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 Australian Government’s decision to delay establishing its NPM does not extend to in-country visits by the SPT which may take place at any time.

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.

On 16 October 2022, the SPT commenced its inaugural visit to Australia.

On 23 October 2022, the SPT announced it had suspended its visit to Australia due to obstructions it encountered in carrying out its mandate under OPCAT. A press release regarding the SPT’s suspension can be accessed here.

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.

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 September 2022, the following have been announced 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 is working with the Attorney-General’s Department (AGD), which has overall responsibility for the implementation of OPCAT in Australia, to engage with state and territory governments and oversight bodies to foster progress towards implementation of the Australian NPM Network.

On 8 March 2022, the Office convened the first meeting of Australia’s NPM Network, bringing members together to discuss OPCAT implementation. A communiqué from the meeting can be found here.

On 12 August 2022, the Office convened the second meeting of Australia’s NPM Network, bring members together to discuss new OPCAT developments. A communiqué from the meeting can be found here.

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 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 members of Australia’s NPM (including the Office of the Commonwealth Ombudsman) on Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Bill 2022 (Qld).

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.

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.

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 (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 Network. The Advisory Group’s Terms of Reference are available here.

The Advisory Group’s first meeting was on 3 March 2020 and meetings take place three times each year. From 2021, the Advisory Group agreed to publish a Communique summarising its discussions after each meeting.

The Advisory Group Communique No 1 – 21 April 2021 is available here.

The Advisory Group Communique No 2 – 28 July 2021 is available here

The Advisory Group Communique No 3 – 30 November 2021 is available here.

The Advisory Group Communique No 1 – 20 May 2022 is available here.

The Advisory Group Communique No 2 – 5 October 2022 is available here.

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

• Mr Paris Aristotle AO – CEO, Foundation House
• Emeritus Professor Neil Morgan – Former Inspector of Custodial Services (Western Australia)
• Professor Bronwyn Naylor OAM – RMIT University; co-founder of the Australian OPCAT Network
• Ms Lorraine Finlay – Human Rights Commissioner
• Ms Anne Hollonds – National Children’s Commissioner
• Ms Vicki Mau – Director of Australian Programs, Australian Red Cross
• Ms Carolyn Frohmader – Executive Director, Women With Disabilities Australia

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:

• ‘The Commonwealth Ombudsman’s work coordinating Australia’s NPM and monitoring Commonwealth places of detention’, 2022 National OPCAT Symposium, Melbourne, 9 September 2022
• ‘Developments in OPCAT implementation in Australia, and the importance of the preventive mandate’, 2022 Future Justice and Corrections Summit, Sydney, 29 March 2022
• ‘The Implementation of OPCAT in Australia and challenges for detention inspections in a COVID-19 world’, 10th Annual Prisons Conference, Sydney, 15 June 2021
• ‘Implementation of OPCAT in Australia - an update’, 2020 Future Justice and Corrections Summit, Sydney, 19 February 2020
• ‘Implementation of OPCAT', 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)

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.