On 23 May 2023, Queensland Parliament completed its debate on the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Bill 2022. Unfortunately I was absent with COVID and unable to speak on the bill. Below, for the record, is the speech I would have delivered.
The Greens will be supporting this Bill, in the hope that it improves Queensland’s compliance with the Optional Protocol to the UN Convention Against Torture.
It was deeply embarrassing for this government in October last year when the Subcomittee on the Prevention of Torture had to suspend its visit to Australia under that Protocol, because of - in the words of delegation chief Aisha Shujune Muhammad - “the limited understanding of the SPT’s mandate and the lack of co-operation stemming from internal disagreements, especially with respect to the States of Queensland and New South Wales”.
Only after the UN criticised this Government on the world stage and the Premier faced questions from the Greens in Parliament did they say they were going to change the law.
Australia ratified OPCAT five years ago. Tidying up right after the inspection is dodgy to say the least.
Context - was legislation needed?
So although I support the stated intention of this bill, which is to allow access by the Subcommittee on the Prevention of Torture to various facilities where people are detained in Queensland, I have to put my scepticism on record.
I’m not convinced that our current laws would have prevented the subcommittee’s access to mental health facilities when they were refused entry in October last year. I’m not convinced that this bill is more than political cover for the damage that decision did to the Queensland Government’s reputation and this country’s reputation on human rights internationally.
The Government never explained to us exactly what ‘legislative barriers’ prohibited the Subcommittee’s physical access to mental health and Forensic Disability Service facilities. Every legal expert I spoke to confirmed that the only section in the Mental Health Act which would allow the government to refuse access - section 408 - would apply where they are satisfied that the visit would “adversely affect the patient’s treatment and care”. We never learned why or how the government decided that was the case.
This bill does not amend section 408. It includes that same patient wellbeing criterion to refuse access, and more concerning is that it actually broadens the circumstances in which a facility can refuse access.
There is nothing in this bill that would prevent access being refused in a very similar manner on the Subcommittee’s next visit; in fact it’s conceivable that access could be refused at even more facilities because of how broadly this is drafted.
Section 10 of the bill allows a facility to temporarily prohibit or restrict access on grounds relating to the ‘security, good order and management of the place of detention’, as well as the conduct of ‘essential operations’.
Organisations including the Australian Human Rights Commission, the Queensland Human Rights Commission, ATSILs and Sisters Inside all raised serious concerns with the breadth of this exemption. It’s a well-known fact that a lot of prisons in this state right now are regularly locked down due to insufficient staffing for a ballooning prison population, and one can easily see how this could be used as grounds to reject a Subcommittee visit.
Despite what the government has said in the explanatory notes to the bill, it’s not consistent with OPCAT. OPCAT would allow access to be restricted “only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder”. Both the ACT’s and Tasmania’s equivalent legislation only restrict access by reference to the OPCAT provisions. This bill should do the same.
Some places of detention to be prescribed in regulation so not guaranteed to be covered
While the exemptions in this bill are unreasonably broad, the definition of a ‘place of detention’ is unreasonably narrow. Although it’s inexplicably more broad than the scope of ‘places of detention’ that the new Inspectorate of Detention Services will cover, it’s still not consistent with the OPCAT definition: anywhere that a ‘deprivation of liberty’ occurs. That is, any place that a person can’t leave of their own free will.
Unlike the Inspector of Detention Services, this bill includes mental health facilities and forensic disability services, but it doesn’t include residential aged care and secure dementia units. There’s scope for additional facilities to be defined by regulation, but it’s unclear why these facilities were excluded from the bill. Aged and Disability Advocacy Australia, Townsville Community Law, the Public Advocate and the Australian Human Rights Commission all said the bill should be amended to explicitly include disability and aged care settings where the use of restrictive practices means that the residents are in effect detained.
People in all detention settings are especially vulnerable to maltreatment, neglect, and abuse. That’s why it is vital that organisations like the United Nations Subcommittee on the Prevention of Torture have access to these places.
State of Queensland’s places of detention
Organisations who work in places of detention or with people detained in Queensland say there are clear reasons the government might not want to allow inspections.
In their submissions, ATSILs and Sisters Inside both pointed to regular human rights abuses in adult and youth prisons, including:
- Prolonged solitary confinement
- Excessive use of force, dangerous restraints and spit hoods on prisoners
- Unlawful strip searches and sexual assaults, including on children
- Lack of access to adequate healthcare
We’ve heard some truly harrowing accounts of what this looks like recently. Reports of children being deprived of clothing and underwear in adult police watch houses, of staff wrapping towels around prisoners’ heads in a method that mimics waterboarding, of a 13-year-old Aboriginal boy spending 45 days in solitary confinement before he was even sentenced.
I have heard from multiple sources that children are being held in watchouses and in solitary confinement for increasingly long and frequent periods of time; like the 17-year-old Aboriginal boy who was locked in his cell for almost the full 24 hours of Christmas Eve last year, or the 15-year-old Aboriginal boy with foetal alcohol spectrum disorder and an acquired brain injury who was held at the Mt Isa watch house for 15 nights in January.
These are obvious breaches of the state’s human rights obligations, and the vast majority of them are perpetrated against First Nations people. The state has likely caused these children, and others, serious and long-lasting trauma that makes it harder for them to ever be rehabilitated. As the Queensland Human Rights Commission said in its submission, “the whole community suffers when our places of detention fail, not only individual detainees and their families, but also victims of crime when the system drives Recidivism.”
The Prisoners Legal Service said:
“There are chronic and systemic human rights concerns within Queensland’s prisons. In recent years, a number of published reports have identified different concerns about abuse, neglect and the use of prolonged solitary confinement within prisons, particularly with regard to people who are experiencing vulnerabilities. The proper implementation of OPCAT is essential to ensure these issues are adequately explored and addressed.”
Need to fully implement OPCAT
Yet as numerous experts have pointed out, despite the title of this bill, it still doesn’t properly implement OPCAT.
The narrow definition of places of detention, the broad circumstances for refusing entry, and Queensland’s failure to appoint a National Preventive Mechanism, are all out of line with our obligations under the Protocol.
Although the Government’s amendments will allow the Subcommittee to interview someone without visiting the place they’re detained under Clause 16, there’s still no clear justification for Clause 14, which prohibits the Subcommittee from accessing information about detainees from places they haven’t yet visited. Sisters Inside, the Prisoners Legal Service and others point out that this could be used to thwart proper investigations, for example by transferring a prisoner to another facility then refusing to provide information to the Subcommittee on why.
It’s also unclear whether the amendments to Clause 16 will specifically override the requirement in section 132 of the Corrective Services Act that prohibits interviews with prisoners without the Chief Executive’s written consent (except by their lawyer, the Ombudsman or a law enforcement agency). That prohibition should really be removed altogether as proposed by the Prisoners Legal Service, but I’d ask the minister to clarify that it doesn’t apply to the Subcommittee.
This government wants to appear as a leader on human rights, but their own actions continually thwart their PR attempts, of which this bill is just the latest.
Because for every declaration of progressivism, they strip away Queenslanders’ rights where it’s politically expedient for them or their corporate mates.
This government has faced international criticism for its poor record on human rights - for passing anti-protest laws that unduly restrict Queenslanders’ rights to free expression and assembly; for locking up children as young as 10 years old, keeping them in adult watch houses and isolation cells; for failing to actually implement OPCAT with a National Preventive Mechanism that would inspect our prisons where First Nations people are vastly overrepresented.
Human rights violations are in Labor’s DNA, from their federal mates’ offshore detention centres where refugees are tortured right down to the youth prisons where children are held in solitary confinement for days on end.
We need independent inspectors to have access to all places of detention in Queensland to shine a light on this reality. According to the Productivity Commission, the state government has imprisoned 68% more people over the last decade. They’ve made non-violent protest a jailable offence to target climate activists. They’ve dusted off Campbell Newman’s youth justice laws to make it easier to put kids in cages. Of course they don’t want to shine a light on our prison system, because under this government the climate crisis will worsen, inequality between workers and the elite will worsen, the effects of poverty will worsen, and the response of this government to the social upheaval caused by this has only ever been undeniably violent and authoritarian.