You are here

OPCAT Implementation Bill 2021

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 28 October 2021

Tags: Human Rights, Legislation

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, I want to give the Greens' strong support to this OPCAT implementation bill. It is extremely important legislation. It brings us along the pathway towards taking concrete steps to doing everything that we can to prevent the torture and the cruel and inhuman and degrading treatment or punishment of people in Tasmania.

This bill before us today has had a very long history indeed. It has been the work and passionate advocacy of people campaigning for justice and campaigning for an end to cruelty for many decades. I think it is important to understand the history of OPCAT which is a really difficult and complex acronym to explain to people. I acknowledge that many Tasmanians would find this very obscure but it is really important to understand why we are standing here today. It came about in part from the development of international human rights law after the Second World War when the prohibition of slavery and torture, including cruel, inhuman and degrading treatment or punishment, emerged as two human rights that were established after that grotesque period in the Second World War. They were formulated to be absolute and non derogable rights which means they could not be suspended even in times of war or declared states of emergency that might threaten the life of a nation. They are essential to being a human being and there is no way that we can put them aside.

This absolute prohibition is found in article 5 of the Universal Declaration of Human Rights in 1948 of the four Geneva Conventions on humanitarian law. The United Nations standard minimum rules for the treatment of prisoners - that was in 1955- the so-called revised Mandela Rules in 2015, the International Convention for Civil and Political Rights which was signed in 1966 and other conventions, such as the American Convention on Human Rights which is adopted by some countries in the western hemisphere in 1966.

Despite all of these conventions and despite all these international agreements torture continued to be systematically practised in many parts of the world. This was well known and well documented; the appalling instances of torture, such as in Algeria with the French government there, the Portuguese practices in its former African colonies, the practices by the Greek military junta and those in the Latin American military dictatorships. Increasing reports occurred of torture and massive ill treatment from many parts of the world that were documented by civil rights bodies, such as Amnesty International. These culminated in a worldwide campaign against torture on Human Rights Day in 1972.

In November 1973 the General Assembly of the United Nations expressed our collective serious concerns about these torture practices and put the question of having a torture and cruel inhuman and degrading treatment or punishment as a standing item on its agenda. Nonetheless, in December 1977 the General Assembly of the UN formally requested more strength. The Commission of Human Rights was tasked with drafting a binding convention against torture. That work was finally done. The Convention Against Torture was unanimously adopted by the General Assembly of the UN on 10 December 1984. That was work done by hundreds and hundreds of people from countries around the world, people who have been continuing to fight for justice and liberty and an end to cruelty.

However, the necessary support for this Optional Protocol took a long time to be forthcoming. As a consequence, the Committee Against Torture and prevention against cruelty and inhumane and degrading treatment and punishment had at its disposal only very weak instruments that could be used to, for example, analyse and discuss the self-reports of governments and to try to create an institution for the special rapporteur on torture. Neither the convention or the special rapporteur had the power to visit countries, however, let alone to inspect prisons or other places of detention without a government giving its permission.

But, in 1987, the Council of Europe realised that we needed to have a prevention against torture ability to conduct regular visits and reports from government. That has led through many long, difficult conversations until on 18 December 2002 the United Nations Optional Protocol on the Convention was finally signed.

The Australian Government took some time to ratify the OPCAT. It took until December 2017, 15 years later. We were one of the slower countries to come on board with the Optional Protocol. Nonetheless, in February 2017 we got there. The Commonwealth Attorney-General asked the Commission to conduct consultations with civil societies in order to advise the Australian Government on how the OPCAT should be implemented in Australia. That was five years ago.

What we have then is OPCAT, which is a human rights treaty that assists in the implementation of this United Nations Convention Against Torture and other cruel inhuman and degrading treatment. It helped states - Australia being a state to the UN - to meet our obligations under the convention, with the purpose, of course, of preventing mistreatment, not documenting it, not recording it, but preventing the mistreatment of people in detention.

Under OPCAT, we in Australia, and we in Tasmania, do agree to establish an independent, national preventative mechanism to conduct inspections of all places of detention and closed environments. We also agree to the international inspection of places of detention by the United Nations Subcommittee on the Prevention of Torture, which is called the SPT, or the subcommittee. The subcommittee will engage with us on a confidential basis. It cannot publish reports and recommendations unless they have been agreed to by us as a state party.

Australia has signed and ratified the convention. We have been going through the process now of establishing the OPCAT legislation in each jurisdiction. I want to say at this point how welcome the approach that the Attorney-General has taken in Tasmania has been to people to have been long-time advocates of this. Tasmania is one of the first jurisdictions now to have a bill progressing through parliament. I understand it is in the upper House in South Australia is in the upper House. I think, we are the second jurisdiction to have a bill tabled and being debated.

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, where I finished, I was commending the minister for the well conducted and open consultation. There has been a good level of listening and redrafting of this legislation. The first draft in October last year was for a bill that would have been about an amendment to the Custodial Inspector Act, with OPCAT as a sort of appendage term. That was widely considered to be inadequate and inappropriate. I am pleased to say the department and minister listened to that and there will be a stand-alone act, the OPCAT Implementation Act, when the bill passes. That is very welcome.

I was pleased to attend a special webinar, Island of Ideas, on 20 October last week, hosted by the University of Tasmania. It had eminent contributions from people who have long been involved in the prevention of torture and cruelty, including Ms Aisha Shujune Muhammad, a Supreme Court judge from the Maldives who is a member of the UN Subcommittee on the Prevention of Torture. There were also people from the Australian OPCAT network and Tas OPCAT advocates, who spoke about the situation in Australia and the implementation of the OPCAT in different Australian jurisdictions.

I acknowledge the work of people like Mr Steve Caruana, Dr Mike Guerzoni, Mr Ben Elijah, Professor Penelope Weller and the Tasmanian Institute of Law Enforcement Studies' Professor Nicole Asquith and Dr Valmae Kitchener. These are just some of the people who have been strong, passionate advocates on this issue for years.

Ms Muhammad described this bill before us as a once in-a-generation opportunity to provide our citizens with the rights they should have in places of detention as well as in social care. Its aim is to stop problems before they reach a crisis point.

In my preliminary remarks, I talked about the history of OPCAT. It has had a long genesis, from the end of the Second World War to where we are today. In that lofty realm of the United Nations it is easy to forget that the purpose of this bill will be to protect our families and loved ones. It has a real life. Everyone in Tasmania should be additionally protected by the National Preventive Mechanism we will bring into being through this bill. We can be more confident that the people we love will be protected if they are deprived of their liberty. It is important to have that enshrined as a right of a citizen of Tasmania.

The United Nations has made some very strong criticisms about Australia that show very clearly why an NPM is required for our country. We have had criticisms about the appalling treatment of refugees and asylum seekers in this country, where hundreds of people are deprived of their liberty and kept in cruel and inhumane conditions on Manus Island. That continues today.

There were the documented atrocities in the Don Dale prison in the Northern Territory. We have had four royal commissions in Australia into Aboriginal deaths in custody. Shame, on us, as a nation that we continue to fail to put the effort we need into solving those problems, which are absolutely solvable.

We have had royal commissions into aged care quality and safety; violence, abuse neglect and exploitation of people with disability; and, very much a topic of conversation in Tasmania at the moment, the institutional responses to child sex abuse. All of these are evidence, if we need it, that Australia and each jurisdiction within the country, Tasmania included, has failed to sufficiently protect people with disabilities, people in aged care, children, Aboriginal and Torres Strait Islanders, refugees, the most vulnerable people in the community.

That is why it is important for us to look at this bill and understand that it will provide additional protections for people at Risdon Prison, the soon to-be-defunct Ashley Youth Detention Centre and, potentially, for mental health in-patients at the Royal Hobart Hospital, at aged care homes, for schoolchildren, at support homes for people with disabilities and even in quarantine hotels, which is obviously a current example.

The reach of the NPM will be appropriately extensive. It is important to underline again that the NPM's role is not to act as a complaints portal. It is not a complaints investigation mechanism. It is a prevention mechanism.

There is a three-way relationship between the NPM, the Tasmanian government and the UN Subcommittee for the Prevention of Torture. The NPM must function as an autonomous body and must have staff with diverse expertise who are independent. It must be able to choose its own staff. It must have terms of office that mean it can function as an independent body and be appropriately resourced with a sense of longevity of the office secured so that the work of the NPM can be done.

I will turn to the range of concerns that were discussed in the various stages of the bill, the drafting of the bill. There were two submission periods to two draft exposure bills. I acknowledge, minister, that some of the concerns I might raise, many of them have been addressed in the drafting of the bill that we have before us.

However, because there has been quite a lot of backwards and forwards and because the bill changed substantially in the form, initially the first draft was the Custodial Inspector amendment, OPCAT bill, and now we have a standalone OPCAT implementation bill. What that means is that some of the comments in the first submission process were about quite a different structure of the bill.

I will ask a number of questions on behalf of stakeholders and I believe some of these things are outstanding and some of them may have been covered. The bill that we have creates a National Prevention Mechanism. It does not specify who that will be. The minister is on record saying the intention is for it to be the Ombudsman in his duties as the Custodial Inspector.

Ms Archer - No, separate. Not as his duties, as Custodial. It will be completely separate again.

Dr WOODRUFF - The Ombudsman's separate duties?

Ms Archer - Each of those roles is separate.

Dr WOODRUFF - Each of them. Okay. Thank you. The Ombudsman's separate duty now, in addition to the other duties, are as the National Prevention Mechanism. Then, as the Custodial Inspectorate has an office with staff, the NPM will have staff. The Government has taken the concerns raised amongst a number of submitters about making sure that the NPM can be a person or persons.

The consistent concerns were that it is important for the NPM to undertake the range of activities in the different areas, that it will be required that it be a multi body. The NPM is a multi body agency or has a multi body role. My question in relation to that, minister, is that as I understand it, this can be done the track and you have indicated that you expect that that may be done down the track.

Initially, this will be a role for the Ombudsman to be the NPM but down the track that the NPM may decide to undertake some formal engagement or arrangements or, indeed, feel that some of their duties need to be delegated to or administered by another body. That other body could be, for example, the Equal Opportunity Commission or it could be the Commissioner for Children and Young People. Both of those bodies or similar types of bodies have been involved in the creation of the NPM in other places like - I think it was in Denmark, for example.

The relationship between these bodies and the NPM is different in different jurisdictions. It could be via an MOU or it could be that the other jurisdictions are formally brought into function together but - the other body. In Denmark their NPM is with the Ombudsman who has signed an MOU with other bodies to perform functions outside of the Ombudsman's expertise. I understand that is with the Human Rights Commission and with an NGO, a health NGO in Denmark.

I believe that the ACT is looking at a model that has the police, the Human Rights Commission, and the Custodial Inspectorate in the ACT. In Western Australia I understand it is also Ombudsman, the Inspector of Custodial Services.

Minister, you have said that the NPM will have autonomy, indeed they must have autonomy to fill the requirement under OPCAT. If the NPM decides in future that there is a requirement to bring in another body, for example, the Equal Opportunity Commission (EOC), or the Commissioner for Children and Young People (CCYP) in Tasmania, if the Ombudsman asked for that, would you agree to that occurring? Do you agree, in principle, that you would try to make that work?

While this bill does not and it is not appropriate for it to stipulate specific resourcing that should go to the NPM, everything hangs on the capacity of the NPM to fulfil its work properly. Even to undertake an MOU with an agency like the EOC or the CCYP would require those agencies to have additional staff. It does require an extra level of resourcing so it is not just as simple as signing a piece of paper that says, we agree that you are going to undertake these activities. These would be an extension of activities. It would require additional resourcing to do that. Obviously, you cannot speak for the specifics of any funding arrangement, but would you in principle agree that you or your government would try to make that arrangement work if the NPM requested it down the track?

Another issue which was raised as a serious concern was the lack of Commonwealth legislation. It is critical that we have Commonwealth legislation around the framework for jurisdictions, in particular aged care. In Tasmania we will have people who are potentially detained or potentially being exposed to inhuman or degrading treatment, and we sadly have seen examples of this in the royal commission. However, without the Commonwealth establishing a legislative framework we will have in the state of Tasmania our Tasmanian NPM which has no jurisdiction to go into an aged care setting, as I understand it, and to investigate those settings to see what needs to change in those settings to make sure that people are not exposed to cruel and degrading treatment or indeed to punishment.

I understand we are still in this process of waiting to hear what the Commonwealth is committing to. I believe that they have committed to implementation funding. I do not know whether they have committed to ongoing funding for NPMs across Australian jurisdictions. There is the question of the legislative framework and there is the very important question for Tasmanians about aged care and what is going to be happening in our aged care system.

The formal involvement of civil society was something which was discussed quite clearly by the University of Tasmania Institute of Law Enforcement Studies in their submission made in September this year. They make the point that the work of the Commonwealth Ombudsman has noted the work NPM network is likely to be informed by the views of civil society and by the lived experience of detention. NPMs may seek to apply civil society's knowledge and expertise. The Australian Human Rights Commission has also pointed out that the subcommittee on the prevention of torture has recommended strong and formal relationships be established with the NPM and civil society organisations. Some jurisdictions have established formal agreements between NPN bodies and civil society organisations.

I flag that we will be introducing an amendment in the Committee stage. I will talk about these matters more at that point.