Casting a keen eye over the human rights obligations of a state is tantamount to rummaging through untended, mouldering laundry. Often, the promise to wash such neglected items has been delayed or postponed. The reasons are often many, and not always insensible. And whose right is it to go through such things anyway?
That right, at least when it comes to the United Nations Subcommittee on Prevention of Torture (SPT), arises under the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
In 2017, the Turnbull government decided to ratify it, a curiosity given Australia’s less than impressive (no, abominable) record regarding detention facilities both on the mainland and offshore. Australia’s then Attorney General, George Brandis, was moved to do so not by the cruel torture centres on Manus Island and Nauru and his country’s reprehensible treatment of refugees, but by something closer to home.
The harrowing images from such centres as the Northern Territory’s Don Dale youth prison, where a harsh, atavistic penology was unmasked, provided the spur to ratify OPCAT. The National Children’s commissioner at the time, Megan Mitchell, also opined that cases of youth abuse such as what took place at Don Dale would have probably been prevented by OPCAT.
The ratification brought Australia within the UN system of inspection and monitoring. But what gives the optional protocol its teeth, thereby making it more onerous for states, is its preventative focus governed by the need to establish National Preventive Mechanisms. To that can be added its potential to be adapted to other systems where the principle of detention operates, such as mental health facilities, hospitals and aged care centres.
To monitor compliance with OPCAT by the ratifying state and boost the preventive mechanism, independent inspection teams are permitted to conduct unannounced visits to any place where people are deprived of liberty.
Since then, compliance with OPCAT has been sluggish across all levels of government. Western Australia, by way of example, was the first state to bring the national preventive mechanisms into play, a system that would involve the WA Ombudsman and the WA Inspector of Custodial Services. But the laws underlying such processes have yet to be passed.
OPCAT implementation bills are floating around a number of legislatures, and yet to truly settle. Tasmania recently passed its own version, designating the Tasmanian Inspector of Custodial Services the necessary watchdog. In the Northern Territory, the bill remains in draft form, while Queensland lawmakers are yet to tackle its own version in parliament. The holdouts to the OPCAT mechanism remain Australia’s two largest states in terms of population, New South Wales and Victoria.
The WA Office of the Inspector of Custodial Services provides a less than encouraging rationale for the delays. “Without national agreement around implementation, it has not been possible for us to commit resources to developing important processes and structures around how we will undertake this new work.”
Such a state of affairs has impaired, among other things, the development of legislation regarding the inspection of police lockups; the development of inspection standards and protocols; and the “development of consultation networks with civil society groups that should have input into OPCAT activities.”
Regarding OPCAT implementation, NSW has cited a lack of federal funding as the central problem and, it should be said, excuse. The issue was first raised in March 2021 by the state’s attorney general Mark Speakman, a point not helped by the then Coalition government’s insistence that such funding matters remained a state, not commonwealth prerogative.
In January this year, a Victorian government spokesman reiterated a position almost identical to NSW. The monitoring obligations arising from OPCAT would not be implemented “unless the Commonwealth provides adequate funding, which [they] have so far refused to do”.
The date by which Australia was meant to have made improvements ended on January 20th this year. The 25 independent experts of the SPT, in other words, had much to do even before their arrival on Australian shores.
Steven Caruana, the Australia OPCAT coordinator, was already sensing something afoot in an omission in the October 17 statement of welcome for the SPT from the Federal Attorney General Mark Dreyfus. All state and government territories are mentioned by way of thanks “for their cooperative approach to facilitating visits by the delegation” bar one. The New South Wales government, it seems, thought itself somehow special.
On October 20, NSW Corrections Minister Geoff Lee revealed that SPT experts had been prevented from visiting jail cells at the Queanbeyan Courthouse. The minister was less than interested in the budget for OPCAT’s implementation as to why the UN had dared poke its nose into matters that should not have concerned it. With heavy lashings of parochialism, Lee thought it “unnecessary for the UN to demand to come and demand to get into our jails. Why would our taxpayers foot the bill for the UN to come to Australia?” In any case, “We’ve got nothing to hide.”
Showing that he had neither read the international instrument nor understood its preventive purpose against torture and ill-treatment, Lee was convinced that his state’s laundry was spotless. At a budget estimates hearing, he reiterated the old cash problem, while suggesting that the UN best focus on such countries as Iran, “where there is torture”. No inspections would be permitted till “we reached satisfactory response in terms of security, operational and funding arrangements, and we will continue to not let them in until we reach those levels of satisfaction.”
Queensland also chose to make matters interesting, with its health department refusing to permit SPT members to access inpatient units. These units feature individuals who are ordered to undergo treatment or are charged with crimes and held under state law. NSW Premier Dominic Perrottet was delighted with the move, calling it “a great decision”.
In the face of such stonewalling, the SPT’s decision to suspend its intended 12-day visit was inevitable. “Despite its continued efforts to engage the authorities for the resolution of the problems, the SPT continued to be obstructed in the exercise of its mandate.” State parties, explained the head of the delegation, Aisha Shujune Muhammad, “have an obligation to both receive the SPT in their territory and allow it to exercise its mandate in full, as reflected in Articles 12 and 14.”
In firm, teacherly fashion, Muhammad explained the role of the SPT. It was “neither an oversight body, nor does it carry out investigations or inspections. It is a mechanism that makes confidential recommendations to State Parties on establishing effective safeguards against the risk of torture and ill-treatment in places of deprivation of liberty.”
Human rights groups have expressed dismay. A joint statement from the Australian Lawyers for Human Rights, signed by dozens of organisations, condemned “decisions that necessarily serve to obstruct or impede the preventive mandate of the SPT which is focused on a proactive approach to preventing the torture and ill treatment of vulnerable adults and children.”
The Australian Human Rights Commission has made recommendations in its own Road Map to OPCAT Compliance, which is being encouraged as a model by human rights groups to follow. But such proposals remain hostages of calculations and quibbles over cash. OPCAT, to date, is being treated as a sodden nuisance imposed from without, a policy headache in search of the pain relief that only money can buy.
Editors note: Australia’s hypocrisy in avoiding scrutiny of its own human rights record can be compared with its pursuit of China over Xinjiang.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.
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