Australia fails human rights test at the first hurdle, rejecting UN inspectors from prisons and mental healthcare facilities

Australia is failing to meet its obligations under a United Nations human rights convention that allows for random visits by UN inspectors to places of detention.

A long-running funding deadlock between the federal government and the states has come to a head this week, with New South Wales blocking a group of visiting UN experts from inspecting its prisons to ensure no torture is occurring. The Queensland government has prevented the same group from accessing some of its mental health facilities.

Australia has ratified a 2017 agreement that gives the UN Subcommittee on the Prevention of Torture (SPT) unfettered access to places of detention and to interview the people held there in order to prevent human rights abuses.

The rejection of the visiting UN experts puts Australia in breach of the Optional Protocol to the Convention Against Torture (OPCAT), which was ratified by the Turnbull government.

Australia has now failed its first test under the global human rights agreement, Australia OPCAT Network coordinator Steven Caruana says. “Australia made a commitment to the rest of the world that it would be trusted as a leader on human rights — the SPT visit is the true test of that promise,” Caruana says. “If NSW continues to reject the delegations’ requests to visit its places of detention then it puts our overall compliance in jeopardy.”

“Clearly the NSW government is hoping the Commonwealth capitulates and agrees to ongoing funding or face the consequences of non-compliance.”

OPCAT requires signatory nations to establish independent bodies to inspect places of detention, dubbed national preventive mechanisms (NPMs), and to allow the UN SPT to conduct periodic inspections of these places.

Australia has repeatedly pushed back its deadline to implement these measures, with responsibility largely falling on the state and territory governments. The inspection bodies must now be in place by January next year.

Despite having nearly six years to prepare, Australia’s three largest states have not taken any significant actions to launch these bodies, and have refused to do so until the federal government provides adequate resourcing.

This roadblock has carried on under the new Labor government, and has now come to a head with the visit of the SPT to Australia, the first visit since Australia ratified OPCAT.

Earlier this week the NSW government signalled it would not be allowing the UN group to visit its prisons and other places of detention without prior warning, something OPCAT does not require. It followed through with its threat on Tuesday night, with the SPT prevented from inspecting the Queanbeyan Court cells.

This is despite a direct request from the federal government for the state to allow access to the group, and many other states agreeing to do so.

Attorney-General Mark Dreyfus this week issued a press release welcoming the SPT visit, thanking every state and territory for its cooperation except for NSW.

The NSW government has reportedly raised concerns about operational, security and safety issues surrounding the UN having unfettered access to its places of detention, and is said to have only agreed to announced visits. This is despite the state’s existing prison inspector body already being able to visit these facilities whenever it wants.

Under OPCAT, the SPT has a mandate to carry out unannounced visits across detention facilities in Australia, and to conduct private interviews with detained people to proactively identify and prevent human rights abuses.

Justice Action coordinator Brett Collins says there are “clear breaches” of OPCAT occurring in facilities in NSW.

“OPCAT and media interest will end these practices,” Collins says. “The remedies aren’t costly, but they require openness and respect. NSW shows the opposite, and its attempted cover-up will only draw more attention to the abuses.”

The Queensland government will also prevent the UN group from accessing some of the facilities included in its remit. Pointing to existing laws, the Queensland Department of Health confirmed it will not allow the group to go into inpatient units in mental health facilities.

This is despite the state government knowing for more than five years that the SPT would be visiting, and that it would be required to visit these facilities to ensure human rights are being upheld. Other states have introduced legislation specifically to allow these visits to happen.

The Queensland government has said it will provide access to other places of detention.

The decisions to block access to the UN may force the federal government’s hand in the funding deadlock, with Labor to hand down its first budget next week.

Midway through last year, the former Coalition government allocated funding over two years to support states in implementing OPCAT, but said this would be a one-off. In Victoria, the state government allocated $500,000 in the 2021-22 budget for the implementation of OPCAT, but it is yet to take any public steps to nominate or establish an NPM.

Australia is also set to miss its deadline to have the NPMs up and running, with New South Wales, Victoria, Queensland and South Australia all refusing to act until they are provided ongoing funding.