Australian state and territories are dragging their feet in implementing obligations under a UN anti-torture convention as the deadline fast approaches, with the two biggest jurisdictions making no visible progress.
It’s now less than a year until each state and territory will have to have its own fully independent inspector of prisons and other places of detention, known as a National Preventive Mechanism (NPM), after the federal government deferred its obligations for four years.
The government ratified the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in 2017, but deferred the implementation of obligations until February 2022.
Places subject to these independent inspections include prisons, immigration detention centres and juvenile justice centres.
OPCAT requires countries to facilitate independent monitoring and inspections of places of detention by UN bodies and the NPMs. Under the federated model, the Commonwealth will play a coordinating role, with each state and territory to appoint its own NPM.
States have had three years to prepare for the new scheme, but only Western Australia has nominated its NPM, with the state’s ombudsman and Office of Custodial Inspection Services to share the duties.
The federal government has also appointed the Commonwealth Ombudsman to play an OPCAT coordinating role.
But no other jurisdiction has formally nominated its NPM, with progress varying drastically across the country.
Australia’s two largest states, Victoria and NSW, have made little or no progress in implementing OPCAT, and it remains unclear what bodies will conduct the independent inspections and how, with less than a year until they have to be fully operational.
This lack of progress is “very disappointing”, Australian OPCAT Network’s Steven Caruana said.
“It’s baffling to me why they would be so quiet,” Caruana said. “They’re fairly progressive states. You’ve got NSW which currently has a senate committee looking at Aboriginal deaths in custody and oversight, you’d think that would be the perfect opportunity to leverage information they’re getting to put in place an OPCAT system.
“I think they’re missing these opportunities right there at their doorstep.”
The Victorian government is yet to name its independent inspector, and its current prisons inspection body is unable to currently meet the requirements of OPCAT, as it is housed within the Department of Justice.
The Victorian Ombudsman has thrown its hat in the ring to be the state’s NPM, and has conducted trial inspections of prisons in the state.
Caruana said this was shown to be effective, and the Victorian government needs to follow this model urgently.
“It would be more appropriate to use what the Victorian Ombudsman has done as NPM rather than looking at trying to hack the internal inspection system and try to make it independent. It should have already happened,” Caruana said.
“The Victorian Ombudsman did the heavy work for them. That’s a model Victoria would’ve implemented then and there - they could have accepted that as what they’d do. The fact that hasn’t happened is a real shame. It’s a real wasted opportunity.
“If that model had been accepted in 2019 or 2020 then you’d have had these last couple of years to build up awareness for the Victorian corrections system and other places of detention in Victoria so they knew what was going on rather than a last minute decision and then to leave the body to fumble its way through.”
The NSW government has also been largely silent on the issue and is yet to appoint its NPM or reveal any progress behind the scenes.
The South Australian government this week amended its proposed bill implementing OPCAT in the state after the initial legislation was branded “inadequate” and “half-baked” by advocates. The proposed model didn’t sufficiently guarantee the independence of the inspectors, and the body would have been funded through the department.
But in amendments revealed on Wednesday, the legislation now ensures that funding for the office won’t come from the department, and that the visitors will have “free and unfettered” access and to do all things necessary in performing their role.
The legislation is now largely OPCAT-compliant, Caruana said, although the “official visitors” model which will be implemented in SA is not as effective as having a state inspectorate. South Australia is now well ahead of most other states on implementing OPCAT.
The Tasmanian government has released legislation for consultation on its own custodial inspector, with Amnesty International saying this is a good start but much work is left to be done to make the scheme OPCAT-compliant.
This includes necessary improvements to the inspector’s independence, the scope of the inspections and access to the places of detention.
The ACT government has passed legislation allowing for UN visits of places of detention in Canberra, but is yet to nominate its NPM. The government will be holding a roundtable with civil society groups at the end of the month on this issue.
The Northern Territory has also passed legislation for UN visits, but is yet to appoint its NPM. The government has promised consultation on the issue but is yet to deliver on this, Caruana said.
In Queensland, the state government has confirmed it will look to create its own independent prisons inspector, but is yet to open consultation on the issue, despite recent calls for an independent inspector to be urgently appointed in light of recent reports on youth justice facilities.
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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