SENATOR BIRMINGHAM: (South Australia) (12:52): It is a pleasure to present this report on a series of treaties tabled on 7 and 28 February 2012. One of the more important treaties to put some remarks on the record about is the Optional Protocol to the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment done at New York on 18 December 2002.

The optional protocol aims to strengthen the protection of persons deprived of their liberty against acts of torture and other cruel, inhumane or degrading treatment or punishment. It provides for a mechanism to better ensure that detaining authorities are accountable for conditions in places of detention and for greater international transparency.

Australia is a longstanding and proud signatory to the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, and we have, I believe, admirably honoured the issues that convention covers and have a proud record in that regard.

The optional protocol was the subject of a Joint Standing Committee on Treaties report, report No. 58, handed down in March 2004. At that time, the treaties committee recommended against ratification of the optional protocol, highlighting concerns that the UN committees were not focusing on the most pressing of human rights violations and that the subcommittee proposed by the protocol, when established, will be able to conduct visits to state party facilities regardless of whether there are substantive concerns regarding allegations of torture. So concerns remain about whether there is in fact effective, genuine and detailed prioritisation undertaken by the UN as to where it directs resources under these types of optional protocols. The committee report in 2004 went on to highlight:

… there is no suggestion that the independent national preventative mechanisms-

those that exist already-

are inadequate in Australia.

I think that it still the case-that the preventative mechanisms for those who are detained are indeed quite strong in Australia. Ratification of this protocol will simply codify those preventative mechanisms into compliance with the framework by taking the existing recommendations.

It is important to recognise what the committee did then. If over time the UN subcommittee on the prevention of torture demonstrated that it had focused its resources on the worst human rights violations in the world, then the Australian decision could be revisited. So the committee looked at what has happened since 2004.

The optional protocol has been in force now for over five years and has more than 60 state parties and a further 22 signatories. Australia already has, as I said, strong legal protections against torture and inhumane or degrading treatment. However, ratification of this optional protocol will, the committee believes, improve outcomes for detainees in Australia by providing a more integrated and internationally recognised oversight mechanism. It will provide an opportunity for organisations involved in detention management and oversight to share problem-solving measures and other information on the conditions and treatment of detainees.

Implementation aims to minimise instances giving rise to concerns about the treatment and welfare of people detained in places of detention in Australia. In addition to the human rights benefits, the committee heard evidence that monitoring has the potential to minimise the costs of addressing such instances, including avoiding litigation costs and compensation payments.

The optional protocol is an effective mechanism even in jurisdictions that already enjoy preventative monitoring through pre-existing oversight bodies. For example, the New Zealand Human Rights Commission noted in 2010 that the protocol had 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’. The committee has indicated in its report that it does not want to see implementation of this treaty protocol delayed and has made recommendations accordingly.

Because concerns about this protocol have been expressed previously in this parliament, it is important to put on the record that not all of those concerns have necessarily been addressed, despite this committee recommending ratification. Now that significant numbers of other states have committed to the protocol, the committee believes that, overall, Australia as a good global citizen, as a country that has a proud record in relation to the convention, should be setting the example by participating as well.

However, the opposition does hope that the UN committees overseeing this will prioritise their work, in terms of preventing torture and other inhumane treatment of those who are detained, by focusing on circumstances where there are genuine concerns and instances of torture. We do not believe that is likely to be Australia. We believe the national preventative mechanism structure that will be put in place will unify and strengthen arrangements around Australia, but the opposition’s perspective is that we do not believe it is terribly likely that Australia would face detailed international scrutiny as a result. I say to the Senate in tabling this report that the opposition, whilst not dissenting from the majority recommendation, does wish to highlight for the record article 33 of the optional protocol, which provides for a state party to denounce the optional protocol at any time with written notification to the UN Secretary-General. That is not to say that we would do so but to highlight that there is an out clause if it is believed the optional protocol is not working in a way that gives priority to serious human rights concerns around the world. There are a number of other treaties covered by this report. They include the Amendment to the Agreement Establishing the European Bank for Reconstruction and Development, adopted at London on 30 September 2011. This agreement is in response to the events in the Middle East and North Africa in 2010 and 2011-the so-called ‘Arab Spring’. The bank was called upon by the international community to extend its geographic scope to support the transition of the southern and eastern Mediterranean countries to market economies. It is believed by the committee and by the government and others that it is in Australia’s national interest to accept the proposed amendments to allow the bank to extend its operations to eligible countries in the southern and eastern Mediterranean to support their transition to democracy. Egypt, Morocco, Jordan and Tunisia have taken steps so that they may potentially benefit from the expansion of the European Bank for Reconstruction and Development. The bank is well placed to support countries that are hopefully transitioning towards open and democratic market economies, which I am sure all members of the Senate would welcome and encourage.

The report also covers amendments to the Convention on the Conservation of Migratory Species of Wild Animals, which added two species found in Australia, the giant manta ray and the eastern curlew. The eastern curlew is a striking-looking bird with a long curved bill, which every year migrates around the world between the coastal beach and shore areas it inhabits. Like many other migratory shorebirds it is highly vulnerable to areas of its habitat being paved over for industrial or housing developments, and the loss of habitat in its migratory chain has serious effects. These are issues we should all be concerned about and I hope that all countries which are party to this convention will take their responsibilities seriously.

The remaining treaties covered in this report include the Prevention of Pollution by Harmful Substances Carried by Sea; conformity assessment certificates between the EU and Australia; international wills, which will be important to Australians who have assets in different countries; and the Agreement on the Conservation of Albatrosses and Petrels. The committee has recommended binding action for these treaties. On behalf of the committee, I commend the report to the Senate.