Implementing the Optional Protocol to the Convention Against Torture in
Seminar hosted by the Australian Human Rights Commission and the Asia Pacific
Forum of National Human Rights Institutions
25 November 2009, Sydney
- 1 Welcome and introductions
- 2 Session 1: Understanding OPCAT
- 3 Session 2: International examples of the implementation of OPCAT
- 4 Session 3: The benefits of preventive monitoring of places of detention
- 5 Session 4: Implementing OPCAT in Australia
- 6 Summary and closing remarks
QC, President, Australian Human Rights Commission
Catherine Branson welcomed guests, in particular international guests and
acknowledged the traditional owners of the land. She thanked the Asia Pacific
Forum of National Human Rights Institutions for co-hosting the seminar. She
acknowledged the importance of the right to be free from torture, and
congratulated the Australian Government for recognising the rights of those
deprived of their liberty by signing the Optional Protocol to the Convention
Against Torture (OPCAT). She noted that Australia faces challenges in
implementing OPCAT, particularly due to its federal structure.
Fitzpatrick, Director, Asia Pacific Forum of National Human Rights Institutions
Kieren Fitzpatrick gave a brief introduction to the fundamental prohibition
of torture, and noted that while it is enshrined in the United Nations
Convention Against Torture (CAT), it continues to be violated today.
He provided a broad overview of the obligations of state parties under OPCAT,
including establishing or designating an independent mechanism to enter, visit
and monitor all places of detention. In this way, OPCAT assists states to meet
their obligations to prohibit torture under CAT.
He discussed the special role of national human rights institutions, as they
provide a link to the international system and monitor state action. Their
mandate confers both legal and moral authority and they exercise proactive
powers, which include the promotion of human rights awareness and legal reform.
He noted that in almost all states with a national human rights institution,
upon ratification of OPCAT, that body has been designated as the National
Preventative Mechanism (NPM).
Barbara Bernath, Chief of Operations, Association for the Prevention of
An operational treaty
Barbara Bernath provided an introduction to OPCAT, which was adopted in 2002
and entered into force in 2006. It is an additional optional protocol to CAT and
therefore is one of the core human rights treaties of the United Nations. OPCAT
does not establish new norms. Rather, it is an operational treaty, focused on
the prevention of torture through the implementation of existing rights, namely
the right to be free from torture and other cruel, inhuman or degrading
treatment or punishment. Implementation requires the establishment of a system
of regular, independent visits to all places of detention by both international
and national bodies. In this way, OPCAT imposes obligations on state parties in
addition to their obligations under Articles 2 and 16 of CAT.
OPCAT is about securing an environment that reduces the risks of torture and
ill-treatment as much as possible. It covers all places where persons are
deprived of their liberty, including ‘traditional’ places such as
prisons, as well as other places such as international ports, centres for
migrants or juveniles, aged care homes, psychiatric facilities and modes of
transportation. Under OPCAT, the aim is to identify gaps in protection in the
system itself, rather than identifying and investigating individual instances of
ill-treatment. It requires a systematic approach to inspecting places of
detention, and a consideration of all relevant aspects, including the material
conditions of detention; the level of contact with family members, legal
representation and the outside world; whether adequate activities are available
within detention facilities; and staffing issues, including pay levels and staff
Cooperation and confidentiality
OPCAT seeks to establish a system which improves conditions for detained
people through a cooperative dialogue between the national prevention mechanisms
(NPMs) and government authorities. Generally, the system relies on
recommendations and proposals based on the findings of inspections, rather than
publicly shaming authorities. Cooperation between NPMs and government
authorities is to some extent dependent upon confidentiality. Under OPCAT, the
international inspecting body, the Sub-committee on the Prevention of Torture
(SPT) cannot publish reports and recommendations unless under agreement with the
state party. In contrast, OPCAT permits NPMs to publish reports, so publication
may be used as a strategy in their dialogue with government authorities.
mechanisms are established by OPCAT?
Silvia Casale, former Chair, Sub-committee on the Prevention of
Silvia Casale discussed the international framework with a view to
considering possible models for implementation of OPCAT in Australia.
A system of visits
The central idea behind OPCAT is to ensure that there are safeguards to
protect detained people against ill-treatment. OPCAT takes a broad approach
towards the definition of ‘places of detention’. There are many
places which may be construed as a place where people are or may be deprived of
their liberty by a public authority. Two levels of inspections are required: the
SPT is the international inspecting body; and, pursuant to Article 17 of OPCAT,
each state party must establish, maintain or designate one or several NPMs at
the domestic level. OPCAT does not prescribe a particular model for the NPM but
outlines some key requirements for the mechanism.
The NPM must be independent in practice, and it must also be seen to be
independent. Its mandate and powers must be established by law. The legal
framework must give NPMs powers to access all places where people are or may be
deprived of their liberty, and to talk with detained persons and staff members
privately. The NPM must be provided with adequate resources to allow it to
conduct regular and effective visits.
The NPM profile
The role of the NPM is essentially a human rights based role. The NPM is
required by OPCAT to adopt a preventive approach. The NPM should not have
conflicts of interest, especially in terms of prosecuting individual acts of
ill-treatment identified during inspections. The NPM should inform people who
are detained that the NPM is there to inspect the facility, and although
instances of ill-treatment may be identified, it will not able to assist with
pursuing individual cases. There must be cooperation between the NPMs and the
government authorities for the OPCAT system to work effectively.
State party obligations
OPCAT gives state parties certain obligations, including:
guaranteeing the functional independence of the NPM and its members
ensuring the legal powers of the NPM, as listed in OPCAT
providing the resources necessary for the NPM to operate effectively
safeguarding the NPM’s control of its own visiting program and
publishing and disseminating the NPM’s annual report
examining the recommendations of the NPM.
The development of NPMs is an ongoing process, which needs to be open,
public, transparent and inclusive of all stakeholders. Phase one involves
establishing a solid legislative basis for the NPM and consulting stakeholders
and the public about draft legislation. The legislation should outline the
obligations and powers of the NPM. The NPM must be adequately resourced so that
it can visit regularly and effectively.
Phase two involves the implementation of the legislation. OPCAT envisages
that it will take time to establish NPMs and allows for this. NPMs are complex
systems, especially in the context of federal states. Consultation at the local
level is very important in determining the appropriate model for the NPM.
Phase three relates to the membership of the NPM. Members must be independent
– they must be at arms length from government and the selection process
must be open. The members must be perceived as impartial and independent. There
is a need for multi-disciplinary inspection teams, including medical and
psychiatric experts as well as legal experts.
There must be cooperation between NPMs, government authorities and the SPT in
order for the OPCAT system to work effectively. The NPM is a very important
aspect of OPCAT as the international body (the SPT) cannot visit fifty state
parties on a regular basis. The SPT is intended to be complementary to the NPM.
the definition of ‘regular’ with respect to ‘regular
visits’ by the NPM. Should a risk assessment be used to determine how
regular visits should be to particular places of detention?
level, the limited resources of the SPT would limit its visits to approximately
once every ten years, which is inadequate. At the national level, what is
regular depends on the context. Certain places (for example police stations)
should be visited more frequently than others, and certain units within places
of detention (for example, isolation cells) may also require more frequent
visits. Inspection bodies may also return to certain places more frequently if
they know violations are occurring or have occurred in the past. The question of
regularity raises significant resource implications. For example, in the UK,
resource constraints are overcome to some extent by the combination of
professional inspectors as well as lay visitors - citizens appointed as
independent monitors who inspect prisons at least once per week.
Barbara Bernath stated that regular visits might consist of a combination of
more frequent, short, thematic visits as well as less frequent but more in-depth
visits. Limited resources have to be prioritised towards the places where the
biggest risks lie. In addition to conducting visits and highlighting concerns,
NPMs should also seek to disseminate examples of good or best practice.
between the SPT and the UN Special Rapporteur on torture.
Silvia Casale stated that there is consultation between the SPT and the
Special Rapporteur, and they are complementary mechanisms. They coordinate their
programs to avoid overlapping visits.
inadequate. The NPM needs to look thoroughly at some of the key issues around
humane treatment, such as the risks for detainees’ mental health and the
adequacy of services available. Visits alone will not be enough to prevent
ill-treatment; additional steps will also be required.
having a preventive system that is separate to mechanisms identifying instances
of torture or ill-treatment. Can the NPM identify systemic issues or risks in
places where there are no individual instances of ill-treatment?
Silvia Casale commented that although the purpose of the SPT and NPM is not
to pursue individual cases, it doesn’t mean that they will not find those
cases during inspections. The cooperative dialogue with state parties will
involve fact finding and discussion of particular cases. However, the object is
not to pursue that individual case, but to consider the underlying
systemic issues that may have led to that incident and to consider how to make
changes to avoid recurrences in future.
system for monitoring of juveniles in detention by independent persons who are
appointed by the minister. What role might they play under OPCAT?
Silvia Casale suggested that they could feed into the NPM system. Australia
needs to map out the existing monitoring mechanisms and work out whether or not
they meet OPCAT requirements. If they do not meet the requirements, the next
question is whether they can be adjusted to meet the requirements.
might deal with situations where there is a lack of goodwill or resistance to
change within government.
process to work with government to overcome such resistance. However, there are
always willing individuals to work with. The majority of people involved are
just trying to do their job. Our challenge is to show them ways to do their job
that are respectful of people’s rights.
International examples of the implementation of OPCAT
National Preventive Mechanism options
Audrey Olivier, Association for the Prevention of Torture
OPCAT signatures and ratifications
There are 50 state parties to OPCAT and 23 state signatories. There are
currently 29 NPMs within state parties. In the Asia-Pacific region there are
three state parties (Cambodia, the Maldives and New Zealand) and two state
signatories. As the number of state parties has reached 50, membership of the
SPT is due to increase from 10 to 25. Therefore, Australia has an incentive to
ratify, as ratification would provide it with an opportunity to present a
candidate for membership at the 2010 SPT election.
Designating an NPM
There are SPT guidelines for designating an effective NPM. An existing
institution may be designated. The matter should be open for debate as
consultation is important for the legitimacy of the NPM. Civil society and
stakeholders at the local level should be included in the process. All of the
states and territories should be consulted.
OPCAT in federal and decentralised states – options and
There are nine state parties which are federal or decentralised states.
Germany, Mexico, Spain, UK and Switzerland have NPMs. There are two state
signatories: Australia and Austria. States may establish or designate a single
NPM comprised of a new or existing body, or several NPMs, which may be based on
thematic or jurisdictional divisions.
- Single Body:
Examples are Spain, Switzerland, Mexico. In Mexico,
a specific unit was created. In Spain, the existing human rights institution was
designated (26 staff). Switzerland created a new body because no monitoring body
existed. Designating a single body can be particularly challenging for federal
states, which may need to alter existing institutions (by allocating more human
and financial resources and changing the mandate). Designating a single body
creates access issues because there is only one body to reach all places of
detention. There are also jurisdictional issues in a federal state.
- NPMs based on jurisdiction:
A NPM could also be based on
jurisdiction. This presents challenges in terms of coordination. There are also
issues in terms of coherence of standards of monitoring. If Australia
established several state bodies and a coordinating body, it would need to look
at the methodology in each state or territory.
- NPMs based on themes:
The United Kingdom is one example.
Challenges faced include how existing institutions could change their approach
to focus on prevention, sustainability issues, coordination, coverage of all
places of detention, and coherence. Not all bodies could constitute the NPM and
in the UK, some had to step down. However, these bodies often fulfil an
important role in terms of working with the NPM.
Susan Biggs, New Zealand Human Rights Commission
The New Zealand Human Rights Commission is an independent crown entity,
established under a Crown Act. Its mandate includes the promotion of human
rights and receiving and investigating complaints.
Implementing OPCAT - preparatory steps
New Zealand undertook a consultative process with existing bodies that could
potentially play a role in the NPM. The committee received numerous submissions
and the consultation process led to changes to the initial plans.
New Zealand NPMs
The national coordinating NPM is the New Zealand Human Rights Commission. The
NPMs which carry out inspections are the Ombudsman, the Independent Police
Conduct Authority, the Children’s Commissioner and the Inspector of
Service Penal Establishments. Each body is responsible for different places of
Role of the New Zealand Human Rights Commission
The role of the New Zealand Human Rights Commission is to coordinate the
activities of the NPMs, identify systemic issues in places of detention,
coordinate the dissemination of information, make recommendations to the
government and publish the annual NPM report. It meets with the other NPMs
quarterly and the NPMs meet with civil society twice per year.
In its first year as the coordinating NPM, the Commission undertook a lot of
planning. It developed standards for what NPMs should look at, by reference to
international indicators and drawing on APT tools and guidance. The first annual
report recommended the provision of additional resources for NPMs (some of which
was allocated in the following year).
In the second year of operation, there were slight changes to the
designations to eliminate overlap of responsibility. The visiting program is
currently underway. The program has resulted in a change in awareness on the
part of staff and management in institutions. A number of issues have been
identified such as bullying detainees to prevent them speaking out, medicating
detainees prior to visits, and insufficient paperwork to authorise detention.
Ill-treatment in the form of restraint and seclusion of detained persons was
also identified through inspections.
There are many challenges related to adequate documentation for detaining
people and the validity of detention. Often staff members do not have an
adequate understanding of what constitutes torture and ill-treatment. There are
issues surrounding conditions, transportation, access to rehabilitation programs
and mental health care. There are ongoing challenges in relation to inadequate
resources and heavy workloads. It is also difficult to coordinate multiple NPMs
and ensure cohesion. The NPMs need to be wary of blurring the complaints/
investigation function and the preventive monitoring function.
The impact of OPCAT
Goodwill on the part of the relevant parties and good relationships have led
to cooperation between government authorities and NPMs. Police staff and
managers generally value the OPCAT visits and most institutions are moving
quickly to remedy problems identified. The approach has been one of a
approach towards the development of standards for NPM visits.
Susan Biggs stated that New Zealand considered international standards and
came up with a chart of standards. This was given to the NPMs, which then
tailored it to the institutions they visit.
Zealand Commission had involved detainees themselves in the OPCAT process. Did
the Commission inform people in places of detention about the OPCAT NPM system?
systematically provided information to detainees about OPCAT. However, the
Commission does receive complaints from detainees. The Commission’s
response to these complaints does include mention of the OPCAT mechanisms. It
would be a good idea to more systemically inform detainees.
Audrey Olivier said that in the Maldives, leaflets had been given to
detainees, as well as holding meetings with them to explain the OPCAT mandate.
Barbara Bernath noted that entering places of detention is a proactive
way to inform detainees about the NPM through direct interaction.
approach towards the NPM having both complaints and prevention functions. Is
strict separation of these roles better?
Conduct Authority doesn’t separate the roles because there are so many
cells to visit. However, the Ombudsman does keep them separate. Best practice
would be to separate the functions. Visits to investigate complaints usually
involve an aspect of ‘blame’, whereas a preventive visit is more
about working collaboratively to achieve systemic improvements.
Audrey Olivier said that many human rights institutions that are designated
as NPMs also have a complaints function. They often create a separate unit to
handle the OPCAT prevention functions. It is better to separate the roles but
the two units need to communicate with one another.
to provide access to information and documents regarding places of detention. A
question was asked as to the New Zealand experience in terms of institutions
providing access to information. Did this require legislative changes, for
example, to the Privacy Act?
Susan Biggs didn’t believe there had been changes to the Privacy Acts.
The legislation in New Zealand sets out the role of NPMs, including access to
Zealand Human Rights Commission would consider publishing reports regarding
individual visits or urgent situations? What action could the Commission take as
NPM if a government refused to act on NPM recommendations?
Susan Biggs stated that the New Zealand Commission has not faced that issue
so far as there has been positive cooperation and institutions have been
receptive. If they were resistant in the future, the Commission would most
likely approach the Minister of Justice to seek to address the matter in a
Audrey Olivier noted that it depends on the strategy of the NPM. If a NPM
publishes a report directly from a visit, it may place strain on the NPM’s
relationship with the authorities. While public reporting does increase
transparency, the NPMs have to balance competing goals.
system was being set up, the Human Rights Commission argued that it should have
some form of direct inspection role. That did not occur. In hindsight, is that
positive or negative?
Susan Biggs noted that it was positive in the sense that the Commission does
not form any set views about how to best conduct NPM visits, so it can be open
to the different ways the NPMs conduct their inspections. However, the
Commission recognises the need for its OPCAT staff to have some hands-on
experience and is considering sending some staff on NPM visits to get that
OPCAT could lead to real changes. There are some instances in Australia where
government authorities are willing to violate human rights, even where the UN
has commented on the violations. There is a need to maintain realistic
expectations. In response,
Susan Biggs noted that the preventative visits have led to positive changes
in New Zealand to date.
3: The benefits of preventive monitoring of places of detention
monitoring places of detention – from a prisoner’s
Brett Collins, Coordinator, Justice Action
Brett Collins is also the spokesperson for Justice Action. He led a significant campaign regarding the right of prisoners to vote and has represented prisoners in New Zealand regarding the impact of the privatisation of prisons. He also has personal experience of imprisonment.
The presentation commenced with the presentation of a paper that:
- called for consultation with people in detention as part of the process of implementing OPCAT
- observed that people in detention are particularly vulnerable
- criticised aspects of the new prison in the Australian Capital Territory, particularly the facilities available for difficult prisoners
- observed that current inspection mechanisms have not led to effective change
- expresses concern about relying on current inspection mechanisms in a NPM under OPCAT.
There are approximately 27,000 prisoners in Australia. Prisoners are citizens who will return to the community. If they are mistreated in prison they are likely to be resentful and less productive community members. They are also more likely to reoffend.
Justice Action believes that prisoners and other detainees should be engaged as part of the OPCAT process. OPCAT will not lead to positive change without direct involvement of those it seeks to protect. Consultations about OPCAT should include a voice for detainees and staff who work in places of detention.
Current inspection mechanisms are not very effective in preventing mistreatment of people in detention. An inspection mechanism under OPCAT must be different to be effective.
An independent monitoring mechanism must have sufficient resources to be truly independent.
It is also necessary to utilise existing prisoner-focused mechanisms for consultation and communication. The presenter proposes using the prisoner representative structure of Inmate Development Committees, which enable a form of cost-free continual monitoring. He also proposes using existing technology within prisons, for example video camera monitoring, to allow prisoners to raise concerns with NPMs as well as their families and communities. Finally, non-government organisations and the ex-prisoner community should be strengthened to enable them to coordinate information to the NPM.
monitor places of detention and how can we do a good job of it?
Neil Morgan, Inspector of Custodial Services, Western Australia
The presenter acknowledged the traditional owners of the land and noted the
need to ensure participation by relevant Indigenous groups at future OPCAT
seminars and consultations.
Monitoring places of detention is important because history shows that abuses
can and do occur, although often not deliberately. OPCAT is focused on torture
and other cruel, inhuman or degrading treatment. In practice, the NPM is the
most important mechanism, rather than the SPT.
Requirements for NPMs
Under OPCAT, NPMs are required to conduct regular visits. They must have
functional independence and be provided with unfettered access to places of
detention and relevant documents. Detainees who speak with the NPM during visits
need to be protected from victimisation. The NPM reports will not necessarily
always be public documents.
OPCAT in Australia
In 2008 Neil Morgan and Richard Harding provided a report to the Australian
Human Rights Commission (AHRC), Implementing the Optional Protocol to the
Convention Against Torture: Options for Australia. In Australia, it is
difficult to identify all of the places of detention, especially the places
controlled by intelligence services. An up-to-date inventory is needed. It is
necessary to identify all of the existing monitoring agencies, which is also a
difficult task. OPCAT ought to increase visibility and transparency.
Office of the Inspector of Custodial Services (OICS)
The Office of the Inspector of Custodial Services (OICS) in Western Australia
is currently the most OPCAT complaint mechanism in Australia. It was established
in 2000, has a legislative basis, and is accountable to Parliament. It is a
functionally independent body with a good relationship with the minister and the
state government. OICS provides a model for the development of NPMs across
Australia. Its focus is broader than torture or cruel, inhuman or degrading
OICS has jurisdiction over prisons, work camps, juvenile detention centres,
court custody centres and suspected terrorist detainees. It has no jurisdiction
regarding psychiatric facilities, immigration detention centres, and police lock
ups (except for transport). It must inspect every prison, detention centre and
court custody centre every three years. It has broad jurisdiction to inspect at
any time ‘custodial services’ or ‘administrative
arrangements’ regarding such services. OICS may also conduct thematic
reviews, for example, deaths in custody.
OICS has unfettered access to places of detention and relevant documents, and
can publish its findings. They do make their reports public, but they also
pursue a constructive dialogue with the state government (although that dialogue
can be ‘robust’ at times).
The methodology for inspections requires careful preparation. They spend 1-2
weeks onsite and involve relevant experts in visits, such as health experts. It
is a process of ongoing monitoring. They keep track of prison incident reports
and maintain regular contact with prison managers. OICS conducts 4-6 visits per
year, usually with two staff members, which are announced and informal. They
speak with detainees during those visits. Regular risk reports to the minister
are also important. They monitor and follow-up on implementation of their
Human rights and OICS standards
The OICS legislation doesn’t refer specifically to cruel, inhuman and
degrading treatment, but some aspects of OICS inspections of prison conditions
do relate to human rights standards. The standards they use in inspections are
based on relevant international standards, but are tailored to the Western
Australian context (including, for example, Indigenous issues). NPMs need to
develop their own locally relevant standards.
Mr Ward died in the back of a transport van during a long journey in the
heat. A report was made which highlighted numerous transport issues, including
nothing for passengers to hold onto, forcing passengers to face sideways, a roof
which sloped in, bare metal seats, and travelling long distances (in this case
five hours in summer).
The state owned the fleet. There were questions about whether the drivers did
what they were supposed to have done. The Department of Public Prosecutions is
yet to decide on charges. The question is, did the OICS fail? In a sense, yes,
because Mr Ward died. But in another sense, it did not. The failures of the
system would not have been revealed in this way if not for the inspection
system. Systems try to hide things. It would have been easy to point the blame
at the drivers but there is a more complicated story.
Both the negatives and positives should be acknowledged in inspections
reports. The presenter showed pictures of buildings and cells demonstrating both
good conditions as well as prison crowding and poor conditions.
is a constant issue in prisons. OICS is active in promoting better health care
for detainees. Their mandate is not limited to cruel, inhuman and degrading
treatment. They consider whether standards of service delivery are adequate.
The presenter believes the preventive inspection mechanism can lead to
positive changes. It requires preparation and proper planning. NPMs must set
priorities. There are often resourcing challenges.
detainees themselves in the OPCAT process. Is there current support from prison
superintendents or managers for the Inmate Development Committees?
Brett Collins said there are requirements in most states for monthly
meetings. In practice, the level of support differs in each prison. There can be
victimisation of prisoners heavily involved in the committees.
surrounding OICS’s publication of inspections reports.
Neil Morgan said that providing feedback to the people who have spoken to
OICS during inspections is very important. They operate based on a general
presumption that they will publish their reports unless there is a good reason
not to publish. For example, a significant security issue.
discussions with various prisoner groups when they do inspections (e.g.
Aboriginal, youth, Indonesian, etc). OICS also follows a process of debriefing
prison staff and subsequently prisoners after conducting an inspection. The
inspectors then write a report and provide a draft to the Department of
Corrective Services and the manager of the prison in order for them to comment.
cooperate with relevant community groups in Western Australia.
community resources in a number of ways. For example, under the independent
visitors’ scheme, visitors are appointed by the Minister and coordinated
by OICS. OICS conducts briefings during inspections with relevant NGOs that
offer services in the prison. They also have a community consultation group,
including the Aboriginal Legal Service and other relevant community groups.
available if OICS recommendations are not adopted by the government.
it can to encourage the implementation of its recommendations. However,
ultimately it is up to the government. The government has recently announced
that it is considering granting OICS additional powers including power to issue
a ‘show cause’ notice. In Mr Ward’s case, for example, this
would have required the government to show cause for why there were no padded
seats, no hand rails or windows in the transport vans. He is of the view that
OICS should not become an enforcement agency – that would be adversarial
and not cooperative as envisaged by OPCAT.
the Ward Case, the fact that there was a history of OICS reporting,
documentation and correspondence relating to the case will assist in a damages
suit for negligence. Inspection reports, even if unfortunately not acted upon at
the time, can still be useful in later litigation.
Implementing OPCAT in Australia
Ben Schokman, Human Rights Law Resource Centre
The presenter made the following observations, which he noted were from the
perspective of a non-government organisation:
ensuring that institutional commitments are made to its implementation. OPCAT
offers an additional mechanism to help prevent torture. It is not just a
compliance tool but an opportunity to develop effective mechanisms which can
also lead to a reduction in complaints, lower costs, and more efficient systems.
Prisoners and people with disabilities are two groups which often give up on
lodging complaints because they feel their concerns are never met. OPCAT must be
contain human rights expertise and expertise in terms of monitoring detention.
The Victorian Charter experience demonstrates that it takes a long time for
government agencies to develop the expertise required to comply with their human
order to be effective NPMs. Staff in monitoring bodies require ongoing training
and a holistic approach to prevention is required.
especially from the perspective of the rights-holder. It is important for the
NPM to feed information back to detainees after visits, including regarding
their rights and the NPM functions.
requirement for Parliament to respond to such reports must be incorporated into
law. The absence of overarching human rights protections in Australia makes
OPCAT incorporation all the more important. The legal framework must clearly
define the responsibilities of the NPMs, especially if there is a mixed model.
key role in designing the NPM and implementing OPCAT. NGOS can be a useful
resource as they have high levels of expertise in both human rights and in
situations of detention. Community visitors and volunteers should be seen as
additional to the role of NPMs, rather than fulfilling the inspection role.
with government, as the implementation of NPM recommendations will largely
depend on goodwill. However, there is a need to ensure the relationships are
institutionalised rather than dependent on selected individuals. There is a need
to develop a real, institutional commitment to implementation of OPCAT.
Richard Harding, former Inspector of Custodial Services, Western
A human rights compliant organisation is easier to manage, more pleasant to
work in and offers a better quality of life for everyone involved in it. An
effective prevention system minimises political risk.
The big issues
Important issues include choosing the NPM model for Australia; selecting a
coordinating NPM; identifying agencies that could be potential subsidiary NPMs;
prioritising the coverage of the NPM/s; and developing international and
Under the external affairs power, Australia could establish a unitary model
with one federal NPM. However, possible drawbacks include the creation of a
large, centralised bureaucracy with limited local knowledge. The reality is that
one central NPM would not work in remote locations. The governmental entity that
bears responsibility for laws and systems relevant to detention and detention
facilities should also bear the accountability for them. The Commonwealth does
not bear responsibility for criminal laws, mental health etc, the states do. The
drawbacks far exceed the benefits of a unified model. A diversified model is
preferable. It could be jurisdictionally or thematically based.
Diversified model - jurisdictional
It is necessary to consider whether there is already an OPCAT compliant
monitoring body. Article 17 of OPCAT allows for multiple NPMs in each
jurisdiction, as is the case for example in New Zealand and the UK.
Within each state there could be a coordinating NPM that would coordinate
with the Commonwealth NPM. The notion of a state or territory NPM doesn’t
necessarily undermine other agencies, which could also be strengthened. It would
be chaotic if the national coordinating NPM had to deal with every subsidiary
Diversified model - thematic
All places of detention of a common type could be monitored by a unified NPM.
There would still have to be a relationship with a central or coordinating NPM.
Australia already has some theme-based inspection agencies, for example in
relation to aged care.
Diversified model – a mixed model
There could be some function based NPMs and 8 or 9 jurisdiction based NPMs.
The central coordinating NPM should also have some inspection role itself.
Selecting a central or coordinating NPM
Possible bodies include the AHRC or the Commonwealth Ombudsman. They are
OPCAT compliant, and functionally independent. Neither is currently a task
oriented inspection agency. Issues to consider include how to build the
necessary expertise in a central NPM; whether its resources are adequate; and
whether it needs new organisational structures. In the case of the AHRC, an
additional OPCAT Commissioner would be required to prevent the blurring of
In terms of which body should be the NPM, that is a matter for the federal
government to determine.
The AHRC is Australia’s central link to Australia’s international
human rights obligations. The AHRC has a strong track record with immigration
detention visits and reporting.
The Ombudsman also has a good record. The Ombudsman’s roles are
complaints-driven and tend to be reactive rather than proactive. The Ombudsman
is concerned mainly with administrative due process issues. It is possible to
have administrative due process and still have an outcome that is non-compliant
with human rights.
Identifying or establishing agencies as subsidiary NPMs
Very few Australian jurisdictions have existing agencies that meet NPM
requirements. All have agencies that could be empowered and adapted, which might
require statutory amendment. The national coordinating NPM should not have to
deal with too many subsidiary agencies, so there should be one coordinating NPM
in each state and territory to coordinate with the central NPM.
The scope of the task
It is necessary to determine how many places of detention there are and
coverage must be prioritised. The central NPM should undertake at least some
inspections of its own in order to be in a position to undertake quality control
of other NPMs.
Biggest issue: ratification
Ratification of OPCAT would be beneficial for civil life in Australia.
Agencies interested in playing a role as NPM should work together in order to
achieve early ratification and establishment of NPMs.
coordinating NPM should undertake on an inspection basis.
Richard Harding replied that if it was a Commonwealth NPM it could do things
the Commonwealth has responsibility for, such as aged care and immigration
detention. Neil Morgan and Richard Harding in their 2008 report suggested a
national police inspectorate.
the NPM model that we don’t see the state and territory NPMs as
subsidiary. Many of the areas of responsibility fall under the states and
territories – they are key players.
community and NGOs in order to develop effective public policy around OPCAT.
Ben Schokman noted that the consultation process for OPCAT to date has
involved very few opportunities for civil society participation. Moving forward,
consultations should allow for involvement by all key stakeholders, including
NGOs and civil society.
Institutions (such as the AHRC) have a unique role to play in terms of
representation and communication at the international level. NHRIs are afforded
the right to participate in proceedings of the UN Human Rights Council. Such
participation is not available to other bodies of a similar nature. This might
be one advantage to having the AHRC as the central NPM.
discussion: The appropriate NPM model for Australia
Groups were asked to discuss which model of the following was the most
appropriate in the Australian context: a single Commonwealth model; a
Commonwealth-State jurisdictional model; or a mixed model (jurisdictional and
functional). Groups were invited to consider administrative effectiveness, local
diversity, NPM independence, the role of civil society organisations and the
comprehensiveness and depth of inspection visits.
coordinating NPM in each state and territory to be the point of contact with a
national NPM. The bodies that do the inspections should make the specific
recommendations for action (rather than the national NPM making recommendations
about areas that fall under state or territory responsibility). The role for the
national NPM would be to facilitate standardised models for inspections,
developed in consultation with states and territories.
In some states there could be functional inspectorates feeding up to the central
NPM. Smaller states may just have the one state NPM. The group emphasised the
need for the NPMs to be independent, and noted that funding is likely to be an
issue, especially in terms of enabling flexibility for a NPM to manage its own
budget. It is important to involve NGOs in the process.
likely to be adopted in Australia. There are existing bodies which are or could
be made OPCAT compliant, so there might be different NPM models in the various
states and territories. A coordinating Commonwealth NPM is the most appropriate
should inspect facilities for which the Commonwealth has responsibility, such as
immigration, detention. Ideally, the Commonwealth NPM would need an arm for
coordinating and an arm for visiting. The judiciary may have the power to
oversee some places of detention, which is often overlooked.
and jurisdictional NPMs. They wanted a central Commonwealth NPM ‘with
bite’. They noted that places of detention may include places such as
Australian vessels out at sea or Australian military facilities outside
Australia. They noted that the military would most likely want its own NPM. They
thought that the central NPM ought to undertake the role of monitoring the NPMs,
rather than conducting its own inspections.
Australia. They thought that a central NPM should coordinate NPMs in the states
and territories as well as a federal NPM to oversee federal areas of
responsibility. They noted that the Commonwealth already had some thematic
inspection bodies, and considered that the states could also set up thematic
NPMs. They noted that some jurisdictions (such as NSW and the ACT) already have
in place independent official visitors for some places of detention, but noted
some gaps including police cells. They thought that generally the bodies were
already in place and just required tweaking.
preferred a mixed model, and thought that existing bodies at the state level
could become OPCAT compliant. They thought that inspection reports should be
based at the state level (rather than by the coordinating NPM). The coordinating
NPM would be responsible for the annual report and maintenance of a relationship
with the SPT.
endorsed a mixed model. The central NPM would have responsibility for setting
standards and providing training programs. The state and territory NPMs would
provide input on the standards to ensure they reflect the particularities of
different jurisdictions. There would be challenges in terms of coherence. In
diverse states such as Queensland, the system would need to rely on community
organisations to ensure regular inspection of all places of
It was noted that even if there were state-based NPMs that were coordinating
functional inspectorates, it may be useful to have networks between states to
set benchmarks and share information.
A comment was made that OPCAT is a top-down approach. There is a need to
inform detainees and include them in the process.
The impact of the absence of a bill or charter of rights in Australia was
raised. It was noted that the UK Human Rights Act provides a body of
jurisprudence which is a point of reference for all courts and agencies in
England. Australia lacks this.
thanked all seminar participants for their contributions, and for inviting the
APT to participate. She noted the need for ongoing consultations, including at
the state and territory level.
overview of the day’s proceedings. She noted that the seminar had been
privileged to hear from individuals with a wide range of expertise.
normative standards, but focuses on implementing existing human rights. It
covers all places where people are deprived of their liberty. It seeks to
identify systemic risks and to negotiate improvements within places of
detention. She also noted that:
- There is no ‘right’ model for implementing OPCAT in Australia.
The model may be single or mixed, and could be based on jurisdictional or
thematic issues or both.
- The Commonwealth is obliged to establish a preventive mechanism which is
independent and has power to visit all places of detention. The mechanism must
be provided with adequate resources.
- In order for OPCAT mechanisms to have legitimacy, broad consultation is
needed with all relevant stakeholders including NGOS, civil society and
detainees themselves. It should be recognised that many different agencies and
bodies could play important roles in the implementation of OPCAT in Australia.
- The seminar participants were assisted by hearing about the New Zealand
experience and the role of OICS in Western Australia. Adequate planning and
preparation will be critical in implementing OPCAT in Australia. It will be a
long term process.
- There was a fairly consistent view among seminar participants as to the
appropriate NPM model for Australia, with general support for a mixed model.
Broader consultations will be required to investigate whether other stakeholders
share this view.