Monitoring places of detention – OPCAT

The SPT consists of 25 independent and impartial experts who have a threefold mandate to visit places of detention, provide advice to and assist respective governments and NPMs – on NPM establishment, function and co-operation with other international, regional and national like‑minded organisations. The SPT’s mandate is complementary to that of NPMs.

The SPT may visit any place under the jurisdiction of a State Party where persons may be deprived of their liberty. This includes, but is not limited to:

• police stations
• prisons (civilian and military)
• detention centres (e.g. pre-trial detention centres, immigration detention facilities, juvenile justice establishments)
• mental health facilities and
• social care institutions.

It recommends action to be taken to improve the treatment of detainees, including conditions of detention.

The SPT confirmed the dates of its Australian visit as 16–27 October 2022. On 23 October 2022, the SPT suspended its visit to Australia citing several reasons for its decision, including being prevented from accessing certain places of detention and not being provided all the relevant information and documents requested The SPT’s media release can be found here. On 20 February 2023, the SPT announced that it had formally terminated its visit because Australia was unable to provide the assurances requested by the SPT to resume its visit within a reasonable timeframe.

The Office continues to engage with the SPT. The SPT also previously signalled changes in how it engages with NPMs during country visits. As part of these changes, the SPT will no longer request that any reports made for NPMs be made public.

Further information about the SPT can be found here.

The Commonwealth National Preventive Mechanism (NPM) is responsible for monitoring places of detention that are controlled by the Commonwealth government. This includes immigration detention, and places of detention controlled by the Australian Federal Police (AFP) and the Australian Defence Force (ADF). Due to the requirements of OPCAT, the Commonwealth NPM CANNOT manage complaints.

Given Australia’s federal system of government, the Commonwealth and each state and territory government is required to nominate an NPM to monitor places of detention within their respective jurisdiction. As of December 2022, the following have been announced or nominated as NPMs:

Commonwealth Office of the Commonwealth Ombudsman

Western Australia Ombudsman Western Australia (for mental health and other secure facilities), Office of the Inspector of Custodial Services (WA) (for justice-related facilities including police lockups)

Northern Territory Office of the Ombudsman NT (as interim Coordinating NPM)

Australian Capital Territory ACT Inspector of Correctional Services, ACT Human Rights Commission, ACT Ombudsman (multi-body NPM)

Tasmania Mr Richard Connock (concurrently the Tasmanian Ombudsman and Custodial Inspector)

South Australia Official Visitors (for adult prisons), Principal Community Visitor (for closed mental health and closed forensic disability facilities), and Training Centre Visitor (training centres)

Coordinating Australia’s NPM Network

In July 2018, the Australian Government announced it had nominated the Office of the Commonwealth Ombudsman (the Office) as the NPM Coordinator. In this role, the Office is tasked with coordinating the Australian NPM Network, comprising the Commonwealth, state and territory oversight bodies nominated by their governments as NPMs. This may include collecting information, facilitating information sharing and collaboration, providing secretariat support and preparing consolidated reports about NPM activities.

The Office convenes meetings of Australia’s NPM Network, bringing together members to discuss OPCAT implementation. The NPM Network publishes a communiqué summarising its discussions after each meeting.

• The NPM Network Communiqué No. 8 - 24 May 2024
• The NPM Network Communiqué No. 7 - 13 March 2024
• The NPM Network Communiqué No. 6 - 27 November 2023
• The NPM Network Communiqué No. 5 - 15 August 2023
• The NPM Network Communiqué No. 4 – 24 March 2023
• The NPM Network Communiqué No. 3 – 12 December 2022
• The NPM Network Communiqué No. 2 – 12 August 2022
• The NPM Network Communiqué No. 1 – 8 March 2022

Terms of Reference outline the governance arrangements for the Network including membership, the role of the NPM Coordinator, the operation of the Network and reporting processes. The Terms of Reference can be found here.

The Australian NPM strategic plan sets out the Australian NPM’s overarching vision, mission and goals and can be found here.

Members of the Australian NPM have released the following joint statements to date:

• 18 October 2024 – Joint Statement – spit hoods and children in the Northern Territory
• 20 May 2024:  Joint statement - Little funding for torture prevention in federal Budget.
• 6 September 2023 – Joint Statement – Queensland law change and detention of children in watch houses and adult prisons
• 10 May 2023 – Joint Statement – No additional funding in 2023-24 Federal Budget
• 20 February 2023 – Joint Statement - SPT visit termination
• 20 January 2023 – Joint Statement – Australia’s NPM under OPCAT
• 21 November 2022 – Joint Statement – Detention of children and young people
• 26 October 2022 – Joint Statement – National Preventive Mechanism

Monitoring places of detention under the control of the Commonwealth

In July 2018, the Australian Government announced the Office as the NPM for places of detention under the control of the Commonwealth (the Commonwealth NPM). This includes places of immigration detention and places of detention under the control of the Australian Federal Police and the Australian Defence Force.

Our role is to monitor the treatment of people and the conditions of their detention and make recommendations for improvement. We have full and free access to detention facilities, which means we can choose which places we want to visit and when, and the people we want to interview.

Monitoring places of detention under the control of the Australian Capital Territory (ACT)

In January 2022, the ACT Government announced the ACT Ombudsman as one part of the multi-body NPM for places of detention under the control of the ACT (the ACT NPM), alongside the ACT Inspector of Correctional Services and the ACT Human Rights Commission.

The ACT Ombudsman, ACT Inspector of Correctional Services and ACT Human Rights Commission are meeting regularly to plan the joint implementation of this important new function.

The Office will be responsible for oversight of ACT Police cells in its capacity representing both the Commonwealth Ombudsman, as the Commonwealth NPM, and the ACT Ombudsman, as part of the multi-body ACT NPM.

Submissions on draft legislation

From time to time the Office makes submissions, either on its own behalf or on behalf of bodies constituting Australia’s NPM, to other jurisdictions on draft legislation relating to OPCAT, detention, and/or detention monitoring. Not all of these submissions are made public. The Office has made the following publicly available submissions:

• Submission by the Office of the Commonwealth Ombudsman on draft Custodial Inspector Amendment (OPCAT) Bill 2020 (Tas)
• Submission by the Office of the Commonwealth Ombudsman on draft OPCAT Implementation Bill 2021 (Tas)
• Submission by the ACT Ombudsman on the Inquiry into Terrorism (Extraordinary Temporary Powers) Amendment Bill 2022 (ACT).
• Submission by the Australian NPM on the draft Monitoring Places of Detention (Optional Protocol to the Convention Against Torture) Bill 2022 (Qld).

Submissions to UN bodies

• On 23 August 2024, members of the Australian NPM made a submission to the Committee against Torture’s follow-up procedure, providing information to help the Committee’s review of Australia’s performance under the Convention against Torture. Read the submission here.
• On 19 March 2024, members of the Australian NPM made a joint response to the report of the Subcommittee on Prevention of Torture’s 2022 visit to Australia. The response can be accessed here, the SPT’s visit report here, and the Government’s own reply to the report here.
• On 21 December 2023, members of the Australian NPM made a joint statement on the report of the Subcommittee on Prevention of Torture’s 2022 visit to Australia and the Australian Government’s reply. The joint statement can be accessed here.
• On 28 November 2023, members of the Australian NPM made a submission to the United Nations Special Rapporteur on Torture’s fourth thematic report which will focus on current issues and good practices in prison management. The submission can be accessed here.
• On 14 April 2023, members of Australia’s NPM made a submission to the UN Subcommittee on Prevention of Torture (SPT) on their draft General Comment on Article 4 of OPCAT relating to the definition of ‘places of detention’. The submission can be accessed here. The draft General Comment can be found here.
• On 30 September 2022, the Commonwealth Ombudsman provided a submission to the United Nations Committee against Torture as part of the Committee’s consideration of Australia’s sixth periodic report under the Convention against Torture.
• In November 2022, the Committee’s adopted its Concluding Observations on Australia’s sixth period report. The Committee’s Concluding Observations can be found here.
• On 14 March 2023, members of Australia’s NPM made a submission to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The submission was in response to the Special Rapporteur’s call for input on practices for the investigation, documentation, and prevention of deaths in custody in the criminal justice context. The submission can be accessed here.

Submissions to Parliamentary inquiries

• On 14 October 2024, members of the Australian NPM made a submission to the Senate Legal and Constitutional Affairs References Committee's inquiry into Australia’s youth justice and incarceration system. Read the submission here.
• On 4 August 2023, the Parliamentary Joint Committee on Human Rights (PJCHR) published a submission made by members of the Australian NPM. The submission is in response to the Committee’s inquiry into the effectiveness of Australia’s 2010 Human Rights Framework and the National Human Rights Action Plan. Read the submission here.

Annual Reports of the Australian NPM

The Office, as Commonwealth NPM and ACT Ombudsman, is a member of the Australian NPM. The Office is also NPM Coordinator for the Australian NPM.

• On 10 July 2024, the Australian NPM published its first Annual Report, for 2022–23. Read the full report here and a one-page snapshot here.

Australia’s implementation of OPCAT

Ombudsman’s OPCAT readiness report

In September 2019, the Office published a report about Australia’s readiness to implement OPCAT and the need to nominate Commonwealth, state and territory NPMs.

The report relied on information provided by existing inspection and oversight bodies to determine the extent to which they, in accordance with OPCAT:

• are independent of the entity they inspect/oversee
• have full access to people, places and records in detention facilities
• can visit facilities announced or unannounced
• are free to report publicly and to make recommendations
• are free to allocate their resources as they see fit, and
• visit facilities regularly, rather than in response to a complaint, as part of an investigation.

The report highlighted that, while there are existing inspection and oversight bodies in all jurisdictions, there are gaps in oversight, scope, resourcing and in some instances a lack of genuine independence in the inspecting bodies in various jurisdictions. The report serves as a baseline against which Australia may wish to track its progress over time.

Australian Human Rights Commission ‘Implementing OPCAT in Australia’ report 2020

In June 2020 the Australian Human Rights Commission (AHRC) published a report on implementing OPCAT in Australia. The Commission noted greater momentum is needed towards implementation and recommended the NPM Network be established as soon as possible and in a way that ensures all places of detention are subject to independent oversight.

The Office notes the AHRC’s report and specific recommendations. We will work with AGD and the Australian NPM Network to consider if and how these recommendations might be implemented.

Monitoring activities

Under OPCAT, NPMs are expected to provide regular public reporting about their monitoring activities, observations and recommendations to address risks of ill treatment of people in places of detention.

Since 2019, the Office has published reports about its activities to monitor immigration detention:

• 1 January to 30 June 2019, published February 2020
• 1 July to 31 December 2019, published August 2020
• 1 January to 30 June 2020, published June 2021
• 1 July 2020 to 30 June 2021, published June 2022.
• 1 July 2021 – 30 June 2022, published January 2023

In July 2020, in response to the COVID-19 pandemic, the Office issued a public statement about the Department of Home Affairs’ arrangements for preventing and managing COVID-19 in the immigration detention network.

On 7 October 2022, the Commonwealth Ombudsman and the Human Rights Commissioner, Lorraine Finlay, released a joint statement on the use of hotels as alternative places of detention for individuals in immigration detention.

The Office welcomes receiving information and research about issues that affect people deprived of their liberty. While the Office’s independence is key to its monitoring function under OPCAT, we value the role of civil society in informing our approach.

In early 2020, the Office of the Commonwealth Ombudsman established a civil society advisory group, the OPCAT Advisory Group (OAG), to provide expert advice and guidance to the Office about its functions and responsibilities as an NPM and as the Coordinator of the Australian NPM.  The OAG is governed by terms of reference, which can be found here.

The OAG’s first meeting was on 3 March 2020, and meetings currently take place twice a year. From 2021, the OAG agreed to publish a communiqué summarising its discussions after each meeting.

2024

• OAG Communiqué No 1, 2024 - 22 April 2024

2023

• OAG Communiqué No 2, 2023 - 16 November 2023
• OAG Communiqué No 1, 2023 - 12 May 2023

2022

• OAG Communiqué No 2, 2022 - 5 October 2022
• OAG Communiqué No 1, 2022 - 20 May 2022

2021

• OAG Communiqué No 3, 2021 - 30 November 2021
• OAG Communiqué No 2, 2021 - 28 July 2021
• OAG Communiqué No 1, 2021 - 21 April 2021

The OAG is chaired by the Commonwealth Ombudsman and comprises the following members:

• Mr Paris Aristotle AO – CEO, Foundation House
• Dr Eddie Cubillo – descendant of the Larrakia, Wadjigan and Central Arrernte peoples; lawyer and legal academic
• Ms Lorraine Finlay – Human Rights Commissioner
• Ms Carolyn Frohmader – human rights consultant
• Ms Anne Hollonds – National Children’s Commissioner
• Emeritus Professor Neil Morgan AM – Former Inspector of Custodial Services (Western Australia)
• Emeritus Professor Bronwyn Naylor OAM – RMIT University; co-founder of the Australian OPCAT Network
• Ms Yvette Zegenhagen OAM – Executive Director External Engagement, Australian Red Cross

The Ombudsman may also invite – as guests or permanent members – representatives to advise on issues affecting different groups including children, people with disability, people of diverse gender and/or sexuality, and the elderly.

The Ombudsman also consults other civil society stakeholders and continues to build and maintain ongoing dialogue with a wide variety of interested representatives from civil society beyond the OAG.

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Speeches by the Office of the Commonwealth Ombudsman:

• Termination of SPT visit – a radio interview with the AM Program on 24 February 2023, with Iain Anderson, and members of Australia’s National Preventive Mechanism, about the importance of Australia meeting its OPCAT obligations after the UN Subcommittee on Prevention of Torture terminated its visit to Australia.
  NPM Implementation - a short video message delivered on 20 January 2023.
  ‘Commencement of Australia’s National Preventive Mechanism obligations under OPCAT’,

National OPCAT Symposium, Melbourne, 9 September 2022
‘The Commonwealth Ombudsman’s work coordinating Australia’s NPM and monitoring Commonwealth places of detention’,

Future Justice and Corrections Summit, Sydney, 29 March 2022
‘Developments in OPCAT implementation in Australia, and the importance of the preventive mandate’

10th Annual Prisons Conference, Sydney, 15 June 2021
‘The Implementation of OPCAT in Australia and challenges for detention inspections in a COVID-19 world’,

‘Implementation of OPCAT in Australia - an update’, 2020 Future Justice and Corrections Summit, Sydney, 19 February 2020

8th Annual Prisons Conference, Brisbane, July 2019
‘Implementing OPCAT in Australia’, 7th Annual Prisons Conference, Melbourne, August 2018.

Workshops and webinars:

• On 9 September 2022, the Commonwealth Ombudsman and officers from the Commonwealth NPM and NPM Coordinator team attended the National OPCAT Symposium. The Symposium had several presentations by guest speakers, including the Commonwealth Ombudsman, and four workshops on effectively carrying out the NPM mandate.
• On 5 September 2022, the Office participated in a Global Detention Project webinar titled ‘The Many Tools of OPCAT for Preventing Harmful Migration-related detention’. The webinar discussed the role of NPMs and the SPT in monitoring migration-related detention.
• In July 2021 the Office participated as a panel member on the Australian Human Rights Commission’s webinar to discuss their report on Management of COVID-19 risks in immigration detention. The Commission’s report follows on from the Office’s statement on the management of COVID-19 risks in immigration detention facilities published in July 2020. A link to the webinar recording is here.

Australian resources

• Australian Human Rights Commission: Optional Protocol to the Convention against Torture
• ACT Inspector of Correctional Services: Research Portal

New Zealand resources:

• Crimes of Torture Act 1989 (New Zealand)
• Designation of National Preventive Mechanisms (New Zealand)

OPCAT internationally:

• Association for the Prevention of Torture
  • ‘Introduction to the OPCAT’ course (registration required)
• United Nations Subcommittee on Prevention of Torture

Australian legislation:

• Ombudsman Regulations 2017 (Cth)
• Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (ACT)
• Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (NT)
• OPCAT Implementation Act 2021 (Tas)
• Monitoring of Places of Detention by the United Nations Subcommittee on Prevention of Torture (OPCAT) Act 2022 (Vic)
• Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2023 (Qld)

If you wish to contact us on OPCAT matters, you can do so by clicking on the ”Make a complaint” button at the top of this page and select ‘Optional Protocol to the Convention against Torture (OPCAT)’ from the drop-down menu.

You can use this to provide us with information, or make enquiries, on:

• places of detention under the control of the Commonwealth (Commonwealth NPM)
• detention monitoring bodies across Australia (NPM Coordinator)
• the OPCAT Advisory Group (OAG).

Please note that while information provided and enquiries made will be considered or referred as relevant, we may not necessarily respond to you.