NPM

Academic News & Views: Twelve Years On – Reflections on New Zealand’s NPM

Some twelve years into its existence New Zealand barrister and High Court solicitor Michael White has offered some fascinatingly detailed insights into the operation of the country’s NPM.

Frequent visitors to this website will recall that New Zealand’s multi-body NPM is no stranger to these pages. Comprising some five different specialized bodies with the New Zealand Human Rights Commission executing the overall coordination role, the NPM’s operation has not been entirely without issue.

In an article titled ‘The role and scope of OPCAT in protecting those deprived of liberty: a critical analysis of the New Zealand experience’ author Michael White advances a balanced account of the functioning in practice of the mechanism. The academic piece appears in the Australian Journal of Human Rights’ tremendous Special Issue on the OPCAT, several articles from which have been showcased in these pages in recent weeks.

The focus on the New Zealand NPM is of particular interest to these pages, as Canada is also likely to adopt a multi-body structure as its future NPM.

Twelve years
Christchurch Police Car in The Sq. by NCSphotography (2010).

To briefly recap, the New Zealand NPM comprises five different specialized bodies, including: New Zealand Human Rights Commission; Office of the Ombudsman; Independent Police Conduct Authority; Office of the Children’s Commissioner; and the Inspector of Service Penal Establishments. More detailed information about the detention responsibilities of the different NPM bodies can be found on the Human Rights Commission’s website.

In his article, Michael White casts the operation of the New Zealand NPM for the most part in a positive light, as follows:

“Since 2007, OPCAT in New Zealand has developed and become a strong part of New Zealand’s human rights framework … The impact of OPCAT monitoring on the rights of those deprived of their liberty in New Zealand is significant. For example, positive progress includes upgrades and modifications to facilities; changes to policy and practice; and in a number of instances, identifying and addressing issues or problems relating to the situation of individuals in detention. However, this has not been without challenges.” (2)

In doing so, the author enumerates the various areas where clear gains have been made in terms of improvements. Such advances have included, among other things, the following:

  • The establishment of the NPM in 2007 introduced for the first time the independent monitoring of closed health and disability settings. Through the new NPM mandate independent monitors have been able to scrutinizes practices affecting the rights of persons detained in such locations;
  • Police policies and training have been updated to better identify risks and to prevent deaths in custody;
  • Despite on-going problems regarding their practice (as also highlighted in the article) the use of seclusion and restraint practices are now subject to better management processes;
  • Improvements have been implemented to the way sentencing orders are recorded and monitored, resulting in more timely access to parole hearings;
  • The introduction of systems have been ensured to track the use of force and search procedures;
  • Various improvements have been made to conditions of detention;
  • And there has been a raising of awareness of the situation of vulnerable groups in detention, especially LGBTQI.

As highlighted in a recent post, just as the Norwegian NPM, the Parliamentary Ombudsman, has been a driver of change, the New Zealand mechanism has similarly been a catalyst for betterment.

Twelve years
Australian Journal of Human Rights – image copyright of the AHRC Centre at UNSW Sydney.

Nonetheless, some very tangible challenges exist, of which funding remains a very significant factor. Michael White has underscored this key point:

“While NPMs all have a degree of structural independence, in practice independence can be compromised due to funding arrangements, resource constraints and existing operating measures. These issues will need to be continually reviewed as OPCAT continues to mature in Aotearoa, New Zealand.

The impact of resource constraints should not be underestimated. Monitoring visits in New Zealand are generally carried out by between one and four people. Furthermore, visit teams are not truly pluralistic as envisaged by OPCAT. They do not represent people with lived experience, or the diversity of the population (and more specifically the detained population). Furthermore, at times they lack the specific professional expertise to monitor a wide-ranging ambit of detention settings.” (13)

The author also notes that the regularity of visits undertaken by the NPM has been restricted by existing resources.

Somewhat surprisingly, the NPM does not widely publish the outcome of its activities, which is also rightly deemed to be problematic in the eyes of Michael White. According to this legal expert, until recently the NPM only published an Annual Report and no other reports of its monitoring activities were readily available. In contrast, other NPMs do regularly publish reports above and beyond just an annual document.

Finally, as a further challenge, the scope of OPCAT Article 4 and the legal understanding of deprivation of liberty in New Zealand is more limited than might be the case elsewhere. However, Michael White acknowledges that this discussion is on-going:

“In June 2018, the Minister of Justice gazetted new responsibilities for the Office of the Ombudsman under its OPCAT mandate. The Ombudsman is now responsible for monitoring dementia units in private aged care facilities (as well as court cells). While this is a significant step forward, there are still a wide range of places where people are or may be deprived of their liberty that are not covered by New Zealand’s NPM designations, such as community disability residences, aged care homes and educational facilities.”

This same point also relates to the deprivation of liberty of persons in residential care by dint of their lack of legal capacity. The author underscores the potential role the NPM might play in relation to the New Zealand’s international obligations under the UN CRPD in this same regard.

Based of these twelve-year-long OPCAT reflections the writer advances a list of some nine key elements, which he deems crucial for an effective and OPCAT-compliant framework. These key elements include NPM attributes such as independence, mandate, resourcing, transparency and accountability, collaboration, expertise, and engagement with civil society, among other essential items. If Canada is to institute an effective NPM, all nine elements should be taken heed of by the Canadian authorities.

In summary, the experiences of the New Zealand NPM are there to be drawn on by Canadian actors, more so at a time when OPCAT ratification is said to be under consideration in the country (despite the absence of any public information about progress in this regard). In his highly engaging article Michael White succeeds in great measure in highlighting the gains made by the NPM over the past twelve years as well as the existing challenges facing the New Zealand multi-body mechanism.


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

The above article was published in the current issue of the Australian Journal of Human Rights, on 16 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, including on immigration detention and the OPCAT.

Lean more about the operation of the New Zealand NPM.

Visit the New Zealand Human Rights Commission’s website on the OPCAT.

Posted by mp in New Zealand, NPMs, OPCAT

Making A Difference: Norway’s NPM

Have you ever wondered if NPMs are making a difference in practice? For many of us interested or otherwise engaged in torture prevention the above conundrum is a recurrent question. After all, if the sum total of any preventive work is at best negligible, or even worse, why waste the time and effort?

In its newly published 2018 Annual Report the Norwegian NPM takes a fresh look at this fundamentally important question, devoting a full chapter to gauging impact. Most positively, in four of its past five Annual Reports the NPM has retrospectively cast its eye over the year of activities to document effected change.

Even though Canada and Norway are quite different national contexts, not least in terms of size of geography and population, Norway’s industrious NPM has nonetheless advanced some illuminating insights into how one NPM is making a difference on the ground through its preventive work.

making a difference

As noted in these pages just a few months ago, Norway ratified the OPCAT in 2013 and designated the Parliamentary Ombudsman as the NPM. The NPM has been operating since 2014 and consists of an independent department within the Parliamentary Ombudsman, comprising a team of multi-disciplinary staff. Detailed information about the structure and operation of Norway’s NPM can be found in the 2018 Annual Report.

The Norwegian NPM has described in detail how it is making a difference in practice in chapter 5 of the 2018 report. In these pages it has sketched out the all-important process of follow-up to monitoring visits, as follows:

“After each visit, the NPM publishes a report describing its findings and making recommendations for preventing torture, inhuman and degrading treatment. Much of the preventive work begins after the reports have been published.

We ask all places we visit to provide written feedback on how the recommendations have been followed up within three months of the visit report being available.

The feedback we received throughout the year indicates that the institutions generally followed up the recommendations in a thorough manner. The majority of places have implemented numerous measures that play an important role in reducing the risk of inhuman and degrading treatment …

Certain recommendations require limited effort to follow up, while others are more challenging. This means that the NPM’s follow-up can sometimes continue over a long period, and at other times be concluded relatively quickly.” (49)

The report highlights the measured impact of the Norwegian NPM’s activities vis-a-vis specific thematic areas. These include the following:

  • Documenting the use of force in detention;
  • Preventing the use of coercive measures;
  • Ensuring the right to information can be exercised in practice;
  • Facilitating the participation of detainees in decisions which impact on them;
  • Improving the material conditions of detention;
  • Enhancing injury reporting procedures;
  • And minimizing resort to solitary confinement, isolation and segregation.

It bears noting that in 2018 a sizeable number of these gains were made in child welfare, health care and immigration detention settings. In one instance a child welfare facility was even temporarily closed due to allegations of abusive use of force.

Making a difference

As in Canada, resort to solitary confinement, isolation and segregation by different detaining authorities, including in prisons and health care settings, has been a significant cause for concern for the Norwegian NPM. In late 2018 the NPM also published a separate thematic report on the use of segregation in mental health care institutions, a summary of which is available in English.

In conclusion, the 2018 Annual Report of the Norwegian Parliamentary Ombudsman offers Canadian (and other) readers a very welcome insight into how decisive change can be effected in a range of detention settings and, it should be stressed, over a relatively short period of time. For those persons on the receiving end of such change, the positive impact ought not to be underestimated.


Visit the English version of the Norwegian NPM’s website.

Listen to an interview with the Norwegian NPM Director, Helga Fastrup Ervik, and learn more about the activities of her institution.

Read the current and past Annual Reports of the Norwegian NPM.

Read the summary of the December 2018 report, Segregation in mental health care institutions – risk of inhuman treatment.

Posted by mp in Health care, Norway, NPMs, Places of detention, Prisons, Psychiatric detention, Solitary confinement

New OPCAT Discussion Paper! Instituting A National Preventive Mechanism In Canada

The Canada OPCAT Project today launches a major discussion paper on how the OPCAT might be implemented in Canada. Titled ‘Instituting A National Preventive Mechanism In Canada – Lessons Based on Global OPCAT Implementation’ the paper argues that a brand new institution should be established as the country’s future NPM under the instrument.

To date, the very limited publicly available information strongly suggests that Canada is considering designating an array of existing detention oversight bodies as part of a multi-body NPM.

However, as the on-going government-sponsored OPCAT consultation process in Canada has been almost entirely closed to civil society and Indigenous groups, it remains impossible at the present time to say whether this is the case for certain.    

Nonetheless, the published discussion paper strongly argues against such a potential multi-mechanism approach to OPCAT implementation in the country and contends that the optimal NPM solution would be to establish an entirely new structure.

Discussion paper
Prison by Kim Daram (2005)

The establishment of a specialized NPM would have to overcome some very tangible political and legal obstacles if it were to become a reality. Crucially, the Canadian Government and its provincial and territorial counterparts would have to develop an appetite to finance such a body.

Even so, the alternative approach of designating a combination of existing bodies at the federal, provincial and territorial levels would be arguably much more complicated politically, legally and organizationally and possibly even more expensive.

The research inevitably focuses in-depth on the existing human rights architecture in Canada as part of this wider discussion. In so doing, the discussion paper offers an analysis of the different mechanisms which could potentially play a role vis-à-vis the OPCAT, most commonly a combination of federal, provincial and territorial human rights commissions and ombudspersons offices.

The paper concludes, however, that without significant modifications to their legal statutes, mandates and operational foci, organizational structures, budgets and composition these mechanisms would be poorly placed to assume an OPCAT mandate.

In order that this discussion paper is not a mere exercise in mapping out different NPM scenarios in the Canadian context, the research also draws heavily on existing global OPCAT practice at the national level. This central focus of the research has been undertaken with a view to highlighting the potential shortcomings which frequently beset NPMs as well as to underscoring good NPM-related practice.

By drawing on this domestic analysis as well as an examination of OPCAT global practice, the key question is thereby explored of how the OPCAT might be effectively implemented in Canada in accordance with key international guidance and advice.

Even if readers disagree with the ultimate thrust of the document, its publication is primarily intended to stimulate a lively discussion in Canada on how the OPCAT might be implemented in practice. Surprisingly, to date, there has been relatively little academic research undertaken into this key question in the country. This discussion paper therefore seeks to plug this gap and explore how Canada might implement the instrument domestically.

Discussion paper Aberystwyth University

This research was originally undertaken by the Canada OPCAT Project’s Matthew Pringle in the course of 2018 as part of an LL.M. dissertation in International Human Rights and Humanitarian Law. It was presented to the Department of Law & Criminology at Aberystwyth University in Wales in late September 2018. The research was very well received by Aberystwyth University and in December 2018 it was formally awarded a mark of 95% as well as the Aberystwyth University Graduate School Prizes for the highest scoring dissertation and masters across the university.

However, please do not take Aberystwyth University’s word for it! Why not download the paper and make your own mind up whether a new NPM institution is the optimal solution for Canada’s challenge of implementing the OPCAT?


Posted by mp

NPMs In Practice: The View From New Zealand

From out of the archives comes a very illuminating discussion on the work of New Zealand’s NPM, as hosted in a previous edition of the highly respected Speak Up/Kōrerotia radio show. In this podcast the show’s host, Sally Carlton, interviewed Jacki Jones of the Office of the Ombudsman and Jolyon White of the Howard League in an aptly titled episode, ‘Monitoring Places of Detention’.

Comprising some five different bodies, the New Zealand NPM has now been exercising its OPCAT mandate for over a decade, since the country ratified the OPCAT in 2007. In view of the distinct possibility that Canada too may adopt a multi-body mechanism as its future NPM, the podcast from 2016 remains as relevant today as the day it was broadcast.

Among the different issues discussed during the podcast, most of which have direct relevance to the Canadian context, were included the following:

  • What constitutes deprivation of liberty?
  • What is the OPCAT and what does it mean for New Zealand?
  • What does the NPM focus on during visits and to what extent does the NPM conduct follow-up to the findings of the UN Subcommittee on the Prevention of Torture (SPT)?
  • What are the common concerns found in prisons?
  • What rights do persons in detention have?
  • Are mental health issues a prevailing factor in such settings?

The answers to these discussion questions are also interspersed with music. Thus, for readers with a penchant for fine New Zealand music such as Crowded House, the show additionally merits a closer listen.

 

Background information

The New Zealand NPM comprises five different specialized bodies, including: New Zealand Human Rights Commission; Office of the Ombudsman; Independent Police Conduct Authority; Office of the Children’s Commissioner; and the Inspector of Service Penal Establishments. More detailed information about the detention responsibilities of the different NPM bodies can be found on the Human Rights Commission’s website.

New Zealand NPMIn the context of this NPM arrangement the New Zealand Human Rights Commission has an overall organizational role with responsibilities for NPM coordination, reports, systemic issues, and liaison with the United Nations. It should be stressed, however, that the task of establishing the collective visibility of the NPM and coordinating its activities has not been without its challenges, not least in the absence of adequate resources.

During a visit to New Zealand in 2013 the UN Subcommittee on Prevention of Torture lamented the fact that no additional resources had been allocated to the five monitoring bodies when assuming the NPM mantle. The SPT stated in no uncertain terms: “Should the current lack of human and financial resources available to the mechanism not be remedied without delay, the State party will inevitably find itself in the breach of its obligations under the Optional Protocol.”[1]

In its most recent Annual Report from 2016-2017 the NPM has continued to bemoan its overall lack of resources, stating (on page 4):

The NPM’s potential remains underutilised as inadequate resourcing continues to constrain some NPMs. As a result, the mechanism is yet to make consolidated progress on a range of key issues of concern and has not been able to implement a more comprehensive monitoring approach that is in line with international best practice. Better resourcing would enable increased frequency of visits and better inspection coverage by all NPMs, as required under OPCAT. More funding would also mean the services of experts could be contracted to assist with visits when and where required. All NPMs should be fully resourced to carry out their OPCAT responsibilities.

Quite clearly, if the Canadian Government opts for a multi-body approach to implementing the OPCAT (as has been predicted in these pages), it should ensure at all costs that the NPM is adequately resourced. Regrettably, the New Zealand NPM is far from alone in being a significantly under-resourced national torture prevention body.

***

Read more about the New Zealand NPM here in English.

The New Zealand NPM’s latest Annual Report is available here.

The report of the 2013 visit to New Zealand by the UN Subcommittee is available in English and French.

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

[1] Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,  Visit to New Zealand undertaken from 29 April to 8 May 2013: observations and recommendations addressed to the State party – Report of the Subcommittee (UN Doc. CAT/OP/NZL/1, 10 February 2017) §12.

Posted by mp

Norway’s NPM: Some More Useful Lessons for Canada

In her cutting-edge series of human rights and criminal justice interviews the Irish broadcaster and writer, Jane Mulcahy, has posted a new Law & Justice Soundcloud interview with the Head of Norway’s NPM.

In this fascinating recent conversation with Helga Fastrup Ervik, Jane Mulcahy broaches a range of different OPCAT-related topics. Canadian human rights experts and lay-persons alike will find some interesting insights in this revealing exchange, including into the operation of Norway’s NPM in practice and the related challenges it faces.

Norway's NPM

Jane Mulcahy Interview with NPM Head, Helga Fastrup Ervik (copyright of Jane Mulcahy).

The Norwegian NPM representative also tackles the the question head on why countries like Canada and Ireland should ratify the OPCAT (at 10 minutes 30 seconds onwards).

In the interview Helga Fastrup Ervik makes it clear that, contrary to popular belief, all is not 100% well in her country’s prison estate. As in Canada, resort to isolation of prisoners and limited out-of-cell activity are common challenges found within the system.

Norway's NPMNorway ratified the OPCAT in June 2013 and designated the Parliamentary Ombudsman as the NPM the same month. The NPM has been operating since 2014 and consists of an independent department within the Parliamentary Ombudsman, comprising a team of seven multi-disciplinary staff. Detailed information about the structure and operation of Norway’s NPM can be found on its website in English.

A good snapshot of the scope activities of the activities of the Norwegian NPM can also be obtained by delving into the institution’s 2017 Annual Report (please click on the adjacent image to access this report) or its different news items.

Equally as interesting past OPCAT-focused interviews conducted by Jane Mulcahy are also available on-line, including with the UN Subcommittee on the Prevention Chair, Malcolm Evans, and Australian OPCAT expert, Steven Caruana.

Posted by mp