UN’s torture inspectors turn tail … Rebuffed in Queanbeyan … Snail like progress on compliance system … Funding snafu … Australia’s new human rights agenda takes a hit … Max Shanahan with the story
Queanbeyan – home to Campo and Sticky as well as an international incident involving breaches of the UN’s Optional Protocol to the Convention Against Torture.
On their long-scheduled tour of Australia’s places of detention, the OPCAT Subcommittee on Prevention of Torture (SPT) ran into a heavy dose of NSW exceptionalism, law n’ order politics and a Commonwealth-State stand off over money.
Arriving at the Queabeyan holding cells for an unannounced visit, the SPT – composed of an international panel of distinguished judges and academics – were refused entry to the facility.
Inconveniently for both NSW and the Commonwealth, Articles 12 and 14 of OPCAT require state parties to receive the SPT and grant it “unrestricted access to all places of detention and their installations and facilities”.
The small matter of a significant breach of binding international obligations designed to prevent serious human rights abuses was no barrier to NSW Corrections Minister Geoff Lee hopping on 2GB to defend the government.
With a full head of steam, Lee was out of the blocks with some classic law n’ order one liners, contending that any potential rights-based SPT recommendations would “compromise our security and the operation of our prisons” and that the UN should not be “picking on us.”
Alas, Iran isnot a signatory to OPCAT.
Denied their mandate, and perhaps just fed up with NSW politics, the SPT cut their visit short, leaving Australia alongside Rwanda, Ukraine and Azerbaijan as the only countries to have had such a UN inspection suspended for lack of cooperation.
The delegation was clearly unimpressed with NSW’s wilful ignorance, decrying a “limited understanding” of its mandate.
Aisha Shujune Muhammad, the head of the delegation, said that “despite our numerous efforts to explain our preventive mandate, this was clearly not understood”.
While Queensland similarly refused SPT access to facilities holding mentally ill patients convicted of crimes, they have since announced plans to pass legislation to permit OPCAT visits.
The states’ bolshiness creates a number of headaches for the federal government.
First, it sets back efforts by the new government to repair Australia’s international human rights reputation, and will not be looked upon kindly by treaty bodies and members of the international community who do fulfil their obligations.
Lorraine Finlay, Australia’s Human Rights Commissioner, told Justinian that she was “extremely concerned” about the suspension “both because it clearly indicates that Australia is not complying with its OPCAT obligations and the message it sends to the world about Australia’s commitment to human rights and the rules-based international system”.
“Any failure by Australia to meet its international obligations is troubling. The events of the past week are particularly concerning with the unwillingness of some states to engage with the UN and subject themselves to the same level of scrutiny that we demand of others does have a broader impact on Australia’s international standing.”
The actions of NSW and Queensland come, perhaps not coincidentally, at a particularly awkward time for the federal government. On November 15, the UN Committee Against Torture will meet in Geneva to review Australia’s progress in implementing the Convention Against Torture.
Of particular interest to the committee, and at the heart of the dispute with the states, will be Australia’s “sluggish” approach to setting up a National Preventive Mechanism (NPM) to monitor treaty compliance outside of SPT visits.
Since ratifying OPCAT in 2017, the Commonwealth has twice asked for postponements to establish a NPM, with the current deadline of January 20, 2023 approaching rapidly. State funding has proven the major difficulty to implementing the treaty regime, with Australia’s most recent extension granted on accord of “considerations relating to Australia’s federated system of government”.
In July last year, the Commonwealth offered funding over two years to states to nominate their own NPMs, but on the condition that “jurisdictions are responsible for funding their own oversight and detention arrangements on an ongoing basis”.
The prospect of coughing up cash to fund the Commonwealth’s obligations has clearly not gone down well in NSW. In March 2021, NSW Attorney General Mark Speakman told parliament:
“NSW did not support the ratification of OPCAT before resourcing concerns were addressed and does not support implementation until those concerns are addressed.”
Thus, Australia’s adherence to the Convention Against Torture has devolved into an unprepossessing game of chicken over who will blink first and fund the NPM before the Jan. 20 deadline.
That the NSW government was willing to go so far as to use a breach of international obligations as a bargaining chip over a small funding matter is conduct unbecoming, and unlikely to achieve anything other than international embarrassment.
The recent federal budget gave no indication that the deadlock would be broken anytime soon. The budget did show plans to fund jurisdictions to implement their NPMs, but no amount has been agreed upon. Finlay urged the Commonwealth to cough up the cash:
“Both state and federal governments need to ensure that the NPM network is properly funded. While the Commonwealth has a direct obligation to do this under OPCAT, the states also have important responsibilities in this area. They have a moral obligation to ensure that their prisons meet minimum human rights standards regardless of what international treaties Australia signs up to.”
Victoria’s Ombudsman has estimated that funding the NPM in that state would require $2.5m a year.
For the cost of a run-down Marrickville semi, the funding dispute between NSW and the Commonwealth could be solved and, more importantly, OPCAT complied with. Neither the penny-pinching Commonwealth nor the extortative NSW government emerge well out of this sorry saga.