Shining a Light in Dark Places

Australia has committed to establish a multi‑body National Preventive Mechanism (NPM) with responsibility shared among jurisdictions for the prevention of torture and cruel, inhumane, or degrading treatment or punishment. An effective NPM must adopt the UN definition of ‘deprivation of liberty’, be underpinned by legislation, and be properly funded and resourced. Failure to do this places Australia at risk of potential human rights abuses, compensation claims, rehabilitation costs, and reputational damage.

Australia ratified the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in 2017, fulfilling a pledge made during its Human Rights Council election campaign.¹

Ratification was also a response to the Royal Commission into the Protection and Detention of Children in the NT which found evidence of widespread mistreatment, verbal abuse, humiliation, and isolation of young people at the Don Dale Youth Detention Centre.² The then Australian Human Rights Commissioner, Ed Santow, hailed this ‘a once-in-a-generation opportunity to shine a light in these dark places, to cease detention practices we know to be harmful, and to learn from best practice in Australia and around the world.’³

OPCAT requires the establishment of an National Preventive Mechanism (NPM) – an independent monitoring mechanism empowered to conduct regular, preventive, and human rights focused visits to all places where the state does or may deprive people of liberty. OPCAT purposefully adopts a broad, open approach to what are considered places of deprivation.⁴ This means both traditional places, like prisons and police cells, as well as non-traditional places, like aged care and disability group homes, fall within its scope.

Through its visits, the NPM focuses on identifying shortcomings in rules, procedures, and practices and makes recommendations promoting institutional reform and good practices that reduce the risk of ill-treatment. Unsurprisingly, when announcing the intention to ratify OPCAT, the then Commonwealth Attorney General, the Hon George Brandis MP, acknowledged:

A year later, Dr Aaron Groves, the South Australian Chief Psychiatrist, remarked:

At the Oakden Older Persons Mental Health Service in SA in 2016, residents were over-medicated, malnourished, injured, bound for up to 10 hours a day, and isolated in squalid conditions,⁷ resulting in the Royal Commission into Aged Care Quality and Safety (costing more than $100 million).

After ratifying OPCAT, Australia postponed implementing its obligation to establish an NPM for four years and now is one of only two countries to have been granted a further one-year extension.⁸ Australia intends to establish a multi-body NPM with responsibility shared among the jurisdictions. Other countries opting for a similar model include the United Kingdom, Malta, and New Zealand.

In 2018, I undertook my Churchill Fellowship⁹ to study OPCAT implementation in the United Kingdom, New Zealand, Denmark, Norway, Switzerland, Greece, and Malta. This confirmed that the effectiveness of an NPM could not be divorced from its operational framework – a view strengthened through my academic work, continued inspection practice, and sustained engagement with the international OPCAT community.

Policy issues

Three urgent policy issues need to be addressed to ensure effective implementation:

1. expanding the scope of the NPM;
2. enacting primary legislation; and
3. providing appropriate funding.

1. Expanding the scope of the NPM

The Australian Government has formally restricted the NPM’s focus to ‘primary places of detention’. These include:

• adult prisons
• juvenile detention facilities (excluding residential secure facilities)
• police lock-up or station cells (holding people for more than 24 hours)
• closed facilities or units where people may be involuntarily detained by law for mental health assessment or treatment (holding people for more than 24 hours)
• closed forensic disability facilities or units where people may be involuntarily detained by law for care (for more than 24 hours)
• immigration detention centres
• military detention facilities.

It notes this list ‘reflects the position that the challenges posed by the deprivation of people’s liberty are at their most significant in these places of detention’ and that full implementation is to be an ‘iterative process.’¹⁰

Australia is the only country to have taken this approach, and the former UN Special Rapporteur on Torture, Manfred Novak, has said that ‘this restricted definition might violate OPCAT.’¹¹
The Australian Human Rights Commission in Implementing OPCAT in Australia (2020) says ‘… the Australian Government should ensure that OPCAT applies to all places where people are or may be deprived of their liberty, and all places of detention should be subject to inspection by an NPM.’¹² While supporting ‘an approach … in which NPMs prioritise visits to particular places of detention, where the need is likely to be greatest,’¹³ the Commisson argues that this was for the NPM, not the state, to decide.

This limited scope has generated controversy.

The Royal Commission into Aged Care Quality and Safety reported that ‘the inappropriate use of unsafe and inhumane restrictive practices in residential aged care has continued, despite multiple reviews and reports highlighting the problem.’¹⁴ However, the Australian Government concluded at Supplementary Budget Estimates 2019–20 that:

The Australian NPM’s mandate should not be inhibited in this way, and it should be free to determine its own priorities.

Case study 1: Malta

Malta ratified the OPCAT in September 2003. Its NPM comprises two bodies with authority to visit immigration detention and prison establishments – clearly an insufficient practical mandate.
In 2015, the UN Working Group on Arbitrary Detention recommended the NPM’s jurisdiction ‘… be extended beyond the closed detention centres to other places, such as the mental hospital, elderly care facilities, and even private houses, whenever reliable information exists that individuals are being deprived of their liberty.’¹⁶

2. Enacting primary legislation

In its report, the Australian Human Rights Commission concluded that:

While it considered an Intergovernmental Agreement a possible alternative, it concluded this would ‘not present an equivalent, or adequate, alternative to legislation that gives full effect to the key provisions of OPCAT itself.’¹⁸

The Australian Government has consistently expressed the view that primary legislation is unnecessary.¹⁹ In regard to an Intergovernmental Agreement, it has fluctuated between this being the ‘centre’ of the implementation process,²⁰ to being ‘not required’²¹ and, more recently, to being ‘useful’ in providing a clear framework for how OPCAT will be implemented in Australia.²²

Legislation should be drafted through an open and transparent process including consultation with state and territory governments, the Australian Human Rights Commission, Commonwealth Ombudsman, proposed and designated NPMs, and civil society, including the Australia OPCAT Network.

Case study 2: The United Kingdom

The United Kingdom ratified the OPCAT in 2003, establishing its NPM (UK NPM) in March 2009.²³ Existing monitoring bodies were designated, with three additional bodies subsequently added.²⁴ John Wadham, Independent Chair of the UK NPM, noted:
‘ … the only kind of official status of the NPM is a Ministerial Statement saying we have designated the following organisations, so there’s no guarantee of our independence as an NPM. There may be guarantees of the independence of the particular parts but that varies from body to body. Some of those organisations have something in their legislation about the NPM but most don’t.’
The UK NPM ’has held a longstanding goal to be placed on a statutory footing in order to strengthen and protect its work,’²⁵ raised repeatedly since 2011. The absence of primary legislation has been criticised by the European Committee for Prevention of Torture (CPT)²⁶, the UN Committee against Torture (CAT),²⁷ and the UN Subcommittee on Prevention of Torture (SPT).²⁸

3) Providing appropriate funding

Funding has emerged as the most significant stumbling block to the establishment of the Australian NPM.²⁹ In March 2021, the NSW Attorney General stated:

Similar concerns about the need for dedicated Commonwealth funding have also been expressed by Tasmania, Victoria, and Queensland.³¹

In July 2021, the Australian Government pledged ‘funding over two years from 2021–22 to support states and territories.’³² However, it also said ‘jurisdictions are responsible for funding their own oversight and detention arrangements on an ongoing basis.’³³

The Commonwealth Ombudsman emphasised the importance of properly resourcing OPCAT implementation in its 2019 Baseline Assessment of Australia’s OPCAT Readiness, stating that:

The costs of Australia’s NPM needs to be weighed against the cost of taking OPCAT seriously. In mid-2021, $35 million compensation was awarded to those ill‑treated at the Don Dale Youth Detention Centre. The associated Royal Commission cost around $70 million. The cost to Australia’s international reputation and the impact on the lives of those ill-treated in detention is overwhelming.

Case study 3: New Zealand

New Zealand ratified the OPCAT in 2007, designating four existing monitoring bodies and the New Zealand Human Rights Commission as the coordinating body (NZ NPM).
In 2017, Professor Judy McGregor said under-resourcing had impacted the NPM’s

‘… capacity to carry out monitoring to the extent required by the protocol, and, by diverting resources from other work streams, also impacts on their core functioning’. It had led to ‘non-coverage by the NPMs of some places of detention in New Zealand, and concern by the SPT of the scope of the NPMs’ mandates.’³⁵

‘The overarching challenge faced by NPMs is how to function most effectively within the limited resources they have available … maintaining independence and continuing to build credibility … The potential costs of not investing in OPCAT prevention include compensation claims for breaches of rights; legal, medical and rehabilitation costs; and wider detriment to public trust and confidence in the detention systems.’³⁶ – NZ NPM.

Policy recommendations

To fulfill its ambitions to establish an effective NPM to meet its OPCAT obligations, it is recommended that the Australian Government should:

1. accept the interpretation of ‘deprivation of liberty’ adopted by the UN SPT
2. enact primary legislation, developed in consultation with relevant stakeholders, to give practical effect to OPCAT in Australia
3. ensure the NPM is properly funded and resourced.

Stakeholder consultations

During my Fellowship I engaged with 21 NPM bodies, 11 peak organisations, six human rights commissions (or similar), four current or former UN mandate holders or treaty body members, and other torture prevention experts. I undertook field observations in the UK and Greece. I have served as Coordinator of the Australia OPCAT Network – a coalition of more than 200 stakeholders with interest in OPCAT implementation. I have made presentations to the Australian Red Cross, Victorian Equal Opportunity and Human Rights Commission, Danish Institute against Torture, Irish Penal Reform Trust, Inspector of Custodial Services WA, University of Tasmania, and the Disability Royal Commission. I have consulted with the SA, Tasmanian, Queensland, NSW, and the NT governments, resulting in amendments to draft bills, including the OPCAT Implementation Bill 2021 (Tasmania), Correctional Services (Accountability and Other Measures) Amendment Bill 2021 (SA) and the draft Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Amendment Bill 2022 (NT).

Acknowledgements

I would like to thank Professor Sir Malcolm Evans KCMG, OBE, Professor of Public International Law, University of Bristol, and Former Chair of the UN Subcommittee for Prevention of Torture 2011–2020, and Ms Lorraine Finlay, Australian Human Rights Commissioner, who provided expertise, advice, and insight through their peer review of this article. Any errors or omissions are my own.

^{Published 23 November 2022}

Steven Caruana is coordinator of the Australia OPCAT Network, a coalition of non-government organisations, academics and statutory offices concerned with oversight of places of detention. Steven is a Specialist Advisor for the Australian Human Rights Commission and has monitoring experience across mental health, corrections, aged care and immigration detention. Read more about Steven Caruana and his Churchill Fellowship.

References and endnotes

1. Minister for Foreign Affairs. ‘Ratification of OPCAT caps year of significant human rights achievements for Turnbull Government.’ Joint media release. 15 December 2017.
   https://www.foreignminister.gov.au/minister/julie-bishop/media-release/ratification-opcat-caps-year-significant-human-rights-achievements-turnbull-government
2. Australian Government and Northern Territory Government, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory. Final Report (2017) Vol 1. 10–16. https://www.royalcommission.gov.au/system/files/2020-09/Volume%201.pdf
3. Australian Human Rights Commission. ‘Making detention safe and humane: can we grasp a once-in-a-generation opportunity?’ Austin Asche Oration, Australian Academy of Law and Charles Darwin University. 19 September 2017.
   https://humanrights.gov.au/about/news/speeches/making-detention-safe-and-humane-can-we-grasp-once-generation-opportunity
4. United Nations Office of the High Commissioner for Human Rights. Preventing Torture: The Role of National Preventive Mechanisms A Practical Guide. Professional Training Series 21. New York and Geneva: United Nations, 2018, 6–7. https://www.ohchr.org/Documents/HRBodies/OPCAT/NPM/NPM_Guide.pdf
5. Australian Department of Foreign Affairs and Trade. ‘Joint doorstop interview’. Transcript, 09 February 2017. https://www.foreignminister.gov.au/minister/julie-bishop/transcript-eoe/joint-doorstop-interview
6. Towards Eliminating Restrictive Practices (TERP). TERP_OPCAT Panel Discussion. Presented at the 12th National Towards Eliminating Restrictive Practices Forum. 7–8 November 2018. 03:19. https://vimeo.com/306299796
7. Groves, A, Thomson, D, McKellar, D, and Procter, N.
   The Oakden Report. Adelaide, South Australia: SA Health, Department for Health and Ageing, 2017. https://www.sahealth.sa.gov.au/wps/wcm/
8. Commonwealth of Australia. Senate Standing Committee on Legal and Constitutional Affairs. Additional Budget Estimates 2021-22. Proof Committee Hansard. 15 February 2022. 61.
   https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Estimates_reports/Additional2122; United Nations Committee Against Torture. Decision of the Committee against Torture, adopted at its seventy-third session (19 April 2022 – 13 May 2022), on the request of Australia, under article 24, paragraph 2, of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/AUS/INT_CAT_DES_AUS_73_33933_E.pdf
9. Caruana, S. Enhancing best practice inspection methodologies for oversight bodies with an Optional Protocol to the Convention Against Torture focus. Churchill Fellowship Report: The Winston Churchill Memorial Trust, 2018. https://www.churchilltrust.com.au/project/to-enhance-best-practice-inspection-methodologies-for-oversight-bodies-with-an-optional-protocol-to-the-convention-against-torture-focus/
10. Senate Standing Committee, Additional Estimates 2020–21. Response to Question on Notice –
    LCC-AE20-50. 3 March 2020.
11. Manfred, N. OPCAT series: Australia’s obligations under OPCAT: The challenging task of establishing an effective NPM in a federal state. University of Western Australian Public Policy Institute. 16 December 2019. https://www.news.uwa.edu.au/archive/2019121611779/uwa-public-policy-institute/opcat-series-australia-s-obligations-under-opcat-challengi/
12. Australian Human Rights Commission (AHRC). Implementing OPCAT in Australia. Sydney: Australian Human Rights Commission, 2020, 44–45.
    https://humanrights.gov.au/sites/default/files/document/publication/ahrc_2020_implementing_opcat.pdf
13. AHRC, Implementing OPCAT, 44–45.
14. Australian Government. Royal Commission into Aged Care Quality and Safety. Final Report: Care, Dignity and Respect, the current system, (2021) Vol 2, 99. https://agedcare.royalcommission.gov.au/sites/default/files/2021-03/final-report-volume-2_0.pdf
15. Senate Standing Committee, Additional Estimates 2020-21. Response to Question on Notice –
    LCC-SBE19-141. 4 February 2020. https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=b5bb497e-4175-432b-be2b-a8d17c839ad7
16. United Nations Human Rights Council. Report of the Working Group on Arbitrary Detention on its follow-up visit to Malta. Switzerland: United Nations Human Rights Council, 2016.
17. AHRC, Implementing OPCAT, 55.
18. AHRC, Implementing OPCAT, 55.
19. Senate Standing Committee, Additional Estimates 2020–21. Response to Question on Notice – LCC-BE20-90. 16 December 2020; Senate Standing Committee, Additional Estimates 2020–21. Response to Question on Notice – LCC-SBE21-057. 16 December 2021.
20. Johnson, M. Senate Standing Committee Legal and Constitutional Affairs Legislation Committee. Estimates. 23 May 2018. 122. https://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/3cae4e3c-b6d4-4b18-b464-b5e055c40682/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2018_05_23_6149_Official.pdf;fileType=application%2Fpdf
21. Commonwealth of Australia. Senate Standing Committee on Legal and Constitutional Affairs. Budget Estimates 2020-21. Response to Question on Notice – LCC-BE20-90. 16 December 2020.
22. Australian Senate. Question on Notice no. 4267
    9 November 2021. https://www.aph.gov.au/api/qon/downloadquestions/Question-ParliamentNumber46-QuestionNumber4267.
23. Melissa, C. ‘Time’s up for Australia to implement OPCAT, commissioner says.’ The Mandarin.
    25 January 2022. https://www.themandarin.com.au/179473-times-up-for-australia-to-implement-opcat-commissioner-says/
24. Senate Standing Committee, Respons – LCC-BE20-90.
25. United Kingdom National Preventive Mechanism. ‘Background.’ Accessed 25 January 2022.
    https://www.nationalpreventivemechanism.org.uk/about/background/
26. United Kingdom National Preventive Mechanism. Monitoring places of detention during COVID-19, 12th Annual Report of the United Kingdom’s National Preventive Mechanism 2020/2021. London: National Preventive Mechanism, 2022. 47. https://s3-eu-west-2.amazonaws.com/npm-prod-storage-19n0nag2nk8xk/uploads/2022/02/6.7499_NPM_AnnualReport_2020_21_WEB.pdf
27. European Committee for Prevention of Torture. Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to 25 October 2018. Strasbourg: Council of Europe, 2019, 10. https://rm.coe.int/1680982a3e
28. United Nations Committee Against Torture. Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, 2019, 16–17. https://docstore.ohchr.org/SelfServices/FilesHandler
29. United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Comments of the United Kingdom of Great Britain and Northern Ireland on the recommendations and observations addressed to it in connection with the Subcommittee visit undertaken from 8 to 19 September 2019, 31 May 2021, 24–29.
30. The Hon. Mark Speakman. Budget Estimates 2021 Questions Taken on Notice Portfolio Committee No. 5 – Legal Affairs. Attorney General and Prevention of Domestic Violence, 2021, 35. https://www.parliament.nsw.gov.au/lcdocs/other/15381/AQON%20-%20Attorney%20General%20and%20Prevention%20of%20Domestic%20Violence%20-%20Minister%20Speakman.pdf
31. The Hon. Elise Archer. House of Assembly Estimates Committee B. Parliament of Tasmania. 8 September 2021. 25. https://www.parliament.tas.gov.au/ParliamentSearch/isysquery/646e1e1a-aef8-4738-9d7a-87774dd880e2/5/doc/; Jack Latimore. ‘Deaths in custody oversight missing as government deadline passes.’ The Sydney Morning Herald. 20 January 2022. https://www.smh.com.au/national/deaths-in-custody-oversight-missing-as-government-deadline-passes-20220120-p59pwv.html; Parliament of Victoria Legislative Council Legal and Social Issues Committee. Inquiry into Victoria’s criminal justice system, Victoria: Victorian Government Printer, 2022, Vol 2, 630. https://www.parliament.vic.gov.au/images/stories/committees/SCLSI/Inquiry_into_Victorias_Justice_System_/Report/LCLSIC_59-10_Vic_criminal_justice_system.pdf ; The Hon. Leanne Linnard. Record of Proceedings. Queensland Parliament. 26 May 2022, 1479. https://documents.parliament.qld.gov.au/events/han/2022/2022_05_26_WEEKLY.pdf
32. National Indigenous Australians Agency. Closing The Gap Commonwealth Implementation Plan. Canberra: Australian Government, 2021, 50.
    https://www.niaa.gov.au/resource-centre/indigenous-affairs/closing-gap-implementation-plan
33. Australian Senate. Question on Notice 4249.
    8 November 2021. https://www.aph.gov.au/api/qon/downloadquestions/Question-ParliamentNumber46-QuestionNumber4249
34. Commonwealth Ombudsman. Implementation of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Baseline Assessment of Australia’s OPCAT readiness. 2019, 41. https://www.ombudsman.gov.au/__data/assets/pdf_file/0025/106657/Ombudsman-Report-Implementation-of-OPCAT.pdf
35. McGregor, J. ‘The challenges and limitations of OPCAT national preventive mechanisms: lessons from New Zealand.’ Australian Journal of Human Rights, 23, 3 (2017), 351–367.
    36 New Zealand Human Rights Commission. OPCAT in New Zealand 2007–2012, A review of OPCAT implementation by New Zealand’s National Preventive Mechanisms. Auckland: Human Rights Commission, 2013, 4. https://www.hrc.co.nz/files/2214/2398/7100/Opcat-2013_web.pdf