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Joint Standing Committee on Treaties
Treaties tabled on 21 November 2011 and 28 February 2012

FOX, Mr Stephen, Principal Legal Officer, Human Rights Policy Branch, International Law and Human Rights Division, Attorney-General’s Department

HALL, Mr Matthew Richard, Assistant Secretary, Human Rights Policy Branch, International Law and Human Rights Division, Attorney-General’s Department

MANNING, Mr Greg, First Assistant Secretary, International Law and Human Rights Division, Attorney-General’s Department

SMYTH, Ms Kate, Senior Legal Officer, International Law and Human Rights Division, Attorney-General’s Department

Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CHAIR: The committee will now take evidence on the proposed Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This treaty was tabled in parliament on 28 February this year. I welcome representatives from the Attorney-General's Department. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House or the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. If you nominate to take any questions on notice, could you please ensure that your written response to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. I invite you to make any introductory remarks that you wish to make before we proceed to questions.

Mr Manning : Thank you, Mr Chair. By way of an opening statement, I would like to recap the basic requirements of the optional protocol and set out why the government has proposed ratification. Australia has committed at international law to not subject any person to torture or cruel, inhuman or degrading treatment or punishment and to implement measures to prevent such treatment from occurring. The optional protocol will assist Australia to achieve these obligations. The optional protocol provides for mechanisms to be put in place to prevent torture and other cruel, inhuman or degrading treatment or punishment. It sets out a system of preventative monitoring of places of detention under the jurisdiction and control of the states that are parties to it. This monitoring is to be undertaken through visits by both the National Preventive Mechanism, made up of one or more domestic bodies, and an international body, the UN Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in short, the SPT.

Most of the monitoring would be undertaken by the National Preventive Mechanism. States parties must guarantee the functional independence of each of the monitoring bodies comprising the National Preventive Mechanism and make available the necessary resources for the performance of their functions. NPM bodies are to have the power to regularly examine the treatment of persons deprived of their liberty and make recommendations to relevant authorities. These bodies must not be restricted in choosing which place of detention within their remit they will visit and who at that place they will interview. Additionally, ratification of the optional protocol would mean that Australia would allow and facilitate visits by the SPT and guarantee to that body unrestricted access to places of detention.

The SPT is a 25-member committee currently chaired by the United Kingdom's Professor Malcolm Evans. Visits are conducted by a small number of members, usually between two and six, perhaps with an accompanying expert and with secretariat support. The government expects that SPT monitoring visits would be of one or two weeks duration, with visits occurring no more than once every five or so years and probably considerably less frequently. Members of the SPT and the National Preventive Mechanism are to be given such privileges and immunities as are necessary for the independent exercise of their functions. This dual system aims to serve as the basis for constructive dialogue with detaining authorities on the adequacy of the conditions and treatment of people in all places where they are deprived of their liberty.

Turning to why the government is proposing ratification, it is the government's view that ratification and implementation of the optional protocol will improve outcomes regarding the detention of people in Australia by providing a more integrated and improved oversight system. It is true that torture is unlikely to be an issue in the overwhelming majority of circumstances where people are detained in Australia. However, the optional protocol has a broader focus than torture, as its name suggests; it also refers to other cruel, inhuman or degrading treatment or punishment.

Although Australia treats prisoners comparatively well, the inspection mechanism under the optional protocol can help maintain and improve the system over time. It will provide an opportunity for agencies involved in detention management and oversight to share information, guidelines, practices and problem-solving measures with regard to the conditions and treatment of people in detention. It will also bring Australia's existing inspection mechanisms into line with international practice. Although there are many mechanisms in place in Australia for oversight and inspection of places of detention, analysis has shown that there are varying levels of oversight both between different types of detention and as between different jurisdictions. There are also some gaps in monitoring, the key area of significance being detention in police detention facilities. These deficiencies could be addressed by implementing the optional protocol.

Another benefit of a more rigorous inspection and investigation regime is that it should allow Australia to discover issues it may not know existed, as opposed to simply assuming that it is doing the right thing. The New Zealand Human Rights Commission noted in its 2010 annual report that the optional protocol has been valuable in identifying issues and situations that are otherwise overlooked and in providing authoritative assessments of whether new developments and specific initiatives will meet the international standards for safe and humane detention. In this way, implementation of the optional protocol should minimise instances giving rise to concerns about the treatment and welfare of people detained in prisons and other places of detention in Australia. In addition to the human rights benefits, monitoring under the optional protocol has the potential to minimise the costs of addressing such instances, including avoiding some costs of litigation and compensation payments.

The government also believes it is in Australia's national interest to promote adherence to international human rights standards. Ratification would maintain Australia's leadership on human rights outcomes and credibility in calling on other countries to adhere to internationally accepted standards. Australia's existing systems are comparatively strong. It has nothing to fear and much to gain by being open to international scrutiny and building and maintaining domestic arrangements that are exemplars of effective human rights enforcement. The government believes an engagement with the SPT should assist Australia in this regard. There are now 71 signatories and 63 state parties to the optional protocol including countries from Europe, Central and Latin America, Africa and a small number from the Asia-Pacific. Members include the United Kingdom, New Zealand, Brazil, Argentina, the Ukraine, Germany, Switzerland, the Philippines, France and Spain. The SPT has taken a pragmatic, realistic and sensible approach to implementation. Since inspections commenced in 2007, there have been monitoring visits to 15 countries. In undertaking these visits, the SPT is guided by the principles of confidentiality, impartiality, nonselectivity, universality and objectivity. From examining the six country reports whose publication has been agreed, the government considers the SPT has adhered to these principles and has identified serious issues of detainee treatment. The SPT has nevertheless conducted its work in a spirit of cooperation, engaging with states parties via constructive dialogue and collaboration rather than condemnation. We consider that, in undertaking its activities, it has made serious efforts to use its limited resources efficiently and effectively.

Overseas experience has been that adopting OPCAT preventative mechanisms has complemented existing individual complaints investigation and resolution systems. For example, in the United Kingdom the Chief Inspector of Prisons, an NPM body since 2009, now also carries out systemic reviews. Reviews have been conducted into the treatment of women and children, into suicide in detention and in health care. Creating a broader national and international sharing of experiences, processes and issues is already stimulating the adoption of effective practices from one jurisdiction to another, and New Zealand has noted an intention to pursue a similar approach to that of the UK and examine a number of systemic issues.

Progress towards ratification has been steady and measured. In Australia, most places of detention and by far the greatest number of people detained are the responsibility of states and territories. Since 2009, the Commonwealth, states and territories have undertaken considerable work in researching and considering the nature of the commitments required under the optional protocol and reviewing what arrangements can be put in place to give effect to Australia's international obligations. Importantly, the Commonwealth, state and territory attorneys-general agreed to continue to work towards ratification of the optional protocol at the April 2012 meeting of the Standing Council on Law and Justice. The number of jurisdictions involved has and will continue to add time to this process, hence the proposal set out in the national interest analysis to delay domestic implementation for up to three years post ratification. Some submissions have called for earlier action, but the government thinks the approach and timetable proposed are practical and sensible in the context of cooperative action that needs to be taken across nine jurisdictions.

In conclusion, there is now a growing body of practice and information indicating that the mechanisms and processes provided for under the optional protocol have found international acceptance and are achieving significant practical benefits. The ratification of the optional protocol provides the basis for improved domestic monitoring in Australia and would maintain and support Australia's views on the abhorrence of torture and other cruel, inhuman or degrading treatment or punishment. It is consistent with Australia's values and the government's program to support and sustain positive actions on human rights, so the government believes Australia should move to ratify the optional protocol.

CHAIR: Do you see Australia's moving to sign and ratify this optional protocol having any implications for the policy of detention of asylum seekers?

Mr Manning : By way of clarification, I should point out that Australia has signed already; it is just ratification that is being considered now. Obviously the policy on the detention of asylum seekers is not something within the Attorney-General's portfolio, so I can only speak generally, but it should not impact on that issue, in that there is already quite a wide system of monitoring of immigration detention centres. While there may be some changes as a result of this, and dialogue with bodies about how to improve that level of detention, ratification should not be a determining factor in whether or not Australia's system of mandatory detention remains, for example.

CHAIR: The national interest analysis says:

… some changes to Commonwealth, State and Territory laws and policies will be required to clearly enable the Subcommittee to carry out its functions …

Can you give us any detail about the changes that will be required?

Mr Manning : Mr Hall and Mr Fox can advise on that, so I will get them to answer that question.

Mr Hall : Just by way of a small amount of background: a number of interjurisdictional meetings have been held to develop model legislation across all jurisdictions. It has reached a point where, in our most recent meeting, which was around a month or so ago, we settled most of the issues that need to be resolved in order to have legislation introduced into the parliament in the relatively near future in every jurisdiction. The sorts of amendments that are required are to facilitate the obligations that states have towards the subcommittee, which of course do not currently exist specifically in domestic legislation. The optional protocol has a fairly broad requirement that the subcommittee should have access to all places of detention, should have access to information, and should be able to interview people who are in detention, for example. This has raised some issues with respect to making it clear in legislation—for example, regarding a detainee manager, what they must do. It is partly about setting it out clearly in legislation so that bodies that are managing detention facilities understand what those obligations are.

With respect to existing laws, some issues have come up regarding access to information. The optional protocol makes it clear that the subcommittee, the SPT, will not publish and will maintain the confidentiality of any information that it acquires. That said, under a number of state and territory privacy laws, the broad access to information is inconsistent with some of the provisions of those privacy laws, so some amendments will be required to ensure that the subcommittee is able to have access to the personal information of some prisoners. They are not significant issues in many respects. For example, at the Commonwealth level, the Commonwealth privacy laws accommodate that quite easily.

It is also important to set out clearly the circumstances—for example, if there is an emergency. The scenario which has often been put up by the states is: let's say there is a bushfire heading towards the place of detention at the same time as the SPT is visiting. At what point can a place of detention suspend the visit in order to deal with an emergency? A riot would be another example. Those are examples of the sorts of issues that have been addressed. They are not fundamental issues, in the sense that states and territories already visit most places of detention. As Mr Manning pointed out in his opening statement, all of the sorts of places that are anticipated as falling within the definition of a place of detention are covered by existing monitoring mechanisms in all jurisdictions other than, with the exception of WA, police detention. That is another aspect that would need to be changed.

CHAIR: The other issue I want to raise with you is that the optional protocol was previously referred to this committee by the Senate in 2003. The JSCOT report back then had a majority recommendation against signature or ratification. The main concern expressed in the report was that mandating subcommittee visits to a jurisdiction like Australia, in the absence of compelling reasons, was not an appropriate use of United Nations resources. That was before our time. I do not think there are any members of the committee who were there then. It may be before your time as well. I wonder whether you have any thoughts on that report or that position.

Mr Manning : There are a number of issues there. One of the issues implicit in that response is that Australia may not have much to learn from the visits of the SPT and that they should be using the scarce resources of visiting countries and making the most of them. As I said in my opening statement, we would not expect that the most severe forms of mistreatment and torture would be an issue in Australia, but that is not to say that Australia would not have something to learn. Certainly the experience of like jurisdictions—and I mentioned the United Kingdom and New Zealand in my opening statement—is that they have found the system valuable and have got benefit out of it in terms of their own systems. That is the first issue.

There is another issue in terms of engagement with United Nations bodies. Under the government at the time, there was a body of work in relation to reform of the United Nations' treaty bodies. There was general concern about use of their resources and their approach to countries, such as Australia, which have good human rights records compared to other countries. This government, whilst it is still concerned that United Nations' treaty bodies operate as effectively and efficiently as they can, has more an approach of engagement and of trying to improve the system from within rather than having a more stand-off approach. Certainly in the last couple of years the government has been very pleased by some of the moves to reform the system and some of the efficiencies that have been put in place, although it thinks that there is some way to go. As recently as this year, it has put in a submission about how that system could be improved generally. I think that overall, though, the approach of this government is, firstly, that Australia has much to gain from encouraging engagement with bodies such as this, not only in Australia but also by then being able to promote engagement for countries who might have a greater need than Australia, because the flow-on effect of widespread mistreatment in those countries can impact on Australia and Australia's security. Secondly, the government thinks it is better off trying to achieve reform of international bodies by constructive engagement with those bodies.

Mr Hall : I will add, Chair, that at the time of the previous report the protocol had not entered into force, and the protocol sets out the way that the treaty body will operate in terms of being cooperative and collaborative with states, generally suggesting ways to improve things in confidential reports and so on. It is a unique type of body. There are many optional protocols out there, and in some ways this is a unique body because, despite being an optional protocol to another convention, it does have a very distinct function, and this function of having an international visiting mechanism working collaboratively with a domestic one was untried at that time. Experience since then has shown that the subcommittee is operating very much in the way anticipated by the optional protocol; and, as Mr Manning pointed out in his opening statement, in jurisdictions like the UK and New Zealand they have found it to be a genuinely very useful, practical and collaborative way to identify systemic issues and try to address them. So it does not overlap with other mechanisms that are out there, for example, and it is clearly focused on aspects of preventing torture that other parts of the UN system do not do.

CHAIR: Thank you. Ms Parke.

Ms PARKE: Thank you. Professor Richard Harding noted in his submission that the NIA tends to reflect an underlying assumption that existing mechanisms are either OPCAT compliant or readily adaptable to being NPMs. He points out that that is not the case in terms of, for example, access to all detention facilities, and the fact that very few inspection agencies possess functional independence, as required by OPCAT. During the consultation process with the states and territories, did you get the sense that they would be prepared to put in place the required access to facilities and the required independence?

Mr Hall : We did have a long series of discussions with the states and territories about those issues that you have raised, and they are important ones. One thing that Professor Harding pointed out when I met with him earlier in the year was that there are a great range of potential inspection bodies—and, indeed, setting up the NPM is going to require some careful analysis of what the most appropriate one is. In terms of the legislation, there are also some fairly close discussions about looking at the most likely bodies, such as state and territory ombudsmen, and what would need to be changed in terms of their procedures—keeping in mind, of course, that at this stage the focus of consultations with the states and territories has been on the SPT rather than the NPM. We have still had discussions looking forward, obviously, I should clarify. But Professor Harding is right in the sense that there are some changes that will need to be made to make sure that the functions of each of those bodies fit precisely, from an international law point of view, with the protocol. The states seem quite comfortable in our discussions, in my view, that they will be able to do that.

Functional independence is something we have also discussed with them, and in a sense it is a concept that is open to some debate. There are various mechanisms that are already set up—for example, in jurisdictions like Western Australia—to ensure that bodies that are funded from government funds are doing inspections and providing reports that are genuinely independent from government. In some cases there may need to be some amendments to legislation to bring that about, but they have not been raised by states and territories as major obstacles to an NPM at this stage.

Ms PARKE: I note that all of the submissions to this inquiry have been strongly in favour of ratification. For example, Professor Richard Harding from the Human Rights Law Centre said that the Article 24 option to delay implementation for three years is appropriate as long as it is not seen as an excuse for delay. On the other hand there are many submissions also saying limitation should occur immediately, even if the requirement under the convention is delayed for three years. Other submissions are raising concerns that the Article 24 delay is not necessary. For instance the Caston Centre for Human Rights notes that the primary purpose of OPCAT is to lift standards in detention through dialogue between inspectors and the authorities. The New Zealand experience, which I understand did not have the three-year delay, was one of modifications over time and that has not been a problem in terms of the model of the SPT. As you pointed out, it is not a gotcha sort of model, so is there really any reason why we need to use the Article 24 delay? Why can't we just say yes, we are going to ratify and implement now and we recognise that it takes time to put in place all the procedures and we will be in collaboration with the SPT as we go along?

Mr Hall : To begin with, successive governments in Australia have taken the view that we do not enter into international treaty obligations until all of the provisions of the treaty are already implemented and able to be complied with. So if, for example, we were to ratify before the NPM was set up—the NPM being quite a complex interjurisdictional model with legislation required in every jurisdiction—then we would be undertaking the obligations that apply to the NPM before we had an OPCAT compliant NPM in place. So the delay really reflects the period of time necessary in a complex federal system like Australia to set up a body that is up and running, functioning, and compliant with the OPCAT by the time that three-year period is finished.

By ratifying the optional protocol and enabling the SPT to start engaging with Australia, and potentially visiting Australia, you commence the process of having the SPT and the Australian government collaborating about what an effective NPM would be. So, in terms of setting up a good NPM, that is probably a good process.

Ms PARKE: The submission from the PIAC says the committee could recommend a shorter period of delay of implementation rather than three years. is that feasible?

Mr Hall : That is certainly possible, and it is possible that the NPM may be established in a shorter time frame. But I suppose our experience to date, in terms of the unique aspects of every jurisdiction and trying to get together a genuinely national model that complies with the OPCAT, is that it does take some time. Things like elections in states and territories tend to slow down the process of getting things happening in every jurisdiction. It is also necessary to ensure that this is a legislative priority in every jurisdiction. It takes time to get it on to their legislative program and get it through. It is a mechanism that has been adopted by States Parties to make sure that they do have all of the systems in place that period. Three years does seem like a long time in some respects but negotiating with states and territories can also take a long time.

Ms PARKE: Yes, I appreciate that. A comment was made earlier that the committee should be concentrating on countries other than Australia. I note that, in the interim, we have had, among other cases, the case of Mr Ward, an Aboriginal elder who died in horrendous circumstances in the back of a prison van in Western Australia when he was being transported 360 kilometres when the temperature was over 50 degrees. As long as those sorts of things keep happening in Australia I think there is an urgent need for us to put this in place as soon as we can. The Office of Police Integrity in Victoria gave us some very good examples in their submission of how they have been able to make a real difference by going in and inspecting police cells in Victoria. So I would simply say that I hope we ratify it and that, even if we put in place a three-year delay, we proceed to do as much implementation as we can as soon as possible.

CHAIR: Senator Singh.

Senator SINGH: I will start by endorsing Ms Parke's comments, especially in relation to prisons but also detention centres, and the idea of a prisons inspectorate that is reporting through government processes. At the moment ombudsmen do a lot of that work, but it is not a necessary kind of reporting through the parliament process by which ombudsmen provide that to ministers and so forth. I want ask a little bit about interrogation and our definition of torture. I understand the Commonwealth definition of torture does not include quite the entire range of actions that are implied under the convention.

Mr Manning : No, that is not right.

Senator SINGH: That is not right?

Mr Manning : No. The Commonwealth, as recently as 2010, acted to prohibit torture, picking up all the aspects of the definition of torture. The government's view is Australia fully complies with its obligations. I am not aware of, for example, any longstanding allegations where Australia does not, in the same way as I am aware in relation to other countries. Certainly the government does not accept that proposition.

Senator SINGH: Okay. Obviously under the ASIO Act a person can be questioned in the absence of a lawyer and there are restrictions on legal representation that weaken those kinds of safeguards against torture during interrogations. Do you see those special powers accorded to ASIO representing a risk of torture and the ratification of this protocol?

Mr Manning : No, I do not. I might get Ms Smyth to help me if I forget some of the details of the definition of torture, but it is essentially severe physical or mental suffering caused by public officials for particular purposes. The government does not believe that any of its existing national security legislation would permit a circumstance which could be said to amount to torture. Certainly I do not think restrictions on availability of information or the controls under the national security laws in relation to information people get could be said to amount to torture. So in that regard I do not see ratification of this treaty as impacting on those matters. This treaty is more about standards of treatment in places of detention, as distinct from safeguards that may be in place in terms of gathering evidence. But certainly the government would not accept that any aspects of its existing national security regime could be said to permit torture. As I said earlier, in response to recommendations from UN treaty bodies, the government strengthened its existing prohibitions on any form of conduct that could amount to torture. It is assault, for example, at one level. But it specifically prohibited it in 2010 to pick up all of the aspects of the definition of torture.

Ms PARKE: Can I just say, in relation to that, that it is not only torture that is being dealt with under OPCAT—

Mr Manning : That is right.

Ms PARKE: but cruel, inhuman or degrading treatment or punishment, which is quite different and which may well occur in Australian detention facilities.

Mr Manning : It may, but just coming back to the notion I was not agreeing with—that is, when people are questioned by bodies such as ASIO, the arrangements under existing national security legislation in relation to safeguards could be said to amount to torture—I would say it also could not be said to amount to cruel, inhuman or degrading treatment or punishment. That is because the government believes in that regard those mechanisms in place are still adequately providing safeguards for people. Certainly, the type of behaviour we are talking about here is severe mistreatment with a disproportionate impact on a person in relation to the aim that is being sought to achieve. The government would strongly reject the notion that the existing national security laws would amount to that.

Senator SINGH: Okay. So how do you see the relationship between the convention, the protocol and the definition of torture under Commonwealth law as it currently stands—that is, 2010?

Mr Manning : From what I said, if you use a hypothetical situation, any public official who engages in torture would be breaching Australian law. They would have breached it before 2010 but it is a much clearer breach now since there is an offence which picks up a definition of torture. Australia has accepted obligations under the convention against torture and also has some under customary international law to ensure there is no torture in its jurisdiction. It has accepted obligations under the convention against torture to prevent acts of torture and we would see this treaty as strengthening that prevention by Australia voluntarily accepting other obligations through monitoring and dialogue about how people are treated generally systemically within places of detention but also through discussions with individuals to test, for example, what the monitoring bodies have been told by detaining authorities. In that way we would see it as strengthening the mechanisms in place to prevent torture ever occurring. In that way they would back up the prohibition on torture that exists and back up the general criminal law which would also apply to instances of torture. As I said, that would be assaults of various types. Hopefully, there are safeguards against someone breaching the law but they would not require us to change the law because, as I said, our laws already prohibit torture.

Senator SINGH: Will the Inspector-General of Intelligence and Security comply with the requirements under the NPM?

Mr Manning : One of the issues that the Commonwealth has to resolve, in the same way as we are negotiating with states and territories, is to ensure that our preventative mechanisms are also fully compliant with the tests, the function, independence et cetera. I think the IGIS—if I can use the acronym—already does but, certainly, the Commonwealth will be engaging with people who may detain others under Commonwealth law to make sure that those mechanisms are in place. That body of work has not finished yet so I cannot give any more detail about that, but during that three-year period the Commonwealth will ensure that it has in place, in relation to any detaining bodies under Commonwealth law, mechanisms which possess the requisite degree of independence and the other features of the NPMs that are required.

Senator SINGH: Do you see any significant changes to Commonwealth legislation to require us to be able to ratify OPCAT? I am thinking in particular of our anti-terrorist legislation.

Mr Manning : Certainly, the Commonwealth will have to make sure that where people are detained by Commonwealth bodies, and whether they are police or security agencies—and the reason I am hesitating about security agencies is that I do not know if they detain people. I know that people can be taken under warrant but I am not sure whether the agencies have their own facilities or whether or not it occurs at police stations, for example. Then there is defence detention and immigration detention. I think there will be some legislative change required to ensure that the oversight bodies do have the requisite degree of independence and can access materials. There will undoubtedly be some of the types of issues Mr Hall set out in relation to making sure the requirement to provide access to information works well with Commonwealth privacy principles, privacy laws and things like that. I do not have a view at the moment of how major that is. I will see if Mr Hall wants to add anything.

Mr Hall : No, I think that summed it up quite well. At the Commonwealth level there are two aspects. One is ensuring that the existing mechanisms that we have in place are adjusted to make sure that they comply. You will note from the submissions that there was a joint submission by the ombudsmen of the states and territories saying they were confident that they can provide a good mechanism. Similarly, the Commonwealth Ombudsman, for example, already inspects Commonwealth places of detention, and the Australian Human Rights Commission has functions as well. So there are some very good places to start. That process will have to be gone through in closer consultation with them. There is also the national oversight and reporting—drawing it all together from the NPMs around the country and providing an annual report. I guess our first port of call would be discussing with the Australian Human Rights Commission how that would come about, as well as with the Commonwealth Ombudsman.

Senator SINGH: Do you see that there would be changes to Commonwealth legislation through that?

Mr Hall : Yes.

Mr Manning : I certainly thought there would be some; I just was not sure how major they were—just to get back to my previous answer.

Senator SINGH: And you are not sure of the specific legislation at this point in time? For example, would it be the antiterrorism legislation, or the immigration detention legislation?

Mr Manning : It would be the legislation that governs the conditions around detention—the conditions around the independence of the bodies that do it, to make sure they have that financial independence. If, for example, the Australian Human Rights Commission was to have a role as an organising body, its functions and powers might need to be amended in that regard.

Dr STONE: Perhaps I could just talk about the SPT for a minute. Two members of the subcommittee typically go about on a roster of signatory countries that has, presumably, been fairly carefully sorted through. Is Australia a member of the subcommittee at the moment? And what sort of oversight do the signatories to the convention have in terms of being sure that the members of the subcommittee are in fact fully objective, expert et cetera? There is a long list—they have to be universal, nonselected, impartial, confidential and all those sorts of things. How do we participate in ensuring that there is not some inappropriate membership of that subcommittee?

Mr Hall : The first thing I would say is that until Australia ratifies the protocol it is not eligible to have a member on the subcommittee. The subcommittee itself provides an annual report that sets out its activities and the way it has gone about them. So there is that level of transparency. Of course, once Australia does ratify the Optional Protocol—assuming that it does ratify—it will be in a greater position to engage the other states in terms of the election of members to the SPT.

Dr STONE: So it is an election process—election of the members of the convention?

Mr Hall : Yes.

Mr Manning : They can be elected for a term of four years, and they are eligible to stand for re-election.

Dr STONE: So it is a popular vote, not an independent evaluation of their expertise, objectivity or experience.

Mr Manning : It is vote amongst the States partly to the treaty. But obviously, in deciding who to vote for, they do the evaluation of expertise et cetera.

Dr STONE: Well, we know how those things work! You mentioned public officials being looked at particularly, in terms of their behaviour. How does it work when you have private sector detention centres, prisons and so on? Obviously they are operating under a broad government mandate, but how does that work?

Mr Manning : The obligations under the Optional Protocol extend to all places of detention where the detention is done either by public agencies or with their consent or acquiescence. In those circumstances, presuming that it was a place that people were not permitted to leave if they wanted to and that the government had put in place a range of services—for example, a private prison—then it would potentially be covered by the monitoring visits and be covered by this scheme.

Dr STONE: Does the monitoring include military services detention?

Mr Manning : It would, yes.

Dr STONE: And does it include psychiatric centre detention?

Mr Manning : Any place where people are deprived of their liberty and are not free to leave should they choose to, as I say, under order of an agency or with the consent or acquiescence of public officials. That is right.

Dr STONE: Is there any appeal mechanism if a nation-state does not agree with a particular report or review?

Mr Manning : No, the regime is one of dialogue. So there is not an appeal in the sense that you can challenge a report and formally get it overturned, for example. It is more a matter of dialogue, so it does not create a situation where you have to do whatever is in the report, for example. Presumably if a state party did not agree or did not accept what was there then it is something they would take into account in deciding what to do in terms of their overall standards of detention practices in relation to detention.

Dr STONE: What about the business of publicising the report? What sort of say does a country have over an SPT report being made public?

Mr Hall : The SPT reports are confidential and they are provided confidentially to the government of the state party. If the state party decides to publish, of course it can.

Dr STONE: Subject to freedom of information depending on the countries' various regimes, presumably.

Mr Hall : That is correct, but of course the nature of the process might engage some of the sorts of exemptions under FOI law. Perhaps that is not something to get into at this point. But you are quite right, and certainly it is quite common for states to publish their reports. The only situation under the protocol as I understand it—and I will let Kate correct me if I am wrong—where the Committee against Torture or the sub-committee can say anything publicly is if it has attempted to make a visit, or has been obstructed during the visit, and has not been able to resolve those issues. It is able to make a statement about what happened. But that is limited, of course, to those circumstances.

Dr STONE: So the visit regime is negotiated with the member nations?

Mr Hall : Every year, by the end of the year, the subcommittee has to publish its agenda for visits for the following year—which countries it is going to visit. Two months prior to a visit, it also has to notify the state in question of the timing of that visit. That is the regime under the protocol.

Dr STONE: If a country were in the process of changing its mandatory detention laws, for example, it could not negotiate for putting it off for six months or whatever? It is a case of, 'There's the schedule and we'll let you know two months out'?

Mr Hall : As I understand it there could certainly be negotiations or suggestions to the subcommittee that there might be a better time to visit, whether they take that view or not. There was one instance where a visit was made to a country during a military coup and they still managed to undertake the visit reasonably successfully and the state in question—Honduras—facilitated the visit, largely to the satisfaction of the SPT, and they did a follow-up visit. It sounds like a novel example in a way, but it is an example of the collaborative approach that usually leads to most issues being resolved with a visit.

Mr Manning : I might just add that, if Australia decides to ratify, it is agreeing that it will not prevent the SPT from visiting places of detention it wants to except in certain limited circumstances. For example, there are exceptions where there could be a riot or public disorder that might prevent it occurring then. But, as Mr Hall is saying, the reality is that, whilst there is that theoretical power there, the practice is that it is very much done in consultation and there is notice of the coming visit. I would presume that, should that occur, places of detention in the country would be put on notice that that could happen. That is not to give them warning to clean up their act but rather to ensure that everyone who may not know about the obligations to allow these people to come in and visit and conduct inspections is aware of what their obligations are in that regard. Obviously states would work with the SPT. I would imagine there would be officials who would accompany them to facilitate things and make sure that they are able to do what they need to do to achieve their mandate as well.

Mr Hall : That is right. The protocol requires a state to appoint a focal point within the state to assist with the visit. Once the subcommittee is there the protocol requires that the state allow them to visit any place that they want to. That, of course, means that there is a sense in which visits can be at short notice or, in theory, unannounced. In practice, it is unlikely because of the nature of the liaison with the state as they move around the country. In some cases, there may not be a lot of time ahead of the visit, but there are obvious reasons for enabling a visiting body to do that.

Dr STONE: What is the current situation with Western Australia in terms of acceding to visits, if we ratified this agreement?

Mr Manning : As I said in my opening statement, all Attorneys-General in April this year agreed to work towards ratification. So whilst Western Australia has previously expressed a view that it did not think it was necessary but would not stand in the way of doing it, it indicated as recently as last month that it is prepared to keep working towards ratification.

Dr STONE: So it would accede to any visits, like any other states, where all states and territories have—

Mr Hall : It has agreed to introduce legislation into the WA parliament that would require visits to be facilitated. So once that passes the parliament—

Ms PARKE: I note from the Professor Harding's submission that he is anticipating, based on the practical reality of how it works, that it will probably be once every 10 years that we get one of these visits.

Mr Manning : Certainly, my understanding is that the SPT has six visits planned for next year and 60 countries are state parties. So you can do the maths. I said five years in my opening statement because that is what the committee says but, the more parties who become members, the longer it is likely to be between visits unless there are particular reasons to go and see a country.

Mr LAURIE FERGUSON: I would certainly like to associate myself with earlier comments about the three-year time line. Specifically on that, I think you said on the way through that other states have had recourse to three-year time lines. Many of them may not have the issues we have with regard to state authorities. Tell me how widely countries have had recourse to three-year time lines?

Mr Fox : I think three countries have made use formally of article 24 delay. I can get you that information; it is in my briefing.

Mr LAURIE FERGUSON: It is a very small number?

Mr Fox : It is a small number. For example, there are countries with some federal systems or federal like systems.

Mr LAURIE FERGUSON: The one you cite is under very big examination in Europe at the moment—Hungary and its practices.

Mr Fox : Indeed, Hungary is one country that has made the declaration. The other four countries are Bosnia and Herzegovina, Montenegro and Romania. But, having said that, the United Kingdom took three years to actually set up its NPM post the coming into force of the optional protocol, it having indeed acceded or ratified the optional protocol before 2006 when it came into force. Countries such as Mexico and Spain have both ratified and have quite significant provincial jurisdictions. There have been issues about the extent to which their provincial jurisdictions are indeed compliant with the requirements of the protocol, certainly with respect to Mexico, which has published its report. We believe that there is some point in ensuring that we can put our hands on our hearts and say that our system is fully compliant, as opposed to one that is on its way to being compliant at the point at which that obligation would kick in if the article 24 declaration were made.

Mr LAURIE FERGUSON: The UK was cited on the way through as a country where there had been some very obvious improvements as a result of these examinations. We then talk about Honduras, which we would not want to hold up, even to this day, as having many good outcomes from those inspections. Britain has a very public reporting system with regard to overcrowding et cetera. It is probably even better than ours. Could we have some other examples of good outcomes that have occurred from these inspections?

Mr Manning : I should just clarify before asking Mr Hall and Mr Fox to answer that that I would say the UK's standard would be of great benefit, whereas saying it made great improvements implied that I had exercised a judgment about the UK, which I am not—

Mr LAURIE FERGUSON: They were very public and transparent in their reporting system?

Mr Manning : That is right, and I think the other point to make is one that picks up the point that came, I think, from a question from the chair originally. It was that previously members of this committee had asked if this was really something that a country like Australia should be engaged with, whereas the point is that a broad range of countries are finding it of benefit and the committee is applying its efforts to that broad range of countries. But my understanding is that, for example, some of the reports made public that have picked up systemic issues including Mexico's.

Mr Hall : And New Zealand as well. New Zealand has reported and the New Zealand ombudsman wrote to me last year setting out the sorts of impacts that ratification has had in New Zealand. He certainly pointed to a number of examples. What has happened in some cases is, for example, that the way that medical information has been handled by a place of detention has not protected the privacy of the prisoners in question. There have been instances where the SPT, in wandering around a place of detention, has found things like a baseball bat—there was not any evidence that it had been used but it certainly led to a process where the state in question, Mexico, introduced procedures to closely look at the way questioning was happening—as you would imagine. It is quite varied. In various cases they have found that the conditions in relation to a particular individual or a group of individuals do not meet the standards, they believe, of the convention and they have been commenting that they have been collaborating with the state and the state has put in place mechanisms to address those issues.

Mr LAURIE FERGUSON: I do not for a moment argue that we should not be a party and actively compliant just because we might be ahead of the world, so it is New Zealand, Britain and Australia. I wonder if you could come back to us at a later stage on countries that would be more under a question mark—you have cited Honduras on the way through—and give us some outcomes that we can see in regard to other countries. Is that possible?

Mr Hall : We can certainly do that.

Mr Fox : If I could add, Mr Ferguson, that there have only thus far been six published reports—Mexico, Honduras, Sweden, Benin, in Africa, and there are two others. So there is in a sense not a huge amount of detail that we can access in English in respect of the annual reports and so on of the domestic bodies. But certainly, after examining particularly the UK experience and from looking at the European experience with their system, which the optional protocol is somewhat modelled upon, that suggests that there been some very positive outcomes in terms of the more systemic approach to the way in which issues have been identified and addressed. Take the issues in the UK, for example, that were mentioned in Mr Manning's opening address. They have begun to be able to look at issues across a range of different institutions and different locations and see some common issues that have been picked up. Particularly with youth, for example, they have identified some questions around the capacity of the organisations to actually listen and understand some of the concerns that the youth detainees have got. Now these are not huge questions of degrading and cruel treatment, but they address particular specific issues that can lead to matters being added, one upon another, which then amount to cruel, inhumane or degrading treatment. But certainly we can come back and address some further issues.

Mr LAURIE FERGUSON: On the way through you cited, I think, police detention in WA as a leading example of differentiation between states. Am I wrong on that as a good example?

Mr Manning : No. The example we have been using is that police detention facilities is one area that is not covered with the exception of WA in those jurisdictions. It would be an area where there will have to be new monitoring oversight mechanisms put in place.

Mr LAURIE FERGUSON: What would be some other leading examples of state differences on which there are possibly going to be gains through this?

Mr Fox : The sorts of areas that are currently not covered are largely police cells, but custody vehicles and transportation of people in custody are also not dealt with in a comprehensive fashion in most jurisdictions—or in all jurisdictions, in fact. The monitoring regimes within, whether for official visitors in prisons or official visitors in secure mental health wards and so on, do not have any clear—the guidance that is provided to those who are undertaking those visits is not terribly transparent or available in guiding the way in which those visits are made and what issues are being examined when those visits are undertaken.

We would expect it to be likely that there would be the development of more broad-ranging guidelines which are focused upon ensuring that human rights are addressed, rather than just dealing with specific complaints and issues that people are raising. We would expect and hope that we would see a sharing of experiences across different sorts of institutions and across state boundaries with respect to the types of events and incidents that are being seen and the types of responses that are being developed. We would expect to have a better understanding of the disparity of conditions in different types of institutions.

We are certainly aware from various reports, including that of the Inspector of Custodial Services in Western Australia, that there are serious differences of conditions between some custodial facilities in the outback compared with custodial facilities in urban areas, but we do not really know to what extent those sorts of disparities are replicated in other jurisdictions. We might expect to see some better understanding of the extent to which dialogue, where there is a stronger role for the monitoring body to have that dialogue with the detaining body, actually generates results. You will see from the Australian Human Rights Commission's submission to this committee that they feel that a number of the recommendations they have made with respect to migration detention resulted in improvements in the way in which people were having their health or their housing conditions addressed and so on.

Senator SINGH: In relation to where you see significant gaps in current institutions and processes regarding being covered by this optional protocol, and existing coverage of our investigative and monitoring bodies, I know that in our paperwork it refers to the gaps that exist, particularly relating to police cells, detainee transfer vehicles and the like. Earlier I raised the ASIO interrogation—I understand that under ASIO law it can go on for up to seven days. I found out since I last spoke to you that that is detained by police. Having said that, police are not present, so it is ASIO interrogators and IGIS who are present.

Thinking about some of these gaps—and these need to be considered now while you are still in the process of establishing this new independent body—will you consider those interrogative processes? I raise this because it is exactly at that time, when things are most secretive and opaque, that issues of cruel or inhumane treatment can occur and go unrecorded. Are you addressing any other gaps there may be, and are you addressing the gap I raised in relation to interrogation issues?

Mr Manning : I do not know the specifics of what occurs in those places of detention, but I can speak generally. Generally, of course, this regime will apply to all places of detention. Any place where someone is deprived of their liberty, for whatever purpose, will be covered by this regime. Therefore, the national preventative mechanism and the SPT would be given a right to visit those places of detention. They will have guidelines which they will go through when they are at those places of detention and be able to interview people who may be being detained while that visit is occurring with the aim of coming up with suggestions for how the state party could take action to prevent torture or cruel, inhumane or other degrading treatment or punishment.

Certainly in that regard those processes, like all processes which involve detention, will be considered. As I said earlier, the Commonwealth will be considering all of the grounds for detention under and places of detention under Commonwealth legislation to ensure that there is a national preventative mechanism in place that possesses the requisite independence, resources and other features required under the treaty in relation to that detention and can make recommendations and engage in dialogue with the detaining authorities in relation to people captured by that detention.

Mr Hall : I will add to that, if I may. To pick up your point about ensuring particular agencies or particular departments that are responsible for detention are going to ensure that the right mechanisms are in place to allow the relevant place of detention to be inspected, we have been consulting closely with all of the relevant Commonwealth agencies, including holding regular meetings with all of those agencies, such as Defence, ASIO, Immigration and so on. Throughout the process leading towards the preparation of our national interest analysis, the obligations of the protocol and the government's recommendation that Australia accede to it have been agreed to through all of those areas. So every area and every agency that is responsible is very conscious and aware of the obligations for protocol and have been involved in the process leading to the point where the government is happy. Does that make sense?

Senator SINGH: I think it is really fantastic that we are ratifying this OPCAT. I am just trying to make sure that there is no stone left unturned in relation to all the areas that you could imagine there could be some form of cruel or inhumane treatment.

Mr Hall : The definition of the protocol is quite broad.

Senator SINGH: It is quite broad.

Mr Hall : As Mr Manning has pointed out, the focus is on the place of detention. If the SPT visiting here becomes aware of an issue of a person in detention they can visit that place of detention without notice and so the agencies in question will need to ensure that that can occur. The same applies to the NPM. Those obligations on those agencies will fall under legislation once the legislation is passed.

Ms PARKE: I just wanted to come back to something which you alluded to in your opening statement, Mr Manning, about cost. I note from a number of submissions that the cost of these independent inspections systems is pretty low—0.4 per cent for the WA Inspector of Custodial Services, 0.4 per cent for the UK Chief Inspector of Prisons and 0.15 per cent for the Correctional Services of Canada. At the same time, you have these potential cost savings which could be quite enormous across the civil claims against the police and correctional authorities. The cost to the state of inquests concerning deaths in custody or care, including coroner's court costs and legal aid costs, and the cost of award settlements in relation to immigration detention are millions and millions of dollars a year. I know just in the Ward case alone in Western Australia it is millions of dollars. Plus there is the fact that you have improved work environments for staff as a result of improving conditions of detention and so you have fewer absences and less sick leave and churn of staff. Overall it seems that in terms of the cost it might have a positive effect on the budget, as opposed to—

Mr Manning : It could be a saving.

Ms PARKE: Yes.

Mr Manning : I think there is potential for that to be right. We do not have a precise figure on the cost of implementing it in Australia, for the very reason that we are still discussing with states and territories the best way to implement it. So there are a number of options. You could have a national body. No-one is attracted to that option. The best two options are leveraging off a range of existing bodies in every jurisdiction or having one body in each jurisdiction. All of the discussions to date have been around the leveraging of a number of bodies in each jurisdiction. As you say, that makes the cost much lower, which is why people are attracted to it, because you are leveraging off existing expertise and filling in the gaps rather than starting again.

So, whilst we do not have a precise figure, our expectation is that it would be a very low figure nationally. As you quite rightly point out, and as I think some of the submissions have pointed out, one instance of mistreatment which could perhaps have been prevented by systemic changes would probably cover the cost of making these changes. As I said in my opening statement, whilst I think Australia has a good story to tell in this regard, there are numerous instances where people have taken litigation or costs to the taxpayer with things like coronial inquiries, other inquiries et cetera. Our expectation is that the figures just in those few known cases would far exceed the annual cost of making the changes to implement it within Australia, although, as I said, until we agree on the final model we will not know those final costs.

Ms PARKE: The PIAC submission made some effort to put figures to those amounts, but the national interest analysis did not approach it at all.

Mr Manning : An overarching national figure is not readily available. Often these costs are not publicly known, so we did not think we could credibly do it, but we are very happy to see that people who may have been involved in cases or who know these figures have put that argument forward. We certainly agree with the argument.

Ms PARKE: That is because the settlements are often confidential?

Mr Manning : That is right, and not in the public domain. We are not aware of anywhere where all these figures are kept in such a way that we could get a national picture. But certainly we agree with the logic and the argument, even though the Commonwealth government is not in a position to put figures on it.

Mr Hall : I sought some information from New Zealand to see what their experience was and the New Zealand ombudsman wrote to me. New Zealand is obviously smaller and it is not a federal system; it may be comparable to a state. The ombudsman said that they estimated the financial liability arising from mistreatment being $25 million to $35 million and the cost of their NPM to be $250,000, which is 1.4 per cent. He described it as a very cheap insurance premium. That certainly seems to be the view from that jurisdiction.

Mr Manning : We should not overstate it and say that by becoming a party these issues will not continue to arise, but the aim is that they would be minimised. The cost is an added benefit to that; they would be minimised for other reasons. Cost would not be the main aim, but there would hopefully be an added benefit of minimising costs.

Senator SINGH: Following from Ms Parke, when you talk about drawing on expertise already in the jurisdictions, are you referring to ombudsman's offices or what?

Mr Manning : No, there are a range of bodies. For example, in Western Australia there is an inspectorate of corrective services—I have not got the name right. It would be that type of public body or public figure.

Senator SINGH: But every state is different. In Tasmania it is the ombudsman's office, which is fairly underresourced and has volunteers going into the prison system.

Mr Manning : There are a range of bodies in every jurisdiction. For example, the body that goes to a juvenile justice facility might be different to the body that goes to a psychiatric facility or a prison. The point I was trying to make earlier was that it is thought that it will be cheaper to bring the existing bodies up to the standard and impose a consistent standard on them rather than starting afresh with a new body that does it all. But, if a state or territory thought that was a more efficient and effective way to do it, it would be open to them to do it that way.

Mr Hall : The official visitors are quite a good example because they have a broader mandate than would exist under the optional protocol just to visit a mental health facility.

Senator SINGH: That is right, which is important to continue.

Mr Hall : It is important to continue that, and there might be a secure part of that facility which would engage the OPCAT, but obviously it makes sense for that visitor to cover the field, if you like. I imagine it would in most cases, anyway.

Mr Fox : In response to Mr Ferguson's question, my colleagues have checked and our understanding is that Paraguay is the only country for which there is a report in respect of the follow-up. A number of countries have responded but Paraguay is the first one for which there is a reference to the outcomes. In relation to Paraguay, the two key outcomes which are reported in that regard are that they are moving to amend their definition of torture in their criminal code and, secondly, that they are also including that within their military code. Those bills are apparently both before the Paraguayan assembly. So it is fairly formal response in that particular instance. But from reading the reports, for example in Mexico the report reveals a very wide range of quite serious concerns and practices that one would be aghast at, I think. The Mexican response is fortunately quite an extensive response, a very long report and a very considerable bureaucratic effort. Whether that bears fruit we do not know, but there has certainly been an impact in terms of the visit.

CHAIR: Thank you for attending to give evidence today. If the committee has any further questions, the secretariat may seek further comment from you at a later date.

Proceedings suspended from 11:57 to 13:02