A coming international torture law will protect detainees in Australia’s offshore processing centres

George Brandis. Photo: Jennifer Polixenni Brankin/Getty Images

In an era when Canberra has been intent on avoiding international human rights scrutiny, particularly of its immigration detention centres, the announcement by Attorney –General George Brandis that Australia will move toward implementation of the Optional Protocol to the Convention against Torture (OPCAT) by the end of the year, is a welcome development.

Detention facilities, and this could include Manus Island Nauru, will now be subject to inspection by United Nations officials.

In our jails, immigration detention facilities, youth detention centres and psychiatric units, abuses of human rights are all too common and often go unnoticed. There is little public interest or sympathy for those who we detain in society. Our politicians and media pander to this prejudice and so governments are able to avoid scrutiny of their actions.

This is why practices such as solitary confinement, lockdown of detainees in cells for up to 23 hours a day, grossly inadequate bedding, clothing and food, and sub-standard healthcare occur every day in detention facilities around Australia and on Manus and Nauru.

Ratification of the OPCAT could change that. It has the potential to lift the standard of care of detainees, whether they are convicted prisoners, asylum seekers or others in detention.
This is because the treaty is a unique tool in the fight against torture and what is termed cruel inhuman or degrading treatment or punishment.

Aerial view of Nauru. Photo: WikiCommons

It was the first human rights treaty to bring monitoring of implementation home, to the state party in question. The implementation of most treaties is monitored by bodies of experts in Geneva or New York. Representatives from states parties write up reports, get on a plane and explain themselves in air conditioned rooms, far from the realities that exist at home.

Not so with the OPCAT. The experts that monitor the OPCAT’s implementation, members of the Subcommittee on the Prevention of Torture (SPT), come to the places where human rights need protection.

They visit people who are detained. They have private meetings with detainees, see where they sleep, eat and bathe, and interview officers of detention facilities. They are able to assess implementation in reality, rather than from afar.

The treaty also requires the establishment of a body to continue to monitor conditions in detention. National Prevention Mechanisms (NPMs) are based in the country.

Soon we will have at least one in Australia. After the SPT’s initial visit, NPMs keep monitoring detention facilities, consulting with governments and the SPT to ensure that risks of torture and ill-treatment continue to be guarded against. It is a risk that requires vigilance to overcome. This treaty sets up the necessary framework.

Photo: Chris Hopkins/Getty Images

The need for this monitoring is clear. In just the last 12 months, we have seen children horrifically mistreated in Don Dale and detained in maximum security adult prisons in Victoria. Tragic deaths in custody, like that of Ms Dhu in Western Australia, appear to have resulted from treatment that contravenes the UN Convention against Torture.

Arguably, however, the greatest need for monitoring to prevent torture and ill-treatment is in offshore immigration detention.

While Australian law applies there, enforcing it has proved difficult. The mistreatment that asylum seekers and refugees have experienced on Nauru and Manus Island is well documented. However, international borders and a lack of political will have meant that little has been done to eliminate the risks that detainees face. The mistreatment serves a political purpose, of discouraging asylum seekers from asking Australia for help, and so appears to be tolerated by Australian and foreign authorities.

People have argued that the OPCAT will not apply to offshore detention, as Nauru and Manus Island are outside of Australia. However the treaty is not restricted to applying within our territorial boundaries. Obligations arise in all places of detention under Australia’s ‘jurisdiction or control’. The SPT has itself recommended that where countries detain people in third countries, agreements be reached so that NPMs can legally and practically inspect those places.

NPMs should then be able to enter into dialogues with both sending and receiving states to ensure obligations are met, according to the SPT.

It is perfectly open to the government to enter into such an arrangement with Nauru and Papua New Guinea. We would argue that it is required, to meet Australia’s international obligations. Any government genuinely committed to eliminating torture and ill-treatment on its watch would do so.

Barrister Greg Barns is a member of the Tasmanian, Victorian, and Western Australian Bars, and practises from Salamanca Chambers in Hobart and Stawell Chambers in Melbourne. Greg specialises in criminal law and administrative law.

Lawyer Anna Talbot is the Legal and Policy Adviser with the Australian Lawyers Alliance. She previously worked with Amnesty International in London, where she led on that organisation’s engagement with the Subcommittee on the Prevention of Torture.

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