Australia is on the verge of becoming the first OECD nation to be placed on a United Nations non-compliance list over its failure to implement a human rights agreement it signed onto more than five years ago.
The former Coalition government ratified the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in late 2017, under then attorney-general George Brandis, just months after Australia was elected to serve on the UN’s Human Rights Council.
More than five years later, however, Australia has failed across the board at implementing its obligations under the agreement, which is aimed at preventing human rights abuses in places of detention.
OPCAT requires signatory nations to set up independent inspection and monitoring bodies for all places of detention and to allow regular visits from a group of UN experts to these places. Australia has done neither.
A funding deadlock between the federal and state governments has meant inspection and monitoring bodies have not been established. Similarly, a UN expert group suspended its visit to Australia late last year after being blocked from inspecting a number of prisons.
In Australia, each state and territory has to establish its own inspection body to be compliant with OPCAT. After pushing back its implementation date several times, Australia has missed its January deadline, with New South Wales, Victoria and Queensland still yet to establish these bodies.
Speaking to The Saturday Paper, a vice-chair of the subcommittee on prevention of torture (SPT) who led the now-suspended delegation to Australia, confirmed Australia is likely to be placed on the UN’s non-compliance list, known as the Article 17 list.
“There is a rough ballpark time line, then, depending on the situation, it’s very much decided country to country,” says Aisha Shujune Muhammad, who is also a justice of the Supreme Court in the Maldives. “Considering that Australia has had five years, I wouldn’t be surprised if Australia makes it to the Article 17 list. That is something we could do and the plenary would make that decision.
“It is unfortunate, to put it very lightly, that Australia was unable to do it within five years. Once the obligation is not met in a timely manner, that is reflective of how seriously those obligations are taken at face level.”
Australia would be the first OECD nation on this list, which features 14 countries including Nauru, Nigeria, South Sudan and the Philippines. These countries have been publicly shamed for breaking a “fundamental obligation” to the UN human rights treaty. The US has also not signed OPCAT.
The UN committee has written to the Australian government offering assistance in implementing OPCAT.
“We are ready to assist them whichever way they would like to ensure that Australia meets its OPCAT requirements – that’s an open invitation,” Muhammad says. The decision to cancel the UN visit to Australia was made after “intensive debates” and consultation with the federal government, she says.
“It wasn’t an easy decision to make. At the end of the day the principles of OPCAT had to be upheld and protected. Because Australia is looked up to by many states, especially in the Oceanic region, it is really a shame that Australia was unable to take a stronger position in terms of leadership.”
A spokesperson for Attorney-General Mark Dreyfus said the government “deeply regrets” the cancelled UN visit and remains committed to implementing OPCAT.
The spokesperson said Australia “takes its obligations under OPCAT seriously”.
“Since the SPT suspended its visit in October 2022, the Australian government has been engaging co-operatively and in good faith with the SPT and with all states and territories to work towards a possible resumption of the visit.”
The federal government has offered the states and territories one-off funding to assist in the establishment of the monitoring bodies under OPCAT. The ACT is the only jurisdiction to accept this funding, with other states arguing that ongoing support is required.
Beyond missing its implementation deadline, the federal government has also been accused of acting in bad faith by attempting to exclude several places of detention from the scheme, including offshore detention and aged-care homes.
The federal government has repeatedly said that only “primary” places of detention, such as prisons, will be included in the scheme initially, with aged-care and disability homes, and offshore detention and processing facilities, actively excluded.
Muhammad says this is the first time she’s encountered a country trying to do this. She notes that it runs directly counter to the agreement Australia signed.
“The definition is very wide, and the interpretation is as wide as well,” she says. “Having signed up to OPCAT and agreed that this is what a place of deprivation of liberty would be, for Australia to then say that they will, for the purpose of implementing it, divide it into primary and secondary, is a bit shocking.
“This distinction is unnecessary and is contrary to the provisions of the OPCAT.”
The Australian human rights commissioner, Lorraine Finlay, has also raised concerns that Australia is taking a technical approach to the human rights treaty.
“It’s really disappointing that we seem to be prioritising form over substance,” Finlay tells The Saturday Paper. “It’s a matter of letting technicalities stop us from what we need to deliver for the most vulnerable people in the community. OPCAT is a really positive opportunity for us to strengthen human rights protections for people deprived of liberty.
“We need to embrace that opportunity and not employ a narrow and technical interpretation of the treaty that limits that opportunity.”
Australia is arguing its offshore detention facilities should not fall under the remit of OPCAT because they are outside the country’s jurisdiction and its control. This is despite the government paying for the facilities – most recently through a $420 million contract with a US private prison provider for “garrison and welfare” services on Nauru, extending the processing agreement with Nauru for another decade, and allocating $500 million in the recent budget for continued offshore processing of asylum seekers.
“If an offshore facility is managed, our take has often been that offshore places of detention would fall into [OPCAT], and therefore jurisdiction would apply,” Muhammad says.
Steven Caruana, co-ordinator of the Australia OPCAT Network, says the protocol would be a crucial tool for preventing future human rights abuses in Australia’s offshore processing facilities.
“The vulnerability of the people we send to offshore processing, combined with the secrecy in which the facilities that detain them operate, makes external scrutiny an essential component in safeguarding their human rights and keeping our government accountable for its policy decisions and their consequences,” he says.
While no asylum seekers are currently held in detention centres in Nauru or Papua New Guinea, more than a hundred refugees are still living in the community, and the UN High Commissioner for Refugees has previously found that conditions in Nauru are “indistinguishable from previous detention arrangements”.
The Australian Human Rights Commission has urged the federal government to include these facilities under the OPCAT scheme. “We have a continued level of responsibility and Australia can’t simply outsource our human rights obligations,” Finlay says. “We need to show leadership in this area and make sure we’re fully embracing our human rights.”
Madeline Gleeson, a senior research fellow at UNSW’s Kaldor Centre for International Refugee Law, says Australia is not engaging with its international human rights obligations in good faith.
“Australia cannot say, on the one hand, ‘We have done the right thing’, and on the other hand, ‘But we will choose if and when it applies,’ ” Gleeson says. “The prohibition on torture is absolute. There are no circumstances in which it is permissible to engage in torture. It must be respected to the fullest with no exceptions carved out.”
The lack of compliance with the UN agreement, particularly around the exclusion of offshore facilities, risks Australia’s standing in the international community, Gleeson says.
“If you have one country seeking to detain people in the territory of another, what does that mean for their obligations?” she says.
“Under international law, countries cannot deliberately avoid their human rights obligations by doing in the territory of another country something they could not do in their own. To allow otherwise would undermine the entire human rights system.”
OPCAT does not set any new standards, Muhammad says, but rather aims to ensure that other standards to which Australia has already signed up are being upheld.
“I would be surprised if Australia would state that this is not something that is in their interests, because we’re not creating any new standards,” she says. “It’s about ensuring the systems in place are designed in a way that would prevent inherent indignity to human life. I don’t think people should object to that.”
This article was first published in the print edition of The Saturday Paper on May 20, 2023 as "Torture sights".
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