The NSW government’s treatment of Malcolm Baker highlights the need for Australia to ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (OPCAT). Malcolm Baker’s treatment breaches the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Although Australia is a party to UNCAT, it cannot simply be trusted to honour its obligations under the treaty. If it could, Malcolm Baker would not have been treated as he has been. OPCAT should provide a control mechanism to hold Australia to account.
The treatment of Malcolm Baker
Malcolm Baker has been incarcerated for 20 years. He killed six people, including his son, in 50 minutes of madness. For 15 years, he has been regularly held in solitary confinement, often for months at a time. From 19 August 2012 to 29 November 2012, Malcolm was held in solitary confinement at Long Bay Prison Hospital. During this time, he was forced to spend 23 hours a day in his cell. Ventilation and lighting were poor. There was no fresh air and it was too dim for Malcolm to read.
Malcolm was assaulted by another prisoner while prison guards watched. They did not intervene to protect him.
For a period of weeks, he was denied a toothbrush, despite his requests. It was only with the intervention of Justice Action that a toothbrush was finally granted.
Malcolm Baker has a non-violent prison history and has never attempted to escape, yet he is held in leg irons and handcuffs whenever he is out of his cell. He is moved from cell to cell every four weeks, which denies him stability of treatment.
Malcolm is forced to take drugs that 2 of the 6 on the medical team agreed were inappropriate.
What is torture?
Torture is ‘any act by which severe pain or suffering … is intentionally inflicted on a person for such purposes as [those specified] … for any reason based on discrimination of any kind, when … inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. The purposes specified include to punish and to intimidate.
The elements considered are the nature of the act, the intention of the perpetrator, the purpose of the act and the involvement of public officials.
The distinction between torture and cruel, inhuman or degrading treatment is usually one of severity. The powerlessness of the victim, the severity of the treatment and the purpose of the treatment are often relevant.
Solitary confinement may constitute torture or cruel, inhuman or degrading treatment. The particular conditions, the stringency of the confinement, the duration, the objective pursued and the effect on the person are to be considered. The Inter-American Court of Human Rights stated that ‘prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment’; however, the European Court of Human Rights found that ‘security, disciplinary or protective reasons’ could justify some forms of solitary confinement. Malcolm Baker is repeatedly held in prolonged isolation and deprived of communication with others. No reasons have appeared that could justify this. The solitary confinement of Malcolm Baker is therefore cruel, inhuman and degrading treatment.
Conditions of detention
The UN holds as a minimum standard that prisoners be treated with humanity and dignity. It may be torture or cruel, inhuman and degrading treatment or punishment if conditions of detention cause ‘distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention’. Conditions of poor ventilation and lighting clearly cause distress or hardship that is greater than the avoidable level of suffering inherent in detention. Such conditions do not treat prisoners with humanity and dignity.
In particular, holding a prisoner in a cell for 22 hours a day does not comply with the minimum standards. Malcolm Baker was held in his cell for 23 hours a day.
It appears that the conditions of detention in which Malcolm Baker was held constituted cruel, inhuman and degrading treatment or punishment
Assault by prisoner
As another prisoner, not a public official, assaulted Malcolm Baker the question is whether the assault occurred with the consent or acquiescence of a public official. The prison guards merely watched the assault. This may not amount to the consent or acquiescence of the guards.
If it does not, this may be a weakness in the legal definition of torture and cruel, inhuman and degrading treatment or punishment. The same acts by the same person with the same consequences could be torture or cruel, inhumanand degrading treatment in one context, but not in another, simply because of how passive a public official chooses to be. It seems absurd that public officials could watch as severe pain and suffering was intentionally inflicted upon a person to whom they owe a duty of care and that this could not be considered cruel, inhuman or degrading treatment on the pretence that no public official consented or acquiesced. The acts of public officials created the situation in which the intentional infliction of severe pain and suffering could occur. It did, with their knowledge and they failed to intervene. If this is not considered torture or cruel, inhuman or degrading treatment, it does not change the nature of the acts. It may merely prevent them being named as such by law.
Denial of basic needs
The deprivation of basic needs can constitute torture or cruel, inhuman or degrading treatment of punishment. A toothbrush is a basic need. It is essential for maintaining a basic level of dental hygiene and physical health. Furthermore, there could be no security, disciplinary or protective reason for denying a toothbrush to Malcolm Baker. The purpose appears to have been one of punishment, intimidation and degradation. This purpose is even starker in light of the refusal to grant Malcolm a toothbrush even after he had requested one. It was a denial of Malcolm’s basic needs – an act of cruel, inhuman and degrading treatment.
Unnecessary restrictions and movements
It is not necessary to hold Malcolm Baker in leg irons and handcuffs whenever he is out of his cell. Given his non-violent prison history and the fact that he has never attempted to escape, there is no justification for doing so. Again, the purpose seems to be punish and to intimidate. The constant movement of Malcolm Baker from cell to cell is also unjustified. If anything, it undermines his treatment by exposing him to instability. Like holding Malcolm in leg irons and handcuffs, it is an infliction of pain and suffering by public officials without a legitimate purpose. Each of these aspects of Malcolm’s treatment may therefore constitute cruel, inhuman and degrading or treatment or punishment.
It may be argued that the forced medication of Malcolm Baker is not torture or cruel, inhuman or degrading treatment as it is for the purpose of medical treatment. This would be deeply unsatisfactory. If any act is exempt from the definition of torture simply because it is designated as medical treatment, then there are few limits to the pain and suffering that medical practitioners can legitimately inflict upon patients. Clearly, this is not the case. The question of whether particular acts are torture necessarily has a philosophical dimension. It concerns the rights of a person to maintain an integrity of being and the limits of what a society can do. Even a medical consensus would not settle these philosophical questions; however, there was not even a medical consensus in Malcolm Baker’s case. It is thus difficult to argue that medical treatment excuses the forced medication of Malcolm. If it does, then this may be a weakness of the legal definition of torture and cruel, inhuman and degrading treatment or punishment.
The need for OPCAT
At the very least, it appears that the treatment of Malcolm Baker amounts to cruel, inhuman or degrading treatment or punishment. The solitary confinement, the conditions of detention, the assault by another prisoner, the denial of his basic needs, the unnecessary restrictions and movements and the forced medication may each be sufficient to establish this. In combination, they almost certainly do and may even be so severe and unjustified as to amount to torture.
This makes clear the need for OPCAT. Australian governments are guilty of acts of torture and cruel, inhuman and degrading treatment and punishment. They are indifferent towards and, at times, contemptuous of their obligations under UNCAT. The NSW government’s treatment of Malcolm Baker illustrates this. OPCAT should help to expose, and therefore minimise, the government’s breaches.
How would OPCAT help?
OPCAT would provide a control mechanism to hold Australia to account. Its objective is ‘to establish a system of regular visits undertaken by independent international bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment’. Implementation of OPCAT requires a National Preventative Mechanism (NPM). An NPM be able to regularly examine the treatment of detainees, to make recommendations to the relevant authorities and to submit proposals and observations regarding legislation. State Parties must provide the necessary powers, protections and resources for this to occur. OPCAT specifically provides that each State Party must publish the annual report of its NPM and that NPMs have the right to direct contact with the Subcommittee on the Prevention of Torture. In this way, incidents of torture or cruel, inhuman and degrading treatment or punishment would be highlighted. This would, in turn, drive change to compensate the victims and to prevent incidents of torture or cruel, inhuman and degrading treatment or punishment from occurring.
Malcolm Baker has been subjected to torture or cruel, inhuman and degrading treatment of punishment in breach of UNCAT, to which Australia is a party. This highlights the need for a control mechanism to ensure that Australia’s actions match its words. OPCAT should provide such a control mechanism. The Australian government therefore ought to ratify OPCAT as a matter of urgency.
Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies was an invaluable resource on the law of torture, and is recommended as further reading for anyone interested in this area of law.
Preventing Torture: An Operational Guide for National Human Rights Institutions is a helpful guide to OPCAT.
 UNCAT, Article 1.
 United Nations Voluntary Fund for Victims of Torture, Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies, 2009, <https://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf&action=default&DefaultItemOpen=1>;.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment, UN Doc. E/CN.4/2006/6, para 39; European Court of Human Rights, Irlande v. United Kingdom, para 162.
European Court of Human Rights, G. Esslin, A. Baader and J. Raspe v. Federal Republic of Germany,
Communication 7572/76, 7586/76 & 7587/76, 8 July 1978
Inter-American Court of Human Rights, Fairén-Garbi and Solís-Corrales v. Honduras. 15 March 1989.
Series C No. 6, par. 149; Godínez-Cruz v. Honduras. 20 January 1989. Series C No. 5, par. 164 and 197;
Velásquez-Rodríguez v. Honduras. 29 July 1988. Series C No. 4, par. 156 and 187.
European Court of Human Rights, Messina vs. Italy, Communication 25498/94, 28 December 2000, par. 191
 UN Standard Minimum Rules for the Treatment of Prisoners.
European Court of Human Rights, Gelfmann v France, 14 December 2004, para. 50.
Committee against Torture, Concluding Observations on Croatia’s third periodic report (2004) UN Doc.
CAT/C.CR/32/3, para 8; Concluding Observations on Spain’s third periodic report (2002) UN Doc.
CAT/C.CR/29/329 para 56.
Committee on Civil and Political Rights, Concluding Observations on Argentina, third periodic report, para 11
 Article 1.
 Article 19.
 Articles 18-23.
 Article 23.
 Articles 11-12, 20.
 United Nations Voluntary Fund for Victims of Torture, 2009, <https://www.ohchr.org/EN/Issues/Torture/UNVFT/Pages/WhattheFunddoes.aspx>;.