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ABC News
ABC News
National
the Specialist Reporting Team's Katherine Gregory and Brooke Fryer

Australia facing questions at the UN about 'horrific' issues and 'significant concerns'

In the same week ABC's Four Corners revealed allegations of abuse inside a West Australian youth detention facility, the United Nations has been grilling Australia over its treatment of people in detention.

The UN Committee Against Torture holds regular hearings to assess whether countries are meeting their obligations under the Convention Against Torture. This is Australia's sixth review.

However, this hearing came following the UN accusing Australia of breaching its human rights obligations, after UN inspectors cancelled a tour of detention facilities due to a lack of cooperation.

The government also faced tough questions on youth and immigration detention, Indigenous incarceration and Aboriginal deaths in custody. 

And the committee also criticised the continued use of some restraint practices, like spit hoods.

"We want to know how this issue is being handled," committee member Ilvija Pūce said.

"Using spit hoods can amount to ill treatment and they have fostered the worsening of a person's physical health and even death."

Latoya Rule knows the devastating consequences of spit hoods.

Their brother, Wayne "Fella" Morrison — a Wiradjuri, Kookatha and Wirangu man — died in 2016 after being restrained at the wrists and ankles, placed in a spit hood and carried, face down, chest down into a prison transport van.

The inquest into his death is still pending.

South Australia has since criminalised the use of spit hoods, but other states and territories are yet to follow suit.

That's why Latoya Rule has been campaigning for a national ban on spit hoods.

"Spit hoods have been recognised as Guantanamo Bay-type inventions. And that place … is the pinnacle of torture," they said.

"Doing away with spit hoods is actually about human rights."

Australia 'not taking steps' to fix issues

Latoya Rule is one of dozens of advocates and human rights groups that have made submissions to the UN Committee Against Torture ahead of this week's hearings.

Among them was the Australian Human Rights Commission.

Commissioner Lorraine Finlay gave a private briefing to the committee before the public hearings, focusing on mandatory immigration detention, offshore processing and systemic issues in the criminal justice system.

That included the "over-representation of First Nations people in detention and some really serious issues with youth detention centres", she said.

Commissioner Finlay said that, while there was much Australia could be proud of with respect to its human rights record, it also needed to make significant progress in certain areas.

"It's very easy to look at other countries whose records are worse than Australia's," she said.

"But, at the end of the day, we don't want the standard we're setting to simply be that we're not the worst in the world."

The commissioner raised alarm about the lengthy time periods asylum seekers spend in detention, which she said made Australia an "outlier".

She also expressed concern that some of the key recommendations of the Northern Territory Royal Commission into Youth Detention have not been implemented.

"We know what the problems are but we haven't taken the steps to actually fix them," she said.

'Horrific' issues and 'significant concern'

The UN Committee Against Torture's line of questioning revealed its level of alarm over some of these issues. 

"If we talk about the over-representation of Aboriginal people in detention, it really is horrific," Ms Pūce said. 

She pointed out it is an issue that has been raised for decades. 

"And it's not yet solved," Ms Pūce said.

Ms Pūce also wasn't satisfied with the Australian government's response to the committee's questions about stopping the use of solitary confinement and restraints on children in youth detention.

"Reading reports by both national and also international institutions, judges and inspectors, we see the situation is not so rosy at all," she said.

Another UN committee member, Erdogan Iscan, said Australia's approach to immigration detention raised "significant concern" for the committee, particularly because of the lack of "transparency" in the system. 

"The committee notes the severe and detrimental impact of immigration detention on the health and psychological health of asylum seekers, who are already victims of torture," Mr Iscan said. 

He also asked Australia when it would end the mandatory detention of child asylum seekers and only use it as a "last resort" for adults.

So what now for Australia?

Australia is racing against the clock to make sure it meets its international human rights obligations.

One is the Convention Against Torture and the other is the Optional Protocol to the Convention Against Torture (OPCAT). 

Under OPCAT, Australia needs to ensure the UN's Subcommittee on Prevention of Torture (SPT) can make unannounced visits to places of detention.

That's why Australia made international headlines last month, when the SPT had to suspend its tour of Australian facilities, after New South Wales and Queensland stopped the delegation from having full access to their prisons.

Head of the SPT delegation Aisha Shujune Muhammad said it was not a decision taken lightly.

"I have to say that this is only the fourth time in the 15 years of existence of the SPT that a visit has been suspended," she said. 

The only other countries that failed to provide full access to UN inspectors were Azerbaijan, Rwanda and Ukraine. 

Now, Australia has to guarantee states and territories can offer unfettered access, to ensure the SPT can resume its visit.

Last month, UN prison inspectors suspended a visit to Australia due to a lack of cooperation.

Australia's other obligation under OPCAT is establishing what's called National Preventive Mechanisms (NPMs) in each state and territory to oversee prisons and detention centres.

However, there are delays to getting them up and running in most states and territories and the January 2023 deadline is fast approaching. 

"Australia has had five years to establish the NPMs," Ms Muhammad said.

"So having had five years and not being able to establish an NPM speaks for itself."

'More needs to be done': Australia

The Australian delegation repeatedly assured the committee it was working with New South Wales and Queensland to ensure the SPT gained access to the state prisons on its next visit. 

"We actively supported the visit and we would be keen to see it resumed," the head of the delegation, Simon Newnham, said.

He also told the committee that the government was working hard to establish the NPMs by the deadline. 

"Australia is committed to its implementation of OPCAT," Mr Newnham said.

Mr Newnham told the body that every Aboriginal death in custody was "considered a tragedy".

"We have a disproportionate incarceration rate for First Nations adults and youths, so reducing Indigenous incarceration rates provides the best means of reducing deaths in custody," he said.

"Considerable efforts have been made, but more needs to be done."

Mr Newnham pointed out that each state and territory makes its own laws on the use of restraints and spit hoods in detention, but there are overall limitations on how they can be used. 

He also said the attorney-general was deeply concerned by recent reports about conditions in juvenile detention and he was considering what role the Commonwealth could play in addressing the issue.

The committee is expected to publish a report into its review of Australia in the coming weeks.

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