The federal government appears set to not produce an intergovernmental agreement on Australia’s obligations under a UN anti-torture convention, let alone introduce standalone legislation as advocates have urged.
The government has also said it won’t be providing any extra funding for the obligations, which include state and territories ensuring there are independent inspections of places of detention.
This is “incredibly disappointing” and shows the government is not taking its obligations seriously enough, according to Greens Senator Lidia Thorpe.
After three Indigenous Australians died in custody in the first week of March alone, and on the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody, there are hopes that the obligations under the agreement would go some way to improve conditions in places of detention for all people, especially Indigenous Australians.
Australia signed on to the UN’s Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in 2009, but the federal government did not ratify the agreement until 2017. Australia has also deferred its obligations under OPCAT for the maximum time allowed, pushing it back until January 2022.
Under OPCAT, Australian states and territories will have to allow for independent monitoring and inspections of places of detention by independent inspection bodies, including those from the UN, and National Preventive Mechanisms (NPMs), to be appointed by each jurisdiction.
These bodies will inspect prisons and detention centres, among other sites of detention, with the purpose of preventing “torture and other cruel, inhuman or degrading treatment or punishment”.
Advocates for OPCAT view it as a crucial tool for improving conditions in places of detention for incarcerated individuals, and reducing the number of deaths in custody, especially of Indigenous Australians. In just the first week of March, three Indigenous Australians died in prisons in New South Wales and Victoria.
The federal government will be playing a coordinating role with the states and territories under OPCAT, with the Commonwealth Ombudsman to serve as its NPM. There is confusion and uncertainty around the implementation of OPCAT, with only Western Australia so far officially appointing its independent inspector, despite the scheme having to be up and running in less than a year.
The federal government has now confirmed in answers to question on notice by Thorpe that it will not be providing any additional funding to the states to undertake their obligations under the agreement, will not be introducing legislation to underpin the scheme, and may not even sign an intergovernmental agreement with the states and territories on the anti-torture convention.
“The Commonwealth is continuing to engage constructively with states and territories around the establishment of NPM bodies in each jurisdiction,” Attorney-General Christian Porter said in the response.
“However, given they manage many places of detention, the establishment of NPM bodies in the states and territories is a matter for the governments of these jurisdictions.
“An intergovernmental agreement is not required for implementing OPCAT. The department has previously discussed with states and territories whether a written agreement between the Commonwealth, states and territories would be useful in providing a clear framework. These discussions are ongoing.”
This is disappointing and the federal government should be playing a more prominent role, Thorpe said.
“It’s incredibly disappointing that the government is not taking the full, culturally safe and properly resourced implementation of OPCAT seriously, particularly as 2021 is the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody,” Thorpe said.
“As usual, this government is doing the absolute bare minimum and calling it progress - and we see straight through it. If we are going to have a culturally safe, properly resourced, effective and independent oversight mechanism of places of detention in this country, then the Commonwealth government must show leadership and provide the public money that is needed to make this happen.”
Australia would be neglecting its duties under the UN agreement if it doesn’t introduce an intergovernmental agreement, OPCAT Network Australia’s Steven Caruana said.
“If neither an intergovernmental agreement or legislation is enacted we are really relying on goodwill for OPCAT implementation to be made proper and we lose any means of holding government to account if it fails to do so,” Caruana said.
There is a risk Australia’s system of inspections for places of detention will be fragmented, Thorpe said.
“Implementation of OPCAT can’t be left to the states alone - as this will lead to us having a patchwork system where the more resourced states or the most motivated ones will have the best oversight mechanisms,” she said.
“The Greens are committed to keeping this government accountable in relation to OPCAT - so that our people are culturally safe, consulted and empowered, every step of the way.”
In a report last year, the Human Rights Law Centre said an intergovernmental agreement was crucial to the effectiveness of OPCAT, and would mandate the powers of the NPMs, cover the various aspects of the model and provide a means to resolving disputes between jurisdictions.
“If the Australian government does not establish the proposed NPM mechanism in dedicated legislation, an intergovernmental agreement should be agreed as soon as practicable to guide establishment and operations of NPMs,” the report said.
Attorney-General Christian Porter was the minister responsible for the Commonwealth’s implementation of OPCAT before recently going on mental health leave. He has previously criticised the UN agreement because it would prevent prisons from being able to place individuals in olsation and randomly strip search them.
“By giving the NPM the power to make recommendations and, in effect, develop standards to meet unspecified international and national expectations obviously means that prisoners and other detained persons in Australia will be accorded treatment under standards not determined nor agreed to by state parliaments informed by state communities but rather as fixed by the NPM under the watchful supervision of the UN subcommittee,” Porter wrote in a paper for the Samuel Griffith Society in 2010.
“There may be significant public disquiet...the safe running of Australian prisons may well become practically more difficult, particularly if the most dangerous prisoners in the system - imprisoned accordingly in special handling units - cannot be subject to intensive security regimes including regular and random strip searches.”
Denham Sadler is a freelance journalist based in Melbourne. He covers politics and technology regularly for InnovationAus, and writes about other issues, including criminal justice, for publications including The Guardian and The Saturday Paper. He is also the senior editor of The Justice Map, a project to strengthen advocacy for criminal justice reform in Australia. You can follow him on Twitter.
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