Australia still isn’t meeting its anti-torture obligations

In 2017, the then-Coalition government was looking to boost its international credentials to help its bid for a seat on the UN Human Rights Council. To help its chances, Australia had ratified the Optional Protocol to the Convention Against Torture (OPCAT), a UN agreement aiming to proactively prevent human rights abuses in all places of detention. OPCAT, first signed by the Rudd Labor government in 2009, requires signatories to allow visiting UN experts to have unfettered access to places of detention, and to establish independent inspectors of places of detention, known as National Preventive Mechanisms (NPMs). This move boosted Australia’s pitch, and it was successful at gaining the Human Rights Council position.

But efforts to actually implement OPCAT have completely stalled in the years since, with a funding deadlock between New South Wales and other major states and the federal government preventing progress. Now, nearly 17 years after signing the Protocol, almost a decade since it was ratified and three years since the final deadline, Australia is not complying with its obligations under OPCAT.

No ongoing funding

The three largest states are still yet to designate NPMs, and a visiting UN group in 2022 was blocked from inspecting some prisons in NSW. The NSW Government has continually stated it will not make any moves to designate an inspector unless it is provided with ongoing funding from the federal government. Victoria and Queensland have made similar statements.

This funding deadlock has remained unbroken for several years now, and shows no sign of being resolved. The Commonwealth is only offering small one-off payments to the states and territories. In Australia, the federation means that each state and territory must appoint its own inspector, with the federal government also appointing a body to inspect Commonwealth places of detention and to act in an oversight role. The aim of OPCAT is to identify systemic issues in places of detention that may lead to human rights abuses, and to prevent these before they occur.

Australian Human Rights Commissioner Lorraine Finlay has for several years pushed the federal government to take the lead and work with the states to ensure proper OPCAT implementation. “It’s only become more important because we know that people in detention are some of the most vulnerable in society, and any abuse and mistreatment can go unpunished,” Finlay tells LSJ Online.

“OPCAT helps to prevent this, ensuring transparency and accountability, and the protection of basic human rights.” Since ratifying OPCAT, Australia has taken advantage of all the time extensions available to it to delay actually implementing the required measures. The final deadline to have the inspection bodies up and running was 23 January 2023. The federal government has previously offered one-off funding to all states and territories to get NPMs up and running, but this has only been accepted by Tasmania and the ACT.

Three years later, and with NSW and two other states yet to designate NPMs, Australia appeared destined to be publicly shamed on the UN Subcommittee on Prevention of Torture (SPT) non-compliance list. It would have been the first western nation to be listed, and would have placed Australia alongside Afghanistan, Nauru and Liberia. But a week before Christmas last year, Australia wrote to the SPT to formally state the designation of an NPM coordinating body. This body is the Commonwealth Ombudsman, which is playing a coordinating role with the states and territories to implement OPCAT.

Progress not compliance

According to the UN website, Australia now appears compliant with OPCAT, and Attorney General’s Department officials recently told a Senate Estimates hearing this was the case. In response to a question on notice, the Department said that the UN had confirmed the NPM “meets the requirements for compliance”. But the Commonwealth Ombudsman itself, and the Human Rights Commissioner, said this listing is in no way recognition that Australia has properly implemented OPCAT. “Recongition means Australia has made progress towards implementing OPCAT – it does not mean that implementation is complete or that Australia is fully compliant with its obligations under OPCAT,” a spokesperson for the Commonwealth Ombudsman told LSJ Online. 

“As New South Wales, Queensland and Victoria have not appointed NPMs for their jurisdictions, comprehensive national coverage for the Australian NPM has not yet been achieved.” This was confirmed by Finlay, who says the listing is merely an administrative process and does not involve the UN group assessing whether the country is meeting its obligations. “It’s provided for information only,” she says. “It’s a record of who has been designated but it doesn’t say anything about the substantive compliance with OPCAT, and doesn’t make any assessments to whether it meets the obligations.”

The OPCAT Advisory Group itself said this in a meeting in late November, with its meeting notes acknowledging the “incomplete state of OPCAT implementation”, “resourcing challenges” and “ongoing challenges which continue to be faced in Australia’s OPCAT implementation”.

Andreea Lachsz, a PhD candidate at UTS researching the torture and ill-treatment of Aboriginal and/or Torres Strait Islander people in places of detention, says much more needs to be done for Australia to be compliant with OPCAT. “The objectives of OPCAT can only be realised if the Australian NPM has coverage across all Australian states and territories, and if its members have the requisite legislated mandate, powers and privileges and immunities, and are adequately and sustainably funded,” Lachsz explains to LSJ Online. “We are simply not there yet.”

OPCAT has been implemented to differing levels in the other states and territories, although the Commonwealth Ombudsman – designated as the federal government’s NPM – has recently stated that the designated bodies “are not yet appropriately resourced and empowered … with coverage of all places of deprivation of liberty across the country”.

The Commonwealth Ombudsman in its role as NPM coordinator is aiming to “support coordination, consistency and information-sharing among NPMs across Australian jurisdictions”.

“Visiting places where people are deprived of their liberty is central to being an NPM,” a spokesperson for the Commonwealth Ombudsman says. “Regular monitoring provides a way to identify risks, bring concerns to light and prevent harm before it occurs.”

‘Political will’ needed

NPMs have been designated in Western Australia, South Australia, Tasmania, the ACT and the Northern Territory but there are concerns about independence, a lack of legislation and a shortfall of adequate funding in these jurisdictions. Finlay says there’s much more work that needs to be done to make Australia compliant with OPCAT. “There’s still a long way to go to make sure the NPMs are operating effectively and are properly resourced and delivering the protections we need on the ground for people whose rights are vulnerable,” she says. “The unfortunate reality is we know what we have to do, we just need the political will to do it.”

In late 2022 the Human Rights Commission released a roadmap to OPCAT compliance, outlining what needed to be done to meet these obligations. “Every single core recommendation there still needs to be fully implemented – small things have been implemented but they haven’t been delivered in full,” Finlay says. “It’s frustrating to see piecemeal action on it. There are things that have happened but the framework is one that is a really positive opportunity for Australia. We’ve set out the steps for what needs to be done. It’s now about finding the will to do it.”

NSW defends accountability measures

The NSW Government has been one of the main roadblocks in implementing OPCAT across Australia. The state government has repeatedly insisted it will not make any moves to designate an inspection body unless the federal government provides ongoing funding. In response to a recommendation from the Law Enforcement Conduct Commission report to urgently appoint an NPM, the state government said it supports OPCAT “in principle subject to the resolution of ongoing funding and operational issues”.

“The NSW government is not in a position to make a determination about a NPM for NSW until resource and operational issues with the Commonwealth are resolved,” it said. The government has also said that it “did not support the ratification of OPCAT before resourcing concerns were addressed”. A spokesperson for the NSW Department of Communities and Justice says the state government “acknowledges the importance” of OPCAT and “continues to work towards its implementation”.

“Discussions are continuing with other states, territories and the Commonwealth regarding operational issues and ongoing funding support,” the spokesperson says. “NSW has robust oversight and accountability mechanisms for detention, custodial and law enforcement agencies.”

In a recent academic article, RMIT University Professor of Law Bronwyn Naylor said that the states not complying with OPCAT have been “intransigent”.

“Despite numerous reports and reviews, they have stated that they will not comply unless the Commonwealth funds these agencies,” Naylor wrote. “And the Commonwealth has – with some minor exceptions – required the states and territories to nominate and resource NPMs themselves. It cannot be seen as complete while there are jurisdictions that have not nominated an NPM.”

‘Urgent need’ hasn’t passed

Naylor tells LSJ Online that the federal government’s move to officially designate its NPM and avoid being placed on the non-compliance list does not make the issue any less pressing. “This apparent shift in approach does not make a difference to the urgent need to see Australian jurisdictions fully implement OPCAT, by establishing monitoring bodies overseeing human rights protections across all places where people are detained,” says Naylor. “And these bodies need to be fully independent, fully resourced and comply with the requirements for NPMs under OPCAT.”

When writing to the UN to formally designate its NPM, the Australian Government pointed to the NPMs that have been named by six of the states and territories, and identified existing inspection bodies, including the NSW Inspector of Custodial Services. But the NSW Ombudsman has said that this body “in its current form, lacks qualities that would be essential if it is to lead the OPCAT inspection functions”.

Finlay said that if these bodies are meeting requirements under OPCAT, they should be formally designated. “If you’re doing that job then be clear about that, but they haven’t designated them as NPMs, and to me that shows that they’re not actually doing quite enough,” she said. The refusal to designate an NPM in NSW, Victoria and Queensland means that more than two-thirds of people in Australia’s prisons are not covered by this independent, proactive oversight.

“OPCAT’s focus on prevention of ill-treatment, working constructively with detaining authorities to identify risks of ill-treatment and making expert, practical recommendations to mitigate that risk makes it a mechanism that benefits everyone – detaining authorities, frontline detention staff and people deprived of their liberty,” Lachsz says. “Tragically, non-compliance with OPCAT is a missed opportunity to prevent torture, ill-treatment and deaths of detained people.”

Finlay has called on the federal government to show “national leadership” on the issue. “We need to make this happen,” she says. “Australia signed up to this years ago and it’s really important to fully comply with OPCAT. “It makes a real difference on the ground for people who are incredibly vulnerable in circumstances where human rights violations often go unchecked.

“And it’s about Australia’s standing in the global community. The international rules-based order is under such pressure and stress, and having Australia actually keep its promises is really important.”