The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)
OPCAT is an international treaty designed to strengthen protections for people in situations where they are deprived of their liberty and potentially vulnerable to mistreatment or abuse.
OPCAT requires signatory states to establish a system of regular preventive visits to places of detention by independent bodies known as National Preventive Mechanisms (or NPMs). It also requires that signatories accept visits from the United Nations Subcommittee on the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UN SPT).
The Australian Government ratified OPCAT in December 2017, and opted to postpone its obligations to implement NPMs for three years. In ratifying OPCAT, the Australian Government announced the Office of the Commonwealth Ombudsman (the Office) as the National Preventive Mechanism (NPM) Coordinator. As the Coordinator, the Office is responsible for facilitating and coordinating the Commonwealth, State and Territory NPMs. This may include collecting information, facilitating information sharing, providing secretariat functions and preparing reports.
This Office has also been designated as the NPM for inspecting places of detention under the control of the Commonwealth. This includes Defence detention facilities, immigration detention facilities and Australian Federal Police cells including the ACT Police City Watch house.
The key obligation that arises from ratifying OPCAT is the establishment of a system of regular preventive visits by independent bodies, known as NPMs. Article 3 of OPCAT states that “Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment”.
At the time of ratification, the Australian Government made a declaration under Article 24 (Part IV) of OPCAT postponing the implementation of its obligations to establish its NPM for three years.
Given Australia’s federated system, NPMs will be nominated for the Commonwealth and each State and Territory. So far only the Commonwealth and Western Australia have nominated NPMs.
This page will be updated as further NPM nominations are made.
The second key obligation that arises from ratifying OPCAT is the acceptance of visits from the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT). The SPT consists of 25 independent and impartial experts who have a threefold mandate to visit places of detention, provide advice to and assist respective governments and NPMs regarding NPM establishment and function, and co-operate with other international, regional and national like‑minded organisations.
While the Australian Government has delayed the establishment of its NPM for three years, the mandate allowing for in-country visits by the SPT has not been delayed, and visits may take place at any time. The SPT has announced it intends to visit Australia in the coming months.
Further information about the SPT can be found here.
As part of his role as NPM Coordinator, the Commonwealth Ombudsman has established a civil society advisory group known as the OPCAT Advisory Group. The purpose of the group is to provide expert advice and guidance to the Ombudsman regarding his functions and responsibilities under OPCAT. The Group’s first meeting was on 3 March 2020, and regular meetings will take place three times each year.
The Advisory Group is chaired by the Commonwealth Ombudsman and currently includes the following members:
- Mr Paris Aristotle AO – CEO, Foundation House
- Mr Noel Clement – Director, Australian Programs, Australian Red Cross
- Professor Neil Morgan – Former Inspector of Custodial Services (Western Australia)
- Professor Bronwyn Naylor – RMIT University; co-founder of the Australian OPCAT Network
- Mr Edward Santow – Australian Human Rights Commissioner
At its first meeting the Advisory Group identified the need for an Aboriginal and/or Torres Strait Islander representative, who will be invited to join the Group from its next meeting in July 2020. Going forward, the Ombudsman may also invite – as guests or permanent members – representatives to advise him on issues affecting other vulnerable groups including children, people with disability and the aged.
Over the course of several months, the Office collected a large amount of information from Australia’s existing oversight and inspection bodies, establishing which entities are able to visit and inspect prisons and juvenile detention, police cells and various psychiatric facilities within their jurisdiction. This information has enabled the Office to publish a report on Australia’s readiness to implement OPCAT.
In order to determine whether or not inspection bodies are ready to meet the requirements set out in OPCAT, the inspection and oversight bodies were asked to complete a self-assessment to determine the extent to which they:
- are independent of the entity they inspect/oversee
- have full access to people, places and records in detention facilities
- can visit facilities announced or unannounced
- are free to report publicly and to make recommendations
- are free to allocate their resources as they see fit, and
- visit facilities regularly, rather than in response to a complaint, as part of an investigation, etc.
The report highlights that, while there are existing inspection and oversight bodies in all jurisdictions, there are gaps in oversight, scope, resourcing and in some instances a lack of genuine independence in the inspecting bodies in various jurisdictions. The report therefore serves as a baseline against which to track progress over time.
The report complements the work being done by the Australian Human Rights Commission (AHRC), led by Human Rights Commissioner Edward Santow. While the AHRC’s work has focused on engagement with civil society, the Ombudsman’s report is based on engagement with and self-assessment by the entities that currently have a role in oversight and inspection of places of detention.
The published report can be found here.
Further information about OPCAT:
- The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
OPCAT in Australia:
- Ombudsman’s speech to the 8th Annual Prisons Conference, held in Brisbane, July 2019: “Implementing OPCAT”
- Ombudsman’s speech to the 7th Annual Prisons Conference, held in Melbourne, August 2018: “Implementing OPCAT in Australia”
- Australian Human Rights Commission: Optional Protocol to the Convention against Torture
- ACT Inspector of Correctional Services: Research Portal
- Ombudsman's speech to the 2020 Future Justice and Corrections Summit, held in Sydney, 19 February: "Implementation of OPCAT in Australia - an update"
- Ombudsman Amendment Regulations 2017 (Cth)
- Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (ACT)
- Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (NT)
- Crimes of Torture Act 1989 (New Zealand)
- Designation of National Preventive Mechanisms (New Zealand)