The ongoing failure of Australian governments to meet the bare minimum standards for preventing torture in prisons represents a callous disregard for the lives and human rights of detained people. Prisons are hotbeds of human rights violations and, at a time when Australia is facing a mass imprisonment crisis and soaring imprisonment rates, a light must be shone on the cruelty allowed to thrive in the darkness behind prison walls.

The United Nations torture prevention protocol

The Australian federal government willingly signed the United Nations Optional Protocol to the Convention Against Torture in 2009 and ratified it in 2017 as part of its campaign for membership of the Human Rights Council. At the time, then Minister for Foreign Affairs Julie Bishop described this as demonstrating “Australia’s unwavering commitment to international scrutiny and accountability.”

The OPCAT guides countries on how to meet their obligations pursuant to the United Nations Convention Against Torture, which requires each signatory to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”  As a signatory, Australia must establish and facilitate “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture.” Such oversight and monitoring bodies carry out unannounced inspections of places of detention, identify torture risks and make expert recommendations to governments in order to mitigate those risks. The OPCAT also expressly stipulates that “the necessary resources” must be made available for the functioning of the bodies designated to perform these functions.

For years, urgent implementation has been recommended by United Nations bodies, royal commissions, government inquiry after inquiry and truth-telling commissions. This has followed the chorus of calls from people who have been subjected to incarceration, alongside Aboriginal and Torres Strait Islander, human rights and civil society organisations for governments to take action on preventing torture behind bars.

Lack of implementation in Australia

After lengthy delays, the protocol was due to be implemented by Australia by January 2023. January this year marked two years since our governments were due to meet this obligation.

While most states and territories have taken steps to implement the OPCAT, there have been various levels of compliance. Some jurisdictions, like Tasmania and the ACT, have taken concrete steps to enact laws designating their bodies, but there remain weaknesses in all models adopted to date. Common failings include a lack of legislated protection for incarcerated people and prison staff from reprisals if they engage with monitoring bodies, and monitoring bodies not having unfettered access to all places, people and information.

The “laggard” states of Victoria, NSW and Queensland have, however, consistently failed to implement the bare minimum safeguards set out in the OPCAT that aim to protect against mistreatment in prisons. This is of particular concern given that these states are the three most populous jurisdictions and have some of the country’s largest prison populations (with approximately 30,000 incarcerated people between them in 2024).

Although both major parties have previously reiterated a “commitment” to work cooperatively “towards full implementation of OPCAT obligations,” it is impossible to take this seriously, given the stark lack of progress towards full implementation.

The only concrete steps taken by the federal government to financially support implementation of the OPCAT at the state and territory level appear to be a one-off funding offer in 2021, through the Closing the Gap process, to all states and territories, that expired on 30 June 2024. This was only accepted by the ACT and Tasmania. In terms of subsequent funding, one of the only state governments to provide ongoing funding to their designated detention oversight body — Tasmania — has had that funding described as only a “fraction” of what is required.

Ultimately, Australia’s compliance with the protocol is assessed as a country, so failure by any state or territory government may be deemed non-compliance at a national level.

The funding standoff

It is the position of the Victorian, NSW and Queensland governments that the federal government, as signatory to the protocol, should provide funding for independent detention oversight. None of these states intend to prioritise the OPCAT until a funding agreement is reached. So long as this funding standoff persists, Australia is at risk of being blacklisted by the United Nations anti-torture watchdog, the Subcommittee on Prevention of Torture.

More importantly, people in prison remain at risk of being subjected to torture and ill-treatment. The news is full of headlines about the cruel treatment and degrading conditions that people are subjected to in Australian prisons. People continue to die preventable deaths, and First Nations people continue to die in custody at alarmingly high rates. In the last two years, this has included two children dying in custody in Western Australia and two children dying after being subjected to the archaic and barbaric practice of solitary confinement in Queensland.

Faux funding concerns

With peoples’ lives at risk, is lack of funding a real barrier to non-implementation of the OPCAT?

No — governments could fully implement the protocol tomorrow if they wanted to. At this point, no one is really buying that state and territory governments are only refusing to move forward with implementation due to lack of federal government funding.

As a matter of fact, governments make spending decisions every day to invest in prisons. In 2023-2024, Australian governments spent a staggering $5 billion on prisons and $1 billion on youth prisons. Perplexed by the government’s failure to implement the OPCAT, the Victorian Ombudsman has highlighted that the cost of designating an independent body to oversee prisons could be as low as 1 per cent of the state’s corrections budget.

Governments spend money on the things that matter to them (building prisons), and drag their feet about the things that seemingly do not (preventing torture in prisons). This represents a deep and misguided attachment to prisons as the catch-all solution to the government’s failure to support people to thrive in the community, and is at odds with the evidence, which increasingly shows that prisons do not support community safety but rather undermine it.

In jurisdictions with domestic human rights laws that purport to protect people from torture and cruel, inhuman or degrading treatment — notably Victoria and Queensland — governments’ stated commitment to human rights seems particularly hollow. when those same governments are unwilling to designate and fund OPCAT-compliant monitoring and oversight of prisons aimed at preventing mistreatment.

While preventing torture and saving lives should be the driving force behind governments implementing the OPCAT, there are also financial benefits for supposedly cash-strapped governments to prevent mistreatment behind bars. Governments have been provided evidence of how monitoring prisons can save them millions of dollars in litigation costs and settlements. Prior to Australia signing the protocol, the Attorney-General’s office sought information on this point from New Zealand, whose ombudsman estimated “the financial liability arising from mistreatment being $25 million to $35 million” versus “the cost of their [OPCAT monitoring body] to be $250,000” or 1.4 per cent.

In all jurisdictions that have taken steps to implement the OPCAT, attempts to comply with the protocol are undermined by government unwillingness to enact best-practice laws. Regrettably, no jurisdiction has fully complied with the obligations set out in the protocol. At a federal level, the brief reference to the OPCAT in regulations — rather than in law — raises concerns about whether the national oversight body lacks the essential powers, resources, independence, uniformity and capabilities necessary to fulfill its responsibilities in accordance with the OPCAT. At a state and territory level, no jurisdiction has fully complied with the OPCAT. This is exacerbated by governments starving the bodies that have been designated of funding, significantly undermining their ability to do their jobs. This has been made clear to governments by the bodies themselves, including those who accepted the federal government’s initial funding offer.

The real reason for non-implementation

So why have there been no — or only limited — moves to implement the bare minimum obligations pursuant to the OPCAT? The answer appears to be a lack of political will and a dangerous disregard for the lives of people detained behind bars.

The lack of political will was on full display when the Queensland and NSW governments refused access to places of detention during the United Nations Subcommittee on Prevention of Torture’s first visit to Australia in 2022. Established fifteen years ago, the torture prevention body has made over eighty visits to more than sixty countries. It formally terminated its visit to Australia in 2023 — a move only made on one other occasion. The ongoing disregard by governments has been recently reaffirmed by the National Children’s Commissioner being denied access to youth prisons in Victoria.

Government indifference has been made clear by the failure of governments to reckon with the country’s mass imprisonment crisis, the barbaric conditions that people — particularly children — are subjected to and the ongoing use of cruel and degrading practices like solitary confinement in prisons across the country.

The path forward

There needs to be a reckoning with government obsession with prisons and the use of faux funding concerns to side-step implementation of the OPCAT. The failure of Australian governments to implement the protocol represents cascading layers of disregard for the human rights of people in prison — by the federal government, for voluntarily signing up for human rights obligations with limited follow through, and by the states and territories for failing to step up to the plate and enact bare minimum safeguards to prevent torture in prisons. All governments must listen to the evidence, stop fuelling the country’s mass imprisonment crisis and take the long overdue step of fully implementing and funding OPCAT-compliant oversight of prisons.

This article was written on unceded Wadawurrung and Gadigal country.

Image: Tim Hüfner