Monitoring places of detention – OPCAT

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 (NPMs). It also requires that signatories accept visits from the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT).

The Australian Government ratified OPCAT in December 2017 and opted to postpone its obligation to establish an NPM until January 2022.

Latest News on OPCAT:

  • On 19 November 2021, the Tasmanian OPCAT Implementation Act 2021, giving effect to OPCAT within Tasmania, received Royal Assent.  The Governor of Tasmania made a proclamation on 13 December 2021, fixing 20 January 2022 as the commencement date for the Act. The Act can be found here.
  • In July 2021, the OPCAT Advisory Group (OAG) met again and the communique for the meeting can be found here. The next OAG meeting is scheduled for November 2021 and further information about the OAG, including the Terms of Reference, can be found below under ‘OPCAT Advisory Group’.
  • On 5 July 2021, the Office participated as a panel member on the Australian Human Rights Commission’s webinar to discuss their report on Management of COVID-19 risks in immigration detention. The Commission’s report follows on from the Office’s statement on the management of COVID-19 risks in immigration detention facilities published in July 2020. A link to the recording of that webinar can be found here
  • On 30 June 2021, the Commonwealth NPM published Monitoring Immigration Detention – The Ombudsman’s Activities in Overseeing Immigration Detention (January to June 2020). The report can be found here. Links to our other recent public reports on immigration detention oversight can be found here and also here.
  • On 15 June 2021, the Commonwealth Ombudsman, Michael Manthorpe PSM, presented the keynote speech for the Prisons 2021 Conference. The speech, titled The Implementation of OPCAT in Australia and challenges for detention inspections in a COVID-19 world, can be found here.
  • The Office continues to engage with the United Nations Subcommittee on the Prevention of Torture (SPT). The SPT has announced that the priority states to be visited in 2022 are Argentina, Ecuador, Lebanon, Turkey and Tunisia. The SPT noted that more visits for 2022 will be announced in due course. The SPT has also signalled changes in how it engages with national preventive mechanisms during country visits. As part of these changes, the SPT will no longer request that its country reports be made public.

Subcommittee on Prevention of Torture (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.

The Australian Government’s decision to delay establishing its NPM does not extend to in-country visits by the SPT which may take place at any time.

Further information about the SPT can be found here

National Preventive Mechanisms (NPMs)

Given Australia’s federated system of government, the Commonwealth and each state and territory government is required to nominate an NPM to monitor places of detention within their respective jurisdiction. As of April 2021, the following entities have been announced as NPMs:

Commonwealth Office of the Commonwealth Ombudsman

Western Australia Ombudsman Western Australia (for mental health and other secure facilities)
Office of the Inspector of Custodial Services (WA) (for justice-related facilities including police lock ups)

Northern Territory Office of the Ombudsman NT (as interim Coordinating NPM)

The Office’s role under OPCAT

Coordinating Australia’s NPM network

In July 2018 the Australian Government announced it had nominated the Office of the Commonwealth Ombudsman (the Office) as the NPM Coordinator. In this role, the Office is tasked with coordinating the Australian NPM network, comprising the Commonwealth, state and territory inspecting bodies nominated by their governments as NPMs. This may include collecting information, facilitating information sharing and collaboration, providing secretariat support and preparing consolidated reports about NPM activities.

The Office is working with the Attorney-General’s Department (AGD), which is responsible for the implementation of OPCAT in Australia, to engage with state and territory governments and oversight bodies to foster progress towards implementation of the Australian NPM network.

Monitoring places of detention under the control of the Commonwealth

In July 2018, the Australian Government announced the Office as the NPM for places of detention under the control of the Commonwealth (the Commonwealth NPM). This includes places of immigration detention and places of detention under the control of the Australian Federal Police and the Australian Defence Force.

Our role is to monitor the treatment of people and the conditions of their detention and make recommendations for improvement. We have full and free access to detention facilities, which means we can choose which places we want to visit and when, and the people we want to interview.

Reports about OPCAT

Australia’s implementation of OPCAT

Ombudsman’s OPCAT readiness report

In September 2019 the Office published a report about Australia’s readiness to implement OPCAT and the need to nominate Commonwealth, state and territory NPMs.

The report relied on information provided by existing inspection and oversight bodies to determine the extent to which they, in accordance with OPCAT:

  • 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.

The report highlighted 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 serves as a baseline against which Australia may wish to track its progress over time.

Australian Human Rights Commission ‘Implementing OPCAT in Australia’ report 2020

In June 2020 the Australian Human Rights Commission (AHRC) published a report on implementing OPCAT in Australia. The Commission noted that greater momentum is needed towards implementation and recommended the NPM network be established as soon as possible and in a way that ensures all places of detention are subject to independent oversight.

The Office notes the AHRC’s report and specific recommendations. We will work with the AGD and the Australian NPM network (when it is established) to consider if and how these recommendations might be implemented.

Monitoring activities

Under OPCAT, NPMs are expected to provide regular public reporting about their monitoring activities, observations and recommendations to address risks of ill treatment of people in places of detention.

Since 2019, the Office has published reports about its activities to monitor immigration detention:

In July 2020, in response to the COVID-19 pandemic, the Office issued a public statement about the Department of Home Affairs’ arrangements for preventing and managing COVID-19 in the immigration detention network.

OPCAT Advisory Group

The Office welcomes receiving information and research about issues that affect people deprived of their liberty. While the Office’s independence is key to its monitoring function under OPCAT, we value the role of civil society in informing our approach.

In early 2020, the Commonwealth Ombudsman established a civil society advisory group to provide expert advice and guidance to his Office about its functions and responsibilities as an NPM and as the Coordinator of the Australian NPM network. The Advisory Group’s Terms of Reference are available here .

The Advisory Group’s first meeting was on 3 March 2020 and meetings take place three times each year. From 2021, the Advisory Group agreed to publish a Communique summarising its discussions after each meeting.

The Advisory Group Communique No 1 – 21 April 2021 is available here.

The Advisory Group Communique No 2 – 28 July 2021 is available here

The Advisory Group is chaired by the Commonwealth Ombudsman and comprises 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
  • Mr Brendan Thomas, CEO, Legal Aid NSW (from March 2021).

Going forward, the Ombudsman may also invite – as guests or permanent members – representatives to advise him on issues affecting vulnerable groups including children, people with disability, people of diverse gender and/or sexuality, and the aged.

The Ombudsman also consults other civil society stakeholders and continues to build and maintain ongoing dialogue with a wide variety of interested representatives from civil society beyond the OAG.

The membership of the OAG will be kept under review and, as OPCAT implementation progresses and the NPM network takes shape, the Ombudsman may broaden the membership of the group.