‘Shameful’: Australia fails to comply with UN human rights obligations

The federal government has requested yet another extension to its UN anti-torture obligations, as human rights abuses in places of detention continue.

Australia has failed to comply with a UN anti-torture convention aimed at preventing human rights abuses in places of detention, despite having more than four years to prepare for it.

After missing the deadline on 20 January, the federal government has now asked the UN for another one-year extension to comply with the Optional Protocol to the Convention Against Torture (OPCAT), which it ratified in late 2017.

This makes Australia one of only two countries to have requested such an extension to the UN anti-torture protocol, along with Romania.

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

These bodies need to be wholly independent from the government, with adequate resourcing and funding.

Shining a light on human rights abuses

OPCAT has been up and running in countries including New Zealand for more than a decade, but soon after Australia ratified the agreement, it requested a three-year extension to implement it.

Despite having more than four years to prepare, little progress has been made across the country, with feuds over funding with the Commonwealth leading to virtually no progress in Australia’s biggest states in this time.

It was confirmed in Senate Estimates this week that Australia has written to the UN to request another one year extension to implement the anti-torture convention, and this is still under consideration by the subcommittee.

According to Australia OPCAT Network coordinator Steven Caruana, the only other country to request a similar extension to OPCAT obligations has been Romania, and that country was forced to front the anti-torture committee in person to justify why it was needed.

“The UN subcommittee can’t provide Australia an extension,” Caruana says. “It will be interesting to see if Australia goes through a similar process.”

Most of the responsibility for implementing OPCAT falls on the states and territories, and only a handful have shown any progress in doing so, with most blaming a lack of funding from the Commonwealth.

In the meantime, there are reported human rights abuses in places of detention every month, many of which may have been prevented or better minimised if OPCAT had been in place like it was meant to.

Human Rights Commissioner Lorraine Finlay recently said that had OPCAT been properly in place, more attention would have been given to calls for air conditioning at the Roebourne Regional Prison in Western Australia, before a new temperature record of 50.5 degrees was set earlier this year.

Australia’s shame

Victorian Aboriginal Legal Service (VALS) CEO Nerita Waight says it is shameful that Australia had failed to meet the deadline to implement the human rights-protecting protocol.

“The Commonwealth government’s lack of leadership is shameful and the states have been equally inept,” Waight says.

In Victoria, the funding required for an adequate inspections body would cost less than 1 per cent of what the state government plans to spend on its prison expansion program.

Waight says it isn’t justified for the state government to argue it needs to wait for federal funding to implement the independent inspections body.

“Despite recklessly throwing money at prisons, the Andrews government claims it cannot implement independent detention oversight without money from the Commonwealth government,” she says. “It does not stack up.”

The Covid-19 pandemic has demonstrated the importance of having properly independent inspections in place for places of detention, Caruana says.

“Where in Australia many inspectorates and monitoring bodies retreated from their in-person oversight, those with an OPCAT mandate abroad continued their visits under guidance from the UN SPT and expanded their visiting to include hotel quarantine and other quarantine facilities,” Caruana says.

There will continue to be human rights abuses and deaths in custody without OPCAT in place, Waight says.

“The Andrews government tells everyone who will listen that they are progressive, but they have done nothing to end torture in Victoria,” she says.

“At least 500 Aboriginal and Torres Strait Islander people have died in custody since the Royal Commission into Aboriginal Deaths in Custody, many of them because the facilities they were in did not follow official protocols.

“Our people will continue to die while the Andrews government chooses not to take abuse in their facilities seriously.”

A funding roadblock

The federal government has refused to provide adequate and ongoing funding to the states and territories to support OPCAT, will not introduce legislation to underpin it and has declined to include aged care facilities in its remit.

This has been a significant “roadblock” in Australia implementing its obligations under the agreement, Caruana says.

New South Wales and Victoria have not engaged in any public consultation on the establishment of NPMs at all, let alone unveil legislation, and made no effort to implement the protocol by the deadline.

The only jurisdictions to come close to complying with OPCAT are Western Australia and the ACT, while the federal government has also appointed Commonwealth NPMs.

Bare bones

Of the states that have made efforts to implement OPCAT, most have taken a “bare bones” approach that does not meet the requirements, Caruana and Laura Grenfell said in a recent academic paper.

Western Australia has designated its existing Office of the Inspector of Custodial Services as its NPM for prisons and other places of detention, and its Ombudsman for mental health and forensic disability settings. The researchers said this is nearly compliant with OPCAT but lacks the legislative foundation that is required.

The ACT has set up an Inspector of Correctional Services and Ombudsman as its NPM.

Tasmania released draft legislation implementing OPCAT in 2020 and a standalone bill last year that is yet to be passed.

South Australia has unveiled legislation implementing OPCAT but failed to consult with the Opposition, the Crossbench or frontbench workers but did not pass it to meet the January deadline.

Queensland is also yet to nominate its inspection body, while the Northern Territory has flagged it will wait until at least next month to introduce legislation.

New South Wales and Victoria have made virtually no progress in the last five years on this issue. NSW last year said it would be waiting to do so until the federal government provided stable funding.

0.14% of the prison budget

Much of the issues in implementing OPCAT come down to funding, but the cost pales in significant to the money spent by the states on prisons, and the Commonwealth on immigration detention centres.

The Victorian Ombudsman has estimated that the state’s NPM would need 12 full-time staff and have an annual operating budget of $2.5 million.

In comparison, the Victorian government’s prison expansion program has a budget of $1.8 billion, providing “flexible prison capacity”. The money needed to establish proper oversight of these prisons is 0.14 per cent of this.

“The relatively low cost of NPMs operation needs to be weighed against the considerable cost of the bare bones approach of not taking seriously OPCAT implementation and monitoring,” Caruana said in the report.

The federal government has also decided that OPCAT in Australia will only cover primary places of detention, meaning facilities where people are held for 24 hours or more, involuntarily. This rules out offshore immigration centres and secure residential aged care facilities and disability group homes.

This is “idiosyncratic and controversial”, Caruana says.