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Almost four years after Australia ratified the United Nations Optional Protocol to the Convention against Torture, humans rights breaches are still being reported in prisons and detention centres. By Denham Sadler.

Human rights breaches in prisons

The man had his hands cuffed behind his back and was naked when the prison officers punched and kicked him in the head. They did this multiple times.

Dubbed Prisoner A in a report released last week by the Independent Broad-based Anti-corruption Commission, the man was incarcerated at the privately run Victorian Port Phillip Prison in 2017. He had failed to return a ball the previous day and was being strip searched in order for the officers to “assert control”.

While a usual strip search lasts about one minute, this one took seven minutes.

When Prisoner A complained that the process was “degrading” and raised his arms in an apparent non-violent protest, he was forced to the floor and restrained. While still naked, he was assaulted by multiple prison officers for two minutes, the commission found.

It said this was an “excessive and inconsistent use of force” and that the long strip search amounted to a breach of Prisoner A’s human rights. The report found widespread risks of excessive assaults, strip-searching and other breaches of the human rights of people in prisons across Victoria.

The report comes almost four years after Australia ratified the United Nations Optional Protocol to the Convention against Torture (OPCAT). Advocates say the protocol would help prevent the incidents described in the report, and wider breaches of human rights, if it were upheld.

The protocol requires signatory countries to allow a group of UN experts unfettered access to places of detention, such as prisons and immigration detention centres, and to establish independent oversight bodies, dubbed national preventive mechanisms, to conduct proactive inspections.

These oversight bodies are required to be wholly independent from the government and justice department. They are to be properly resourced and funded, giving them real influence.

The protocol has been in place in countries such as Canada and New Zealand for more than a decade. It has led to the outlawing of several techniques found to amount to human rights breaches, including the use of tie-down beds.

The Human Rights Law Centre’s associate legal director, Monique Hurley, said the protocol would help to address issues around solitary confinement and demeaning practices such as strip-searching in prisons, but the slow pace of implementation has dampened these hopes.

“Abuse thrives in darkness, and time is long overdue for greater oversight and transparency of all places of detention,” Hurley says. “We must shine a light on human rights abuses in prisons and hold our governments to account for the mistreatment of people behind bars.”

Despite ratifying the agreement in 2017, Australia quickly moved to defer its obligations under the scheme for a further three years, the maximum time allowed. The other countries to do this were the Philippines, Hungary and Kazakhstan.

With provisions for a further 12-month delay, Australia has until January 20, 2022 to have the protocol in place.

Despite the extra time, Australia has made little progress on implementation. Political infighting over funding and a broad lack of enthusiasm for the added transparency and accountability has slowed the process.

The federal government will be playing a co-ordinating role in implementing the protocol, while each state and territory will be responsible for establishing its own independent inspectors and for facilitating the UN visits.

So far, the federal government has refused to introduce legislation to underpin the protocol. It is yet to produce an intergovernmental agreement and is yet to provide any funding to assist with its implementation, with plans to restart negotiations with the states later this year.

With just six months until the deadline, Victoria, New South Wales and Queensland are yet to create the inspection bodies required and introduce legislation to underpin the scheme.

This is despite the Commonwealth ombudsman finding that the existing inspector bodies in these states were not compliant with the protocol in terms of independence from the government, among other issues.

The Commonwealth is also taking an extremely narrow view of obligations and will not be including places such as aged-care and disability-care homes for inspection, despite many incidents of abuse being uncovered recently, and many other countries including them.

Human rights and legal groups say that having the scheme in place in Australia would help avoid many of the incidents revealed through official inquiries and recent royal commissions.

When Australia ratified the UN protocol in 2017, it was seen by the Human Rights commissioner, Ed Santow, as a “once-in-a-generation opportunity” to improve conditions in places of detention.

“Implementing OPCAT will enable a light to be shone on the conditions experienced by people in detention and to identify practices that can cause mistreatment,” Santow tells The Saturday Paper.

“It provides a more effective early warning system so that governments can prevent human rights abuses arising or worsening. Implementing OPCAT will make a crucial difference to the protection of the basic rights of people in detention.”

According to Steven Caruana, a former inspector of prisons and immigration detention centres and the co-ordinator of an advocacy group for the protocol in Australia, the lack of progress on implementation puts the scheme at risk.

“It came at the end of the Don Dale issue, when there was a lot of focus on oversight,” Caruana tells The Saturday Paper. “But by delaying it we’re losing momentum with the public. OPCAT has been described as a once-in-a-generation opportunity to improve conditions of detention and starting the way we have means we’re really going to miss that opportunity.”

Caruana is unsure whether Australia will even make the deadline next year. Even if it does, he says, there are significant doubts that the country will actually be compliant with the anti-torture convention requirements.

The lack of progress from many of Australia’s largest states seems directly linked to the federal government’s refusal to provide any additional funding for the establishment of the inspector teams.

The NSW government has said it does not support the implementation of the protocol until it is provided funding from the Commonwealth, despite the deadline fast approaching.

The Victorian government provided $500,000 in the recent budget for the implementation, but it is understood this will go towards the state’s existing oversight bodies. A final decision is yet to be made on the independent inspectors.

Andreea Lachsz, head of policy at the Victorian Aboriginal Legal Service, said the funding that has been committed is not nearly enough to establish a proper oversight mechanism.

She said it would be impossible for the protocol “to be properly implemented, for the detention oversight body to be effective in preventing torture and ill-treatment, or for it to be culturally safe for Aboriginal people”.

In Queensland, the state government says it is still in negotiations with its federal counterpart. Western Australia was the first state to designate its independent inspectors, while the ACT, Tasmania, Northern Territory and South Australia have announced who will be undertaking the oversight duties.

Earlier this month the Commonwealth ombudsman, Michael Manthorpe, warned states that the “clock is ticking” and implementing the UN torture protocol is a “pressing priority”.

Greens senator Lidia Thorpe, who has pursued the issue through senate estimates, called on the federal government to take the leadership on implementation.

“It’s incredibly disappointing that the government is not taking the full, culturally safe and properly resourced implementation of OPCAT seriously,” Thorpe says.

“As usual, the government is doing the absolute bare minimum and calling it progress – and we see straight through it. The Commonwealth government must show leadership and provide the public money that is needed to make this happen.”

With Indigenous Australians still over-represented in prisons, there are also significant concerns that these inspection bodies will not be culturally appropriate.

The Victorian Aboriginal Legal Service has been attempting to consult with the Victorian government on this issue for several years but has had little luck.

“That is a sobering place to be on the 30-year anniversary of the Royal Commission into Aboriginal Deaths in Custody,” Lachsz says.

“Governments seem content to continue with business as usual rather than establish a robust detention oversight mechanism, with the result being that Aboriginal people will continue to suffer and die in prisons, youth prisons and police custody.”

This article was first published in the print edition of The Saturday Paper on Jul 3, 2021 as "Against convention".

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Denham Sadler is a freelance writer living in the Kulin nations.