Australia

The Canadian Seniors Care Home Scandal – A Catalyst for Change?

Four years’ ago this week, the then Minister of Foreign Affairs, Stéphane Dion, declared to the world that the Optional Protocol would no longer be optional for Canada in the future, a full decade after Canada had originally hinted it would ratify the instrument in 2006.

Put it down to forgetfulness, institutional amnesia or even just debilitating procrastination, Canada has yet to make good on its stated commitment to finally put pen to paper at UN headquarters in New York and ratifying the instrument.

In so not doing, Canada may well have succeeded in setting a new world record for the longest OPCAT ratification process in the instrument’s history – at least for an advanced democracy – trailed in close second by the Republic of Ireland (which has, if nothing else, signed the instrument).

No other contenders for the record come to mind. On the other hand, quite a few other countries who lag significantly behind Canada in overall human rights terms have done so – long ago even. Argentina, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Mexico, Serbia and Tunisia spring immediately to mind.

Guinness World Records 2020 – Debbie Harris (2019).

Over the years there has been no lack of international encouragement for Canada to make good on its commitment to ratify the OPCAT, not least by the UN Human Rights Council and UN Committee against Torture in 2018.

After undertaking fact-finding missions to these Canadian shores, the UN Special Rapporteur on violence against women and UN Special Rapporteur on the rights of persons with disabilities both urged Ottawa to ratify the instrument in their 2019 reports.

So what goes on in Ottawa? Frankly, probably very little it would seem. The Canada OPCAT Project’s repeated attempts to elicit even a single atom of information about the not-on-going OPCAT ratification and consultation process through Access to Information & Privacy (ATIP) requests have proven largely ineffective.

A December 2019 ATIP request seeking clarity about whether Global Affairs Canada (supposedly the lead OPCAT ratification agency in Canada) had liaised with civil society groups on the ratification of the instrument since Canada’s examination by the UN Committee against Torture in Geneva in November 2018 has, to date, gone entirely unheeded.

The current Covid-19 emergency will undoubtedly squelch any remaining hope, no matter how dim, of ever receiving a reply to this eminently reasonable request.


Yet just look 360 degrees about you. If there were ever a time when effective, robust oversight of Canada’s closed institutions were needed, then that moment is right now.

The current Covid-19-related crisis in Canada’s long-term care homes for seniors is a sadly illustrative case in point. So far, fingers tightly crossed, the coronavirus health crisis has not severely afflicted the Canadian prison system in terms of fatalities. In stark contrast, however, private and state-run care homes for seniors have been utterly ravaged by the virus.

Unfathomably, seniors have been dying in scores in the very facilities designed to care for them. The sheer daily number of news entries listed in the COVID-19 Deprivation of Liberty Corner, reporting the appalling deaths and infection rates of society’s seniors, is a reflection of the current, depressingly critical situation.

Watch For Senior Citizens – Ethan Prater (2008).

Yet where are the rugged, independent mechanisms pointing the finger at and holding these facilities to account?

Is it entirely accidental that these most lightly regulated of institutions have fared so poorly in dealing with the existing pandemic? If the current death rates had plagued Canada’s prison estate, there would have been a unshakable national scandal by now, and rightly so.

Yet where is the seething anger regarding how Canada’s seniors are being treated?

Robust, independent oversight is not a panacea to society’s closed institutional ills, even more so at moments of public emergency like the present. Yet it is a pretty decent start.

It can ensure that the human rights and dignity of persons found therein, whether they be senior citizens, migrants or prisoners, are observed during both the best and worst of times.

If there is nothing like a raging public row to clear the air, then that moment is arguably the present. Increasingly thunderous calls for change in how senior care is operated in Canada should result in a complete overhaul of the private and public long-term care system for the elderly, resulting in sweeping change which incorporates robust, independent oversight thereof at all jurisdictional levels.

The OPCAT human rights instrument could be a key component of this much-needed change-process.

Sidewalk Reassurance – Travis Wise (2020).

From an OPCAT perspective, the question of whether senior care homes fall within the scope of OPCAT Article 4’s definition of deprivation of liberty has long been settled. Furthermore, the highly respected European Committee for the Prevention of Torture has been visiting care homes of different types for many years as part of its core detention monitoring mandate.

In August 2019 leading Australian academic Laura Grenfell made some excellent arguments why seniors’ homes fall squarely within the scope of OPCAT Article 4 in a journal article titled Aged care, detention and OPCAT, featured in the Australian Journal of Human Rights. The latter journal has devoted invaluable space in recent months to the important issue of OPCAT implementation in Australia, several articles from which have been highlighted in the OPCAT Academics section of this website.

In the said article Professor Grenfell underpinned the crucial importance of independent oversight of senior care facilities, as follows:

Current federal and state schemes for the monitoring and oversight of closed aged care facilities are inadequate. This is largely due to the hodgepodge of standards and existing inspection bodies’ lack of expertise. It is critical for civil society to encourage government to adhere to and resource best-practice OPCAT monitoring for aged care facilities where people are detained in closed units. Monitoring by NPM teams using rigorous and nationally consistent human-rights-based standards will allow the risks facing a vulnerable group of people – who, in SA ICAC’s words, ‘lack any voice themselves’ and are ‘entirely dependent upon others for their care and their safety’ (South Australian Independent Commissioner Against Corruption 2018, 190) – to be assessed. People who are deprived of their liberty in closed aged care units are in a vulnerable position and are at a disproportionately high risk of torture or cruel, inhuman or degrading treatment. Closed units in aged care facilities should not be allowed to fall under the OPCAT radar.

What has come to pass in Canada’s long-term care facilities for seniors can never be allowed to happen again. The need for robust regulation and effective, hard-wearing arms-length oversight of such institutions should be the catalyst for a long overdue, re-energized national discussion on the ratification and implementation of the OPCAT in Canada.

As opposed to further OPCAT procrastination, Canada should strive to be a world record-breaker in how it treats its senior members of society as a barometer of its commitment to everyone’s human rights – the young and the old. After all, we are all headed in the same direction. The effective implementation of the OPCAT could make a decisive contribution to this overarching process.

Yet with the ratification of the OPCAT being entirely a figment of someone else’s imagination in Canadian government circles these days – or seemingly so – something fundamentally needs to change in Ottawa’s corridors of power.

Four further years of OPCAT procrastination, after the country’s then Minister of Foreign Affairs very publicly committed to OPCAT ratification, is nothing to be proud of. In view of the current seniors care homes scandal, sitting on one’s hands no longer remains an acceptable national policy option.


Read Laura Grenfell’s article, Aged care, detention and OPCAT in the Australian Journal of Human Rights.

Explore other academic articles in OPCAT Academics.

Learn more about the OPCAT ratification process in Canada.

Find other materials on Covid-19 and detention.

Posted by mp in Australia, Civil society, Consultation, OPCAT, Oversight bodies, Senior care homes

Invaluable Indigenous OPCAT Insights

With widespread concern about the ‘Indigenization’ of Canada’s prison population hitting the news headlines of late, the publication of an invaluable new report by Andreea Lachsz comes at a very timely moment.

As part of her 2018 Churchill Fellowship to Investigate Overseas Practices of Monitoring Places of Detention the author presents numerous illuminating insights into the ‘Indigenization’ of detention in her native Australia. As a lawyer and human rights activist located in Australia’s Northern Territory (NT), Andreea Lachsz has based this excellent report on her first-hand experience engaging with the criminal justice system in this vast geographic region (roughly the size of Quebec).

As in Canada, the over-incarceration of Aboriginal and Torres Strait Islander People represents an unacceptable face of Australia’s criminal justice system. Penal Reform International’s flagship publication, Global Prison Trends 2019, portrayed this grim reality in full detail just months ago.

Andreea Lachsz’s comprehensive report tackles her chosen subject matter from several angles, as the full sub-title of her report indicates: Culturally appropriate oversight of conditions of detention and treatment of detained Aboriginal and Torres Strait Islander people in the Northern Territory’s criminal justice system – in compliance with the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (please also see below).

In summary, the author examines how the OPCAT obligation to designate an NPM could be met in the Northern Territory, specifically in relation to prisons, youth detention facilities, police custody and court custody. In order to do so, Andreea undertook visits to foreign jurisdictions that had ratified OPCAT and/or had criminal justice systems similarly experiencing the over-incarceration of Indigenous people, including in New Zealand, Canada, England, Scotland, Northern Ireland and Switzerland.

In Canada, for example, the author examined at first-hand the commendable work of the Office of the Correctional Investigator. She also took time out of a busy schedule to discuss Canada’s potential ratification of the OPCAT and other detention monitoring matters with the Canada OPCAT Project.

In the research report Andreea Lachsz offers the following summary:

The model and recommendations proposed in this report are tailored to the unique NT context. Nonetheless, given that all jurisdictions in Australia suffer from the overrepresentation of Aboriginal and Torres Strait Islander people in their criminal justice systems, many of the recommendations contained in this report will be of relevance to, and all of the best practice examples can provide guidance on, effective OPCAT implementation across Australia. (iv)

In this connection, Canadian readers may be interested to scrutinize the following essential point on the question of consultation with Indigenous and other civil society groups, namely that:

A consistent finding throughout this report is that consulting with the NT Aboriginal community and Aboriginal Community Controlled Organisations (ACCOs) is essential. Given that NPMs should be designated through an ‘open, transparent and inclusive process’, it is well-established that consultation is essential in NPM designation or establishment. Consultation should be ongoing, in relation to all aspects of the NPM’s mandate, including its inspection framework, the expectations/standards that it uses in its inspections and evaluation of its efficacy and cultural competency … If the NT NPM is to be effective, it must achieve legitimacy among the Aboriginal community (which extends to those who are detained, with whom the NPM will need to engage). (iv)

The above is a key lesson for the Canadian context, arguably even more so in the light of the closed and opaque nature of the OPCAT ratification ‘consultation’ process undertaken so far in the country. In short, good OPCAT practice behooves the authorities – whether Australian or Canadian – to consult with Indigenous organizations (as well as wider civil society) during any OPCAT consultation process.

Chain-link Prison Fence – Jobs for Felons Hub (2016)

As for concrete OPCAT-related action in Australia, Andreea Lachsz concludes that the overrepresentation of Aboriginal people in places of detention in the Northern Territory’s criminal justice system highlights the pressing need to take a tailored and targeted approach to the prevention of torture and ill-treatment of Aboriginal people. In so doing, she recommends the establishment of a so-called Aboriginal Inspectorate as the NPM, acknowledging the reality that “… the vast majority of the detainees who will fall within the mandate of an NPM operating in the criminal justice space will be Aboriginal.” The advantages of such a bespoke NPM-related strategy are several, including:

  • it adopts a targeted approach to the protection needs of Aboriginal and Torres Strait Islander people detained in the NT;
  • the NPM will have the requisite multidisciplinary expertise, specifically in relation to the needs and situation of Aboriginal detainees;
  • it will result in an NPM whose foundation and structures support organisational cultural competency.

It is the advocacy for this customized NPM approach which makes Andreea Lachsz’s report both unique and fascinating. In multiple chapters of her report the author fills in with considerable detail what an Aboriginal Inspectorate might look like in Australia’s Northern Territory and how it could operate in practice, including in relation to visits to places of detention. Given its highly original focus, to date, the Canada OPCAT Project knows of no other study to offer this level of detailed NPM analysis from an Indigenous perspective, rendering it a highly distinctive and much-needed piece of scholarship.

While it remains to be seen if Australia will adopt a custom-made NPM for the Northern Territory in this proposed format, it is unquestionable that Andreea Lachsz has made a first-rate and timely contribution to Australia’s ongoing discussion on the implementation of the OPCAT in the country.

Furthermore, for countries, like Canada, which continue to imprison a disproportionately large numbers of their Indigenous citizens, the author offers human rights actors and policy-makers alike numerous invaluable insights and ideas. All told, Andreea Lachsz’s new report puts a unique slant on how the OPCAT might be implemented in a country where the ‘Indigenization’ of detention remains an incontestable reality and one desperately in need of change.


Read Andreea Lachsz’s 2018 Churchill Fellowship to Investigate Overseas Practices of Monitoring Places of Detention.

Find out more about the Winston Churchill Trust.

See why the Office of the Correctional Investigator considers the ‘Indigenization’ of Canada’s federal prison population a national travesty.

Learn more about the OPCAT implementation process in Australia.

Posted by mp in Australia, Indigenous people, NPMs, OPCAT

Australian Civil Society Leads The Way

Amazing. Unbelievable. Superb. Terrific. Remarkable. Awesome. Lovely. Incredible. Ace. Outstanding. Peerless. Cracking. Astounding. Top-notch. Number 1. Excellent. Tip-top. Wizard. Out-of-sight. Regal. Knock-out … What does it spell? The Australia OPCAT Network of course.

Why does the Canada OPCAT Project think so highly of the work of this fabulous collective of individuals and institutions? Look no further than below, readers.

In preparation of visits to Australia by the UN Subcommittee Committee on Prevention of Torture and the UN Working Group on Arbitrary Detention in the coming months, Australian civil society has painted a detailed picture of how the OPCAT is being implemented in the country, warts and all.

The Australia OPCAT Network, a grouping of a score or two of some of the country’s top human rights activists, academics and detention monitors, has done so through the publication on 31 January 2020 of the document, The Implementation of OPCAT in Australia. The document will no doubt prove to be a highly useful tool for the UN bodies on the cusp of visiting Australia. Readers are invited to download the document at the bottom of this page.

In short, the Australia OPCAT Network unquestionably represents a leading, best practice model of how civil society is industriously and strategically working together to ensure the effective institution of an NPM in the country. Canadian and other human rights actors could do much worse than take a leaf or two from out of the ‘NPM Strategy Manual’ of this highly impressive third-sector collective.

It is certainly not by accident that Australia has featured in these Canada OPCAT Project pages multiple times over the past year as a leading example of a country where civil society is striving to implement the OPCAT effectively. Please see the following posts for example: 1, 2, 3, 4, 5, and 6.

Australia – Marko Mikkonen (2013).

Yet the process of implementing the OPCAT in Australia, while with many merits, is not entirely unproblematic, as the new Australia OPCAT Network publication correctly highlights. Chapter 1 of the document identifies some of the current challenges, presenting a raft of some ten highly detailed recommendations (see page 32).

Overall, the report focuses on vitally important matters such as the even implementation of an NPM across multiple federal and state jurisdictions, the effectiveness of existing oversight bodies, the full coverage of Australia’s OPCAT commitments as defined by OPCAT Article 4, and the need for the government’s full and open engagement and cooperation with civil society.

The other chapters in the publication focus on different deprivation of liberty settings, including: Australia’s highly controversial immigration detention estate; detention of persons with disability; prisons, youth justice and police custody; and aged care settings. As the Executive Summary of the report observes:

At the same time, traditional places of detention continue to raise significant challenges. Prisons and other justice facilities experience overcrowding, inadequate services and conditions, and overuse of seclusion, together with the pressure of increasingly complex inmate populations.

Uniquely, the document (in chapter 6) also focuses on the perspective of Indigenous persons in different detention settings in Australia. As reported by Canada’s Office of the Correctional Investigator just last month, Australia also suffers from scandalously high levels of ‘Indigenization’ of its prison population as well as in other institutions.

This chapter superbly also complements the excellent recent in-depth research of Churchill Fellow Andreea Lachsz into this reality and the need for effective oversight, a work soon to be featured in these pages.

In sum, the Australia OPCAT Network deserves every one of the effusive adjectives packed into the opening paragraph of this article for this outstanding as well as unquestionably extremely useful contribution. For those of us hoping for a similarly positive OPCAT outcome in Canada, the Network offers much-needed and welcome inspiration.


Read Andreea Lachsz’s Churchill Fellowship to Investigate Overseas Practices of Monitoring places of Detention.

Explore other related articles in the Australian Journal of Human Rights OPCAT Special edition.

Posted by mp in Australia, Indigenous people, NPMs, OPCAT

Essential Christmas Reading – UWA OPCAT Series

With Christmas just around the corner and the prospect of being incarcerated over the break in close quarters with your loved and perhaps less loved ones (‘you can choose your mates…’) what could be more appealing than some essential reading on the OPCAT to transport you elsewhere?

The University of Western Australia (UWA) has recently published a four-part OPCAT series which has resonance for those of us north of the 49th parallel. While not too heavy to digest, this set of four blogs, give us much to ponder about the OPCAT in the Canadian context.

Kicking off the series, UWA Public Policy Institute Director Shamit Saggar poses the question, ‘can we afford to rely on a complaints-based system?’ In examining the suitability of complaints-focused bodies in the Australian context as it prepares the ground for the implementation of the OPCAT, the writer remarks that “…there is little support for relying on a traditional complaints-approach to the challenge”.

In a paper published earlier this year the Canada OPCAT Project advanced a host of reasons why in the Canadian context a new mechanism should be created for the purposes of OPCAT implementation, primarily due to concerns about the limitations of designating existing ombudsperson-type bodies. Shamit Saggar verbalizes some parallel concerns in the Australian context.

More essential OPCAT reading is provided by Professor Manfred Nowak, who is no stranger in these pages. In a slightly longer contribution, Professor Nowak’s article is aptly titled ‘Australia’s obligations under OPCAT: The challenging task of establishing an effective in a federal state’. Like Canada, Australia is a federal state and as such must institute an NPM in a range of different jurisdictions. In the light of the progress attained in Australia so far, it is the view of this former Special Rapporteur on torture that:

… Australia could become a model for establishing effective NPMs within a federal state structure. The Commonwealth Ombudsman has recently published an excellent and comprehensive baseline study which outlines the variety of places of detention and the extent to which these places are already subject to inspections. This baseline study is intended to serve as basis for states and territories to nominate their respective NPMs.

Manfred Nowak by Phil Strahl (2007)

That being so, Professor Nowak also identifies various risks with the current OPCAT implementation process in Australia, including pertinent questions about the adequate resourcing and overall coordination of the future NPM. Moreover, the current narrow OPCAT approach of the Australian authorities to so-called ‘primary places of detention’ with its exclusion of a whole swathe of potential places of deprivation of liberty Professor Nowak views as especially problematic, and rightly so. A recent article by Laura Grenfell points out why a wider interpretation to OPCAT Article 4 is required in Australia. Nonetheless, as has been argued on several occasions on this website, for Canada there are many lessons which can be drawn from the Australian OPCAT context.

Australian OPCAT enthusiast extraordinaire Steven Caruana offers a refreshingly critical take on the OPCAT implementation process in Australia, despite its noted merits. In an article titled ‘The need for formal partnerships between civil society and the National Preventive Mechanism’ Steven writes the following:

To date, formal civil society participation in the establishment of the NPM and its preventive work has been restricted to consultations with the Australian Human Rights Commission. Substantial engagement with the federal, state and territory governments has been limited. In the case of Western Australia, designation of the Western Australian Ombudsman and Inspector of Custodial Services was made with no public consultation let alone a public announcement.

It is interesting to note that this lack of engagement has not gone unnoticed…

In this excellently succinct article the writer sketches out UN Subcommittee on Prevention of Torture best practice on third section OPCAT consultation as well as civil society’s potential involvement in domestic NPM schemes. In what exact form the Australian model will emerge, it remains to be seen. Yet despite any perceived shortcomings Down Under, it goes without saying that the Australian consultation process is still light years ahead of the virtually non-existent analogue process in Canada.

In a final article in the series, against the backdrop of the Australian Government’s increasingly sceptical position towards what has been termed as “negative globalism”, Holly Cullen cautions how such a sentiment could pose obstacles to the country realising the full potential of an effective implementation of OPCAT in preventing human rights abuses. In doing so, the writer stresses the following key point which ought also to be heeded by the Canadian authorities:

OPCAT is a human rights treaty. Its implementation cannot be treated as a mere technical exercise of identifying existing public bodies and giving them an additional responsibility. NPMs must be adequately resourced, and an appropriate legislative framework will need to be established. 

Sadly, the above business-as-usual approach to OPCAT implementation has been the downfall of many a national OPCAT system.

And that, ladies and gentlemen, is the first installment of your essential reading on the OPCAT this Christmas. All four articles merit a closer reading, while readers with more time on their hands over the holidays may wish to peruse the OPCAT Academics section of the website, where you will find some excellent academic articles on torture prevention. Please tune into these pages over the holidays, as further recommendations will soon follow. Until then dear readers, a very Merry Christmas to you from Ottawa, Canada.

Posted by mp in Academic, Australia, Civil society, Consultation, OPCAT

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.

Posted by mp in Australia, NPMs, OPCAT, Oversight bodies, Solitary confinement, Young offenders

If the UN Subcommittee on Prevention of Torture ever came to visit Canada…

This past week or so the UN Subcommittee on Prevention of Torture publicly stated that it would visit Australia, as one of six countries which the UN Subcommittee will visit in the coming months.

In a statement released on 1 July 2019 the UN SPT announced that Australia, Croatia, Lebanon, Madagascar, Nauru and Paraguay would comprise its future country visits.

challenge ahead
Prisons by -JvL- 2012

Like all current 90 States Parties to the OPCAT, Australia agreed to permit visits by this international body of 25 torture-prevention experts, after it ratified the instrument in December 2017.

Australia is also presently in the process of instituting a National Preventive Mechanism.

But what if Canada had also ratified the instrument? What might happen during a UN Subcommittee country visit? Where would it visit and with whom would it engage?

On 9 July the UN Subcommittee Chairperson, Professor Sir Malcolm Evans, was interviewed on Australia’s Radio National (RN) to explain the scope and form of such a country visit.

Listen to RN radio host Hamish Macdonald’s interview the UN SPT Chairperson, Professor Malcolm Evans, on the ins-and-outs of such a visit.


Read more about Australia’s path to OPCAT ratification.

Learn more about the role of civil society in the ratification process.

Read other recent academic articles on the implementation of the instrument in Australia.


Many thanks to Josef Szwarc for the above information.

Posted by mp in Australia, UN Subcommittee

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.

Posted by mp in Australia, NPMs, OPCAT, Ratification

Academic News & Views: Civil Society & the OPCAT

It has for several years been recognized that civil society has an invaluable role to play in relation to the OPCAT, including its promotion and implementation. At the highest international level, for example, the UN Subcommittee on Prevention of Torture stated as long ago as 2010 that a country’s NPM “… should be identified by an open, transparent and inclusive process which involves a wide range of stakeholders, including civil society.” It has since elaborated on this position.

In a bang-up-to-date May 2019 article titled Involving civil society in preventing ill-treatment in detention: maximising OPCAT’s opportunity for Australia, Rebecca Minty explores the role of the third section both in relation to promoting the ratification of instrument as well as to its implementation in practice. The lessons for Canada are unquestionably several, more so regarding the potential role of civil society in promoting the OPCAT as an instrument at the domestic level.

OPCAT campaign images
‘Ratify OPCAT’ campaign image by the Australian Lawyers for Human Rights.

Rebecca Minty’s excellent new paper appears among the current series of articles which comprise the Australian Journal of Human Rights’ Special Issue on the OPCAT, previously highlighted on this website.

In the article the author skilfully draws on the existing academic literature as well as international practice vis-à-vis civil society’s role and the OPCAT, hinging her discussion on Australia’s on-going attempts to institute an NPM (resulting from its December 2017 ratification of the OPCAT). In doing so, she advances at the outset of the paper a very informative account of the role of Australian civil society with respect to the promotion of the OPCAT in the country, noting:

“Prior to ratification, Australian civil society and the Australian Human Rights Commission (AHRC) had been calling for OPCAT ratification for a decade, in a range of advocacy settings. Internationally, CSOs made statements to the UN Human Rights Council as part of the Universal Periodic Review and recommended OPCAT ratification in alternative reports to the UN treaty bodies, including the Committee Against Torture.” (3)

Canadian civil society organizations have placed similar recommendations before the UN human rights machinery, spanning a period of many years. The November 2018 examination of Canada by the UN Committee against Torture and the presentation of a dozen or so shadow-reports is an illustrative, more recent case in point. Previously, different Canadian actors had also done so with regard to the UN Human Rights Committee and UN Human Rights Council.

Campaign Images
‘Ratify OPCAT’ campaign image.

Where the Australian advocacy context has been different to the Canadian landscape lies in Rebecca Minty’s next point, namely the establishment in 2015 of the Australian OPCAT Network (AON), an informal grouping of academics, non-government organizations and interested individuals. According to the author, the AON:

“… was formed to raise awareness about the benefits of OPCAT and advocate for its ratification. The AON wrote joint advocacy letters and submissions, conducted national teleconferences to share information, and organised symposiums and seminars on OPCAT. Various CSOs provided submissions to national inquiries and consultations, including the National Children’s Commissioner’s 2016 Children’s Rights Report and the Federal Human Rights Commissioner’s 2017 OPCAT consultation.”(3)  

The progressive, open and inclusive nature of Australia’s OPCAT consultation process has previously been commented on and commended in these pages, despite its limitations in the eyes of some commentators. Nonetheless, Australian civil society clearly made its own luck in this matter by proactively collectively organizing to embrace the task of promoting the instrument.

Could Canadian civil society actors follow the tack of their Australian human rights colleagues? There exists absolutely no compelling reason why not – providing sufficient interest and will exists to do so.

Domestic drivers

Interestingly, however, in the view of Rebecca Minty domestic circumstances also played in civil society’s favour when promoting the merits of the instrument. More specifically, two noteworthy events preceded the ratification of the OPCAT which provided an opportunity for Australian civil society to engage in more targeted and strategic advocacy.

These events included Australia’s candidacy for a seat on the UN Human Rights Council in 2018-2020 which resulted in an OPCAT ratification pledge, as well as the appalling Don Dale Detention Centre scandal which made for damaging international news headlines. It was therefore not by accident that the images of abuse at the Don Dale detention facility in the Northern Territory were utilized as part of national-level OPCAT campaign. In this latter regard Rebecca Minty commented:

“The release of shocking footage in 2016 of ill-treatment of young people in Don Dale Detention Centre in the Northern Territory, including the use of tear gas and spits hoods, was cited as an example of the need for more comprehensive oversight of closed environments, specifically OPCAT-style monitoring. Australia was elected to the Human Rights Council in October 2017, and OPCAT ratification followed two months later, with Australia making a declaration under Art 24 to delay the obligation to establish or designate its NPM for three years.” (3)

OPCAT Campaign Images
‘Ratify OPCAT’ campaign image.

From the above, various relevant lessons can be drawn for the Canadian context, not least the utmost importance of strong civil society cooperation. Moreover, while one would never wish for a national prison scandal to be the central driver for OPCAT ratification in Canada, domestic penal controversies have sadly been the forces to engender long-overdue change in decades gone by.

Wider OPCAT lessons for civil society involvement

While the OPCAT promotional dimension of Rebecca Minty’s article may be highly relevant for the Canadian context, readers should not lose sight of its wider lessons. More generally, the overall thrust of the piece is very valuable in that it sets out in detail how Australian civil society actors are engaging with the fundamental question of how to put in place an NPM.

Furthermore, the writer also casts her gaze more widely, illustrating through various international examples how civil society in different national contexts is engaging with the OPCAT. Such engagement involves both formal and informal participation in NPM-related activities from undertaking actual monitoring to playing a vital NPM watchdog role.

A very useful selection of country examples are highlighted under these different categories from national contexts as diverse as Austria, Denmark, New Zealand, Norway, Slovenia, Spain, and the United Kingdom. In a nutshell, the article gives us a great deal to reflect on regarding the potential involvement of civil society in the wider OPCAT framework.

Campaign images
‘Ratify OPCAT’ campaign image.

In the final part of her article Rebecca Minty looks ahead, mapping the challenges and opportunities for effective civil society engagement with OPCAT in Australia. Such challenges and opportunities include the raising of awareness amongst civil society groups about OPCAT and its preventive approach, their role in the designation process of the future NPM, and the all-important process of building an OPCAT system from the ground up in the country. The author concludes on a positive note, namely:

“There is a range of potential roles that civil society can play in relation to OPCAT implementation in Australia, including formal or informal partnerships with NPMs, or a watchdog role. Case studies from other OPCAT State Parties provide a sound basis for Australia to draw from and develop its own innovative approaches to preventing ill treatment. However, to fully realise this potential, further work is needed across all Australian jurisdictions to raise awareness amongst detaining authorities, potential NPMs and within civil society itself about civil society’s value add. As part of an expanding global framework, there is cause for optimism that the gathering momentum for prevention in Australia will continue to grow.” (18)

It can only be hoped that Canadian civil society actors can succeed in emulating some of these same OPCAT practices at the national level.

Thanks for reading.


Many thanks to Steven Caruana for his generosity in relation to this post.

The above article was published in the current issue of the Australian Journal of Human Rights in May 2019. The article can be accessed free-of-charge here.

Read an overview of other articles in the Special Issue on the OPCAT of the Australian Journal of Human Rights, including on immigration detention and the OPCAT and on the New Zealand NPM.

Posted by mp in Australia, Civil society, NPMs, OPCAT, UN Subcommittee

Academic News & Views: An OPCAT Focus on Immigration Detention

As part of the Australian Journal of Human Rights fascinating new Special Issue on the OPCAT, the matter of ensuring adequate coverage of immigration detention has come into sharp focus. In a brand-new article by Madeline Gleeson of the University of New South Wales titled ‘Monitoring places of immigration detention in Australia under OPCAT’, the author focuses on the challenges of making certain that immigration detention is effectively monitored in practice.

The parallels with Canada are illuminating. As has been highlighted in recent Canada OPCAT Project posts, even though Canada’s formal immigration detention estate is small, the Government frequently resorts to the use of provincial prisons for immigration detention purposes. Furthermore, unlike in Australia, there is currently no statutory inspection body for immigration detention in Canada, bar a temporary monitoring agreement with the Canadian Red Cross.     

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

In her thought-provoking article Madeline Gleeson makes the essential point:

“…. while the government immediately claimed it as a ‘significant victory for human rights’ (Bishop and Brandis 2017b), the extent to which ratification of OPCAT will in fact mitigate the risks of torture and ill-treatment in places of detention will depend on how it is implemented. In the context of immigration detention in particular, there are significant challenges and controversies to be overcome if OPCAT is indeed to play the preventive role for which it is intended.”

For Australia these aforementioned challenges and controversies are several. In her article Madeline Gleeson embarks on a broad sweep of what might constitute immigration detention in Australia, including more typical facilities located within the country, but also focusing on less typical accommodation type settings, international transit zones in airports, escorts and transfers, so-called off-shore processing centres in Nauru and Papua New Guinea, and cloaked-in-secrecy detention at sea.

Madeline Gleeson
Maitland Gaol by OZinOH (2007).

For Canadian readers the author’s detailed discussion points to the wide range of potential immigration detention settings in any given country, itself an extremely informative exercise. All of these settings, she correctly argues, potentially fall within the scope of the OPCAT.   

Madeline Gleeson’s focus on the general features of an NPM also serves as a useful reminder of the wide potential array of functions of an effective NPM. In doing so, she examines two existing oversight bodies responsible for immigration detention in Australia, namely the Australian Human Rights Commission and the Commonwealth Ombudsman.

As Australia’s future NPM is likely to comprise a multi-agency body whose work is coordinated by the Commonwealth Ombudsman, the author makes various key recommendations aimed at ensuring its legal and functional independence as well as its efficacy as an institution. This advice merits a detailed reading, especially if, as predicted by this writer, Canada also opts for a multi-body NPM as its future mechanism under the OPCAT.    

As in Canada, Madeline Gleeson also notes that the Australian Red Cross has a long history of visits to immigration detention facilities across Australia through its Immigration Detention Monitoring Program. The writer notes: “The Red Cross’s engagement with the Australian government is confidential, focusing on identifying issues of humanitarian concern and providing advice on how to minimise harm for people in detention.” However, unlike in Australia, Canada currently has no other permanent oversight entity for its main immigration detention settings such as an ombudsperson-type body.

The final section of the author’s paper highlights several outstanding challenges relating to the monitoring of immigration detention in Australia. While these factors are to a certain extent Australia-specific in scope, several of Madeline Gleeson’s observations apply beyond its national borders to other current and future OPCAT States Parties such as Canada. These include that:

  • unfettered access to NPM monitors should be ensured in practice in terms of places, people and information;
  • the monitors should be able to address the root causes of potential abuses which may lie in official state policy (such as punitive immigration approaches);
  • and states should be open to independent scrutiny and criticism of their immigration policies, no matter how unpalatable the truth.

All of these lessons could have resonance in the Canadian context as a state which may one day get around to ratifying the OPCAT.

In a word, Madeline Gleeson has made both a very interesting and highly practical contribution to the Special Issue on the OPCAT, with several important lessons for the Canadian setting. With further articles to come in this excellent series of papers, please stayed tuned to the Canada OPCAT Project dial.  


Many thanks to Steven Caruana for his assistance in relation to this post.

The above article by Madeline Gleeson appears in the current issue of the Australian Journal of Human Rights, published on-line on 17 April 2019. The article can be accessed free-of-charge here.

Read an overview of other articles in the Special Issue on the OPCAT of the Australian Journal of Human Rights.  

Read more about the Canadian Red Cross Immigration Detention Report.

Examine the Concluding observations of the UN Committee against Torture from December 2018 concerning oversight of immigration detention in Canada.

Posted by mp in Australia, Immigration detention, NPMs, OPCAT, Oversight bodies

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.

Special Issue
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.

Special Issue
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.

Special Issue
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.

Special Issue
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.

Posted by mp in Australia, Implementation process, NPMs, OPCAT, Places of detention