The New South Wales government won’t implement its requirements under a UN anti-torture convention, including independent inspections of prisons and detention centres, without additional funding from the federal government.
Australia signed the UN’s Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in 2009, but did not ratify it until 2017.
OPCAT requires countries to allow for independent monitoring and inspections of places of detention by independent inspection bodies. These bodies, known as National Preventive Mechanisms (NPMs), will be established by the state and territory governments, with the federal government to play a coordinating role.
The NPMs will monitor and inspect places of detention with the purpose of proactively preventing “torture and other cruel, inhuman or degrading treatment or punishment”.
It’s hoped that the independent inspections will improve conditions in these places of detention and lift up transparency and accountability in these places.
Australia has been given four years to implement OPCAT, with the deadline of January 2022 now fast approaching.
But only Western Australia and the Commonwealth have appointed their NPMs, with the largest states showing little or no progress despite the fast-approaching start date.
In the surest sign yet that many states won’t have independent bodies to inspect places of detention up and running by early next year, as the UN convention requires, the NSW government has said it won’t be moving ahead with the scheme unless the Commonwealth provides more resources.
It’s likely to be a deadlock, with the federal government repeatedly appearing unwilling to commit to provide funding to the states and territories, and has confirmed it will not be baking the obligations into legislation. It’s also unclear whether the government will even produce an intergovernmental agreed with the states on the anti-torture agreement.
In answers to questions on notice from Greens MP David Shoebridge, the NSW government said it wouldn’t be moving ahead with the OPCAT implementation unless it was provided more funding from the federal government.
“NSW did not support the ratification of OPCAT before resourcing concerns were addressed and does not support implementation until those concerns are addressed,” the NSW government said in response.
“NSW already has one of the strongest custodial oversight mechanisms in the country. However, NSW oversight bodies will not be able to perform the additional functions required by OPCAT within existing resources without compromising their ability to fulfil existing functions.”
The state government has refused to even begin consulting on implementing OPCAT until it is given a funding assurance.
“The NSW government does not intend to consult on OPCAT implementation until those resourcing concerns are addressed,” they said.
“The government is unable to determine the opposition of the NPMs in NSW until those concerns are addressed.”
The federal government has shown no signs that it is willing to provide extra funding to the states and territories to implement OPCAT, and has continually referred to a statement in 2019 that it “will discuss funding issues with the states and territories”. Two years later it appears these discussions are yet to begin.
It’s now virtually confirmed that Australia’s biggest state will not have its obligations under OPCAT up and running by the required state date in January next year.
It comes just weeks after the NSW Ombudsman called on the state government to “move expeditiously to nominate, fund and operationalise NPMs in accordance with Australia’s obligations under the OPCAT”.
The Ombudsman said having this scheme up and running earlier would have been useful during the COVID-19 pandemic.
“If one or more NPMs had been operating in NSW in accordance with OPCAT during the COVID-19 pandemic, this would likely have had significant implications for oversight - given the particular impacts of the pandemic on people in places of detention as well as the establishment of new places of detention,” the Ombudsman said.
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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