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The National Children's Commissioner's work on the OPCAT

Children's Rights

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This page was first created in February, 2017

 

In 2016 the National Children’s Commissioner conducted a national investigation into the Optional Protocol to the Convention against Torture (OPCAT) and how it relates to children and young people detained in youth justice centres or adult facilities.

This page provides a brief overview of the findings and recommendations in relation to the OPCAT. More information can be found in the Executive Summary of the Children's Right Report 2016. Chapters 3 and 4 of the Report contain the full results. 

1. Background
2. Ratification
3. The OPCAT requirements
4. The OPCAT and youth detention in Australia: a stocktake
     4.1 Key National Preventative Mechanism criteria
           4.1.1 Functional independence
           4.1.2 Independence and expertise of personnel
           4.1.3 The necessary resources for functioning
           4.1.4 Access to places of detention and the children and young people detained
           4.1.5 Power to make recommendations that will be considered
           4.1.6 Access to information, including about treatment and conditions
           4.1.7 Annual reports and other public reporting


1. Background

In 2009 Australia committed to improving the standards of oversight and monitoring of places of detention across Australia, including juvenile detention facilities. We did this by signing an international human rights treaty called the Optional Protocol to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT).

The OPCAT requires the government to put into place new and expanded oversight mechanisms in order to prevent torture, as well as cruel, inhuman and degrading treatment in places of detention and closed environments

The focus of the National Children’s Commissioner’s work in 2016 was to assess the readiness of youth justice processes to implement the provisions of the OPCAT. This included a stocktake of current oversight, complaints and reporting arrangements across the jurisdictions, an analysis of their adequacy in meeting the OPCAT requirements, and identification of opportunities for improvements nationally over time.

A key recommendation made in the Children’s Rights Report 2016 was that the Australian Government ratify the OPCAT as soon as possible.

2. Ratification

On 9 February 2017 the Government announced that they intend to ratify the OPCAT by December 2017. The Minister for Foreign Affairs and the federal Attorney-General stated in a joint media release that:

  •  Under OPCAT, places like Australia’s prisons, and juvenile and immigration detention facilities will be independently monitored by a network of Australian inspectorates.
  • Australia will also welcome periodic visits by the United Nations Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  • Following ratification, the Australian Government will fund the Office of the Commonwealth Ombudsman to coordinate the network of Australian inspectorates.

3. The OPCAT requirements

Ratification of the OPCAT is intended to be a collaborative process whereby the Commonwealth, states and territories work together to embed better scrutiny processes. It is preventative in focus – the emphasis is on proactively working towards preventing mistreatment from occurring in the first place.

To prevent torture and ill treatment, the OPCAT sets out a monitoring system made up of two complementary and independent expert bodies at the international and national level – the Subcommittee on the Prevention of Torture (SPT) and a National Preventive Mechanism (NPM).

The Subcommittee on the Prevention of Torture (SPT) is a United Nations body established under the OPCAT. By ratifying the treaty Australia would be allowing it to conduct visits to any place of detention within Australia.

A National Preventive Mechanism (NPM) is a body, or series of bodies, that monitor any place of detention within Australia. They would be quasi-independent agencies of governments in Australia and would take on the main role of monitoring and standards development.

4. The OPCAT and youth detention in Australia: a stocktake

The National Children’s Commissioner examined the legislative requirements across all jurisdictions in relation to youth detention to establish: their existing levels of compliance with the OPCAT; how they document and monitor the use of force and methods of restraint; solitary confinement and isolation; critical incidents; searches; and complaints. For overall OPCAT compliance, each jurisdiction will need to undertake a similar review of monitoring systems in all places of detention.

The detailed mapping of legislation and relevant authorities tells us that:

  •  Across the jurisdictions, there has been considerable recent work undertaken to improve oversight and monitoring mechanisms for children and young people who are detained.
  • Some jurisdictions are more developed than others.
  •  The mechanisms utilised by some jurisdictions could be used to guide the work occurring in jurisdictions with fewer protections. 

It is heartening to see that jurisdictions like Western Australia and New South Wales have already established monitoring mechanisms that are leading practices on meeting the requirements of the OPCAT.


Jurisdictions like Tasmania and South Australia have recently passed legislation that will strengthen their monitoring mechanisms and increase their likelihood of becoming OPCAT compliant.

The ACT and Victoria have Human Rights Acts; Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Victoria). Under that legislation, it is unlawful for a public authority to act in a way that is incompatible with a human right, or to fail to give proper consideration to a relevant human right in decision-making.  These ‘human rights jurisdictions’ have the capacity to use that legislation as a base from which to scrutinise human rights compliance generally, including with the CAT.

Some jurisdictions rely on internal government scrutiny only.

All jurisdictions have some gaps that must be addressed as they move towards compliance with the NPM criteria. It is therefore critical that any reforms undertaken occur in conjunction with an assessment of existing systems against the requirements of the OPCAT for the NPM. However, there is also capacity to take a progressive realisation approach where steps are taken over time within a targeted plan to ensure full coverage and appropriate arrangements are in place.

Some jurisdictions have multiple government departments and statutory bodies with responsibilities in the youth justice context. Often, these departments and bodies appear somewhat uncoordinated in their approach. This is concerning because it indicates, that in some jurisdictions, there is no overall mechanism acting in the best interests of children and young people who are in detention. This may also impede the ability for young people to readily identify the key sources of external support and advice. 

4.1 Key National Preventative Mechanism criteria

To be an NPM, a body must meet a list of requirements in the OPCAT.  These requirements include criteria like functional independence, the power to access information, and access to places of detention.

The National Children’s Commissioner’s investigation used NPM criteria to identify the main challenges moving forward and highlight ways that different jurisdictions can learn from initiatives and practices in other states.

4.1.1 Functional independence

The OPCAT requires that inspecting bodies should be functionally independent from the facilities that they inspect, including all agencies with responsibility for those facilities. The ‘operational independence of the NPM should be guaranteed’  and ‘the NPM should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol’.

The following are examples of legislative provisions drawn from across Australian jurisdictions. They identify different elements of ensuring functional independence:

  •  Functions may be exercised on the Inspector’s own initiative, as well as in response to a reference or request by Parliament, other independent officials (such as Ombudsman or Police Integrity Commission), or any public authority or public official (for example NSW Inspector of Custodial Services )
  •  Inspectors are appointed for fixed terms of employment, with clearly defined dismissal processes (for example Tasmanian Custodial Inspector )
  • Inspectors are accountable to parliament (for example NSW Inspector of Custodial Services  ).

The Guidelines on national preventive mechanisms state that:
the relevant legislation should specify the period of office of the member/s of the NPM and any grounds for their dismissal. Periods of office, which may be renewable, should be sufficient to foster the independent functioning of the NPM’. 

The process for the selection and appointment of members of the NPM should be open, transparent and inclusive and involve a wide range of stakeholders, including civil society.

The jurisdictions across Australia vary in the degree of independence held by their monitoring and oversight departments.

While all jurisdictions have at least one body with a high degree of independence, those bodies are not always established with a specific mandate to routinely inspect and monitor places of detention and their functions.

Western Australia and NSW have established independent inspectors of custodial services. Both have a high level of statutory independence, with provisions establishing appropriate appointment processes and with appropriate powers and protections for officeholders.

The parliaments of South Australia and Tasmania have recently passed legislation to establish independent statutory positions with the express function of monitoring places of detention.

The Victorian and ACT Ombudsman positions have broad remits because they have the mandate to consider administrative acts, which may have breached the human rights legislation in each of those jurisdictions. However, the Victorian Ombudsman has stated that this broad mandate is little known or used at the moment. 

Victoria and Queensland have detailed inspection regimes run from within internal government departments. However, the lack of independence from the departments responsible for administering the detention of children and young people means these arrangements would not fully meet the OPCAT requirements.

In addition to independent ombudsmen, most states and territories have independent statutory positions of commissioners for children and young people. Many lack the legislative mandate to regularly visit and inspect youth justice detention centres. Mostly they focus on children and young people who are in out-of-home care due to child protection concerns, though they may also elect to visit youth justice settings.

The Northern Territory relies upon its Ombudsman and Children’s Commissioner for independent oversight. Both bodies have the necessary level of independence. However, neither body has a specific mandate to visit and inspect youth justice centres.

4.1.2 Independence and expertise of personnel

The following are examples of existing provisions that ensure the independence of personnel working at inspection bodies, and which ensure appropriate expertise:

  •  Provisions which set out required expertise for people to be eligible for appointment to an inspection role (for example NT Children’s Commissioner )
  •  Provisions which ensure diversity and plurality among the membership of inspection bodies (for example NT Youth Justice Advisory Committee )
  • Provisions which prevent conflict of interest in appointment processes and appointments themselves (for example NSW Inspector of Custodial Services )
  • Offences for hindering or obstructing the Inspector, failing to comply with the Inspector, and making false statements or misleading the Inspector (for example NSW Inspector of Custodial Services )
  •  The Inspector and staff are protected from liability for acts done or omitted to be done in good faith under the legislation (for example Tasmanian Custodial Inspector ).

Few jurisdictions make legislative provision regarding the expertise required of appointments to relevant bodies, the staff of those bodies and experts used.

Additionally, few jurisdictions make legislative provision regarding a gender balance or representation for ethnic minorities. In the context of the overrepresentation of Aboriginal and Torres Strait Islander children and young people in youth justice centres across Australia, representation of Aboriginal and Torres Strait Islander people in an NPM is particularly important.

The Northern Territory has a Youth Justice Advisory Committee (YJAC) provided for in legislation.  The YJAC gives advice and information to the Minister for Correctional Services on the administration of the Northern Territory’s youth justice system. The legislation provides that membership of the Committee should reflect the composition of the community at large and so far as practicable should include:

  • an equal number of men and women
  • at least two Aboriginal members
  • at least one member who is under the age of 25 years at the time of their appointment
  • at least one former detainee
  • an Official Visitor
  • one member residing in Alice Springs and one member residing in a remote community at the time of appointment.

Where positions are held voluntarily or by insecure employment, it is arguable that either the expertise and qualifications of the position-holders is likely to be insufficient or the independence of the individuals might be threatened.

Some jurisdictions make provision to ensure against conflicts of interest. For example, the Western Australian legislation establishing the Inspector of Custodial Services provides that a person who has, in the last three years, been a member of the Parliament of the Commonwealth or any State or Territory cannot be appointed as Inspector.

Protections for officeholders and staff are found in most legislation establishing Ombudsman offices and children’s commissioners. The custodial inspectors have varying degrees of protections. For example, neither the NSW Inspector of Custodial Services nor his or her staff is subject to ‘liability, claim or demand’ for anything ‘done or omitted to be done’ if it was ‘in good faith’ for the purpose of executing the Inspector’s functions.

4.1.3 The necessary resources for functioning

Article 18(3) of the OPCAT provides that an NPM must be provided with the necessary resources to function.

Government agencies and non-government organisations commonly expressed concerns about ensuring that inspectorates have sufficient funding to maintain a routine program of inspections and follow up, and to ensure appropriate expertise.

Lack of resourcing can compromise the capacity of relevant agencies to fulfil monitoring functions effectively. Resourcing can also impact on the functional independence of monitoring and oversight bodies.

Few jurisdictions’ legislation addresses resourcing and where it does, it is unclear whether it has the effect of ensuring sufficient resourcing. The existing legislation establishing the Guardian for Children and Young People in South Australia requires that the Minister ‘provide the Guardian with the staff and other resources that the Guardian reasonably needs for carrying out the Guardian's functions’.  The Guardian for Children and Young People advised that, at the time of writing, limited resources constrained the frequency of visits  with current monitoring focusing on the immediate physical, mental and emotional safety of residents.  The new legislation in South Australia provides that the Minister must deliver the Training Centre Visitor with the staff and other resources that the Visitor may reasonably need for exercising her or his functions.

4.1.4 Access to places of detention and the children and young people detained

The OPCAT requires the following elements for preventive mechanisms:

  • Access to places of detention (article 20(c))
  • The right to conduct private interviews with detained people and others (article 20(d))
  • Liberty to choose places visited and people interviewed (article 20(e))
  • Confidential information shall be privileged (article 21(2))
  •  Protections from sanctions or prejudice for individuals or organisations communicating with an NPM (article 21(1)).

The ‘visiting mandate of the NPM should extend to all places of deprivation of liberty, as set out in article 4 of the Optional Protocol’. 

This means that the inspection mandate of the relevant monitoring bodies should extend to places like police cells and lock-ups, court holding cells, and vehicles used to transport people in the youth justice system. 

No jurisdiction has an independent body with a mandate to inspect all places of detention where children and young people might be held. In particular, in most jurisdictions, the relevant bodies cannot inspect police cells or vehicles used to transport people detained.

The following are some examples of legislative provisions from across the country in this regard:

  • Functions enable the body to routinely inspect and monitor places of detention, including a requirement to visit, such as every three years (for example WA Inspector of Custodial Services ) and the power to access any detention centre at any time with any assistants and equipment (for example WA Inspector of Custodial Services  ) 
  • It is an offence to hinder a person exercising the powers of access (for example NSW Inspector of Custodial Services )
  • Jurisdiction extends to police holding cells (for example NT Ombudsman ), access to vehicles used to transport people detained (for example Tasmanian Custodial Inspector ), and court holding cells (for example WA Inspector of Custodial Services  ), and includes the mandate to inspect adult facilities if any children are held there (for example Queensland Community Visitors )
  • There is unfettered access to the people in detention centres (for example WA Inspector of Custodial Services ) 
  • There is an express provision that there is no requirement to give notice of inspections (for example WA Inspector of Custodial Services  )
  • There is an express requirement that an inspector is provided privacy to conduct interviews with people detained and staff (for example Tasmanian Custodial Inspector) 
  •  Information received is confidential (for example NSW Inspector of Custodial Services  ) and privileged (for example Tasmanian Custodial Inspector )
  • There are protections against recriminations for people who have complained or provided information (for example NSW Inspector of Custodial Services,  ACT Human Rights Commission,   Queensland Ombudsman )
  • Officials and those making complaints or providing information to the Commission are protected from civil and criminal liability for acts done honestly and without recklessness (for example ACT Human Rights Commission ).

4.1.5 Power to make recommendations that will be considered

The OPCAT requires the following criteria be met by an NPM:

  • Ability to make recommendations (article 19(b))
  • Ability to submit proposals and observations concerning existing or proposed legislation (article 19(c))
  • Authorities must examine recommendations and enter into dialogue with the NPM on implementation measures (article 22).

Each relevant body in each jurisdiction in Australia, if not expressly then impliedly and certainly in practice, generally meets the first two criteria.

The OPCAT requires that authorities appropriately consider the recommendations of an NPM and engage with the NPM on implementation. Article 22 applies to how governments receive and act upon reports and recommendations regarding the conditions and treatment of those deprived of their liberty.

The legislation establishing some of the relevant bodies in some jurisdictions includes provision to encourage engagement by government and to require at least a response from government to recommendations. However, many of the bodies involved in monitoring and oversight of youth detention across Australia do not require engagement and response by government and in particular, do not require a public response.

Some examples of existing legislative provisions regarding these requirements include:

  • Reports ‘may include recommendations for any changes to any written law, draft law, policy, practice or procedure, or for the taking of other action, that the Commissioner considers appropriate to safeguard and promote the wellbeing of children and young people’ (WA Commissioner for Children and Young People )
  • The Inspector must give the Minister a draft of each report intended for Parliament and give the Minister a reasonable opportunity to make submissions on the draft report. The Inspector is not bound to amend a report in light of any submissions made by the Minister (NSW Inspector of Custodial Services )
  • The Ombudsman may request a response from the authority within a specified time, with the steps proposed to give effect to the recommendation or, if no steps are proposed, the reasons why. If the Ombudsman does not consider that appropriate steps have been taken he or she may send to the Premier a copy of the report, the recommendations and a copy of relevant comments. The inspecting body may lay before Parliament reports on such a matter as he or she thinks fit (Ombudsman WA)
  •  Where the Ombudsman is not satisfied that sufficient steps have been taken, the Ombudsman may make a report to Parliament, and the responsible Minister must make a statement to Parliament in response to the report within 12 sitting days (NSW Ombudsman )
  • The annual report to Parliament must include an evaluation of the response of relevant authorities to the recommendations of the Inspector (Tasmanian Custodial Inspector).

4.1.6 Access to information, including about treatment and conditions

The OPCAT requires that NPMs have:

  • Access to information concerning the number of children and young people detained and places of detention (Article 20(a))
  • Access to information on treatment and condition of people in detention (Article 20(b)).

In most jurisdictions, there is at least one body with sufficient powers to access information regarding the treatment and conditions of young people in detention. However, in relation to those agencies which are not dedicated inspectors, those powers are often in the context of an inquiry or an investigation of a complaint, rather than as a part of routine oversight.

At present, there are insufficient legislative requirements for jurisdictions to maintain registers logging the use of force, isolation or restraint.

Each jurisdiction to varying degrees keeps records and registers of the use of force, restraint, isolation, searches, and critical incidents. Each has varying levels of access to these records, but broadly speaking, few are required to be provided to external bodies and fewer are made publicly available.

It appears from publicly available information and information provided by governments and in other submissions, that most of this information in the form of registers is also not routinely requested by the relevant bodies, even when the powers to do so exist.

It seems that no jurisdiction has tackled this reporting systematically to ensure that:

  • All types of prohibited or limited treatment and punishment are addressed in the primary legislation.
  • All uses of force, restraint, isolation, critical incidents and complaints are the subject of reporting.
  • This reporting is required by primary or secondary legislation which parliament has a chance to scrutinise, including some detail regarding what information must be recorded.
  • The records or registers are available for review by external agencies involved in the monitoring and oversight of the detention of children and young people and that this availability is required by legislation.
  • There is a degree of public reporting on the records.

Examples of existing legislative provisions for independent bodies to access information include:

  • The express power to access all documents in the possession of the Department in relation to a detention centre or to a detainee (for example WA Inspector of Custodial Services )
  • The right to access all records of any custodial centre, and requirement for staff to supply information and produce documents (for example NSW Inspector of Custodial Services  )
  • Requirements for the independent body to be notified when a young person is segregated for more than 24 hours (for example NSW Ombudsman ) 
  • Requirement for the government to report all adverse incidents involving children in youth justice to a relevant body (for example Victorian Commission for Children and Young People )
  • Government is not entitled to prevent or obstruct records or evidence being given for the purpose of an inspection even if that was to be allowed in a legal proceeding before a court (for example Tasmanian Custodial Inspector ) 
  • A youth justice centre or other relevant government or non-government organisation will be obliged to provide information relevant to the exercise of the office-holder’s functions (for example SA Training Centre Visitor )
  • Power to require any staff member or person who provides services to people in custody to supply information, produce documents, and to attend and answer questions before the Inspector (for example Tasmanian Custodial Inspector )
  • Legislation provides relevant offences for failing to comply with requests and provide assistance to the Inspector (for example NSW Inspector of Custodial Services )
  • Conditions and treatment, including prohibited or limited types of treatment and punishment, are addressed in the primary legislation and it is an offence to punish a detainee in such a way (for example NSW Inspector of Custodial Services  )
  • There are protections against recriminations for people who have complained or provided information to the oversight body (for example NSW Inspector of Custodial Services,  ACT Human Rights Commission,   Queensland Ombudsman )
  • The types of restraints which can be used are in primary legislation or regulations which Parliament can scrutinise (for example ACT ).

Examples of requirements which are arguably necessary for best practice in relation to transparency around the use of force, segregation, restraint, critical incidents include:

  • All uses of force, restraint, isolation, critical incidents and complaints are required by the primary legislation to be the subject of reporting; details of what should be included in the reporting should be in the primary or subordinate legislation which parliament can scrutinise
  • There is a specified degree of public reporting on the records required by the legislation
  • The records or registers are available for review by external agencies involved in the monitoring and oversight of the detention of children and young people and this availability is required by legislation.

4.1.7 Annual reports and other public reporting

The OPCAT requires that the annual reports of an NPM be published publicly and disseminated (article 23).

The OPCAT does not specifically require other reporting to be made public, however, given the importance of transparency to the preventative focus of the OPCAT, public reporting of substantive information on treatment and conditions is important.

Further, the quality of the content of annual reports is relevant, as is their public accessibility.

Generally, across jurisdictions, there is little in the way of detail in the legislative requirements for annual reporting that is relevant to the treatment and conditions in youth justice detention centres.

All agencies involved in monitoring and oversight of places in which children and young people are detained publish their annual reports online and they are easily accessible to the public. However, the degree of useful information contained in these reports varies substantially.

A number of jurisdictions provide some reporting on treatment and conditions to external agencies and some have internal reporting arrangements. This is not always legislatively required or reported on publicly. However, they provide a basis for the development of more comprehensive reporting systems.

Examples of existing legislative provisions regarding annual reporting and other public reporting include:

  • Any directions from the Minister to the Inspector, and any reasons for the Inspector deciding not to comply with such directions, must be included in the Inspector’s annual report to Parliament (WA Inspector of Custodial Services)
  • Official Visitors must report the number and kind of complaints made, and action taken, to the Minister every quarter and the Minister must provide an annual report on the complaints received by the Official Visitor to the Parliament (Official Visitor ACT)
  • The Inspector’s annual report to parliament must include the following:

           a) a description of the Inspector’s activities during that year in relation to each of the Inspector’s principal functions
           b) an evaluation of the response of relevant authorities to the recommendations of the Inspector
           c) any recommendations for changes in the laws of the State, or for administrative action, that the Inspector considers should be made as a result of the exercise of the Inspector’s functions (NSW Inspector of Custodial Services).