The treatment of people in immigration detention will be investigated first-hand by the UN Subcommittee on Prevention of Torture (SPT) in coming months, when it makes a landmark visit to Australia and Nauru.
This will be the SPT’s first visit to Australia since the government’s December 2017 ratification of the Optional Protocol to the Convention against Torture (OPCAT) , which is aimed at preventing torture and ill-treatment of people deprived of their liberty. Ministers described the ratification as a ‘significant victory for human rights’, while others called it ‘a massive step forward to better protect the dignity of all persons deprived of their liberty’ and ‘a major advancement in human rights protection’.
Kaldor Centre Senior Research Associate Madeline Gleeson says this presents an opportunity to capitalise on the momentum of ratification and ensure that OPCAT is implemented properly in Australia during the critical period of the next few years.
One of the critical questions raised by Gleeson in a recent article published in the Australian Journal of Human Rights was whether the SPT will practically be able to reach, in an unrestricted manner, all places where people are or may be deprived of their liberty in an immigration context in Australia and beyond, including remote detention centres, places of detention at sea, and Nauru and Manus Island in Papua New Guinea (PNG). The Australian government has indicated that it does not expect its offshore processing arrangements to be subject to monitoring under OPCAT, but Gleeson says it is for the SPT to determine where people are or may be deprived of their liberty, and to formulate its own inspection plans.
The SPT’s decision to visit Nauru and Australia in the same round provides a unique opportunity to explore allegations of ill-treatment of asylum seekers and refugees in Nauru, Gleeson said, without getting derailed by issues of sovereignty. This will be the SPT’s second visit to Nauru, which ratified OPCAT in 2013. However, the men remaining on Manus Island must not be forgotten, and it is unclear how the SPT will ensure their situations are considered too, given PNG is not a State party to OPCAT.
With the SPT visit announced just as the government introduced a suite of new border security bills, Gleeson also questioned how the visit will be impacted by the secrecy that prevails over certain aspects of Australian immigration policy. The Australian Border Force Act 2015 (Cth) (ABF Act) has a chilling effect on the disclosure of publicly significant information, yet Australia has obligations under OPCAT to ensure that people who engage with the SPT and share information are not subject to reprisals. How these obligations can be reconciled with legislation that criminalises or penalises the sharing of relevant information without Departmental approval will be a concern for this first visit.
The SPT is also expected to look at how Australia is setting up its National Preventive Mechanism (NPM), the network of visiting bodies responsible for the prevention of torture and other cruel, inhuman or degrading treatment or punishment in all places of detention across the country. As Gleeson notes, the most important feature of such a mechanism is its functional independence, including the independence of its personnel. Independence would be best achieved if the NPM were guaranteed the necessary financial and human resources to fulfil its mandate, and for that mandate to be clearly set out in a constitutional or legislative text. So far, however, the Australian government has not announced any such legislation.
Noting that the Commonwealth Ombudsman will be the body responsible for monitoring places of immigration detention under OPCAT, Gleeson also queries what steps will be taken to ensure the separation and independence of its NPM mandate from the Ombudsman’s other functions – both as the coordinating body of the NPM network, and as a body with an existing mandate to inspect and report on issues in detention.
Overall there are broader concerns about Australia’s immigration detention regime that will not be resolved by this visit. Mandatory, indefinite and arbitrary detention, as well as a ‘deterrence’ approach to border protection, are core pillars of Australia’s immigration policy. But, as Gleeson argues, ‘if they are maintained, there may be an irreconcilable conflict between them and OPCAT’s preventive purpose, which would require the underlying philosophy of the Australian immigration detention regime to be reconsidered.’
Gleeson’s article concludes that ‘it will be essential for all relevant Australian authorities and the OPCAT mechanisms to engage with each other in good faith, and be seen to be engaging with each other in good faith, to achieve this common preventive purpose’. This SPT visit provides an opportunity for the government, as well as civil society, to demonstrate that good faith cooperation and achieve the shared purpose of mitigating the risks of torture, and cruel, inhuman and degrading treatment, in all places of immigration detention in Australia.
For all enquiries, contact Madeline Gleeson, Senior Research Associate, via email@example.com