Australia has deferred its responsibilities under a landmark United Nations anti-torture convention requiring independent inspections of prisons and detention centres, and won’t meet these obligations until 12 years after it first signed on to the protocol.
There are concerns that the federal government is dragging its feet on implementing the important mechanism, and is not providing adequate resourcing for state and territory governments.
Australia signed on to the UN’s Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in 2009, but the federal government did not ratify it until 2017.
OPCAT requires countries to allow for independent monitoring and inspections of places of detention by independent inspection bodies. In Australia, these inspection bodies will be established by state and territory governments with the federal government to play a national coordinating role.
Known as National Preventative Mechanisms (NPMs), these inspectors will monitor and inspect places of detention with the purpose of preventing “torture and other cruel, inhuman or degrading treatment or punishment”.
Places of detention that will be subject to these independent inspections include prisons, juvenile justice centres and onshore immigration detention centres.
Importantly, this will allow for truly independent inspections of places of detention that are proactive rather than reactive, OPCAT Network Australia’s Steven Caruana said.
“Having OPCAT allows inspecting bodies to test systems against legislation and to look at the factors that may not amount to torture or inhuman treatment but could contribute to them - it’s that preventative factor,” Caruana said.
This will also allow for independent scrutiny of Australia’s many privately run prisons, and more accurate comparisons with public facilities, Caruana said.
“There’s no limitation to what is preventative in the scope of OPCAT - it can look at the effects of privatisation on the way systems are run and whether there are any indicators to suggest that prisoners are more at risk of harm or ill-treatment in private rather than public facilities,” he said.
“There’s also the ability to do cross-jurisdictional comparisons, to potentially look at all private systems and compare them to the public ones to generate an evidence base to enable policy changes.”
Australia’s ratification of the protocol was described as a “once in a generation opportunity to improve how we protect the basic rights of people who are deprived of their liberty” by Human Rights Commissioner Ed Santow at the time.
But Australia is one of only a handful of countries in the world - alongside the Philippines, Hungary and Kazakhstan - to use an optional deferment on the deadline to implement its OPCAT requirements, giving the federal government an extra three years until these inspections have to be up and running.
OPCAT already allows for 12 months for countries to get the NPMs, meaning the scheme will not be in place in Australia until January 2022, four years after OPCAT was ratified.
The OPCAT agreement allows countries to make a declaration postponing the implementation of the obligations, for a maximum of three years, the deferment that the Australian government opted for.
This delay is “disappointing” and little progress has been made by the government to implement the OCPAT obligations, Caruana said.
“The lack of progress made to date is quite concerning, especially when we’re in the final year of operation until the NPMs come into place,” Caruana said.
A spokesperson for the Attorney-General’s Department confirmed the government had deferred its obligations under OPCAT, and that the state and territories were notified of this in early 2019.
“Australia continues to actively work toward the establishment of NPMs,” the spokesperson said.
It appears little progress has been made in recent years to implement the OPCAT obligations, with only the federal government and Western Australian government appointing their own independent inspection parties.
In a report on Australia’s implementation of OPCAT in mid-2020, Human Rights Commissioner Ed Santow said the government was moving “too slow”, and a number of “critical” questions remained only “partially resolved”.
“This has been despite the expression of public concern about conditions and treatment of people in different detention settings, ranging from police watch houses, juvenile detention facilities, immigration detention facilities, aged care and secure disability facilities,” Santow said in the report.
“There needs to be greater momentum towards implementation.”
The federal government has appointed the Office of the Commonwealth Ombudsman as the NPM coordinator, while the Western Australian government has listed the Western Australian Ombudsman for mental health and other secure facilities, and its Office of the Inspector for Custodial Services for prisons.
But there was no consultation on this decision by the WA government, Caruana said.
“There was no consultation with civil society around that nomination process and no additional funding or resources provided to the WA Inspectorate or the Ombudsman to undertake those roles,” he said. “Rather, we’ve seen, in the case of the Inspectorate, continued decreases in their funding.”
In Tasmania, the government is currently consulting on a bill that would hand NPM duties to the Custodial Inspector.
“It’s quite positive that they opened that up to public consultations, but to leave it until the last year is really disappointing,” Caruana said. “That’s ensuring that these decisions are rushed and there’s no real preparation for the network as a whole in being able to provide places of detention education on how OPCAT is different to their existing roles.”
The Victorian government is yet to announce what body or bodies it will designate as its NPM, although the state’s Ombudsman has thrown its hat in the ring to take on the role. Victorian Ombudsman Deborah Glass said the government needs to quickly get the ball rolling.
“I’m not sure there were too many feet on the pedals, but if there were they’ve certainly been taken off,” Glass said. “There’s been no visible signs of progress in designating a body.
“It needs to be appropriately independent, empowered and resourced. This is something my office could do and is willing to do, and I’d have the powers, but I don’t have the resources - nobody does.”
The Ombudsman has estimated that an independent inspector would require a budget of at least $2.5 million per year, with 12 full-time staff.
In response to questions lodged by Greens Senator Lidia Thorpe last year, the Attorney-General’s Department also confirmed that no funding will be provided to the states or territories to assist with the establishment of the NPMs, and the OPCAT obligations will not be enshrined in legislation.
But Caruana said it’s crucial that Australia’s obligations under OPCAT are included in legislation.
“It’s pretty clear from international practice that OPCAT needs to be enshrined in legislation and the fact that the Australian government doesn’t want to do that is not very reassuring,” he said.
“It’s clear that legislation is an absolute requirement to ensure this whole process is more than just tokenistic.”
The government has also said that places where individuals are detained for less than 24 hours, such as police watch houses, will not be included in the monitoring scheme.
Denham Sadler is a freelance journalist based in Melbourne. He covers politics and technology regularly for InnovationAus, and writes about other issues, including criminal justice, for publications including The Guardian and The Saturday Paper. He is also the senior editor of The Justice Map, a project to strengthen advocacy for criminal justice reform in Australia. You can follow him on Twitter.
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