Australia is still failing its anti-torture obligations

The termination of a UN visit has done little to motivate Australia to meet its obligations under an anti-torture convention, with neither the federal government or the states budging on the issue.

When a group of United Nations experts were forced to terminate their visit to Australia to inspect places of detention earlier this year, it was hoped this would be the reality check Australia needed to get the ball rolling and comply with its obligations under an anti-torture protocol.

Under the Optional Protocol to the Convention Against Torture (OPCAT), which Australia ratified in 2017, signatories must provide a group of UN experts unfettered access to places of detention around the country, and establish independent inspection bodies to monitor these places.

Despite delaying its implementation date for several years, Australia has failed on both counts, and is now more than four months late in launching these inspection bodies.

After being blocked from inspecting a number of places of detention in New South Wales and Queensland late last year, the UN officially terminated its planned visit to Australia under OPCAT in February. 

And Australia’s three biggest states - New South Wales, Victoria and Queensland - are still yet to create their own inspection bodies for prisons and other places of detention, with many saying they will not act until they are provided with Commonwealth funding to do so.

And little appears to be being done to fix the situation, with the federal government flatly refusing to provide ongoing funding to the states and territories for these inspection bodies, and the New South Wales government yet to move to allow access to the UN group.

It appears clear that the international embarrassment that accompanied the UN’s terminated visit to Australia has done little to motivate governments around the country into action.

In answers to Senate questions on notice from Greens Senator David Shoebridge, the federal government confirmed that it will only be offering one-off funding to the states for their OPCAT obligations.

“The Commonwealth has consistently stated that, because states and territories are responsible for prisons and places of detention, they are responsible for funding these systems,” Attorney-General Mark Dreyfus said.

“The Commonwealth does not pay the states and territories to comply with any human rights treaties, including OPCAT. Although responsibility for places of detention rests with each jurisdiction, the Commonwealth has offered one-off funding to all jurisdictions to assist with their implementation costs in becoming OPCAT compliant.”

Numerous Australian state governments, including New South Wales and Victoria, have said they will not move to comply with OPCAT and launch independent inspection bodies unless they are provided with ongoing funding from the Commonwealth.

Australia’s deadline to have these obligations in place was mid-January, and it is now well and truly in breach of the UN protocol.

The federal government has also flagged that it won’t be following the protocol’s requirement that all places of detention, including secondary ones, are included in the remit of these inspection bodies. Secondary places of detention include residential aged care and disability group homes.

“The scope of coverage of NPMs will be broadened over time, in consultation with affected agencies, as jurisdictions have further time to prepare, facilitate training, allocate resources and advance cooperative arrangements under OPCAT,” Dreyfus said.

“The government has focused efforts to implement Australia’s OPCAT obligations on primary places of detention. The government recognises that residential aged care and disability group homes may be places of detention if people may be deprived of their liberty in those facilities.”

OPCAT Article 4 clearly states that places of detention must include any place “where persons are or may be deprived of their liberty” and that this includes primary and secondary places of detention.

The Australian Human Rights Commission identified many of these problems in its ‘Road Map to OPCAT Compliance’ report, released in October last year. In response, the federal government has said it has no requirement to respond to this report, and that it won’t be doing so.