The United Nations Subcommittee on the Prevention of Torture (SPT) had only just begun its long awaited visit to check on how Australia looks after those in detention when it announced on October 24, it was cancelling the visit due to obstruction while attempting to carry out its mandate.
More than 60 organisations and many individuals issued a condemnation on October 24.
“We strongly condemn decisions to refuse to allow the SPT to access New South Wales detention facilities and Queensland inpatient units and to provide the SPT with requested information and documentation,” they said, and called on all Australian states and territories to commit to urgently introducing laws to bring Australia’s obligations under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) into domestic law.
The SPT had began its belated first 10-day visit on October 16 to gauge how authorities have implemented the OPCAT, a treaty designed to prevent human rights abuses of people in detention.
However, as Australia OPCAT Network coordinator Steven Caruana pointed out the day before, the federal Attorney General Mark Dreyfus’ welcome statement included a stark omission: when thanking states and territories for cooperating, he did not mention NSW.
Federal, state and territory governments have dragged their feet on implementing OPCAT, but NSW has refused to budge, citing a lack of federal funding.
The NSW Liberal-National government said on October 18 that it was not going to comply with the UN inspections.
OPCAT, adopted in 2002, sets up independent inspection teams to conduct unannounced visits to places where people are deprived of liberty to prevent rights abuses from happening. The SPT provides the UN oversight.
NSW had refused the SPT inspection team entry into one detention facility. Queensland said it would let inspectors into its prisons, but not the inpatient units.
Why is NSW so reluctant to allow the UN to inspect its places of detention? The answer is an open secret.
Nothing to hide?
NSW Attorney General Mark Speakman first raised the question of federal funding in March last year. But, it was in relation to NSW setting up its own teams to inspect closed environments.
How this translates to allowing UN inspections — who do not charge — in to do their job is a little murky.
The SPT is an OPCAT oversight body, comprised of 25 independent experts. More broadly, the treaty sets out that NSW should establish a National Preventive Mechanism (NPM) — local independent inspection bodies that visit facilities such as prisons — to maintain human rights.
NSW corrections minister Geoff Lee told 2GB on October 20 that seven SPT experts had already been turned away from a court-connected detention facility in Queanbeyan. He then added that the state had “nothing to hide”, as it “treats all people with respect”. He then spoke about NSW’s existing oversight bodies.
But the NPM is a different style of inspection: instead of making surprise visits to detect past harms, UN inspectors are preventative, meaning that they ascertain potential rights abuses and try and stop them from happening.
The Guardian revealed on October 20 that while Queensland would allow SPT inspections of its prisons, it would not permit them to visit inpatient units. These are parts of prisons where inmates with mental health or medical issues are detained, as well as elderly prisoners. NSW Premier Dominic Perrottet described Queensland’s move as a “great decision”.
NPMs, which operate successfully around the globe, can inspect all places where people are deprived of their liberty. This includes prisons, youth detention centres, immigration facilities and closed mental health centres, as well as having the potential for aged-care facility visits.
Running from OPCAT
Australia signed on to the OPCAT, which provides additional protocols built upon the 1984 UN Convention Against Torture, in 2009. It only ratified, that is, agreed to implement it, in December 2017.
Former federal Attorney General George Brandis ratified it after the international outcry generated by the 2016 Don Dale revelations where the national broadcaster showed prison guards torturing First Nations children.
The deadline for former Attorney General Michaelia Cash's to sign the OPCAT implementation was January 20 and the Coalition government had to seek an extension of time. The deadline passed while most states and territories had either established, or nominated, an NPM, or they had introduced or passed laws supporting the OPCAT system.
However, no government had gone the whole way, and neither NSW or Victoria had done anything.
Speakman was still upset about federal funding, and former PM Scott Morrison had done nothing.
Colonialism continues
When the British invaded in 1788, First Nations peoples had sovereignty. European nations had already invaded and colonised a number of other countries, and were reaping the benefits from exploiting their stolen resources.
The British monarch decided to set up a prison colony in Australia. Ever since, punishments, via denying liberty along with extra punishments — the lash or prolonged solitary confinement — has been integral to the state racist treatment of First Nations people.
Today, First Nations peoples make up 31% of the adult prisoner population. Yet, they account for less than 3% of the population.
After the Don Dale torture was exposed, the government established a Royal Commission into the Protection and Detention of Children. It decided the torture centre should be closed down. Yet it remains open and overcrowded, with high rates of self-harm.
Don Dale is not the only youth facility being run in a highly abusive manner. News has come to light this year that the Banksia Hill child jail in Western Australia has been detaining children in extreme isolation and guards in Tasmania’s Ashley Centre have been denying children medication unless they perform sexual favours.
Yet Lee decided it was unnecessary for the UN to see how NSW runs its prisons and Perrottet does not see anything wrong with these sorts of abuses to adults and children as young as 10 continuing.
[Paul Gregoire writes for Sydney Criminal Lawyers, where an older version was first published.]