Motion Debate – Call to Review Tas OPCAT Against Human Rights Recommendations
Meg brought on for debate in the Legislative Council her motion calling for the Tasmanian OPCAT Implementation Act 2021 to be evaluated against the Australian Human Rights Commission’s Road May to OPCAT Compliance, on Tuesday 23 May 2023.
The Motion passed unamended.
Text of Motion:
Meg’s Speech presenting the motion:
Ms WEBB (Nelson) – I welcome the opportunity to bring on for debate today this important motion for the Chamber’s consideration. I regard it as a very positive opportunity to recognise progress and leadership of our state in this area.
Whenever and wherever people are incarcerated or at the mercy of the state across a range of mechanisms by which their liberty can be suspended or even denied, the issue of potential infringements of their human rights will arise. Sadly, all too often we are confronted with very real examples of those concerns and apparent infringements. Recent examples include the appalling situation in New South Wales, where we heard of a 95‑year-old woman with dementia living in an aged care facility who is now in a coma after being tasered by police officers. Close to home, we hear concerns raised with the ongoing situation at Ashley Youth Detention Centre still holding young Tasmanians. These are both examples of facilities and situations in which OPCAT applies.
Most members here will recall the debate on the Tasmanian OPCAT Implementation Bill in 2021 by which Tasmania formally established its infrastructure as required under the auspices of a national approach. I do not intend to take up the Chamber’s time by revisiting that debate. This motion is not about revisiting the merit or otherwise of the bill and the final act that was passed. Instead, this motion is focused upon on how well Tasmania has and is fulfilling its obligations under OPCAT and implementing our compliance infrastructure and procedures as established under that legislated governance framework. It also provides the scope for us to explore whether and how improvements could be made in further advancing our implementation of OPCAT in both principle and effect.
However, for the benefit of members who joined us after that 2021 debate, a little context may be useful. The Optional Protocol to the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, was adopted by the United Nations on 18 December 2002. It added to the UN’s body of human rights instruments, which provide the foundation legal framework for international human rights. OPCAT is designed to protect the fundamental human rights of people detained in places, including, but not limited to, police stations, prisons – military or civilian – detention centres, including pre-trail detention centres, immigration detention centres and youth justice establishments, as well as mental health and social care institutions, including aged cared facilities.
Despite becoming a signatory to OPCAT on 19 May 2009, Australia did not ratify the protocol until 21 December 2017. As part of translating the international agreement to a national and domestic implementation framework, Australia agreed to establish an independent National Preventive Mechanism – NPM – to conduct inspections of all places of detention in closed environments. The Australian Government chose to adopt a multi-body monitoring system, with the states and territories to designate their own NPMs within their relevant jurisdictions. The Office of the Commonwealth Ombudsman is the NPM coordinator responsible for coordinating the Australian NPM network of these individual state and territory NPMs. In addition to establishing the NPM, state parties to the protocol also agreed to international inspections of places of detention by the United Nations Subcommittee on the Prevention of Torture, otherwise referred to as the SPT.
It is the role, purpose and function of this significant subcommittee which is the key focus of this motion. Hence, it is worthwhile to briefly discuss the SPT in context of its application to our domestic jurisdictions. The SPT is composed of 25 independent and impartial experts from different backgrounds and various regions around the world. It is elected by state parties to the OPCAT for a four-year term. As detailed on the UN Human Rights High Commissioner’s website, the SPT has two primary operational functions. The first is to undertake visits to state parties, during the course of which they may visit any place where person may be deprived of their liberty.
The second is that is has an advisory function which involves providing assistance and advice to state parties on the establishment of National Preventive Mechanisms as required under OPCAT and also providing advice and assistance to both the NPM and the state party regarding the working of the NPM. The subcommittee, the SPT, examines the way in which detainees are treated whilst in detention as well as looking at the conditions of detention.
During its country site visits, SPT members talk in private with people in custody, without the presence of prison or other staff or of governmental representatives. However, the SPT also talk with government officials, custodial staff, lawyers and doctors and can recommend immediate changes intended to improve the situation of detainees. The SPT’s work is governed by strict confidentiality and the committee must not reveal who they have spoken to or what they have been told. It is equally important that anyone who provides information to the SPT must not be subject to sanctions or reprisals for having provided that information.
Mr President, as part of this contextual overview that I am providing, it is important to stress that the SPT does not hold an inquisitorial role; nor is it an oversight or complaints-handling body. Instead, the SPT conducts its work in a spirit of cooperation. It aims to engage with state parties through a process of constructive dialogue and collaboration, rather than condemnation or a name and shame approach.
Hence, it engages with national and sub-national states on a confidential basis and cannot publish reports and recommendations unless under agreement with the state party, which in our case would be Australia as represented by the Commonwealth NPM.
Part 2 of Tasmania’s OPCAT Implementation Act 2021 establishes a role of the Tasmanian National Preventive Mechanism, the NPM, which can consist of one or more persons. Mr Richard Connock was appointed as Tasmania’s NPM in February 2022. Members will have received correspondence from Mr Connock in this capacity in January this year, updating parliamentarians as recognised stakeholders in the implementation of the state’s OPCAT and NPM infrastructure and implementation framework.
Importantly, Mr Connock emphasises in that correspondence to us that it is in accordance with the SPT’s advice regarding best practice to foster and encourage active engagement with experts, stakeholders and civil society in:
… developing a shared understanding of the places that the Tasmanian NPM will be expected to visit; and the identification of applicable human rights obligations, norms, law and best practice.
It is that acknowledgement of the vital link between civil society, the role of the NPM site visits, and the human rights obligations that are central to the motion we are debating today.
It is important to pause a moment and acknowledge that, despite our national government’s tardiness in acting on its responsibilities once signing us up to OPCAT, in contrast the Tasmanian Government did act decisively. The public record of the 2021 debate in this place shows that I and others here argued for the Tasmanian bill to be strengthened in places. That aside, Tasmania did lead the nation in moving to establish in legislation our state-based National Preventive Mechanism in accordance with our responsibilities under OPCAT. For that, the Tasmanian Government, and particularly the Attorney-General, are to be commended.
Currently, the respective sub-national NPMs for the ACT, Northern Territory, South Australia, Western Australia, join with Tasmania and the Commonwealth in forming the Australian National Preventive Mechanism; although, not all these state jurisdictions have implemented their respective NPMs via legislation.
Mr President, that background provides the contextual setting for this motion and it brings us to the particular issue at hand and specifically the catalyst for raising the matter in parliament now.
Australia was scheduled to receive a SPT delegation which was to undertake our first series of site visits since ratifying OPCAT. The SPT delegation arrived on 16 October and was scheduled to complete its series of site visits by 27 October 2022. However, members may recall media reports late last year covering the surprising refusal of two interstate jurisdictions to allow SPT members to visit their detention facilities. These media reports cited the Australian Human Rights Commissioner Lorraine Finlay raising concerns – in light of this blocking of the SPT – about the potential ramifications for Australia’s international reputation if we were seen to be breaking promises made under OPCAT.
These concerns risked becoming an eventuality when, on 23 October 2022, the SPT delegation formally suspended their visit stating that it had been:
… prevented from visiting several places where people are detained, experienced difficulties in carrying out full visits at other locations, and was not given all the relevant information and documentation it had requested.
Ultimately, the head of the four-member delegation, Justice Aisha Shujune Muhammad, concluded that there had been ‘a clear breach by Australia of its obligations under OPCAT’.
I note again here that it certainly was not Tasmania’s participation that put us in that situation as a country; it was other interstate jurisdictions.
Unfortunately, on 20 February 2023, SPT released a further media release which stated:
The Subcommittee requested a number of assurances from State Party [Australia] in order to resume its visit. However, some of the requested guarantees were not provided, and the Subcommittee could not ascertain that it would be able to resume its visit in a reasonable timeframe … there is no alternative but to terminate the visit as the issue of unrestricted access to all places of deprivation of liberty in two states has not yet been resolved.
In response, on 21 February a joint statement was issued by the existing members of the Australian NPM which consisted of those individual Commonwealth and sub‑national NPMs, including Tasmania’s Mr Richard Connock. This seminal joint statement reiterated that the SPT terminated its visit to Australia as we could not provide the necessary assurances that the subcommittee could carry out its visits to detention facilities without restriction. This statement pointed out:
This is a disappointing outcome. Australia now joins Rwanda as the only other country where the SPT has decided to terminate a visit…[and] Australian governments, detaining authorities, civil society organisations and other oversight bodies have lost a valuable opportunity to work cooperatively with the SPT to progress our shared goal of protecting the human rights of people in detention.
Significantly, this joint statement also reiterated that:
…the termination of the SPT’s visit does not change Australia’s obligations under OPCAT. Australia’s existing network of NPM bodies remains firmly committed to our work of identifying risks of ill‑treatment in places of detention and making recommendations for improving the treatment and conditions of people who are detained.
The Australian Human Rights Commission (AHRC) was equally emphatic in not pulling its punches. In its media statement from 21 February, it described the SPT’s termination as an:
… extraordinary decision [which] reflects Australia’s fragmented approach to protecting human rights of people in detention.
The Australian Human Rights Commission also raised implications for Australia’s reputation as a leading advocate for rules‑based international systems and called on all Attorneys-General across the nation to reaffirm their commitment to OPCAT; to the rule of law premise underpinning the rules‑based international system; and to implement the commission’s Road Map to OPCAT Compliance report. That report was released by the Australian Human Rights Commission on 17 October 2022.
This leads us to the specifics of the motion. Clauses 1 to 6 of the motion present matters of fact and provide context to the specific, forward-looking request detailed in clause 7 and its subclauses. I am not going to speak further to those, beyond the contextual comments I have made.
Clause 7(a) of the motion requests the Government to detail which detention facilities were visited by the UN SPT delegation during its visit in October last year. ABC news reports, at the time it was announced that the SPT visit was suspended nationally, stated that the delegation had visited the Ashley Youth Detention Centre, amongst other Tasmanian facility site inspections. Hence, it would be a logical and transparent step to take to confirm all Tasmanian sites that were visited by the SPT. It seems odd to have only highlighted one on the public record; in some ways, drawing attention particularly to that site.
I also stress that the motion is certainly not seeking any further detail about the SPT’s visits to any of the locations; just verification of which locations were visited. To its credit, our state was one of the sites in Australia that did participate fully in these visits and it is important for us to be clear about our full participation.
Clause 7(b) of the motion provides the Government the opportunity to update parliament on any arrangements made with Commonwealth under part 3 of the OPCAT Implementation Act to facilitate visits by the SPT. For those who have not had a chance to view this particular part of the act, section 29(1), Ministerial arrangements, states:
The Minister may enter into arrangements with the Attorney-General of the Commonwealth for the purpose of facilitating the exercise in Tasmania by the Subcommittee of its functions under and in accordance with the Optional Protocol and the provisions of this Act.
Section 29 then goes on to provide a list of considerations for which ministerial arrangements may be established, including: access to, disclosure and publication of information; privacy; and special needs of children and other vulnerable people. It also provides for any arrangements with the Commonwealth Attorney-General regarding detention facilities and detainees which fall under the jurisdiction of the Commonwealth.
Hence, the motion is providing the opportunity for the Government to give us an update in parliament regarding arrangements between our two tiers of government, as they relate to Tasmanians held in places of detention located on this island, and the implementation of OPCAT. It is important to note this is not asking about any arrangements made with the NPM, either national or Tasmanian, nor the SPT. So, in no way should the provisions of this update as requested by section 7(b) of the motion risk the independence or the confidentiality of the NPM or SPT.
Clause 7(c) of the motion seeks a commitment from the Government to undertake an evaluation of the OPCAT Implementation Act 2021 in the context of the recommendations of the Australian Human Rights Commission’s report, Road Map to OPCAT Compliance of October 2022 and to provide that evaluation or review report to parliament as an update.
I would like to think such an evaluation would probably have been undertaken automatically and as a matter of routine when that report had come out from the Australian Human Rights Commission. In fact, I see this as a very positive invitation to the Government to share on the parliamentary record a review, at a time that suits it, that has luckily already been done and undertaken in response to that road map report.
However, in the context of the SPT’s very public termination of its inaugural visit to Australia and its warning that Australia was in breach of its OPCAT obligations, there is a heightened imperative I think for all national and sub-national jurisdictions, such as Tasmania, to demonstrate leadership and to be proactively sharing information on the public record about how we are doing in meeting our obligations, and how we are doing in seeking to improve how we are meeting those obligations.
I imagine that the kind of evaluation or review that is called for in 7(c) is not prescriptive about time or mode of how that is done. It could even be a desktop evaluation or review of our nation-leading legislation. In light of that road map report and the recommendations it contains, it is an opportunity for us to really highlight our continued leadership in this space.
It is also a key fact driving the Australian Human Rights Commission following that initial suspension and eventual termination of the SPT visit for Attorneys-General to implement the OPCAT compliance road map and to recommit to OPCAT and to seek that show of demonstrable leadership across the nation.
In light of the shocking embarrassment of finding Australia in the same human rights noncompliance category as Rwanda, the Australian Human Rights Commission was calling for as many jurisdictions as possible to stand up and be counted. I trust that Tasmania will continue to do that. Obviously, there will be aspects of this road map report which apply to the Commonwealth more so than the states and there may also be aspects covered by Mr Connock’s stakeholder consultation process that is currently underway, and there may be other areas that may or may not already be addressed partially or fully in our current act. However, I believe a review and then a report back to this parliament will be a wonderful way to put those matters on the record.
Whatever the status would be, it would be a significant investment in demonstrating our proactive approach to staying ahead of the game, both to the parliament itself, but also to our community, to our civil society stakeholders and other key stakeholders in this space.
Similarly, section 7(d) of my motion provides further opportunities in light of the termination of the SPT for Tasmania to formally and publicly commit to enabling and furthering the principles of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, and the practical implementation, including the visits, by the SPT.
As mentioned earlier, the motion’s two mechanisms by which that commitment is sought reflect the specific requests made by the Australian Human Rights Commission’s commissioners in light of last year’s announcement of the suspension of the SPT’s visit. The need to do so has become even more acute since February’s confirmation that the SPT thought they had no choice but to cancel its visit altogether.
As I begin to wrap up, I wish to stress what this motion is not seeking to do. Importantly, this motion is not asking the Government or anyone else to divulge sensitive, confidential or restricted information. We are not asking for any confidence to be breached regarding the SPT’s 2022 inspection of the six Tasmanian sites. This motion is not asking for any specific details, findings or any other operational detail other than a straightforward list of localities visited.
The motion does not seek to meddle with the daily operations of Tasmania’s NPM or infringe on that role’s independence in any way, nor does it seek the Government to act in any way inconsistent with the state’s OPCAT Implementation Act 2021. Instead, the motion presents the Government with an opportunity to actively develop our local human rights understanding and a culture across Government and the broader community, including this parliament, which, as identified by the Tasmanian OPCAT network, is essential for the NPM to be effective. Specifically, the Government can invest in strengthening our collective human rights culture by being as transparent as possible and disclosing immediately the six sites that were visited by the UN subcommittee, the SPT, in October 2022, given that we have had some information released in the media already about Ashley Youth Detention Centre being one of those sites. Such transparency has the added benefit of fostering community confidence while signalling to the public and private sectors and others with an interest in good governance, that Tasmania takes seriously the role of democratic accountability as a fundamental component of a meaningful and effective human rights culture.
Further, this motion provides government with a formal opportunity to undertake and assess our OPCAT Implementation Act 2021 against the 2022 Australian Human Rights Commission’s Road Map to OPCAT Compliance. Released almost a year after our act commenced, it is a timely opportunity to report back to parliament whether Tasmania’s act presents us with best practice and whether it potentially could have identified some areas in the time it has been in operation, areas of improvement to ensure consistency with what is happening in other jurisdictions or at a national level. It is a very appropriate role for the state Government and for this parliament to take. It does not impinge on or move into areas that the Tasmanian NPM is responsible for. It seeks to reinforce the responsibility that parliament has to be ever-vigilant that our laws and policies that are designed to protect Tasmania’s civil and human rights are as robust as they should be.
Lastly, this motion provides the Government with the opportunity to clearly restate its commitment to upholding the rule of law and the recognised rules-based international legal system underpinning OPCAT, as well as cooperating fully with all future visits and unannounced inspections of Tasmanian detention facilities. All of these proposed measures contained in the motion are consistent with OPCAT’s preamble, which states this:
The full respect for … human rights is a common responsibility shared by all and that international implementing bodies complement and strengthen national measures.
The motion’s proposed actions are also consistent with the Tasmanian OPCAT Implementation Act.
To conclude, members here will be familiar with my keen interest to speak about and advocate for matters relating to human rights in this place. Highlighting our important leadership in regard to OPCAT is in line with that keen interest and something that I am really pleased to be able to do today. As members will be familiar with, I have an enduring call that I always make that we would have a human rights act in this state. All these measures that relate to the human rights area helps us move towards that ultimate goal that I would dearly love to see come to fruition.
There is nothing, I believe, in this motion to be alarming or concerning to the Government or indeed any government committed to OPCAT’s principles of protecting human rights for those whose liberty has been curtailed by the state. In fact, as I acknowledged at the outset of this contribution, Tasmania and the Tasmanian government led the nation when it passed the OPCAT Implementation Act about 18 months ago. Supporting this motion and undertaking the commitments entailed in it, will ensure that Tasmania continues to be a national leader in this space.
Mr President, I commend the motion to the House.
View the full Hansard Debate here
