Civil society

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

A Silence Not Golden – ATIP Request Update

Silence may not always be golden, as the outstanding response to the Canada OPCAT Project’s recent Access to Information & Privacy Request (ATIP) has most positively proven. Global Affairs Canada has regrettably failed to respond to the website within the permitted 75-day deadline.

As a result of the ongoing silence, the Canada OPCAT Project has filed a complaint with the Office of the Information Commissioner of Canada. Established in 1983, this mechanism carries out confidential investigations into complaints about federal institutions’ handling of Access to Information Requests, including in cases of non-response.

To briefly recap, an ATIP Request was submitted to Global Affairs Canada on 23 December 2019 to determine to what extent Canada had acted on a key international recommendation to ensure greater consultation with civil society and Indigenous organizations on the ratification of the OPCAT.

Silence, please – Shawn Rossi (2008)

More frequent visitors to the Canada OPCAT Project website will recall that in its Concluding observations the UN Committee against Torture had recommended in December 2018 that Canada should undertake the following steps:

“Complete the process towards accession to the Optional Protocol to the Convention, while introducing mechanisms to ensure the participation of civil society, indigenous groups and other stakeholders in the entire process.” [§21d]

In the December 2019 ATIP Request to Global Affairs Canada (the lead Federal Department on OPCAT ratification), the Canada OPCAT Project asked for the following information.

“In view of this key United Nations recommendation, please provide copies of any written communications such as letters and emails with Canadian civil society organizations and National Indigenous Organizations on the question of accession by Canada to the Optional Protocol to the UN Convention against Torture since 1 December 2018 to the 21 December 2019.

Please also provide copies of any backgrounders, briefing notes, presentations or other relevant documents for discussion with Canadian civil society organizations and National Indigenous Organizations on the question of Canada acceding to the Optional Protocol to the UN Convention against Torture.”

In late January 2020 Global Affairs Canada responded, stating that it required an additional 45-days to process the request, which, according to the relevant legislation, was due no later than 7 March 2020.

Silence is golden – Lorie Shaull (2015)

Frustratingly, Global Affairs Canada’s continued silence can only be construed as a failure to respond to the initial petition, despite having more than 80 days to process the said request.

Regrettably, today’s complaint was not the first instance when the Canada OPCAT Project has been forced to resort to the Office of the Information Commissioner in order to elicit a response from a Federal Government Department. In 2018 Justice Canada failed to respond to an ATIP Request about the on-going OPCAT consultation process within a similarly extended time period, resulting in the lodging of a complaint with the institution.

The eventual response of Justice Canada to the information request arrived in a highly redacted form, casting a dark shadow over the Canadian authorities’ genuine commitment to an open and transparent OPCAT consultation process. The paucity of information since shared by any federal agency on this important human rights issue, including by Global Affairs Canada, has only reinforced this highly disappointing impression.

We can only hope that the final response from Global Affairs Canada will be worth the long wait.


Read more about the Canada OPCAT Project’s ATIP Request from December 2019 and the initial response from Global Affairs Canada from January 2020.

See Justice Canada’s highly redacted response to the website’s 2018 ATIP Request and read what we found out about the OPCAT consultation process.

Posted by mp in Civil society, Consultation, Indigenous people, OPCAT

75 Is Not A Lucky Number – Global Affairs Canada’s ATIP Response

Earlier this week the Canada OPCAT Project received an initial response from Global Affairs Canada concerning its latest Access to Information request. A response of sorts perhaps!

To quickly recap, the Canada OPCAT Project filed an Access to Information and Privacy (ATIP) request on 23 December 2019 requesting information from Global Affairs Canada about the scope of its supposedly ongoing OPCAT ratification consultation process with Canadian civil society and Indigenous groups throughout 2019. You can find out more here.

During its examination by the UN Committee against Torture in Geneva in November 2018 Canada stated publicly that it would endeavor to consult with Canadian civil society on the important human rights topic of OPCAT ratification.

Alan Levine, Open or Closed (2012).

In an official response dated 13 January 2020 the Canada OPCAT Project was informed the following:

“In accordance with paragraph 9(1)(a) of the Act [Access to Information Act], an extension of up to 45 days beyond the original statutory limit is required since meeting the original time limit would unreasonably interfere with the operations of the Department.”

In a nutshell, Global Affairs Canada has given itself up to 75 days (the initial 30 + 45 additional days) to respond to the above request about Canada’s OPCAT consultation process. Let us be clear – 75 days is a more than a fifth of a year!

How might one interpret this seemingly 75-day hesitancy?

  • Global Affairs Canada is exceedingly busy;
  • The department is under-staffed;
  • Global Affairs Canada has an abundance of OPCAT consultation-related information to sift through and possibly redact in order to fully respond to the information request;
  • ATIP requests are generally low on the department’s list of priorities, but it will comply with the law by requesting a 75-day response time;
  • Or possibly a mixture of all of the above.

Readers can make their own minds up, but we would tend to shift towards the lower end of the list.

Alan Levine, Sorry We Are Not Open (2012)

If an uncomfortable truth be told, if Global Affairs Canada as the lead agency on the OPCAT just occasionally provided updates about Canada’s OPCAT ratification process, recourse to Access to Information legislation would not be necessary.

After over 18-months of operation and after publishing 120-odd different articles, the Canada OPCAT Project has not been in a position to publish a single news item about the ratification of the OPCAT in Canada based on information unilaterally and voluntarily placed into the public domain by a department of the Canadian Government, such has been the absolute paucity of publicly available information.

If the Canadian Government is willing to place on public record that the ‘Optional Protocol is no longer optional for Canada‘, then it should not be surprised that actors remain committed to holding it to its word.

Please return in mid-March 2020, dear readers, for Global Affairs Canada’s full ATIP response.


Read how the OPCAT might be instituted in Canada.

Find out more about the December 2019 ATIP request.

Posted by mp in Civil society, Consultation, Indigenous people, 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

Joint Open Letter on Concerns about the Global Increase in Hate Speech

We are alarmed by the recent increase in hateful messages and incitement to discrimination and hatred against migrants, minority groups and various ethnic groups, as well as the defenders of their rights, in numerous countries. Hate speech, both online and offline, has exacerbated societal and racial tensions, inciting attacks with deadly consequences around the world. It has become mainstream in political systems worldwide and threatens democratic values, social stability and peace. Hate-fuelled ideas and advocacy coarsen public discourse and weaken the social fabric of countries.

“We are gravely concerned that leaders, senior government officials, politicians and other prominent figures spread fear among the public against migrants or those seen as “the others”, for their own political gain. The demonization of entire groups of people as dangerous or inferior is not new to human history; it has led to catastrophic tragedies in the past. Around the world, we observe that public figures are attempting to stoke ethnic tensions and violence by spreading hate speech targeting the vulnerable. Such rhetoric aims to dehumanise minority groups and other targeted people, and, in the case of migrants, fosters discriminatory discourse about who “deserves” to be part of a community. Furthermore, hateful calls for the suppression of non-normative sexual orientations and gender identities and a limitation of the human rights of LGBT people limit progress towards the eradication of violence and discrimination against LGBT persons in various countries around the world, and a number of discriminatory legal and policy initiatives have been put forward.”

“The rhetoric of hatred must be countered, as it has real-life consequences. Studies have established a correlation between exposure to hate speech and the number of hate crimes committed. To curb xenophobic attacks on migrants and prevent incitement to discrimination, hatred, hostility and violence against other marginalised groups, we call on public officials and politicians, as well as the media, to assume their collective responsibility to promote societies that are tolerant and inclusive. To achieve this, they must refrain from any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. They should also denounce swiftly those who incite hatred against migrants, minorities, or other vulnerable groups. “

Excerpts from ‘Joint open letter on concerns about the global increase in hate speech‘, signed by 26 United Nations mandate-holders, 23 September 2019.


Read the Joint open letter.

Lire le Lettre ouverte commune sur les inquiétudes suscitées par la multiplication des discours de haine dans le monde.

Has there been a backsliding on human rights? Read what the UN Special Rapporteur on torture has to say.

Read the recent Joint UN Statement on Child Immigration Detention.

Posted by mp in Acts of abuse, Civil society, hate speech, UN Special Rapporteur

COPCAT Shorts – UN Treaty Bodies Under Budgetary Cosh

“It is with a sense of urgency that we convey our deep concern regarding the critical funding situation affecting the UN’s human rights mechanisms and OHCHR…”

So opens an Open NGO letter regarding the critical funding gap affecting UN human rights mechanisms and the Office of the High Commissioner for Human Rights, which was sent earlier this week to all UN Member States’ Permanent Missions to the United Nations in Geneva and New York.

The letter, which was signed by the Canada OPCAT Project among several hundred other civil society actors, expressed dismay about the potentially harmful impact on the functioning of the UN treaty bodies and special procedures caused by delays in payments by UN Member States’ assessed contributions to the regular UN budget as well as other budget cuts.

UNCAT 65th session Canada Probed
Palais Wilson – Office of the United Nations High Commissioner for Human Rights in Geneva by UN Photo/Jean-Marc Ferre

In an OHCHR written statement issued on 17 May the Chairpersons of the 10 UN treaty bodies also expressed concern about this unprecedented situation, stating:

“In April this year, the Chairpersons of all 10 treaty bodies were informed that six of them are very likely to have sessions in 2019 cancelled for financial reasons – an unprecedented consequence of some UN member States delaying payments due to the organisation.

This means that reviews already scheduled with States, as well as consideration of complaints by individual victims of serious human rights violations – including torture, extra-judicial killings, enforced disappearances – will not take place as scheduled. The cancellation of sessions will also have numerous other negative consequences, and will seriously undermine the system of protections which States themselves have put in place over decades.”

Canada would be directly impacted by these potential cancellations as, during the autumn period, it is scheduled to be reviewed by three treaty bodies. These include the UN Committee on the Rights of Persons with Disabilities, the Committee on the Elimination of Discrimination Against Women (through the List of Issues Prior to Reporting procedure) and the UN Committee against Torture (through the one-year follow-up procedure).

The Open NGO letter calls on UN Member States to pay their assessed contributions without further delay, prioritize securing adequate funding for the UN human rights pillar and initiate discussions on how to reverse the trend of reduced regular budget for OHCHR.


Read the full Open NGO letter here.

Read OHCHR’s statement ‘UN budget shortfalls seriously undermine the work of the Human Rights Treaty Bodies’.

Posted by mp in Civil society, UNCAT, UNCRPD

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