Australia

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.  


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.

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

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, 0 comments

OPCAT in a Land Down Under

If this writer could not resist the temptation of employing the much-loved Men At Work ‘Down Under’ song reference in this post’s title, then you too will hopefully not resist reading the current edition of the ICPA External Prison Oversight and Human Rights Network newsletter with its Australian OPCAT focus.

As featured in an earlier article, with a spotlight on the current OPCAT implementation process in Australia the newsletter has considerable relevance for the Canadian context with its lessons of good related practice. This fact rings especially true at a time when Canadian government authorities at all levels have apparently been discussing potential OPCAT implementation among themselves, albeit lamentably with practically no one else, not least civil society.

As a fellow federal state, the parallels between Australia and Canada are not insignificant. While Australia has 9 jurisdictions (one federal, six state and two territorial in scope) compared with Canada’s 14, the distinct challenges of implementing the OPCAT in a multi-jurisdictional state structure still have to be met.

Down Under
Maitland Gaol by OZinOH (2007).

Even though reservations have been expressed in these pages about Canada adopting a multi-body approach to OPCAT implementation (please see the Canada OPCAT Project discussion paper, Instituting an NPM in Canada), Australia appears to be forging ahead in this direction, emulating countries like the United Kingdom, New Zealand and the Netherlands.

Australia ratified the OPCAT in December 2017, postponing the obligation to institute an NPM by up to three years through a Declaration under OPCAT Article 24. As a result, the country has until January 2022 at the latest to put in place its NPM.

The current ICPA newsletter offers readers a deep dive into the OPCAT implementation process in Australia through the contributions of seven leading human rights academics and detention monitors. Professor Bronwyn Naylor of RMIT University in Melbourne kicks off the Australian OPCAT discussion, offering an informative sweep to date of the overall implementation process in the country. In doing so, she comments on the task of designating multiple bodies as the future NPM:

“The implementation process in Australia therefore involves identifying all relevant places of detention, and all existing monitoring bodies, and – probably most challenging – decisions at state, territory and federal level about whether and how existing bodies could take on the OPCAT monitoring role, and what might be needed to make them OPCAT compliant …

Some of the Australian monitoring bodies, such as the prisons inspectorates and Ombudsman offices, have some or most of the OPCAT characteristics. However across Australia there are both gaps in coverage, and overlapping powers. There are also inconsistencies across states and territories, with varying degrees of independence and effectiveness of monitoring bodies.”

While a similar auditing process took place in Canada in 2017-2018, relatively little information about it has been allowed to seep into the public domain.

Down Under
Ground Floor Maitland Prison by Bill Collison (2012).

In contrast, according to Professor Naylor, in Australia the process of identifying places of detention and establishing a baseline of the extent to which existing oversight bodies are currently OPCAT-compliant is being carried out by an arms-length government body designated to coordinate OPCAT implementation in the country, the Commonwealth Ombudsman. Unlike in Canada, this study is to be made public in an upcoming 2019 report.

Contemporaneously the Australian Human Rights Commission has been conducting a broad constituency consultation into the role of civil society in the implementation of the OPCAT as well as the later operation of the NPM (please visit the institution’s OPCAT Consultation Page). If Australia is willing and able to open up its OPCAT consultation process, Canada’s closed, locked-down process remains all the more perplexing.

In a nutshell, even though the Australian OPCAT consultation process has not been without certain criticism, it remains light years ahead of Canada in terms of its openness, transparency and inclusiveness. Professor Naylor’s article offers an excellent overview of this process up to the current point in time.

Steven Caruana, the Inspections and Research Officer at the Office of the Inspector of Custodial Services in Western Australia, and himself no stranger to these Canada OPCAT Project pages, convincingly argues how the OPCAT is being used to strengthen existing oversight bodies in the country, highlighting various illuminating examples thereof. He writes:

“These next two years are crucial times for the advancement of correctional oversight in Australia. Effective and substantial compliance with the OPCAT, in the fitting words of the Australian Human Rights Commissioner, Ed Santow, ‘…could be the single most positive development this decade in improving conditions in all Australian places of detention.’ State and Territory governments will need to turn their attention to the requirements of OPCAT. They will need to consider the most suitable existing agencies and what resourcing and legislative requirements will be necessary for them.

Equally important, Australian oversight agencies will need to proactively assess whether their mandate and methodologies are compatible with OPCAT.”  

Thus, OPCAT ratification is being used as a moment of introspection by the government authorities and certain existing oversight bodies, which is most encouraging.

Down Under
Light in the Darkness by Drew Douglas (2007).

In her contribution to the OPCAT discussion, Victorian Ombudsman Deborah Glass extends the above analysis to her own institution, noting:

“When, in 2017, the Commonwealth Government announced that Australia would ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), people might have assumed it would be business as usual in Victoria…

For those of us working in this area, however, it was clear that OPCAT would require change. It introduces more rigorous standards for local inspections of places of detention by National Preventive Mechanisms (NPMs). By opening detention to United Nations scrutiny, it also demands much closer attention to international standards for the treatment of detainees.”

Citing several so-called pilot OPCAT investigations undertaken from 2017 onwards, the author brings to life Steven Caruana’s key point that the OPCAT can be harnessed to improve and enhance existing oversight activities on the part of detention monitoring bodies.

In a further illuminating article, Rebecca Minty and Holly Fredericksen of the Office of the Inspector of Correctional Services in the Australian Capital Territory, underscore how the OPCAT text was used to inspire the drafting of the statute which brought into life this oversight body in 2017:  

“The legislation to establish the ACT OICS was developed to reflect the requirements and expectations around the establishment of a national preventative mechanism under the OPCAT. This resulted in the creation of a preventative focused independent statutory authority with all the powers and guarantees required in OPCAT, for example, the right to access to any place of detention at any time, the power to speak with detainees and staff, and the right to access documents including registers. Furthermore, when conducting an examination and review, the ICS Act requires that the review team include those with expertise relevant to the subject matter being reviewed, and all reports from examinations and reviews must be publicly tabled in the Legislative Assembly.”

Once again, we see the positive influence of the OPCAT instrument as an international point of reference for best detention monitoring practice.

In other articles more operational accounts are offered of other existing Australian detention monitoring bodies, including the Office of the Inspector of Custodial Services in New South Wales, South Australian Ombudsman Office, and the Chief Inspector of the Queensland Corrective Services. All of these bodies may feasibly play a future role as part of Australia’s NPM. 

Down Under
Port Arthur (Tasmania) by Andrea Schaffer (2010).

Some Final Thoughts

With less than three years to put in place an NPM, the Australian OPCAT implementation process appears to be moving steadily forward. More impressively still, Australian civil society has succeeded in establishing an informal OPCAT network to coordinate their respective activities, to closely shadow as well as to feed into the on-going OPCAT consultation process, to which several of the above contributors belong. While no analogue civil society network currently exists in the Canadian context (bar this creaking website), this might be another best practice to be drawn from the Antipodean colleagues.

Though the task of re-purposing a sizeable number of existing monitoring bodies as the future NPM should not be taken lightly, several such oversight bodies in Australia are clearly using the OPCAT as central point of reference against which to gauge and recalibrate their existing inspection activities. In itself, this process of reflection appears to have been an important outcome of the OPCAT implementation process, despite there being much work ahead in this respect.

Yet none of the above would have been possible without a reasonable degree of willingness on the part of the Australian authorities to open up the domestic OPCAT process to discussion – crucially with civil society. Gloomily, as previously stated, such openness and inclusiveness has been almost entirely lacking in Canada, despite international recommendations and advice to this end.

This impenetrability and opacity aside, the OPCAT discussion process Down Under remains an invaluable benchmark of how such a national discussion might be conducted in future in Canada. It goes without saying that we wish our impressive Australian colleagues the very best of luck with these crucially important torture-prevention endeavours.


The next installment of the ICPA Network newsletter is scheduled for September 2019 with the featured country jurisdiction of Argentina and the featured topic of “Strengthening our Correctional Cornerstones: Rights, Dignity, Safety and Support.” Persons interested in contributing an article should contact the Office of the Correctional Investigator.

Read the current ICPA Network newsletter.

Read an earlier article based on the current newsletter titled Critical Expert Focus on Solitary Confinement.

Read ICPA Network newsletter No. 1.

Visit the Network’s webpage and see who is a member.

Make a request to join the Network by contacting Canadian Correctional Investigator, Ivan Zinger.

Listen to Steven Caruana talk about the Australian OPCAT process on C3R radio.

Posted by mp in Australia, Implementation process, NPMs, OPCAT, Oversight bodies, 0 comments

Serving Up The OPCAT Down Under

Probably rarely has the OPCAT ever been served for breakfast, but earlier this week Melbourne community radio station 3CR 855 AM broke new ground in this connection!

During the Tuesday Breakfast Show this week 3CR presenter Anya Saravanan interviewed Australian OPCAT expert Steven Caruana on the implications for Australia of ratifying the OPCAT.

Canadian human rights actors may be especially interested in this interview, as Australia is currently in the process of putting in place an NPM. Like Canada, Australia is also likely to designate multiple bodies as the future NPM.

In the interview Steven Caruana throws a timely spotlight on the importance of the OPCAT as a human rights instrument, its relevance and added value in the Australian context, and the wide scope of the definition of deprivation of liberty under the OPCAT. You can listen to Anya’s interview with Steven at around the 21 minute mark – please click here.

Steven Caruana 3CR interview
Steven Caruana 3CR

The thoughts of Steven Caruana on the OPCAT in Australia have previously been explored on the Canada OPCAT Project website, including an in-depth
interview conducted with him by Sydney Criminal Lawyers’ writer Paul Gregoire in September 2018.

In the course of 2017 Steven Caruana undertook in-depth research into the wider issue of how the OPCAT was functioning in reality as part of his Winston Churchill Trust Fellowship. The resulting publication (which has also been featured on this website), Enhancing best practice inspection methodologies for oversight bodies with an Optional Protocol to the UN Convention against Torture focus, identifies both good practice inspection methodologies as well as a concept of what constitutes a framework for good practice for NPMs.


Visit the Melbourne community radio station 3CR website and listen to their many other shows live or on podcast.

Listen to an audio-recording of the work of the New Zealand NPM, as highlighted in these pages.

Readers may also wish to listen to an earlier Soundcloud interview featured on this website with the Norwegian NPM, the Parliamentary Ombudsman.

Posted by mp in NPMs, OPCAT, 0 comments

OPCAT Ratification in Australia: Some Lessons for Canada?

After detention scandal upon detention scandal and no end of highly damaging domestic and international news headlines, Australia finally implemented a decisive measure to turn around this depressing state of affairs. The country ultimately took the decision to put pen to paper, ratifying the OPCAT in December 2017.

While the two countries may be many thousands of miles apart, the parallels between Australia and Canada are not insignificant, not least as Australia is a similarly geographically vast, federally structured state, comprising six states and two self-governing territories, which complicates the implementation of the OPCAT in practice. Despite these challenges, Australia has succeeded in ratifying the OPCAT and is currently in the process of instituting a multi-body NPM structure.

In a recent illuminating interview with the Australian OPCAT expert, Steven Caruana, Sydney Criminal Lawyers’ writer Paul Gregoire asked the interviewee a series of probing questions relating to the operation of the OPCAT detention-oversight system in practice, both at home and abroad.

OPCAT Australia

Steven Caruana, recent Winston Churchill Memorial Trust Fellow (copyright of Sydney Criminal Lawyers).

In the course of 2017 Steven Caruana undertook in-depth research into the wider issue of how the OPCAT was functioning in reality as part of his Winston Churchill Trust Fellowship. The resulting publication (which has also been featured on this website), Enhancing best practice inspection methodologies for oversight bodies with an Optional Protocol to the UN Convention against Torture focus, identifies both good practice inspection methodologies as well as a concept of what constitutes a framework for good practice for NPMs.

In the interview Steven Caruana responds to a series of questions of direct relevance to the Canadian context. These include questions on the impact of the OPCAT in real life, the improvements the OPCAT might engender in places of detention, the uniqueness of the OPCAT preventive approach, and the best NPM-related practices he encountered in the course of his research. The interviewee also replies to the age-old question of why the human rights of persons in detention should be safeguarded.

Best Practice cover

The Article 24 Procedure

Canadian readers may also be interested to know that, upon ratifying the OPCAT, Australia took advantage of the so-called Article 24 procedure, which allows states to delay the domestic implementation of the instrument (or visits by the UN Subcommittee) initially for up to three years. The idea for such a postponement at the national level is to create an extended window of opportunity for OPCAT States Parties to put in place an NPM.

Australia is certainly not the only country to have made good use of the Article 24 procedure, as Germany, Hungary, Kazakhstan, Philippines and Romania have all done so in recent years.

In a nutshell, the above interview comes as highly recommended reading, especially as the Australian expert responds eloquently to questions routinely raised in the Canadian context. His valuable research can also be accessed by clicking on the adjacent image.

Posted by mp in NPMs, OPCAT, Ratification, 0 comments