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Seminar on implementing the Optional Protocol to the Convention against Torture (OPCAT) (Nov 2009)

Implementing the Optional Protocol to the Convention Against Torture in

Australia

Seminar hosted by the Australian Human Rights Commission and the Asia Pacific

Forum of National Human Rights Institutions

25 November 2009, Sydney

 

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Table of Contents

1 Welcome and

introductions

1.1 Catherine Branson

QC, President, Australian Human Rights Commission

Catherine Branson welcomed guests, in particular international guests and

acknowledged the traditional owners of the land. She thanked the Asia Pacific

Forum of National Human Rights Institutions for co-hosting the seminar. She

acknowledged the importance of the right to be free from torture, and

congratulated the Australian Government for recognising the rights of those

deprived of their liberty by signing the Optional Protocol to the Convention

Against Torture (OPCAT). She noted that Australia faces challenges in

implementing OPCAT, particularly due to its federal structure.

1.2 Kieren

Fitzpatrick, Director, Asia Pacific Forum of National Human Rights Institutions

Kieren Fitzpatrick gave a brief introduction to the fundamental prohibition

of torture, and noted that while it is enshrined in the United Nations

Convention Against Torture (CAT), it continues to be violated today.

He provided a broad overview of the obligations of state parties under OPCAT,

including establishing or designating an independent mechanism to enter, visit

and monitor all places of detention. In this way, OPCAT assists states to meet

their obligations to prohibit torture under CAT.

He discussed the special role of national human rights institutions, as they

provide a link to the international system and monitor state action. Their

mandate confers both legal and moral authority and they exercise proactive

powers, which include the promotion of human rights awareness and legal reform.

He noted that in almost all states with a national human rights institution,

upon ratification of OPCAT, that body has been designated as the National

Preventative Mechanism (NPM).

2 Session 1:

Understanding OPCAT

2.1 OPCAT as a human

rights instrument

Barbara Bernath, Chief of Operations, Association for the Prevention of

Torture

An operational treaty

Barbara Bernath provided an introduction to OPCAT, which was adopted in 2002

and entered into force in 2006. It is an additional optional protocol to CAT and

therefore is one of the core human rights treaties of the United Nations. OPCAT

does not establish new norms. Rather, it is an operational treaty, focused on

the prevention of torture through the implementation of existing rights, namely

the right to be free from torture and other cruel, inhuman or degrading

treatment or punishment. Implementation requires the establishment of a system

of regular, independent visits to all places of detention by both international

and national bodies. In this way, OPCAT imposes obligations on state parties in

addition to their obligations under Articles 2 and 16 of CAT.

Preventing torture

OPCAT is about securing an environment that reduces the risks of torture and

ill-treatment as much as possible. It covers all places where persons are

deprived of their liberty, including ‘traditional’ places such as

prisons, as well as other places such as international ports, centres for

migrants or juveniles, aged care homes, psychiatric facilities and modes of

transportation. Under OPCAT, the aim is to identify gaps in protection in the

system itself, rather than identifying and investigating individual instances of

ill-treatment. It requires a systematic approach to inspecting places of

detention, and a consideration of all relevant aspects, including the material

conditions of detention; the level of contact with family members, legal

representation and the outside world; whether adequate activities are available

within detention facilities; and staffing issues, including pay levels and staff

conditions.

Cooperation and confidentiality

OPCAT seeks to establish a system which improves conditions for detained

people through a cooperative dialogue between the national prevention mechanisms

(NPMs) and government authorities. Generally, the system relies on

recommendations and proposals based on the findings of inspections, rather than

publicly shaming authorities. Cooperation between NPMs and government

authorities is to some extent dependent upon confidentiality. Under OPCAT, the

international inspecting body, the Sub-committee on the Prevention of Torture

(SPT) cannot publish reports and recommendations unless under agreement with the

state party. In contrast, OPCAT permits NPMs to publish reports, so publication

may be used as a strategy in their dialogue with government authorities.

2.2 What preventive

mechanisms are established by OPCAT?

Silvia Casale, former Chair, Sub-committee on the Prevention of

Torture

Silvia Casale discussed the international framework with a view to

considering possible models for implementation of OPCAT in Australia.

A system of visits

The central idea behind OPCAT is to ensure that there are safeguards to

protect detained people against ill-treatment. OPCAT takes a broad approach

towards the definition of ‘places of detention’. There are many

places which may be construed as a place where people are or may be deprived of

their liberty by a public authority. Two levels of inspections are required: the

SPT is the international inspecting body; and, pursuant to Article 17 of OPCAT,

each state party must establish, maintain or designate one or several NPMs at

the domestic level. OPCAT does not prescribe a particular model for the NPM but

outlines some key requirements for the mechanism.

Essential elements

The NPM must be independent in practice, and it must also be seen to be

independent. Its mandate and powers must be established by law. The legal

framework must give NPMs powers to access all places where people are or may be

deprived of their liberty, and to talk with detained persons and staff members

privately. The NPM must be provided with adequate resources to allow it to

conduct regular and effective visits.

The NPM profile

The role of the NPM is essentially a human rights based role. The NPM is

required by OPCAT to adopt a preventive approach. The NPM should not have

conflicts of interest, especially in terms of prosecuting individual acts of

ill-treatment identified during inspections. The NPM should inform people who

are detained that the NPM is there to inspect the facility, and although

instances of ill-treatment may be identified, it will not able to assist with

pursuing individual cases. There must be cooperation between the NPMs and the

government authorities for the OPCAT system to work effectively.

State party obligations

OPCAT gives state parties certain obligations, including:

  • guaranteeing the functional independence of the NPM and its members

  • ensuring the legal powers of the NPM, as listed in OPCAT

  • providing the resources necessary for the NPM to operate effectively

  • safeguarding the NPM’s control of its own visiting program and

    budget

  • publishing and disseminating the NPM’s annual report

  • examining the recommendations of the NPM.

Development of

NPMs

The development of NPMs is an ongoing process, which needs to be open,

public, transparent and inclusive of all stakeholders. Phase one involves

establishing a solid legislative basis for the NPM and consulting stakeholders

and the public about draft legislation. The legislation should outline the

obligations and powers of the NPM. The NPM must be adequately resourced so that

it can visit regularly and effectively.

Phase two involves the implementation of the legislation. OPCAT envisages

that it will take time to establish NPMs and allows for this. NPMs are complex

systems, especially in the context of federal states. Consultation at the local

level is very important in determining the appropriate model for the NPM.

Phase three relates to the membership of the NPM. Members must be independent

– they must be at arms length from government and the selection process

must be open. The members must be perceived as impartial and independent. There

is a need for multi-disciplinary inspection teams, including medical and

psychiatric experts as well as legal experts.

Cooperation

There must be cooperation between NPMs, government authorities and the SPT in

order for the OPCAT system to work effectively. The NPM is a very important

aspect of OPCAT as the international body (the SPT) cannot visit fifty state

parties on a regular basis. The SPT is intended to be complementary to the NPM.

2.3 Discussion

A question was asked as to

the definition of ‘regular’ with respect to ‘regular

visits’ by the NPM. Should a risk assessment be used to determine how

regular visits should be to particular places of detention?

Silvia Casale stated that at the international

level, the limited resources of the SPT would limit its visits to approximately

once every ten years, which is inadequate. At the national level, what is

regular depends on the context. Certain places (for example police stations)

should be visited more frequently than others, and certain units within places

of detention (for example, isolation cells) may also require more frequent

visits. Inspection bodies may also return to certain places more frequently if

they know violations are occurring or have occurred in the past. The question of

regularity raises significant resource implications. For example, in the UK,

resource constraints are overcome to some extent by the combination of

professional inspectors as well as lay visitors - citizens appointed as

independent monitors who inspect prisons at least once per week.

Barbara Bernath stated that regular visits might consist of a combination of

more frequent, short, thematic visits as well as less frequent but more in-depth

visits. Limited resources have to be prioritised towards the places where the

biggest risks lie. In addition to conducting visits and highlighting concerns,

NPMs should also seek to disseminate examples of good or best practice.

A question was asked about the relationship

between the SPT and the UN Special Rapporteur on torture.

Silvia Casale stated that there is consultation between the SPT and the

Special Rapporteur, and they are complementary mechanisms. They coordinate their

programs to avoid overlapping visits.

A comment was made that simply visiting is

inadequate. The NPM needs to look thoroughly at some of the key issues around

humane treatment, such as the risks for detainees’ mental health and the

adequacy of services available. Visits alone will not be enough to prevent

ill-treatment; additional steps will also be required.

A question was asked about the practicalities of

having a preventive system that is separate to mechanisms identifying instances

of torture or ill-treatment. Can the NPM identify systemic issues or risks in

places where there are no individual instances of ill-treatment?

Silvia Casale commented that although the purpose of the SPT and NPM is not

to pursue individual cases, it doesn’t mean that they will not find those

cases during inspections. The cooperative dialogue with state parties will

involve fact finding and discussion of particular cases. However, the object is

not to pursue that individual case, but to consider the underlying

systemic issues that may have led to that incident and to consider how to make

changes to avoid recurrences in future.

An observation was made that in NSW there is a

system for monitoring of juveniles in detention by independent persons who are

appointed by the minister. What role might they play under OPCAT?

Silvia Casale suggested that they could feed into the NPM system. Australia

needs to map out the existing monitoring mechanisms and work out whether or not

they meet OPCAT requirements. If they do not meet the requirements, the next

question is whether they can be adjusted to meet the requirements.

A question was asked about how the SPT or the NPM

might deal with situations where there is a lack of goodwill or resistance to

change within government.

Silvia Casale noted that it may well be a long term

process to work with government to overcome such resistance. However, there are

always willing individuals to work with. The majority of people involved are

just trying to do their job. Our challenge is to show them ways to do their job

that are respectful of people’s rights.

3 Session 2:

International examples of the implementation of OPCAT

3.1 Overview of

National Preventive Mechanism options

Audrey Olivier, Association for the Prevention of Torture

OPCAT signatures and ratifications

There are 50 state parties to OPCAT and 23 state signatories. There are

currently 29 NPMs within state parties. In the Asia-Pacific region there are

three state parties (Cambodia, the Maldives and New Zealand) and two state

signatories. As the number of state parties has reached 50, membership of the

SPT is due to increase from 10 to 25. Therefore, Australia has an incentive to

ratify, as ratification would provide it with an opportunity to present a

candidate for membership at the 2010 SPT election.

Designating an NPM

There are SPT guidelines for designating an effective NPM. An existing

institution may be designated. The matter should be open for debate as

consultation is important for the legitimacy of the NPM. Civil society and

stakeholders at the local level should be included in the process. All of the

states and territories should be consulted.

OPCAT in federal and decentralised states – options and

challenges

There are nine state parties which are federal or decentralised states.

Germany, Mexico, Spain, UK and Switzerland have NPMs. There are two state

signatories: Australia and Austria. States may establish or designate a single

NPM comprised of a new or existing body, or several NPMs, which may be based on

thematic or jurisdictional divisions.

  • Single Body:

Examples are Spain, Switzerland, Mexico. In Mexico,

a specific unit was created. In Spain, the existing human rights institution was

designated (26 staff). Switzerland created a new body because no monitoring body

existed. Designating a single body can be particularly challenging for federal

states, which may need to alter existing institutions (by allocating more human

and financial resources and changing the mandate). Designating a single body

creates access issues because there is only one body to reach all places of

detention. There are also jurisdictional issues in a federal state.

  • NPMs based on jurisdiction:

A NPM could also be based on

jurisdiction. This presents challenges in terms of coordination. There are also

issues in terms of coherence of standards of monitoring. If Australia

established several state bodies and a coordinating body, it would need to look

at the methodology in each state or territory.

  • NPMs based on themes:

The United Kingdom is one example.

Challenges faced include how existing institutions could change their approach

to focus on prevention, sustainability issues, coordination, coverage of all

places of detention, and coherence. Not all bodies could constitute the NPM and

in the UK, some had to step down. However, these bodies often fulfil an

important role in terms of working with the NPM.

3.2 OPCAT: the New

Zealand experience

Susan Biggs, New Zealand Human Rights Commission

The New Zealand Human Rights Commission is an independent crown entity,

established under a Crown Act. Its mandate includes the promotion of human

rights and receiving and investigating complaints.

Implementing OPCAT - preparatory steps

New Zealand undertook a consultative process with existing bodies that could

potentially play a role in the NPM. The committee received numerous submissions

and the consultation process led to changes to the initial plans.

New Zealand NPMs

The national coordinating NPM is the New Zealand Human Rights Commission. The

NPMs which carry out inspections are the Ombudsman, the Independent Police

Conduct Authority, the Children’s Commissioner and the Inspector of

Service Penal Establishments. Each body is responsible for different places of

detention.

Role of the New Zealand Human Rights Commission

The role of the New Zealand Human Rights Commission is to coordinate the

activities of the NPMs, identify systemic issues in places of detention,

coordinate the dissemination of information, make recommendations to the

government and publish the annual NPM report. It meets with the other NPMs

quarterly and the NPMs meet with civil society twice per year.

In its first year as the coordinating NPM, the Commission undertook a lot of

planning. It developed standards for what NPMs should look at, by reference to

international indicators and drawing on APT tools and guidance. The first annual

report recommended the provision of additional resources for NPMs (some of which

was allocated in the following year).

In the second year of operation, there were slight changes to the

designations to eliminate overlap of responsibility. The visiting program is

currently underway. The program has resulted in a change in awareness on the

part of staff and management in institutions. A number of issues have been

identified such as bullying detainees to prevent them speaking out, medicating

detainees prior to visits, and insufficient paperwork to authorise detention.

Ill-treatment in the form of restraint and seclusion of detained persons was

also identified through inspections.

Challenges

There are many challenges related to adequate documentation for detaining

people and the validity of detention. Often staff members do not have an

adequate understanding of what constitutes torture and ill-treatment. There are

issues surrounding conditions, transportation, access to rehabilitation programs

and mental health care. There are ongoing challenges in relation to inadequate

resources and heavy workloads. It is also difficult to coordinate multiple NPMs

and ensure cohesion. The NPMs need to be wary of blurring the complaints/

investigation function and the preventive monitoring function.

The impact of OPCAT

Goodwill on the part of the relevant parties and good relationships have led

to cooperation between government authorities and NPMs. Police staff and

managers generally value the OPCAT visits and most institutions are moving

quickly to remedy problems identified. The approach has been one of a

constructive dialogue.

3.3 Discussion

A question was asked about the New Zealand

approach towards the development of standards for NPM visits.

Susan Biggs stated that New Zealand considered international standards and

came up with a chart of standards. This was given to the NPMs, which then

tailored it to the institutions they visit.

A question was asked as to whether the New

Zealand Commission had involved detainees themselves in the OPCAT process. Did

the Commission inform people in places of detention about the OPCAT NPM system?

Susan Biggs said that the Commission hasn’t

systematically provided information to detainees about OPCAT. However, the

Commission does receive complaints from detainees. The Commission’s

response to these complaints does include mention of the OPCAT mechanisms. It

would be a good idea to more systemically inform detainees.

Audrey Olivier said that in the Maldives, leaflets had been given to

detainees, as well as holding meetings with them to explain the OPCAT mandate.

Barbara Bernath noted that entering places of detention is a proactive

way to inform detainees about the NPM through direct interaction.

A question was asked about the preferable

approach towards the NPM having both complaints and prevention functions. Is

strict separation of these roles better?

Susan Biggs said that in New Zealand the Police

Conduct Authority doesn’t separate the roles because there are so many

cells to visit. However, the Ombudsman does keep them separate. Best practice

would be to separate the functions. Visits to investigate complaints usually

involve an aspect of ‘blame’, whereas a preventive visit is more

about working collaboratively to achieve systemic improvements.

Audrey Olivier said that many human rights institutions that are designated

as NPMs also have a complaints function. They often create a separate unit to

handle the OPCAT prevention functions. It is better to separate the roles but

the two units need to communicate with one another.

There are obligations under Article 20 of OPCAT

to provide access to information and documents regarding places of detention. A

question was asked as to the New Zealand experience in terms of institutions

providing access to information. Did this require legislative changes, for

example, to the Privacy Act?

Susan Biggs didn’t believe there had been changes to the Privacy Acts.

The legislation in New Zealand sets out the role of NPMs, including access to

records.

A question was asked as to whether the New

Zealand Human Rights Commission would consider publishing reports regarding

individual visits or urgent situations? What action could the Commission take as

NPM if a government refused to act on NPM recommendations?

Susan Biggs stated that the New Zealand Commission has not faced that issue

so far as there has been positive cooperation and institutions have been

receptive. If they were resistant in the future, the Commission would most

likely approach the Minister of Justice to seek to address the matter in a

constructive way.

Audrey Olivier noted that it depends on the strategy of the NPM. If a NPM

publishes a report directly from a visit, it may place strain on the NPM’s

relationship with the authorities. While public reporting does increase

transparency, the NPMs have to balance competing goals.

When the New Zealand

system was being set up, the Human Rights Commission argued that it should have

some form of direct inspection role. That did not occur. In hindsight, is that

positive or negative?

Susan Biggs noted that it was positive in the sense that the Commission does

not form any set views about how to best conduct NPM visits, so it can be open

to the different ways the NPMs conduct their inspections. However, the

Commission recognises the need for its OPCAT staff to have some hands-on

experience and is considering sending some staff on NPM visits to get that

experience.

A question was asked as to how likely it was that

OPCAT could lead to real changes. There are some instances in Australia where

government authorities are willing to violate human rights, even where the UN

has commented on the violations. There is a need to maintain realistic

expectations. In response,

Susan Biggs noted that the preventative visits have led to positive changes

in New Zealand to date.

4 Session

3: The benefits of preventive monitoring of places of detention

4.1 The benefits of

monitoring places of detention – from a prisoner’s

perspective

Brett Collins, Coordinator, Justice Action

Brett Collins is also the spokesperson for Justice Action. He led a significant campaign regarding the right of prisoners to vote and has represented prisoners in New Zealand regarding the impact of the privatisation of prisons. He also has personal experience of imprisonment.

The presentation commenced with the presentation of a paper that:

  • called for consultation with people in detention as part of the process of implementing OPCAT
  • observed that people in detention are particularly vulnerable
  • criticised aspects of the new prison in the Australian Capital Territory, particularly the facilities available for difficult prisoners
  • observed that current inspection mechanisms have not led to effective change
  • expresses concern about relying on current inspection mechanisms in a NPM under OPCAT.

There are approximately 27,000 prisoners in Australia. Prisoners are citizens who will return to the community. If they are mistreated in prison they are likely to be resentful and less productive community members. They are also more likely to reoffend.

Justice Action believes that prisoners and other detainees should be engaged as part of the OPCAT process. OPCAT will not lead to positive change without direct involvement of those it seeks to protect. Consultations about OPCAT should include a voice for detainees and staff who work in places of detention.

Current inspection mechanisms are not very effective in preventing mistreatment of people in detention. An inspection mechanism under OPCAT must be different to be effective.

An independent monitoring mechanism must have sufficient resources to be truly independent.

It is also necessary to utilise existing prisoner-focused mechanisms for consultation and communication. The presenter proposes using the prisoner representative structure of Inmate Development Committees, which enable a form of cost-free continual monitoring. He also proposes using existing technology within prisons, for example video camera monitoring, to allow prisoners to raise concerns with NPMs as well as their families and communities. Finally, non-government organisations and the ex-prisoner community should be strengthened to enable them to coordinate information to the NPM.

4.2 Why should we

monitor places of detention and how can we do a good job of it?

Neil Morgan, Inspector of Custodial Services, Western Australia

The presenter acknowledged the traditional owners of the land and noted the

need to ensure participation by relevant Indigenous groups at future OPCAT

seminars and consultations.

Monitoring places of detention is important because history shows that abuses

can and do occur, although often not deliberately. OPCAT is focused on torture

and other cruel, inhuman or degrading treatment. In practice, the NPM is the

most important mechanism, rather than the SPT.

Requirements for NPMs

Under OPCAT, NPMs are required to conduct regular visits. They must have

functional independence and be provided with unfettered access to places of

detention and relevant documents. Detainees who speak with the NPM during visits

need to be protected from victimisation. The NPM reports will not necessarily

always be public documents.

OPCAT in Australia

In 2008 Neil Morgan and Richard Harding provided a report to the Australian

Human Rights Commission (AHRC), Implementing the Optional Protocol to the

Convention Against Torture: Options for Australia. In Australia, it is

difficult to identify all of the places of detention, especially the places

controlled by intelligence services. An up-to-date inventory is needed. It is

necessary to identify all of the existing monitoring agencies, which is also a

difficult task. OPCAT ought to increase visibility and transparency.

Office of the Inspector of Custodial Services (OICS)

The Office of the Inspector of Custodial Services (OICS) in Western Australia

is currently the most OPCAT complaint mechanism in Australia. It was established

in 2000, has a legislative basis, and is accountable to Parliament. It is a

functionally independent body with a good relationship with the minister and the

state government. OICS provides a model for the development of NPMs across

Australia. Its focus is broader than torture or cruel, inhuman or degrading

treatment.

Jurisdiction

OICS has jurisdiction over prisons, work camps, juvenile detention centres,

court custody centres and suspected terrorist detainees. It has no jurisdiction

regarding psychiatric facilities, immigration detention centres, and police lock

ups (except for transport). It must inspect every prison, detention centre and

court custody centre every three years. It has broad jurisdiction to inspect at

any time ‘custodial services’ or ‘administrative

arrangements’ regarding such services. OICS may also conduct thematic

reviews, for example, deaths in custody.

Powers

OICS has unfettered access to places of detention and relevant documents, and

can publish its findings. They do make their reports public, but they also

pursue a constructive dialogue with the state government (although that dialogue

can be ‘robust’ at times).

Methodology

The methodology for inspections requires careful preparation. They spend 1-2

weeks onsite and involve relevant experts in visits, such as health experts. It

is a process of ongoing monitoring. They keep track of prison incident reports

and maintain regular contact with prison managers. OICS conducts 4-6 visits per

year, usually with two staff members, which are announced and informal. They

speak with detainees during those visits. Regular risk reports to the minister

are also important. They monitor and follow-up on implementation of their

previous recommendations.

Human rights and OICS standards

The OICS legislation doesn’t refer specifically to cruel, inhuman and

degrading treatment, but some aspects of OICS inspections of prison conditions

do relate to human rights standards. The standards they use in inspections are

based on relevant international standards, but are tailored to the Western

Australian context (including, for example, Indigenous issues). NPMs need to

develop their own locally relevant standards.

Examples

  • Example: Mr Ward

    and prisoner transport

Mr Ward died in the back of a transport van during a long journey in the

heat. A report was made which highlighted numerous transport issues, including

nothing for passengers to hold onto, forcing passengers to face sideways, a roof

which sloped in, bare metal seats, and travelling long distances (in this case

five hours in summer).

The state owned the fleet. There were questions about whether the drivers did

what they were supposed to have done. The Department of Public Prosecutions is

yet to decide on charges. The question is, did the OICS fail? In a sense, yes,

because Mr Ward died. But in another sense, it did not. The failures of the

system would not have been revealed in this way if not for the inspection

system. Systems try to hide things. It would have been easy to point the blame

at the drivers but there is a more complicated story.

  • Example: Prison conditions

Both the negatives and positives should be acknowledged in inspections

reports. The presenter showed pictures of buildings and cells demonstrating both

good conditions as well as prison crowding and poor conditions.

  • Example: Health care

Health

is a constant issue in prisons. OICS is active in promoting better health care

for detainees. Their mandate is not limited to cruel, inhuman and degrading

treatment. They consider whether standards of service delivery are adequate.

Concluding remarks

The presenter believes the preventive inspection mechanism can lead to

positive changes. It requires preparation and proper planning. NPMs must set

priorities. There are often resourcing challenges.

4.3 Discussion

Support was expressed for the need to involve

detainees themselves in the OPCAT process. Is there current support from prison

superintendents or managers for the Inmate Development Committees?

Brett Collins said there are requirements in most states for monthly

meetings. In practice, the level of support differs in each prison. There can be

victimisation of prisoners heavily involved in the committees.

A question was asked as to the considerations

surrounding OICS’s publication of inspections reports.

Neil Morgan said that providing feedback to the people who have spoken to

OICS during inspections is very important. They operate based on a general

presumption that they will publish their reports unless there is a good reason

not to publish. For example, a significant security issue.

A comment was made that OICS conducts group

discussions with various prisoner groups when they do inspections (e.g.

Aboriginal, youth, Indonesian, etc). OICS also follows a process of debriefing

prison staff and subsequently prisoners after conducting an inspection. The

inspectors then write a report and provide a draft to the Department of

Corrective Services and the manager of the prison in order for them to comment.

A question was asked as to the scope for OICS to

cooperate with relevant community groups in Western Australia.

Neil Morgan stated that OICS does make use of

community resources in a number of ways. For example, under the independent

visitors’ scheme, visitors are appointed by the Minister and coordinated

by OICS. OICS conducts briefings during inspections with relevant NGOs that

offer services in the prison. They also have a community consultation group,

including the Aboriginal Legal Service and other relevant community groups.

A question was asked as to what redress is

available if OICS recommendations are not adopted by the government.

Neil Morgan indicated that OICS does everything

it can to encourage the implementation of its recommendations. However,

ultimately it is up to the government. The government has recently announced

that it is considering granting OICS additional powers including power to issue

a ‘show cause’ notice. In Mr Ward’s case, for example, this

would have required the government to show cause for why there were no padded

seats, no hand rails or windows in the transport vans. He is of the view that

OICS should not become an enforcement agency – that would be adversarial

and not cooperative as envisaged by OPCAT.

A further comment was made that in relation to

the Ward Case, the fact that there was a history of OICS reporting,

documentation and correspondence relating to the case will assist in a damages

suit for negligence. Inspection reports, even if unfortunately not acted upon at

the time, can still be useful in later litigation.

5 Session 4:

Implementing OPCAT in Australia

5.1 What are the key

considerations?

Ben Schokman, Human Rights Law Resource Centre

The presenter made the following observations, which he noted were from the

perspective of a non-government organisation:

  • The key to the effective operation of OPCAT is

    ensuring that institutional commitments are made to its implementation. OPCAT

    offers an additional mechanism to help prevent torture. It is not just a

    compliance tool but an opportunity to develop effective mechanisms which can

    also lead to a reduction in complaints, lower costs, and more efficient systems.

    Prisoners and people with disabilities are two groups which often give up on

    lodging complaints because they feel their concerns are never met. OPCAT must be

    different.

  • Expertise is crucial. It is vital that NPMs

    contain human rights expertise and expertise in terms of monitoring detention.

    The Victorian Charter experience demonstrates that it takes a long time for

    government agencies to develop the expertise required to comply with their human

    rights obligations.

  • Organisations must be adequately resourced in

    order to be effective NPMs. Staff in monitoring bodies require ongoing training

    and a holistic approach to prevention is required.

  • Independence must be actual and perceived,

    especially from the perspective of the rights-holder. It is important for the

    NPM to feed information back to detainees after visits, including regarding

    their rights and the NPM functions.

  • The NPM’s reporting function and the

    requirement for Parliament to respond to such reports must be incorporated into

    law. The absence of overarching human rights protections in Australia makes

    OPCAT incorporation all the more important. The legal framework must clearly

    define the responsibilities of the NPMs, especially if there is a mixed model.

  • NGOs should play a

    key role in designing the NPM and implementing OPCAT. NGOS can be a useful

    resource as they have high levels of expertise in both human rights and in

    situations of detention. Community visitors and volunteers should be seen as

    additional to the role of NPMs, rather than fulfilling the inspection role.

  • It is important to manage relationships

    with government, as the implementation of NPM recommendations will largely

    depend on goodwill. However, there is a need to ensure the relationships are

    institutionalised rather than dependent on selected individuals. There is a need

    to develop a real, institutional commitment to implementation of OPCAT.

5.2 What are the key

considerations?

Richard Harding, former Inspector of Custodial Services, Western

Australia

A human rights compliant organisation is easier to manage, more pleasant to

work in and offers a better quality of life for everyone involved in it. An

effective prevention system minimises political risk.

The big issues

Important issues include choosing the NPM model for Australia; selecting a

coordinating NPM; identifying agencies that could be potential subsidiary NPMs;

prioritising the coverage of the NPM/s; and developing international and

national relationships.

Unitary model

Under the external affairs power, Australia could establish a unitary model

with one federal NPM. However, possible drawbacks include the creation of a

large, centralised bureaucracy with limited local knowledge. The reality is that

one central NPM would not work in remote locations. The governmental entity that

bears responsibility for laws and systems relevant to detention and detention

facilities should also bear the accountability for them. The Commonwealth does

not bear responsibility for criminal laws, mental health etc, the states do. The

drawbacks far exceed the benefits of a unified model. A diversified model is

preferable. It could be jurisdictionally or thematically based.

Diversified model - jurisdictional

It is necessary to consider whether there is already an OPCAT compliant

monitoring body. Article 17 of OPCAT allows for multiple NPMs in each

jurisdiction, as is the case for example in New Zealand and the UK.

Within each state there could be a coordinating NPM that would coordinate

with the Commonwealth NPM. The notion of a state or territory NPM doesn’t

necessarily undermine other agencies, which could also be strengthened. It would

be chaotic if the national coordinating NPM had to deal with every subsidiary

NPM.

Diversified model - thematic

All places of detention of a common type could be monitored by a unified NPM.

There would still have to be a relationship with a central or coordinating NPM.

Australia already has some theme-based inspection agencies, for example in

relation to aged care.

Diversified model – a mixed model

There could be some function based NPMs and 8 or 9 jurisdiction based NPMs.

The central coordinating NPM should also have some inspection role itself.

Selecting a central or coordinating NPM

Possible bodies include the AHRC or the Commonwealth Ombudsman. They are

OPCAT compliant, and functionally independent. Neither is currently a task

oriented inspection agency. Issues to consider include how to build the

necessary expertise in a central NPM; whether its resources are adequate; and

whether it needs new organisational structures. In the case of the AHRC, an

additional OPCAT Commissioner would be required to prevent the blurring of

responsibilities.

In terms of which body should be the NPM, that is a matter for the federal

government to determine.

The AHRC is Australia’s central link to Australia’s international

human rights obligations. The AHRC has a strong track record with immigration

detention visits and reporting.

The Ombudsman also has a good record. The Ombudsman’s roles are

complaints-driven and tend to be reactive rather than proactive. The Ombudsman

is concerned mainly with administrative due process issues. It is possible to

have administrative due process and still have an outcome that is non-compliant

with human rights.

Identifying or establishing agencies as subsidiary NPMs

Very few Australian jurisdictions have existing agencies that meet NPM

requirements. All have agencies that could be empowered and adapted, which might

require statutory amendment. The national coordinating NPM should not have to

deal with too many subsidiary agencies, so there should be one coordinating NPM

in each state and territory to coordinate with the central NPM.

The scope of the task

It is necessary to determine how many places of detention there are and

coverage must be prioritised. The central NPM should undertake at least some

inspections of its own in order to be in a position to undertake quality control

of other NPMs.

Biggest issue: ratification

Ratification of OPCAT would be beneficial for civil life in Australia.

Agencies interested in playing a role as NPM should work together in order to

achieve early ratification and establishment of NPMs.

5.3 Discussion

A question was asked as to which functions the

coordinating NPM should undertake on an inspection basis.

Richard Harding replied that if it was a Commonwealth NPM it could do things

the Commonwealth has responsibility for, such as aged care and immigration

detention. Neil Morgan and Richard Harding in their 2008 report suggested a

national police inspectorate.

It was noted that it is important in developing

the NPM model that we don’t see the state and territory NPMs as

subsidiary. Many of the areas of responsibility fall under the states and

territories – they are key players.

A question was asked as to how to engage with the

community and NGOs in order to develop effective public policy around OPCAT.

Ben Schokman noted that the consultation process for OPCAT to date has

involved very few opportunities for civil society participation. Moving forward,

consultations should allow for involvement by all key stakeholders, including

NGOs and civil society.

A comment was made that National Human Rights

Institutions (such as the AHRC) have a unique role to play in terms of

representation and communication at the international level. NHRIs are afforded

the right to participate in proceedings of the UN Human Rights Council. Such

participation is not available to other bodies of a similar nature. This might

be one advantage to having the AHRC as the central NPM.

5.4 Small group

discussion: The appropriate NPM model for Australia

Groups were asked to discuss which model of the following was the most

appropriate in the Australian context: a single Commonwealth model; a

Commonwealth-State jurisdictional model; or a mixed model (jurisdictional and

functional). Groups were invited to consider administrative effectiveness, local

diversity, NPM independence, the role of civil society organisations and the

comprehensiveness and depth of inspection visits.

  • Group 1 preferred a mixed model, with one

    coordinating NPM in each state and territory to be the point of contact with a

    national NPM. The bodies that do the inspections should make the specific

    recommendations for action (rather than the national NPM making recommendations

    about areas that fall under state or territory responsibility). The role for the

    national NPM would be to facilitate standardised models for inspections,

    developed in consultation with states and territories.

  • Group 2 preferred also preferred a mixed model.

    In some states there could be functional inspectorates feeding up to the central

    NPM. Smaller states may just have the one state NPM. The group emphasised the

    need for the NPMs to be independent, and noted that funding is likely to be an

    issue, especially in terms of enabling flexibility for a NPM to manage its own

    budget. It is important to involve NGOs in the process.

  • Group 3 agreed that a mixed model was the most

    likely to be adopted in Australia. There are existing bodies which are or could

    be made OPCAT compliant, so there might be different NPM models in the various

    states and territories. A coordinating Commonwealth NPM is the most appropriate

    should inspect facilities for which the Commonwealth has responsibility, such as

    immigration, detention. Ideally, the Commonwealth NPM would need an arm for

    coordinating and an arm for visiting. The judiciary may have the power to

    oversee some places of detention, which is often overlooked.

  • Group 4 preferred a mixed model with functional

    and jurisdictional NPMs. They wanted a central Commonwealth NPM ‘with

    bite’. They noted that places of detention may include places such as

    Australian vessels out at sea or Australian military facilities outside

    Australia. They noted that the military would most likely want its own NPM. They

    thought that the central NPM ought to undertake the role of monitoring the NPMs,

    rather than conducting its own inspections.

  • Group 5 agreed that a mixed model was likely in

    Australia. They thought that a central NPM should coordinate NPMs in the states

    and territories as well as a federal NPM to oversee federal areas of

    responsibility. They noted that the Commonwealth already had some thematic

    inspection bodies, and considered that the states could also set up thematic

    NPMs. They noted that some jurisdictions (such as NSW and the ACT) already have

    in place independent official visitors for some places of detention, but noted

    some gaps including police cells. They thought that generally the bodies were

    already in place and just required tweaking.

  • Group 6 also

    preferred a mixed model, and thought that existing bodies at the state level

    could become OPCAT compliant. They thought that inspection reports should be

    based at the state level (rather than by the coordinating NPM). The coordinating

    NPM would be responsible for the annual report and maintenance of a relationship

    with the SPT.

  • Group 7

    endorsed a mixed model. The central NPM would have responsibility for setting

    standards and providing training programs. The state and territory NPMs would

    provide input on the standards to ensure they reflect the particularities of

    different jurisdictions. There would be challenges in terms of coherence. In

    diverse states such as Queensland, the system would need to rely on community

    organisations to ensure regular inspection of all places of

    detention.

Further

comments

It was noted that even if there were state-based NPMs that were coordinating

functional inspectorates, it may be useful to have networks between states to

set benchmarks and share information.

A comment was made that OPCAT is a top-down approach. There is a need to

inform detainees and include them in the process.

The impact of the absence of a bill or charter of rights in Australia was

raised. It was noted that the UK Human Rights Act provides a body of

jurisprudence which is a point of reference for all courts and agencies in

England. Australia lacks this.

6 Summary and closing

remarks

Barbara Bernath

thanked all seminar participants for their contributions, and for inviting the

APT to participate. She noted the need for ongoing consultations, including at

the state and territory level.

In closing, Catherine Branson QC gave a brief

overview of the day’s proceedings. She noted that the seminar had been

privileged to hear from individuals with a wide range of expertise.

She noted that OPCAT does not create new

normative standards, but focuses on implementing existing human rights. It

covers all places where people are deprived of their liberty. It seeks to

identify systemic risks and to negotiate improvements within places of

detention. She also noted that:

  • There is no ‘right’ model for implementing OPCAT in Australia.

    The model may be single or mixed, and could be based on jurisdictional or

    thematic issues or both.

  • The Commonwealth is obliged to establish a preventive mechanism which is

    independent and has power to visit all places of detention. The mechanism must

    be provided with adequate resources.

  • In order for OPCAT mechanisms to have legitimacy, broad consultation is

    needed with all relevant stakeholders including NGOS, civil society and

    detainees themselves. It should be recognised that many different agencies and

    bodies could play important roles in the implementation of OPCAT in Australia.

  • The seminar participants were assisted by hearing about the New Zealand

    experience and the role of OICS in Western Australia. Adequate planning and

    preparation will be critical in implementing OPCAT in Australia. It will be a

    long term process.

  • There was a fairly consistent view among seminar participants as to the

    appropriate NPM model for Australia, with general support for a mixed model.

    Broader consultations will be required to investigate whether other stakeholders

    share this view.