Australia needs to deliver on our treaty promises

By Lorraine Finlay, Australia's Human Rights Commissioner 

Australia ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) back in 2017, an important international treaty which helps protect the rights of people in any form of detention.

As with any agreement, there are certain requirements that OPCAT signatories need to fulfill, and Australia has been given longer than any other country to meet our OPCAT commitments. Today – 20 January 2023 – is our extended compliance deadline, and Australia has failed to deliver on our promises.

OPCAT requires countries to set up an independent inspection and monitoring system for all places of detention. These National Preventive Mechanisms (NPMs) are designed to shine a light on conditions in places of detention so that mistreatment and abusive practices can be prevented.

This is not a small or unimportant task. There are currently over 42,000 prisoners in jails across Australia, over 1,300 people held in immigration detention facilities, and many others forcibly detained in hospitals, aged care, mental health and disability facilities. Each of these individuals deserves to have their basic human rights respected, no matter the circumstances leading to their detention. Effective oversight mechanisms are critical to making sure this occurs.

Australia is far from perfect when it comes to the treatment of people in detention. There is a national crisis in youth justice, with numerous examples of serious mistreatment emerging from centres such as the Banksia Hill Youth Detention Centre in Western Australia, the Ashley Youth Detention Centre in Tasmania, and the Don Dale Youth Detention Centre in the Northern Territory. This is not a problem confined to just one youth detention centre or just one location. It is a complete system failure.

The importance of scrutiny and accountability goes beyond youth detention centres and extends to all places of detention. In its recently released World Report 2023, Human Rights Watch highlighted the treatment of asylum seekers and refugees and the continued overrepresentation of Indigenous people in the criminal justice system as key issues in Australia which ‘harm the government’s credibility to promote human rights in the region’. Evidence given at Royal Commissions into the quality of aged care services and the treatment of people with disability have highlighted the urgent need for reform in these areas. All of these examples demonstrate the need for safeguards to protect the basic rights of people who are forcibly detained in Australia.

When Australia signed and ratified OPCAT we promised to introduce these safeguards. At the invitation of the-then Commonwealth Attorney-General, the Australian Human Rights Commission conducted a national OPCAT consultation, leading to the publication in 2020 of a report setting out 17 recommendations as to how Australia should implement OPCAT. Returning to those recommendations over two years later, our assessment is that none of them have been fully implemented and only six have been partially implemented.

Australia has a long way to go to meet our minimum OPCAT obligations.

That is not to say there hasn’t been progress over the last few years. The Commonwealth Ombudsman’s Office has been established as both the Commonwealth NPM and the coordinator of the Australian NPM network. A number of states and territories have designated NPMs and passed dedicated OPCAT legislation. Australia also has an active and engaged civil society network that continues to support OPCAT implementation.

Yet, despite this, Australia has clearly not yet met our basic OPCAT commitments. New South Wales, Queensland and Victoria have not yet designated NPMs, and ensuring appropriate funding and resources for NPMs remains a significant issue. The UN Committee Against Torture also observed late last year that Australia’s adoption of a ‘primary versus secondary’ approach to places where people are deprived of their liberty inappropriately limits the mandate of NPMs and is contrary to the requirements of OPCAT.

The decision by the UN Subcommittee on the Prevention of Torture (UN SPT) last October to suspend its visit to Australia is another example of our failure to meet our OPCAT commitments. By ratifying OPCAT, Australia freely promised that we would accept the same international scrutiny as the other 90 nations which have signed the treaty. The UN SPT cited a lack of cooperation by some states as one of the reasons for their decision to suspend the visit and highlighted that this was ‘a clear breach by Australia of its obligations under OPCAT’. Australia is one of only four countries to have ever had the UN SPT suspend or terminate a visit.

This all serves to highlight the work that lies ahead. Last year, the Australian Human Rights Commission released a Road Map to OPCAT Compliance that clearly set out the immediate steps the Commonwealth, states and territories need to take to meet our treaty obligations. It is profoundly disappointing that six years after ratifying OPCAT we have still not delivered on our promises and have failed to meet our already extended OPCAT implementation deadline.

Australia can now potentially be put on a UN list of countries which are of significant concern in relation to OPCAT compliance. Being publicly listed alongside the 14 other countries which are currently substantially overdue in meeting their OPCAT obligations (such as Burundi, Democratic Republic of the Congo and South Sudan) would be damaging to our international reputation and impact on our broader credibility with respect to human rights advocacy.

Six years is more than enough time. We need to fully implement OPCAT and deliver on our treaty promises.