Regulating torture: how Australia has fallen short on its obligations under the Optional Protocol to the Convention Against Torture

Amy Zirngibl

Australia has fallen short on its legal obligations under an international treaty by not granting a UN body access to its places of detention and failing to establish a domestic body to monitor these facilities. Given the country’s recent history surrounding the treatment of people in custody, these failings are an especially worrying backwards step for human rights protections in Australia.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibits the infliction of torture and mistreatment in countries which are parties to the treaty. The Optional Protocol to the Convention (OPCAT) imposes an additional set of legal obligations to ensure that the CAT is being complied with in places of detention. Places of detention include (but are not limited to) prisons, juvenile detention centres, immigration detention centres, hospitals, mental health facilities, aged care facilities and facilities for people with disability.¹

Australia ratified the OPCAT in 2017 and hence, is required to introduce a system which allows all places of detention to be inspected and monitored by certain independent international and domestic bodies. One of these bodies is the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT). Last year, the SPT announced that it would visit Australia in October 2022 to assess whether we had fulfilled our obligations under the OPCAT and to examine the treatment of, and the protections for, people deprived of their liberty in Australia.

In order for Australia to fulfil its inspection obligations, permission must be granted to the SPT to visit places of detention. Because these facilities are under the jurisdiction of state governments, each state controls access to its own places of detention. When the SPT arrived in Australia, it reported that they were denied entry into certain facilities in NSW and Queensland. A spokesperson for Corrective Services NSW said that the SPT was denied entry because it did not have “prior approval”. They went on to say that anyone who wants to enter a Corrective Services NSW facility “must have prior written authorisation.” The SPT put out a press release stating that the actions of NSW and Queensland were “a clear breach by Australia of its obligations under OPCAT.”

In a meeting discussing the SPT’s visit in November 2022, the Committee against Torture (CAT Committee) expressed concerns about Australia’s use of solitary confinement and restraints, the country’s imprisonment rates – including their extensive increase in the last decade, as well as the overrepresentation of First Nations people in custody – and the current immigration detention policies.

In his closing remarks, CAT Committee chairperson Claude Heller said he was hopeful that Australia would continue to fulfil its OPCAT obligations by welcoming a future visit from the SPT and establishing a National Mechanism for the Prevention of Torture (NPM). A NPM is a domestic body which inspects and monitors the treatment of people in places of detention.

In January 2023, Australia missed the extended deadline to establish a NPM. A month later, the SPT announced that it would be terminating its visit to Australia because two state governments refused to guarantee unrestricted access to its detention facilities. A spokesperson for the NSW Attorney-General stated that the State Government required greater federal funding to implement its OPCAT obligations.²

Australia’s lacklustre commitment to implementing the OPCAT is particularly problematic due to its recent history surrounding the treatment of people in custody. Beginning in 2016, a Royal Commission into the treatment of children in detention centres in the Northern Territory found that these facilities were unfit to accommodate or rehabilitate children and that children were verbally and physically abused, as well as subjected to inappropriate, punitive and degrading treatment in places of detention. Likewise, the Royal Commission into Aged Care Quality and Safety, in a report published in 2021, revealed that there had been 5718 allegations of assault against aged care residents in 2019-2020 and that “unsafe and inhumane” treatment occurs in these facilities. Worryingly, recent reports demonstrates terrible conditions continue to plague youth detention and aged care facilities.

The day after the SPT announced the termination of its visit to Australia, the Australian Human Rights Commission released a statement calling for “urgent action” and pleaded for Australia to make “immediate and tangible steps” to fulfil Australia’s OPCAT obligations. The Commission emphasised the “detrimental” impact that the SPT’s termination has on Australia’s international standing.

Australia willingly accepts international obligations to ensure that its residents are subject to acceptable standards of living. It needs to fulfil its promises to the people of this country and to the international community. Establishing a NPM and granting permission to the SPT to visit all places of detention across the country is a necessary step in doing so.

Amy Zirngibl was an intern with the Australian Journal of Human Rights in Term 1, 2023.