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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