‘Playing catch-up’: Victoria makes a move on UN human rights obligations

Under new legislation, the Victorian government will open the doors of its prisons and detention centres to a UN inspections body, but there are a number of issues with the bill.

Legislation has been introduced to the Victorian Parliament facilitating the upcoming visit of UN officials to inspect places of detention in Australia, including prisons.

With a UN group scheduled to be visiting in October, the legislation is required to ensure they are able to access all places of detention and gather information from the relevant authorities.

It’s the first public movement the Victorian government has made under its UN Optional Protocol to the Convention Against Torture (OPCAT) obligations for several months, and while it’s a welcome step forward, several human rights groups say it misses the markets in many respects.

Most importantly, the legislation presented to Parliament does not include the full scope of places of detention as defined by the UN, and gives the government and authorities the power to block an independent visit under certain conditions.

A long road

Australia ratified OPCAT, which requires signatory nations to allow the UN to have unfettered access to places of detention and to set up local independent inspection bodies known as National Preventive Mechanisms (NPMs), in 2017.

These obligations were due to be in place in Australia at the start of this year, but the former federal government successfully applied for another one-year extension, setting a new deadline of 20 January next year.

There has been little visible progress on establishing OPCAT-compliant inspection bodies in Victoria or New South Wales.

The UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrating Treatment or Punishment (SPT) will be conducting its first visit to Australia in October, after its initial planned visit in early 2020 was delayed due to the pandemic.

The Victorian government introduced legislation to Parliament this week facilitated this visit, outlining the scope of places of detention covered, what information will be made available and safeguards for privacy.

A welcome step but falls short

A number of human rights organisations have raised concerns with the bill, saying that it “falls short” in multiple of ways.

Concerns raised by the Victorian Aboriginal Legal Service (VALS), the Human Rights Law Centre, YouthLaw and the University of Melbourne’s Justice Health Unit, include that those running places of detention will be able to block a visit by the UN body, and that the scope of places covered is not broad enough.

“We are not surprised by the problems in this bill,” VALS CEO Nerita Waight says. “They are what we expected from a government that has taken every opportunity to avoid its responsibility to ensure independent detention oversight of prisons, youth prisons and police custody.

“We hope that the Victorian Parliament will amend the bill to enable UN experts to do their job properly, and that the Victorian government will begin to take its responsibility to set up a robust system of detention oversight in Victoria seriously.”

According to the bill, places of detention include prisons, police gaols, areas covered by interim supervision orders, remand centres, secure welfare services, mental health services and residential treatment facilities.

But the human rights organisations say this scope is too narrow, and not in line with the OPCAT definition, which the ACT government has adopted.

The relevant minister and authority must ensure the SPT is permitted to enter the site and have “unrestricted access” to interview those held there and working there.

The group will also have access to all information in possession of the Minister and the group running the site, including the number of detainees, their treatment and the conditions there.

But the Minister will be allowed to object to a visit by the UN group if they “reasonably believe there is an urgent and compelling reason to temporarily prevent the Subcommittee’s visit to that place of detention on that day or those days”. This can be done on the grounds of national defence, public safety, natural disaster or a serious disorder in the place of detention.

The group running the place of detention may also temporarily prohibit or restrict access to it if they believe the inspection will prevent the maintenance of good order or the health and safety of a person.

The bill outlines potential examples of these cases as being to maintain a detainee’s routine, facilitating mealtimes or if there is a serious disorder onsite.

This aspect of the bill was concerning to the organisations, who also urged for the bill to explicitly require the private operators of prisons to allow full access to their facilities and records.

Slow progress in Victoria

Victoria is still yet to announce which organisation will act as its independent inspections body under OPCAT.

Negotiations over funding for these NPMs with the previous federal government had stalled, and Victoria and NSW have made little public progress in establishing these inspection bodies.

In Parliament this week, Minister for Corrections Sonya Kilkenny said the state government “supports the principles of OPCAT”.

“Victoria is pleased to establish a framework that will ensure inspections may be carried out by the Subcommittee when it conducts its inaugural visit of Australia,” Kilkenny said.

“Victoria looks forward to continuing discussions with the Commonwealth regarding the NPM to facilitate the full implementation of OPCAT across Australia in a way that is nationally consistent, effective and economically sustainable.

“Given its significance, Victoria wants to play its part in ensuring that Australia’s full implementation of OPCAT is done right.”

The upcoming visit by the UN will likely expose how far behind Australia is on implementing OPCAT, Human Rights Law Centre senior lawyer Monique Hurley says.

“Abuse thrives in darkness, and time is long overdue for greater oversight and transparency of all places of detention, including prisons and police cells across the state,” Hurley says.

“It’s vital that the Andrews government stop dragging its feet and implement the UN’s anti-torture protocol as a matter of priority.

“The upcoming visit from the UN should shine a light on the lack of progress made by the Victorian government in establishing and resourcing independent monitoring and oversight of places of detention.”

‘The worst prison in Victoria’

VALS has made a submission to the UN SPT ahead of its visit to Australia.

The submission raises concerns that “very little progress” has been made in implementing OPCAT in Victoria and that the state is “on track to miss the extended deadline”. The state government allocated $500,000 from 2021-2025 for OPCAT, which VALS said is “woefully inadequate”.

“VALS is concerned that this once in a generation opportunity is being squandered,” the submission said.

“With a recent change in government at a federal level, VALS hopes that there will be renewed interest in and commitment to the federal and state governments working together to meet their responsibilities under OPCAT.

“VALS is of the view that the Victorian government must be transparent and provide a public update on its progress in implementing OPCAT. VALS expects the Victorian government to engage in robust consultations in developing an appropriate model and legislation for Victoria.”

VALS raised a number of concerns with the UN bodies specific to Victoria, including the privatisation of prisons, bail laws, delays in scrapping the public drunkenness offence and a failure to raise the age of criminal responsibility.

The organisation also recommended which places of detention the UN should visit as a priority.

Top of the list are the Port Phillip Prison, the Parkville Youth Justice Precinct and the Dame Phyllis Frost Centre.

The submission said that VALS’ Civil and Human Rights, Criminal and Wirraway practices have consistently identified the Port Phillip Prison (PPP), which is privately run by G4S, as the “worst prison in Victoria”.

Infrastructure at the site is “outdated and below standard” and “unsafe”, according to VALS.

“The PPP complex is entirely concerted with no green space or natural outdoor areas for the incarcerated men to enjoy,” the submission said.

The organisation also has “serious concerns about the welfare and treatment of women” incarcerated at the Dame Phyllis Frost Centre.

“Of paramount concern is the consistent failure of DPFC to provide appropriate medical care to detained women and children,” VALS said in the submission.