OPCAT Implementation Bill 2021
Ms WEBB (Nelson) – Who knew she had more words in her?
I start by thanking the Leader and the department for the briefings that we have had on this bill and for organising for some other stakeholders to provide briefings for us on it also. It is a very interesting bill currently before us, the OPCAT Implementation Bill 2021.
At the outset I need to state that despite supporting its intent in principle, I do feel considerably conflicted about the mechanisms it contains purportedly to deliver on its important international obligations under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
It is what the bill does not contain that is also contributing to my sense of confliction. First, it is necessary to consider the purpose of the bill and the context in which it was developed. According to the Australian Human Rights Commission 2020 Report, implementing OPCAT in Australia, and I quote:
OPCAT embodies a preventative approach. It does not rely on affected individuals first making complaints of torture or ill‑treatment. Instead, OPCAT focuses on identifying and addressing problems at an early stage. It operates through a proactive and regular system of inspections and recommendations. The primary aim is to identify and address harm in detention before this harm becomes more serious, widespread or systemic.
Hence, OPCAT is aimed at ensuring the independent proactive monitoring of all places of detention, criminal and civil, in order to prevent ill‑treatment. This monitoring is important because these are closed environments where people are out of sight and, at times, out of mind and, hence, more vulnerable to ill‑treatment.
Pre‑OPCAT, detention monitoring has been predominantly reactive, focused on responding to harms or, sadly, deaths after their occurrence rather than focused on reducing and preventing risks at the systemic level. This is a crucial element for evaluation of the bill before us.
How well will it deliver on that crucial preventative goal? The national context for this bill is that Australia ratified the Optional Protocol to the Convention against Torture (OPCAT) in 2017. This protocol aims to prevent torture and other forms of mistreatment in places where people are deprived of their liberty such as prisons, immigration detention centres, police detention facilities, psychiatric wards and care facilities.
The Australian Government is meant to have implemented OPCAT by January 2022, quite imminently. OPCAT establishes the national preventative measures (NPMs). NPMs are independent visiting bodies coordinated by the Commonwealth, as we note from our reading of the bill and the associated materials. These are coordinated by the Commonwealth Ombudsman and established at a domestic level within each state and territory.
NPMs focus on proactive, preventative measures to limit deprivation of liberty. NPM functions include independent visits, advice, education, cooperation. OPCAT provides that signatories will also receive visits from the United Nations Special Committee on Torture, the SPT. As reiterated by the Commonwealth Ombudsman in February last year, I quote:
It is important to note that OPCAT does not create any new rights for people in detention. It does, however, place an onus on signatory states that they will seek to uphold basic rights for people in that situation.
Apparently, Tasmania is the first state to have progressed the creation of our national preventative measure, the TNPM, to the extent of debating the establishment legislation, I understand. However, as is often the case, this simplified overview of the process does not quite tell the whole story.
The Optional Protocol on the Convention against Torture was adopted by the General Assembly of the United Nations on 18 December 2002, yet Australia did not ratify it until 15 years later in 2017. This eventual decision to do so by the Commonwealth came after the shocking revelations, as has been already mentioned here in this place, of abuses that were occurring in the Northern Territory’s Don Dale Youth Detention Centre which received international attention.
It has taken another four years for state legislation to be presented to this parliament. Barely three months, counting from when it was tabled in the other place, in October, before that national deadline of January 2022.
A quick survey at this state context level of the key stakeholders who contributed to the two consultation stages in the development of exposure draft bills, culminating in the version we have before us now, shows there is a common thread of broad welcome for the creation of legislative instruments to ensure our state, Tasmania, assists in Australia’s delivery of its obligations of the signatory to this protocol.
To recap, those contributing stakeholders have particular legal, and law reform expertise, such as the Tasmanian Law Reform Institute (TLRI), and international law, as well as expertise as advocates for those sectors of our community who are the most vulnerable to finding themselves deprived of their liberty for one reason or another.
Let us be clear, it is as detainees deprived of our liberty, that we are at our most powerless and our most vulnerable. So, the general position of these stakeholders is one of welcome for the fact that we are a signatory to a protocol, and here is the bill to implement those commitments and obligations at a domestic level.
What could be the problem? Why would I be feeling conflicted when considering this bill?
To put it simply, this bill before us reads to some extent, as the most minimalist option possible. It is hard to shake the worrying perception. I have tried to shake the feeling that our state Government has decided it may not have any choice as to whether it moves to legislate in accordance with the national agreement. It does not need to anything more than the absolute minimum in order to comply in that way.
If it can make these required measures look good on paper, and do, then that will do. But, that is a problem. When examined closely this attempt to implement measures to prevent the torture and other cruel, inhuman and degrading treatment, or punishment of Tasmanians, who are, or may be detained, does not look that good on paper, perhaps, as they may first wish it to appear.
While close in some areas, in others it is not, I do not think, on my estimation, all it is cracked up to be. On that point, I think it is worth clarifying that the bulk of my comments will focus upon the bill’s provisions relating to the establishment and operations of the Tasmanian National Preventative Mechanism (TNPM). My understanding is that the provisions relating to the facilitation and the monitoring of the UN subcommittee is based on the model framework negotiations between the Commonwealth, states and the territories. That seems fairly straightforward.
To get back to my concern that in regard to establishing a Tasmanian entity charged with the specific task of monitoring, and I quote:
The treatment of persons deprived of their liberty in places of detention with a view to strengthening, if necessary, their protection against torture and other cruel inhuman and degrading treatment or punishment.
That is from the bill.
Why would I believe that this bill looks like it is potentially falling short? Might I say it is not just necessarily me or fears this to be the case.
Those key stakeholders who welcomed Tasmania’s move to develop legislative instruments to implement our responsibilities and obligations under the protocol, these who should be celebrating the arrival of the bill, are the very entities that are also still raising some red flags on some elements of it.
I would like to touch on a couple of those, so they are noted here as we consider the bill. The member for Murchison has mentioned some of them already, I acknowledge. I would just like to mention them in my contribution also.
The first flag that I see raised there is about the single Tasmanian NPM. A key flag on the stakeholder’s concern, is the definition of the new Tasmanian National Preventative Mechanism.
As a person appointed under section 8(c)4(1) page 9 of the bill. Despite advice and requests to ensure that this new role in a multi-bodied entity, the clear requests, as Doctor Val Kitchener of the Tas OPCAT Network states, in one of those contributions:
It is problematic to define the NPM a person
When she says:
… good practice is for a multi-body NPM.
I take a moment to detail to the House the Tas OPCAT Network is a collaboration of the Tasmanian Institute of Law Enforcement Studies, the UTAS School of Law, the Tasmanian Law Reform Institute and RMIT University Melbourne. This impressive and legal and law reform collective’s objectives include sharing information about OPCAT with Tasmanian stakeholders, promoting the benefit of preventative monitoring and implementing of OPCAT in Tasmania and Australia.
That collective, consisting of such relevant expertise, are stating in no uncertain terms in their contributions to consultation this bill does not reflect best or perhaps even necessarily, good practice when it comes to a key component of the bill, which is the make-up of the NPM.
To be clear, the crux of this problem, is the Government’s intention to recommend to the Governor to appoint one person to fulfil the function’s role and responsibilities of the TNPM. In contrast, stakeholders are advocating a multi-member be established. This is a critical and serious role which may best serve Tasmanians if it is created, as a multi-member entity, to share the specific focus in areas of oversight jurisdiction.
I acknowledge the government has clarified for us that clause 8 does provide for the Governor to appoint one or more persons as the TNPM, but there is nothing in the bill precluding a multi-member entity, that this provision apparently helps to future-proof the legislation, so we could go in that direction in future, potentially.
Respectfully though, that misses the point being made by the stakeholders when they raised this. They feel it necessary for continuity purposes, for workload, for duty of care, accessibility and diligence among other reasons that the bill stipulates the TNPM must be a two or more member entity, a multi entity, rather than an optional choice of the government of the day.
Western Australia has announced it has identified two NPMs, the Western Australian Ombudsman for mental health and other secure facilities and the office of the Inspector for Custodial Services for justice related facilities, including police lock-ups.
The South Australian bill also designates two NPMs. Stakeholders, including the TLRI point out that the Government’s proposed inaugural TNPM, Mr Richard Connack, currently holds seven significant statutory roles. Additional to being the Ombudsman, he is the Health Complaints Commissioner as has been noted, Electricity Ombudsman, defacto Privacy Commissioner, Public Interest Disclosure and RTI, Mental Health, official visitors and Prison Official Visitor not to mention other roles resolving complaints made under the Water and Sewerage Industry Act plus, reviewing police interception and surveillance order compliance.
I acknowledge the bill makes provision for the TNPM to delegate and appoint people as necessary however, at the end of the day, there are certain responsibilities that cannot be delegated such as signing official documents and investigation reports.
In the first round of consultations, the Anti-Discrimination Commissioner included in their submission, the following:
I submit that the Tasmanian Government has the opportunity to provide a new benchmark for treatment of significant vulnerable population groups in our state, many of whom are detained in the list of places set out above.
If the Government were to extend the scope of this legislative development and establish other MPMs, this would demonstrate leadership and a commitment to upholding and protecting the human rights of all Tasmanians who are deprived of their liberty.
In a speech entitled ‘Implementation of OPCAT in Australia’ which was delivered to a Future Justice and Corrections Summit in February last year, the Commonwealth Ombudsman said:
First, as I said earlier, to be OPCAT compliant that the scope of inspections will need to broaden over time to encompass more places of detention. As this expansion occurs, each jurisdiction will need to consider how best to do this.
Second, a regular preventative inspection regimen, especially in places where there has been little or no oversight will require substantial resources to be effective. As NPMs are nominated they will require new expanded methods of operation which will need commensurate increases in resourcing over time, in most if not all jurisdictions.
Third, the governments will need to consider the extent to which new or updated legislation will be required to be introduced to meet the tests imposed by OPCAT and to put their NPMs, once nominated, on an appropriate footing.
There is a clear warning – to expect a workload increase.
This next statement by the Commonwealth Ombudsman from that same speech helps place into context the potential workload for NPMs. The Ombudsman’s speech said this:
We identified over 1000 facilities across the country that could be defined as ‘primary places of detention’. These include closed mental health facilities, police lock-ups, juvenile justice facilities, adult correctional facilities, closed disability units, immigration detention facilities and military cells or corrective facilities.
Our initial focus is on the primary places of detention as the Australian Government considers the challenges posed by the deprivation of people’s liberty to be at their most acute in these places and, therefore, these will be the first focus of Australia’s NPM bodies.
Over 1000 facilities across the nation. Clearly, they are not all within Tasmania, however, as many people have picked up from the information been provided to us in the bill package in the briefing, the Commonwealth’s definition of ‘primary places of detention’ is much narrower than the more deliberately broad definition this bill contains. May I say on that point, I do want to acknowledge the state’s definition we have in this bill is a clear positive of the bill and the broadening of the definition is to be congratulated from the choice made at the Commonwealth level.
This Commonwealth Ombudsman’s quote also spells out the range of facilities that will become captured under the definition and the different sector expertise they throw up for a single TMPM to provide oversight of.
It makes logistical common sense to stipulate immediately in the bill the TMPM must be a two-member model as a minimum right from the word go. It would make this fundamental mechanism more robust and present ready rather than just future proofing.
We should start as we intend to continue. In fact, we have not really been provided with any good reason why we should not, nor why we cannot. As food for thought for potentially the second TMPM could be the Commissioner for Children and Young People or the Anti-Discrimination Commission. There are appropriate options currently available to us.
Such an amendment, if it was made to the bill, along those lines, does not risk making Tasmania non-compliant with OPCAT or the Commonwealth Implementation Guidelines but it would clearly further the intent and the spirit of OPCAT.
The second flag I see that still remains from the process of consultations and concerns raised by stakeholders is around the lack of parliamentary oversight. Stakeholders including the TLRI, Tas OPCAT and others on my reading were shocked at the virtually non-existent parliamentary oversight of the NPM and have called for these provisions to be strengthened.
They are not calling for anything drastic when they raise these concerns. This could be addressed if the standard independent statutory officer provisions detailing the entity reports to parliament by annual reports as a stipulated minimum and the parliamentary committees were included.
Again, I note the Government’s position is there is nothing the precludes the TNPM from publishing reports to parliament or otherwise as they consider appropriate. I am not suggesting for that capacity to be changed instead, additional to the TNPM to be able to choose to provide these other forms of report. It would be my preference to see in the bill a requirement for annual reports to be provided.
In legislative speak. the annual reports tabled in state parliament is a must provision, additional to the optional discretionary reports which the TNPM may undertake and publish and/or table. Just as the Auditor-General has required reporting to parliament as an obligation and optional scope as well, as does the Electoral Commission, the Integrity Commission and ironically, the Ombudsman.
In the 2019 discussion series regarding the implementation of OPCAT in Australia, UN Special Rapporteur on torture, Manfred Nowak, included in a list of required NMPM responsibilities the following:
- Have the authority to publish their reports and make recommendations to the competent legislative and executive bodies that are taken seriously in practice
Again, having the bill provide for this does not risk making Tasmania non-compliant with OPCAT but, importantly, would clearly further the intent and the spirit of OPCAT. The third flag that I see raised and that remains unaddressed from those consultations and those stakeholders is the need for specified involvement of civil society.
Another significant area of concern raised by these stakeholders involved over the two consultation stages, is about that commitment that they would want to see in the bill for the TNPM to engage and work with civil society when undertaking its functions. For example, the Tas OPCAT network recommends the bill include requirements for engagement with civil society, organisations with specific inclusions to the Tasmanian Aboriginal and Torres Strait Islander First Nation people.
The network states the need to engage with civil society is central in the guidelines in the SPT presentations and will be taken into account during SPT visits. The need for the bill to provide for formal engagement with civil society stakeholders is a very important point, I believe, and it echoes a contribution made by another advocacy stakeholder organisation – Change the Record – during the initial consultation stage. I quote from them:
For any NPM to be effective, particularly as a mechanism designed to prevent torture and human rights abuses, it must have the trust of the community and affected persons.
Sadly, we know the Tasmanian Aboriginal community is a sector of the community that is overly affected within the context of detention and deprivation of liberty. A 2018 Australian Law Reform Commission Report details that in Tasmania Aboriginal and Torres Strait Islander persons comprise five per cent of the adult population, but 16 per cent of the adult prison population.
Further, the Australian Institute of Health and Welfare (AIHW) tells us that people with a disability make up 29 per cent of Australia’s prison population, despite only forming 18 per cent of our general population. I only have scope to flag a few groups within our community who are over‑represented within places of detention, but these are also some of our most vulnerable groups.
If we are to heed the advice of Change the Record in order for these sectors of the community to trust any new oversight body, again I acknowledge the Government’s stated position that this bill does not preclude a TNPM to enter into formal and informal arrangements with civil society as they deem appropriate.
However, it is worth placing on the record, Mr President, that making this an optional and discretionary choice of the TNPM of the day does risk it potentially not occurring, just due to people’s workload or perhaps competing priorities, et cetera. I think it is a missed opportunity to not enshrine in the bill a requirement that the TNPM enters into formal arrangements with civil society representatives in order to forge the trust necessary to ensure and maximise the TNPM’s capacity to prevent the identified abuse.
Clearly, ensuring the bill provides for this does not risk making Tasmania non‑compliant with OPCAT but, importantly, would clearly further the intent and the spirit of OPCAT. It will come as no surprise to many here that I am a staunch supporter of, and advocate for, the need for a Tasmanian Human Rights Act. I campaigned for such an act before I was elected to this place and I have continued to do so since, and will continue to do so. Clearly, OPCAT is designed to strengthen human rights protections for people in situations where they are deprived of their liberty and potentially vulnerable to mistreatment and abuse.
A particular potential area of threat to people’s human rights in Tasmania is a core focus here – those who have been deprived of their liberty. Of course, that category of those who are or may be deprived of their liberty has further human rights implications, as we know that certain vulnerable groups within our community are over-represented in those places of detention where liberty is deprived.
On one hand, this specific recognition of a real potential threat to Tasmanians’ human rights and the introduction of measures to protect our human rights should we find ourselves or our loved ones in a place of detention, is welcome. This is where I begin to feel conflicted, Mr President. I want to be able to welcome this bill wholeheartedly and without reservation, as someone who is passionate about human rights in this state.
But when examined against the intent of OPCAT and other key stakeholders’ expectations and aspirations, that is where my reservations arise, particularly in the sense that the bill seeks to reflect the letter of OPCAT but not necessarily, as I have mentioned as I have progressed through my speech today, to enshrine the spirit of OPCAT.
Those key flag issues that have come up that I have mentioned serve to highlight that worrying pattern, and the themes that are also contained in the government’s response that, well it could happen, it doesn’t say it can’t. To me, that is not quite in the spirit of OPCAT.
One trend is to attempt to counter any query or attempts to improve the bill as somehow risking non-compliance with the OPCAT Treaty. I am fairly puzzled by this. Requests, for example, to stipulate that the TNPM must report to Parliament at least by annual reports and the suggestion that this is somehow undermining the independence of this TNPM, according to some statements I have seen from the minister.
This assertion seems quite bizarre to me, quite extraordinary. It makes me consider, how on earth we could imagine that stipulating regular annual reports to a state parliament by a TNPM somehow risks their independence. I am having difficulty in computing that, and I do not think it is just my tiredness today.
This October, we are at that time of year, the month where there is that tsunami of annual reports being tabled in both Chambers of this place, among them those from independent statutory bodies. Does it risk or undermine the independence of the Auditor-General by being required to report to the parliament by submitting reports for tabling as well as reporting to parliament to the Public Accounts Committee? Does it risk or undermine the independence of the Anti-Discrimination Commissioner being required to report to parliament via annual reports? Does it risk or undermine the independence of the Integrity Commission being required to report to parliament via annual reports and also via a Joint House Committee?
There are other examples but the critical one I wish to highlight is currently the requirement for the Tasmanian Ombudsman to report to parliament by submitting annual reports. Ironically, it is the Ombudsman who the government has already announced will be the nominated, inaugural, TNPM recommendation for the Governor to appoint. Does the Government seriously expect us to accept that when wearing the independent Ombudsman’s hat, it is perfectly reasonable and accountable and transparent requirement for that statutory independent office to report to parliament; but when wearing the shiny new hat at the TNPM, that independent role would somehow be seriously compromised if subject to equivalent parliamentary oversight?
I note that the minister stated that there is nothing in the bill that precludes the TNPM from choosing to submit a report to parliament as they so wish. That is all well and good, and I do not have an issue with that. All those other independent entities, such as the Auditor-General, demonstrate similar proactive reporting options as they deem appropriate. However, the key point here is there has not been a coherent justification for the omission of legislating the standard bare minimum requirement of an annual report tabled in parliament.
The omission is of grave concern, and is another major flag that has been hoisted by key stakeholders and other experts. I find the attempts by government to justify the omission on spurious grounds, on a disingenuous basis, are concerning.
In conclusion, despite my reservations outlined above, my commitment to furthering the implementation of real and meaningful human rights protection mechanisms and legislative instruments in Tasmania, means I will have to support this bill, absolutely into the committee stage. However, I will reserve my right to make my final determination after listening to the committee debate and considerations of any amendments. I believe we do potentially have some prepared to be proposed.
I probably would have looked to move amendments myself but I do not have those prepared at this stage. I will certainly give consideration to any others that are being moved, particularly in those areas of concern that I have stated in my second reading speech.
The Tas OPCAT Network states:
OPCAT has the potential to touch the lives of many Tasmanians, not only those who may be in detention somewhere or in mental health and care facilities, but their families and carers.
Tas OPCAT is a new opportunity to look at human rights for Tasmanian citizens. This is an approach of negotiation that brings government and civil society together to respect, protect and fulfill human rights and the liberty of all citizens.
That is too important to cut corners, I feel. We have a responsibility to ensure that we are not just doing the bare minimum, not only demonstrating in our words, but also that we are living the spirit and the intent of this important move forward.
I look forward to the next stage of debating this bill.
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