Academic News & Views: Special Issue on the OPCAT

“OPCAT has the effect of making places of detention more transparent. However, transparency is not, in itself, this treaty’s end goal. OPCAT exists ‘to prevent torture and other cruel, inhuman or degrading treatment or punishment’. In other words, the ratification and implementation of OPCAT must contribute to the eradication of mistreatment in all of Australia’s places of detention. If it does not achieve that aim, it will have failed.”

Foreword to the Special Issue on the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) – Bronwyn Naylor, Edward Santow, Sophie Farthing, Penny Weller & Stan Winford, Australian Journal of Human Rights, 4 April 2019.


If one interchanged the reference to Australia for Canada in the above quotation, the ultimate purpose of the OPCAT as an international torture-prevention instrument would still remain the same.

Yet, as highlighted in a recent article on the implementation on the OPCAT in Australia, the latter has progressed much further in doing so than its Canadian counterpart.

Even so, the current Special Issue on the OPCAT in the brand-new edition of the Australian Journal of Human Rights merits a closer read by both Australians and Canadians alike. Contained therein are various interesting OPCAT insights as well as a number of lessons which might be transposed from the Australian into the Canadian context.

The Foreword to the Special Issue on the OPCAT, from which the above introductory quotation is taken, kicks off with a general overview of the issue and the three main contributing articles comprising the issue.

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Australian Journal of Human Rights – copyright of the AHRC Centre at UNSW Sydney.

The first article, penned by Bronwyn Naylor and Stan Winford from RMIT University in Melbourne, is titled ‘Implementing OPCAT through prison monitoring: the relevance of rehabilitation’. The authors argue that the broad scope of the preventive mandate under OPCAT clearly permits the inclusion of rehabilitation and that various NPMs have, to date, included rehabilitation in their OPCAT monitoring activities.

In making this argument, the authors draw references to the rehabilitation-focused monitoring activities of NPMs in France, New Zealand, Norway and the United Kingdom. Her Majesty’s Inspectorate of Prisons in England and Wales is discussed in some detail in this connection, particularly its set of monitoring standards known as ‘Expectations’. The article concludes:

“Ratification of OPCAT requires establishment of comprehensive monitoring frameworks to prevent ‘torture and cruel, inhuman and degrading treatment’ in places of detention. As Australia begins this process, it is important to ask the question: To what extent should monitoring by NPMs address the rehabilitative aspects of imprisonment? We have argued here that it is critical that they do so.” (p. 13)

For Canadian readers perhaps less familiar with the potential rehabilitative scope of the OPCAT at the national level, the contributors advance a strong case for why such an approach should be the case.

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Detention by Matt (2009).

The Special Issue on the OPCAT continues with an article by Penelope Weller, also of RMIT University in Melbourne, titled ‘OPCAT monitoring and the Convention on the Rights of Persons with Disabilities’. Like Canada, Australia is a State Party to the UN CRPD and thus obliged to work towards its implementation in practice.

The writer contends that Australia’s preventive monitoring regime under OPCAT must consider and take account of the CRPD and the particular experiences of people with disabilities in places of detention. In this latter connection she writes:

“People with disabilities are more likely than others to live in institutional settings such as social care, disability, health and mental health homes and hospitals. While these places are established to provide care, they are also places where people may be deprived of their liberty and are at risk of experiencing violence, abuse and discrimination. Persistent revelations about incidents in aged care homes and psychiatric facilities confirm the ever-present risk of violence and abuse in such places … People with disabilities are also disproportionately represented in traditional places of detention, such as prisons and police cells, and similarly disproportionately at risk of detention and abuse in such settings.” (p.2)

As a recent investigation into acts of abuse in a healthcare setting in New-Brunswick revealed, the above risk is very real. Moreover, the frequent disregard in practice of fundamental safeguards in such healthcare settings, as highlighted in a March 2019 report of the British Columbia Ombudsperson, potentially heightens such risk. Penelope Weller makes a well-reasoned argument why the scope of OPCAT Article 4 should include a wide array of healthcare settings in Australia, a line of argument which would equally apply to the Canadian context.  

In this same regard the writer also argues that a reading of the OPCAT in light of the CRPD suggests that any deprivation of liberty based on disability-related discrimination, as defined by the Article 14 of the CRPD, may be construed as torture. Moreover, as persons with disabilities may suffer a diversity of abuses in healthcare settings, including seclusion, restraint, involuntary treatment and sexual assault, there exists the need to incorporate such disability awareness into OPCAT monitoring principles, methods and practices.

In a word, as healthcare deprivation of liberty contexts are not the same as prisons or police stations, a different monitoring approach is required under the OPCAT and CRPD, the possible specificities of which the author outlines in some detail. Penelope Weller concludes her unique article by stating: “Infusing OPCAT with the CRPD principles will produce a robust preventive monitoring approach.” Even though the writer’s geographic focus is Australia, the lessons she draws from the CRPD and OPCAT might equally apply to North America.

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Centré de détention de Venna by Sara Prestianni (2009).

In the final article in the Special Issue on the OPCAT two very well-known British academics, Rachel Murray and Nick Hardwick, reflect on the question, ‘Regularity of OPCAT visits by NPMs in Europe’.  

The paper examines how NPMs in Europe have interpreted the concept of ‘regular’ visits in the hope that this exercise will be of assistance to those involved in the establishment of Australia’s NPM. Based on a combination of publicly available reports and survey materials, the article is highly interesting.

For Canada the task of ensuring both coverage and regularity of visits by its future NPM over a potentially vast geographic area, some two-and-a-half times larger than the European Union space, will not be insignificant.

The authors note from the outset that the concept of NPM regularity has been under-explored in the published literature on the OPCAT, somewhat surprisingly so it must be said. On the issue of regularity they comment:

“By July 2018, 38 NPMs had been designated in Europe, the largest number in any region. As is seen below, the practice of these NPMs varies considerably, with a number of factors coming into play when one is trying to identify what is regular, and the extent to which, even if one could define regularity, any NPM is fulfilling this requirement.” (p.2.)   

Nonetheless, the authors skilfully dissect the concept of regularity, discussing its definition, the types of NPM visits, and the notion of frequency. They also discuss in detail the different factors determining regularity, including UN Subcommittee on Prevention and other international guidance as well as the NPMs’ own criteria. Unsurprisingly, geography, NPM resources, organizational mandate and the depth and length of visits all impact on regularity to varying degrees. The authors conclude:

“Across the world NPMs have been established at great speed. In Europe alone, in little more than a decade, 38 NPMs have been designated. Every year they are carrying out hundreds of independent preventive visits to places of deprivation of liberty, which in many cases were hidden from scrutiny before. The very speed of their development has meant there is relatively little detailed evidence of how NPMs have gone about their task and ‘what works’. This limits the opportunity for new NPMs, including that in Australia, to draw on the experience of those that have gone before. The paper explored one of the most basic questions facing NPMs: how NPMs understand and apply the requirement to undertake ‘regular’ visits.” (p.20)

Despite such limitations, Rachel Murray and Nick Hardwick offer the Australian/ Canadian reader some very useful general conclusions. In a word, regularity means different things to different organizations and it is not always equated with frequency. As such, the authors recommend that a newly established NPM in Australia (or Canada) might wish to consider how it views regularity.

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Detained abstracts 1 by Greenmonster (2010).

In addition, NPMs routinely take into consideration a number of factors when visiting a given facility and not just the frequency or the length of time which has passed since the last visit. Examples of such factors would include: the size of the team; the availability of resources; the overall magnitude of detention facilities to be visited in any given country; the different types of visits (announced or not); and the receipt of complaints as an indicator of potential problems in a given facility. These same factors will unquestionably impact on the work of the future Canadian NPM, as it determines its program of monitoring activities.

In conclusion, the Australian Journal of Human Rights has done an excellent job in compiling some extremely interesting and unquestionably cutting-edge papers on the topic of OPCAT. Even though their focus may lie outside the borders of Canada (Australia and Europe), the issues under discussion (rehabilitation, healthcare settings as deprivation of liberty, and regularity of visits) are as equally relevant in the Canadian context, perhaps more so at a time when more of us could be thinking longer and harder about the potential application of the OPCAT in the country.

Finally, as this short review post barely skims the surface of the three excellent academics articles, readers are warmly encouraged to refer to the full articles for more in-depth information about the very useful ideas advanced in them.  


***Many thanks to Rachel Murray and Steven Caruana for their assistance in relation to this post.

The above articles appear in the current issue of the Australian Journal of Human Rights, published on-line on 4 April 2019. The articles can be accessed via Shibboleth or OpenAthens or can be purchased via this link.

A further article in the OPCAT Special Issue on immigration detention can be read here.

If you have written a recent academic article on the OPCAT, or a related topic, with a potential ‘Canada angle’ and would like an ‘Academic News & Views’ mention, please let us know.

Read earlier ‘Academic News & Views’ posts, including an article by Marie Steinbrecher on NPM independence and effectiveness and by Professor Juan Mendez on a healthy prison environment.

Explore what the UN Special Rapporteur on the rights of persons with disabilities has recently said about deprivation of liberty on the basis of impairment.