Academic News & Views: The Australian NPM Challenge Ahead

Canadian readers looking for a searching assessment of the on-going challenge to implement the OPCAT in a federal state need look no further than Professor Richard Harding’s new article in the current Special Issue on the OPCAT of the Australian Journal of Human Rights. Compared with other writers, the author offers a more critical account of both the ratification and implementation-related processes of the OPCAT instrument in Australia.

Contextually, the writer advances an absorbing historical account of the background to OPCAT ratification, beginning as far back as 2002. In doing so, he maps out four different stages in the process, spooling forward to the present day when Australia finds itself grappling with the challenge of putting in place its NPM before the January 2022 deadline.

While much positive has been written about the overall OPCAT consultation process in Australia, not least in these pages, Richard Harding’s more critically pitched eye on the subject matter arrives at an opportune moment in terms of the sizeable task ahead.

challenge ahead
Prison by Ikhaan (2010).

In the article the author sums up the crux of the problem as follows:  

“First and foremost, there must be full commitment to implementing the NPM structure domestically. The journey towards ratification has been marked by ambivalence – as to the basic need for an NPM structure, as to whether existing structures can carry out the role, as to the necessary levels of funding and resources, and as to the extent of federal guidance and commitment through the NPM Coordinator in ensuring that ‘sub-NPMs’ possess ‘functional independence’. Yet, for all that, as the AHRC Interim Report has stated in the Preface: ‘OPCAT has the potential to be the single most positive step in a generation to improve human rights protection of people who are detained’”. (17)

For the author the challenges currently facing engaged human rights actors in ensuring that the OPCAT is implemented effectively in the country are several. After all, what would be the point in ratifying the instrument only to execute it poorly in practice?

Canada, no doubt, will face similar trials and tribulations, especially if it – like Australia – designates a panoply of existing human rights/ombudsperson-type bodies as its NPM, as forecast (rightly or wrongly) on this website. The OPCAT-related challenges which should be met in practice in Australia are outlined in the article, as follows:

  • The designation of monitoring entities in a devolved NPM structure which meet the OPCAT criteria, especially in terms of functional independence;
  • The implementation of the OPCAT progressively without overloading the new structures in a manner which ensures the process is ‘progressive, not static’, particularly in terms of the scope of OPCAT Article 4 coverage;
  • The development of a reliable and realistic criteria of cruel, inhuman and degrading treatment to guide NPM activities;
  • The structuring of civil society into the national-level OPCAT system, more so in view of the prominent and crucial role played by the third sector in achieving ratification;
  • And ensuring adequate funding and resources.
challenge ahead
Prisons by -JvL- (2012).

The advantages of successfully tackling the above challenges are both domestic and international in scope and, according to the author, might assume the form of leadership in relation to the promotion of the OPCAT in the Pacific region, where OPCAT ratification remains relatively low. The author tempers this prospect with the following assertion:

“However, the first task is to create strong structures, standards and values within the Australian federation. In that regard, the 2002-2017 history suggests that some significant attitudinal and political hurdles have yet to be overcome.” (17)

At some point in the future Canada will undoubtedly contend with several of these same issues, which are familiar challenges faced by other states currently putting in place NPMs as well as by NPMs operating in practice.

In an in-depth paper published earlier this year the Canada OPCAT Project examined some of these common challenges which frequently beset NPMs in practice. The paper argued that Canada should overcome these hurdles if it is to institute an efficiently functioning NPM. In this wider context Richard Harding’s detailed and highly useful analysis of the current Australian OPCAT implementation process is a timely reminder of the task ahead here in North America.   


Richard Harding, Australia’s circuitous path towards the ratification of the OPCAT, 2002-2017: the challenges of implementation, Australian Journal of Human Rights 2019, published online 2 May 2019. Readers can obtain a copy via Shibboleth or OpenAthens here.

Several other OPCAT themed articles in the current Special Issue on the OPCAT have been highlighted in these pages, including on the role of civil society vis-à-vis the instrument, monitoring immigration and psychiatric detention, NPM regularity of visits and the operation of New Zealand’s NPM.

Read the current issue of the ICPA’s Network on External Prison Oversight and Human Rights with its Australian OPCAT focus.

Read more about the challenges which frequently beset NPMs in practice.