We support the Commonwealth Government’s commitment to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) imposes human rights obligations on every public authority in Victoria. Relevantly for present purposes, s 10 of the Charter provides that:
A person must not be—
(a) subjected to torture; or
(b) treated or punished in a cruel, inhuman or degrading way; or
(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.
Section 38(1) provides that it is unlawful (subject to some qualifications) for a public authority to act incompatibly with human rights, or to fail to give proper consideration to relevant human rights in making a decision. A public authority includes:
a. a public sector employee or the holder of a statutory or a prerogative office;
b. a statutory entity that has functions of a public nature;
c. an entity with functions of a public nature, when it is exercising those functions on behalf of the State or a public authority; and
d. Victoria Police.
Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), State Parties are required to take effective measures to prevent torture or serious ill-treatment in territory under their jurisdiction. OPCAT buttresses these obligations by establishing a regime for independent inspections of places of detention. State Parties are required to establish a National Preventive Mechanism (NPM) to conduct such inspections. They are also required to allow visits to places of detention by the United Nations Subcommittee on the Prevention of Torture (SPT).
The NPM will play an integral part in Australia’s OPCAT compliance. The SPT has limited resources. Since its commencement in 2007, it has conducted 60 visits. The National Children’s Commissioner has observed that the United Kingdom has not yet received a visit from the SPT, despite being one of the first states to ratify OPCAT. Accordingly, it is likely that the SPT will visit Australia infrequently. The NPM will be principally responsible for conducting inspections and ensuring the accountability of our prisons, detention centres, lock-ups and secure facilities. The NPM must be designed with this considerable duty in mind.
Victoria has a number of existing mechanisms for the inspection of places of detention, but many of these mechanisms are not OPCAT-compliant.
While Victoria’s current range of institutions and authorities ably scrutinise the treatment of people in detention, each of them is hampered by one or more of the following issues:
a. a lack of functional independence from the Executive government, which generally is primarily responsible for the treatment of people in detention;
b. insufficient resources to carry out regular inspections of places of detention, and to make regular recommendations and proposals to relevant authorities in light of those inspections;
c. a lack of important powers, including (but not limited to) the power to undertake regular, own motion visits of any and all places of detention, and the power to require the production of documents and information for this purpose; and
d. a lack of specialist expertise in relevant areas, including criminal justice, human rights and physical and mental health.
For these reasons, Victoria should create a dedicated, independent, specialist NPM body, which will form part of Australia’s national NPM. The same should occur in each jurisdiction in Australia. We consider that the Western Australian Office of the Inspector of Custodial Services (OICS), established under the Inspector of Custodial Services Act 2003 (WA), provides an example of best practice that should be replicated in other jurisdictions.
Liberty Victoria considers that the NPM should prioritise the following forms of detention:
a. imprisonment of adults;
b. detention in a secure institution for young people;
c. detention in a police lock-up or police station;
d. involuntary detention in a closed psychiatric institution; and
e. detention in an immigration detention.
These are the principal forms of detention in Australia, by frequency, duration and intensity.
We consider that immigration detention is a particularly urgent issue for the NPM:
a. The Commonwealth continues to brutalise approximately 1,400 people in off-shore detention. The appalling conditions on Manus Island, Nauru and Christmas Island have been canvassed repeatedly in the media, by institutions like the Australian Human Rights Commission (AHRC), and by the United Nations. The 2015 Moss Review found that there have been multiple incidents of sexual and physical assault in the Nauru Regional Processing Centre, and that these incidents are under-reported. In April 2016, an Iranian refugee imprisoned on Nauru died after setting himself alight in protest. In 2015, United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, found that Australia:
by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.
b. Meanwhile, almost 1,000 people languish in onshore detention centres. Many of these are children, whom paediatricians engaged by the AHRC described as ‘amongst the most traumatised children [they] have ever seen’.
We also consider that youth detention must be a pressing priority for the NPM:
a. In 2016 and 2017, the Victorian Government was found to have breached the human rights of children in detention, by transferring them to a designated section of Barwon Prison, a prison built for adult prisoners. The damage caused by such conditions is something that that Victorian community will have to deal with in years to come as we begin to understand the cost of prioritising punitive policies over the rehabilitation of child detainees.
b. The Royal Commission into the Protection and Detention of Children in the Northern Territory, established following the revelations about the treatment of children in the Don Dale Youth Detention Centre, has already uncovered systemic failings in the youth justice system in the Territory. Commissioner Margaret White has commented that ‘[a]t every level we have seen that a detention system which focuses on punitive – not rehabilitative – measures fails our young people.’