focused on a proactive approach to preventing the torture and ill treatment of vulnerable adults and children.
In a statement released on 21 February, Sophie McNeill, the Australian researcher for Human Rights Watch, called the SPT decision “shameful for the Albanese Government”, and said it sets a terrible example to other governments in this region who don’t need more excuses to defy the UN.
From Twitter
On OPCAT
On the Queensland Government
See Croakey’s previous coverage of OPCAT
