'Penny-pinching or laziness': Australia stumbling towards UN human rights deadline

With less than five months until a range of human rights obligations must be in place, a funding deadlock remains.

A funding deadlock between the state and the federal governments is still blocking any real action to implement Australia’s United Nations human rights obligations, with less than five months left until the deadline.

Australia’s three biggest states are refusing to act until funding is provided, and the steps that have been taken towards adopting the human rights protocol have been branded too narrow, piecemeal and “half-baked”.

After taking advantage of a number of deferrals, Australia must have its obligations under the UN’s Optional Protocol to the Convention Against Torture (OPCAT) in place by 20 January next year, more than five years after ratifying the agreement.

These obligations include facilitating visits by the UN Subcommittee on Prevention of Torture (SPT), and to establish independent inspection bodies for places of detention, known as National Preventive Mechanisms (NPMs).

The UN SPT is set to visit Australia next month.

But a funding deadlock between the Commonwealth and state governments has so far railroaded attempts to move forward under the agreement, with Victoria and New South Wales yet to take any meaningful steps.

There have been renewed hopes that the new Labor federal government will step up to the plate and provide funding to the states and territories to implement OPCAT, but there has been no confirmation of this to date.

A funding deadlock

This week the Victorian and Queensland governments restated their positions that no action will be taken in stumping up independent inspection bodies under OPCAT until federal funding is provided.

The Victorian government this week passed a bill allowing a UN group to inspect places of detention in the state, but with no information on its inspection body, while Queensland has announced a new Inspector of Detention Services which doesn’t come close to meeting the UN requirements.

There has also been widespread criticism over the narrow scope that the federal and state governments are taking towards what places are covered by OPCAT, with places like offshore immigration centres, secure residential aged care facilities and disability group homes not included.

This week the Victorian government said it supports OPCAT “in principle” but is “concerned” about the funding requirements of an independent inspections body.

“Victoria has been consistent in its position that a sufficient and ongoing funding commitment from the Commonwealth is essential to establish and maintain this,” Labor MP Katie Hall said in Parliament on Thursday.

“The absence of proper funding to date has significantly hampered Victoria’s ability to progress the necessary preparations and consultation required to designate an NPM. Victoria is working constructively to facilitate the full implementation of OPCAT in Australia in a way that is effective and sustainable.”

These comments echoed the Queensland government’s justification this week for not having moved forward with its human rights obligations.

“The Queensland government supports the principles of OPCAT,” Queensland justice minister Shannon Fentiman said.

“However, Queensland will make no formal commitment to implement OPCAT until ongoing funding for NPMs is resolved with the Commonwealth government - an issue that may be resolved a lot more easily now that we have a new federal government - and this is consistent with every other jurisdiction.

“The Queensland government will work with the Commonwealth and other states and territories to determine how best to implement OPCAT in Australia. We understand that Commonwealth funding for OPCAT remains an outstanding issue with all other jurisdictions.”

While state governments are demanding funding for the NPMs from the Commonwealth, they will likely only require relatively meagre resourcing which will pale in comparison to the amount spent on these places of detention.

The Victorian Ombudsman has estimated that the state’s NPM would need an annual operating. budget of $2.5 million - that’s about 0.14 percent of the funding handed to Victoria’s recent prison expansion program.

OPCAT in the Victorian Parliament, finally

In Victoria, the state government’s bill facilitating the upcoming UN SPT visit was debated and passed in the lower house this week. It will sail through the upper house with bipartisan support.

The legislation has been criticised for also not including the full scope of places of detention as outlined by the UN, and for giving the government and authorities the power to block an independent visit by the UN under certain conditions.

These concerns were acknowledged by Shadow Attorney-General Michael O’Brien, but the Opposition did not appear willing to move any amendments to change the situation.

Greens MP Tim Read said he would be supporting the bill, but it was a “shame” that the state government didn’t include the other obligations from OPCAT in the legislation.

‘Penny-pinching or laziness’

In Queensland, the state government this week introduced the Inspector of Detention Services Bill to Parliament, appointing the state’s Ombudsman to act as this inspector. 

But this body does not meet the UN’s requirements for inspection bodies to be wholly independent and adequately funded.

Greens MP Michael Berkman raised these concerns in Parliament, saying the inspector must be an independent statutory body, fully-funded and well resourced.

“Establishing an integrity body to promote accountability and transparency in detention services is a significant improvement on the status quo even in the form proposed by the government, but it must not only be independent but also adequately resourced,” Berkman said.

“I would urge the government to not do this process by halves either out of penny-pinching or laziness. This is an opportunity to get it right, and the definition should be expanded so that it is consistent with OPCAT.

“These underlying issues will not go away if we legislate a piecemeal, half-baked answer to the myriad calls for an inspectorate to meet our OPACT obligations.”

The new inspection body also won’t be able to scrutinise psychiatric wards, forensic mental health facilities or immigration detention centres.

This narrow scope has been applied by several Australian jurisdictions to OPCAT.

In a submission to the UN SPT, Women with Disabilities Australia said this is “profoundly concerning”.

“Our organisation is deeply concerned that the Australian government’s National Preventive Mechanism which rests with the Commonwealth Ombudsman is severely limiting the places and settings in Australia that should be covered by OPCAT,” the group said.