University of Technology Sydney: Australia is dragging its feet on torture prevention

Four years since Australia committed to the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Australia has failed to meet its requirements.

This UN protocol is an instrument that requires Australia to “set up, designate or maintain […] one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.”

These bodies would visit places such as prisons and detention centres to assess the safety and well-being of detained people.

Disappointingly, the federal government wants to limit the scope of detention safety and well-being assessments to “primary places of detention”, such as prisons.

If the scope is as limited as the government intends, residential secure facilities for children in out-of-home-care, “police lock-up” where people are held for less than 24 hours (for example police vehicles and court cells) may be excluded. This would disproportionately impact on Aboriginal communities.

Despite our government signing up and seeking an additional three years to implement the protocol, there has been limited progress. The deadline of January 2022 is looming, and most jurisdictions have a long way to go, as discussed in the the commonwealth Ombudsman’s assessment of Australia’s Optional Protocol readiness.

Commonwealth, state and territory governments’ slow implementation is especially appalling in the context of this year’s 30-year anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody.

Aboriginal and Torres Strait Islander people continue to be the most incarcerated people in the world. Australia is on track to squander this critical opportunity to prevent further death, torture and ill-treatment of Aboriginal and Torres Strait Islander people in custody, through culturally appropriate implementation of the UN protocol.

Human rights breaches in Australia
Occasionally we get a glimpse of what happens in Australian detention facilities, as we did with the Don Dale Youth Detention Centre in the Northern Territory. We have also seen this with the death in police custody of Tanya Day, the treatment of people with disabilities in prisons, and the use of prolonged solitary confinement. These stories are harrowing and the extent of abuse in these institutions is staggering.

Strip-searching, the use of solitary confinement (including prisons’ use of quarantine during the pandemic), unfair disciplinary proceedings, and excessive use of force and corrupt conduct, are some of the human rights issues and abuses we know happen to detained people.

Aboriginal and Torres Strait Islander people continue to die in custody, with many recommendations of the Royal Commission into Aboriginal Deaths in Custody report remaining unimplemented. Stalling on the implementation of this UN protocol, when 500 Aboriginal and Torres Strait Islander people have died since the royal commission 30 years ago, is unacceptable.

As the UN protocol recommends, regular unannounced visits to places of detention, with access to the entire facility and all detained people, is crucial to increase transparency and accountability of these places. The United Kingdom’s and New Zealand’s protocol detention oversight systems are already publicly reporting the findings of their unannounced visits.

What would preventive bodies do?
Preventive bodies would be able to tackle issues that increase the risk of ill-treatment and torture, such as overcrowding in pre-trial detention, and legislation or practices contributing to soaring imprisonment rates.

While other detention safety assessments do exist, such as Ombudsman offices and complaints and investigative bodies, their focus is on incidents that have already happened. The UN protocol aims to stop these incidents from happening in the first place. Organisations such as the Victorian Aboriginal Legal Service have emphasised the importance of legislating the powers of an appropriate preventive body.

So far there have been inadequate funding commitments to implementing the UN protocol. The federal government has only made a one-off funding commitment under Closing the Gap, and Victoria has committed to just $500,000 over four years.

Equal protections
The importance of culturally appropriate services for people in detention has been widely accepted across Australia and internationally. There is a growing expectation staff dealing with detained people have cultural awareness training. However, only Aboriginal community-controlled organisations can deliver culturally safe services.

Currently, prisons and other places of detainment around the country are not addressing the cultural needs of Aboriginal people. In the South Australian bill to implement the UN protocol, there is no mention of the unique needs or experiences of detained Aboriginal people.

In the Tasmanian bill, attention to Aboriginal people is limited to mentioning there should be Indigenous staff working at preventive bodies.

The Torture Reporting Handbook, a guide on how to document and respond to allegations of torture, emphasised “different cultures […] have different perceptions of what amounts to torture.”

The UN subcommittee on the protocol has identified that “custodial sentences […] are barely used in the Indigenous justice system”. The Victorian Aboriginal Legal Service has advocated for a body that has an appreciation of the legacy and ongoing impacts of colonisation and systemic racism.

Urgent next steps
With United Nations Human Rights Day last week, governments across Australia should be reflecting on what their human rights legacy is going to be.

It’s imperative the federal and state governments set up consultations with Aboriginal community controlled organisations and community groups into how detention oversight can be safe and culturally appropriate for Indigenous people.

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