Paving the Way for OPCAT in Australia: A Model for Canada?

Children and young people in Victorian prisons and youth justice systems are being damaged rather than rehabilitated through excessive use of isolation and separation, the Victorian Ombudsman Deborah Glass has concluded in a new report.

During the institution’s inspections of three Victorian facilities for young offenders earlier in 2019, the Victorian Ombudsman found practices that were incompatible with domestic and international human rights law. Her critical findings on the use of solitary confinement in the three facilities are presented in the following video presentation.

The thematic focus of the Victorian Ombudsman report is highly relevant to the Canadian context at a time when domestic oversight bodies have expressed increasing concern about similar isolationary practices relating to young offenders in several provinces. Just this past week the Child and Youth Advocate Alberta issued a critical report on such questionable practices in the province.

This important thematic focus aside, it was also highly significant for Canadian actors that the Victorian Ombudsman conducted her inspection against the rigorous standards of the OPCAT and thus with the requirements of the OPCAT clearly in mind.

Hot off the presses – the new Victorian Ombudsman OPCAT inspired report.

What is more, the aforementioned investigation and related report are the second occasion on which the institution has assumed an OPCAT approach to a detention monitoring inquiry without being formally designated as an NPM. Could Canadian detention monitors adopt a similar model? There is no reason why not.

Regular visitors to these pages will recall that Australia ratified the OPCAT in December 2017, albeit postponing the domestic implementation of the instrument for three-years, as permitted under OPCAT Article 24. Currently discussions are on-going as regards to the composition of the country’s future NPM, as explored in multiple past academic articles highlighted on the Canada OPCAT Project website.

Nonetheless, the Victorian Ombudsman has proactively grasped the challenge of conducting monitoring visits in light of new OPCAT conditions. Regrettably, certain Ombudsperson-like institutions designated as NPMs have adopted a ‘business as usual’ approach to their preventive work, treating their existing organizational structure and complaints-handling focus as being virtually synonymous with their OPCAT focused responsibilities and activities. This unfortunate reality was highlighted in a Canada OPCAT Project paper from earlier this year.

In stark contrast, the Victorian Ombudsman has seemingly reflected long and hard on what is required to be an effective NPM. The 50-or-so-page first part of this impressive report is devoted to this singular challenge, suitably titled ‘Implementing OPCAT in Victoria’. In doing so, it examines the key NPM principles as well as the different centralized (single entity NPMs) and de-centralized (multi-entity NPMs) structures which could feasibly be adopted in the state of Victoria.

In this analysis the report draws on NPM country examples from elsewhere, including Norway, Georgia, Denmark, New Zealand and the United Kingdom, highlighting the national processes leading to NPM designation, the legislative footings of the respective mechanisms as well as, crucially, their resourcing. Canadian readers perhaps less familiar with other national NPM designation processes may find this section of the Victorian Ombudsman report especially illuminating.

The same section of the report also examines in greater detail which NPM arrangement might be implemented in the state of Victoria, employing a ‘pro and con’ tick-box analysis of each model, as depicted below.

The report then explores how a centralized and de-centralized NPM model might look in practice, particularly in view of the six existing monitoring bodies in the state of Victoria. Various recommendations are made in this connection, including that:

Under a ‘unified’ model, and to avoid unnecessary duplication, a single independent body should be designated NPM for Victoria, to operate with a legislatively mandated Advisory Group as described in the following paragraphs. The NPM mandate should be distinct from existing functions, fully comply with the principles and requirements of OPCAT, and be enshrined in legislation.” [§269]

The shape and structure of the legislatively mandated Advisory Group is outlined in the report. Taking into account the length, frequency and number of potential inspections of the future mechanism the study presents a consideration of the size and cost of the Ombudsman’s vision of an NPM for Victoria. Impressively, highly detailed charts are presented of the costs associated with visiting different categories of detention facilities in the state, including prisons, police station, mental health centres, and child and youth facilities. In this regard the report concludes as follows:

An NPM conducting regular inspection of all primary places of detention in Victoria should comprise approximately 12 Full Time Equivalent staff and have an operating budget of approximately $2.5 million.

There are further efficiencies in designating a single NPM, as the inspection function can be subject to a single budget bid taking into account the full range of work required, and the NPM can provide resources to other agencies as necessary within the overall allocation.” [§304-305]

The remainder of the report titled Inspection Report consists of several sections, including a discussion on the rationale for looking at the topic of solitary detention of young persons and the methodology employed by the mechanism. It is notable that in the outset of part 2 of the report the Victorian Ombudsman emphasizes the key, sometimes forgotten point (in bold below):

Following her 2017 report about OPCAT, the Ombudsman decided to conduct a second own motion investigation, in light of her investigative human rights function and to further contribute to discussions about OPCAT’s implementation in Victoria.

In deciding to conduct this investigation, the Ombudsman noted the ratification of OPCAT is an important symbol of Australia’s commitment to human rights and community safety, and its implementation in Victoria is equally important in ensuring that commitment is not merely symbolic.” [§307-308]

In terms of the OPCAT-inspired monitoring methodology of the thematic investigation into solitary confinement, a so-called OPCAT Advisory Group was established, comprising 14 representatives of various Victorian oversight bodies and civil society organizations. In advance of the visits to the three youth detention facilities pre-inspection training was given and various inspection tools were developed. In some detail the report outlines the methodology of the visits to the different facilities.

The remaining chapters of the report detail the inspections of the detention facilities under scrutiny, namely Port Phillip Prison, Malmsbury Youth Justice Precinct and the Secure Welfare Services at Ascot Vale and Maribyrnong, concluding with some 27 related recommendations. Readers wishing to learn more about the detailed findings of the report should consult it directly or watch the video presentation of the report above.

As for Canada, there is no reason why a similar OPCAT-inspired approach could not be emulated by domestic detention monitoring bodies. This year already, several government arms-length oversight bodies have published thematic reports, highlighting various concerns about different places of detention. Despite the fact that OPCAT ratification by Canada appears a long way off and next to no consultation has to date taken place with Canadian civil society on possible implementation of the instrument, the same highly welcome OPCAT-inspired tack of the Victorian Ombudsman could be followed in the country.

Once again, we see that Australia has potentially much to offer Canada in terms of its overall approach to preparing the way for the implementation of the OPCAT in the country. Thus, a loud, resonating round of applause must be extended to the Victorian Ombudsman in pushing along the OPCAT process with this highly thoughtful, if not striking report.

Canadians – get ready (for OPCAT), set, go?


Read the Victorian Ombudsman report, OPCAT in Victoria: A thematic investigation of practices related to solitary confinement of children and young people.

Read the related press release.

Examine the Victorian Ombudsman’s first OPCAT inspired report on women in prison, Implementing OPCAT in Victoria: report and inspection of the Dame Phyllis Frost Centre.

Learn more about how the OPCAT is being implemented in Australia and the related challenges.

Interested in OPCAT visuals? Watch other imaginative ways in which different oversight mechanisms are highlighting their work.