Australia delays UN human rights convention obligations again

Another extension has given Australia a further seven months to impement the measures aiming to prevent human rights abuses in places of detention.

Australia has been granted a further one-year extension on its obligations under a UN anti-torture convention aiming to prevent human rights abuses in places of detention, making it only the second country along with Romania to need the extra time.

The UN Committee Against Torture and Subcommittee on Prevention Against Torture revealed it had approved Australia’s request for a one year extension on its Optional Protocal to the Convention Against Torture (OPCAT) this month.

This has put a new deadline of 20 January 2023 in place, more than five years after Australia ratified the UN convention. And while Australia used the ongoing pandemic as a reason for the delays, Australia had more than two years to prepare before the onset of Covid-19.

OPCAT requires signatory nations to allow a group of UN experts unrestricted access to all places of detention, including prisons and immigration detention centres, and the establishment of independent oversight bodies of these places, known as National Preventive Mechanisms (NPMs), to conduct proactive inspections.

Australia has already taken advantage of the maximum deferral time possible of three years after ratifying the agreement in late 2017. On top of the existing one year given to countries to get the scheme up and running, this gave Australia a deadline of 20 January this year to have its obligations off the ground.

But Australia failed to comply with this deadline and its two largest states - New South Wales and Victoria - have not yet launched any consultation on their NPMs, let alone release draft legislation, in the more than four years since then.

Australia wrote to request the extension on 20 December last year, using the Covid-19 pandemic, issues relating to the federal system of governance and resourcing as justification.

A representative from Australia also attended a private meeting with the Committee in April to explain the need for the extension.

The Committee this week approved the request.

“While noting the elements invoked by Australia in seeking the current extension, the Committee takes this decision on the assumption that the state party will establish its national preventive mechanism in full adherence to the provisions of Part IV of the Optional Protocol, especially concerning its independence and resources,” it said.

“To this effect, the party state should ensure the operational autonomy of the national preventive mechanism and guarantee that the mechanism’s coordinator and member bodies are independent and receive sufficient resources to discharge their prevention mandate independently and effectively.”

The Committee has ordered Australia to present a plan of action for the establishment of NPMs as soon as possible, and to give an oral progress report on the measures taken by the end of October.

Australia is one of only two countries to have requested and received a further extension on its OPCAT obligations, joining Romania.

Nowhere to hide

Australia is now on notice to properly implement these obligations, according to Australia OPCAT Network coordinator Steven Caruana.

“The UN Convention Against Torture’s emphasis on operational autonomy and sufficient resourcing in full compliance with OPCAT demonstrates an acute awareness of the issues that have to date hindered implementation over the past four years,” Caruana says.

“The request for a plan of action and update at the upcoming periodic review of Australia means there will be no hiding or finger pointing between the Commonwealth, states and territories because this session is public.

“This decision is effectively a ‘get on with it’ statement.”

The Commonwealth Ombudsman has been established to oversee Australia’s implementation of OPCAT, while state and territory governments are responsible for forming the independent inspection bodies.

Despite its new role, the Coalition slashed the Ombudsman’s budget by $6 million earlier this year.

Feuds over federal funding for the states and territories to form the NPMs has stalled any real progress in Australia’s OPCAT implementation.

New South Wales and Victoria have not engaged in any public consultation on the inspection bodies and are yet to release any legislation on the matter.

Only Western Australia and the ACT have come close so far to complying with the OPCAT obligations.

Tasmania, South Australia, Queensland and the Northern Territory have made progress but are yet to be fully compliant.

Nearly half of the extra extension time has already expired, and now there is only about seven months left for Australia to get everything up and running.

“Even if an agreement between the Commonwealth, states and territories is made and an adequate funding agreement is reached, there is still the question of consultation, designation and legislation,” Caruana says.

“OPCAT is not simply a matter of saying what we already have is good enough and putting an OPCAT badge on it. Full OPCAT compliance requires in many cases a whole reconceptualisation of what it is that existing oversight bodies do.”

‘Uniquely severe’

It’s widely hoped that the proper implementation of OPCAT will help to prevent human rights abuses in Australia in places such as prisons and immigration detention centres, and to prevent First Nations deaths in custody.

According to the Global Detention Project report on Australia from February, the country has a poor track record on abuses in places of detention, and OPCAT is important in addressing this.

“NPMs are critical mechanisms for preventing abuse in detention, including immigration detention, and with its deplorable track record, Australia desperately needs one,” the Global Detention Project report said.

Australia’s immigration detention centres are “uniquely severe, arbitrary and punitive”, the report said.

“Deplorable and abusive immigration detention conditions and practices abound in many countries in the world; Australia, however, brings together a range of extreme policies in its detention regime, provides them blanket legal cover, aggressively defends them in the face of growing international opprobrium and spreads them to countries near and far,” it said.