Tuesday 9 August 2016

Optional Protocol to the Convention against Torture (OPCAT)



What is OPCAT and what does it require?

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is an international agreement aimed at preventing torture and cruel, inhuman or degrading treatment or punishment. It was adopted in 2002 and entered into force in 2006. It builds on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and helps States meet their obligations under CAT. The key aim of the OPCAT is to prevent the mistreatment of people in detention.

Under the OPCAT, state parties agree to international inspections of places of detention by the United Nations Subcommittee on the Prevention of Torture (SPT). State parties are also are required to establish an independent National Preventive Mechanism (NPM) to conduct inspections of all places of detention. This would include prisons, juvenile detention, local and offshore immigration detention facilities and other places where people are deprived of their liberty.

As of 20 July 2016, there are 81 state parties to the OPCAT and an additional 17 states are signatories. 64 states have designated their NPM.

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Preventing mistreatment of people who are held in detention

People who are held in detention are deprived of their liberty and are particularly vulnerable to violations of their human rights. People can remain in detention for months and frequently years, often in remote regions. There are international legal mechanisms that try to protect the rights of people in detention.

Under CAT, Australia is obliged to:

  • prevent torture
  • prevent other acts of cruel, inhuman or degrading treatment or punishment
  • ensure that education and information regarding the prohibition against torture and other cruel, inhuman or degrading treatment or punishment are fully included in the training of all people involved in the arrest, custody, interrogation, detention or imprisonment of any individual
  • regularly review interrogation rules, instructions, methods and practices to prevent torture

The Committee Against Torture is a body of 10 independent experts that monitors the implementation of CAT. The monitoring is conducted through regular reports by state parties, inquiries and the consideration of individual or inter-state complaints. This complaint mechanism enables the Committee to issue recommendations and reports to states after investigating a complaint. The recommendations are not binding.

The Optional Protocol develops preventative measures which reinforce the protections the Convention confers upon people in detention. This is made clear in the preamble to the Optional Protocol, which states that: ‘further measures are necessary to achieve the purposes of the Convention’ and ‘the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature, based on regular visits to places of detention.’

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The UN Subcommittee on the Prevention of Torture

The Subcommittee on Prevention of Torture (SPT) was established in February 2007 with a mandate to visit all places of detention in state parties and to provide assistance and advice to both state parties and NPMs. The role of the SPT involves a right to visit places of detention and make recommendations but it can not provide legal advice or financial assistance.

State parties to the OPCAT are required to grant the SPT unrestricted access to relevant information, to all places of detention and the ability to have private interviews. State parties must examine the recommendations of the SPT and discuss possible implementation measures. By the end of 2015, the SPT had visited 37 countries.

The SPT is composed of 25 independent and impartial experts. The members are elected by state parties for a four year term and may be re-elected once if nominated. Australia will have the opportunity to present a candidate if we ratify the Protocol.

The SPT engages with States on a totally confidential basis and can not publish reports and recommendations unless under agreement with the state party. Furthermore, people who provide information to the SPT may not be subject to sanctions or reprisals for having done so.

Since its establishment, the SPT has submitted annual reports to the UN Committee Against Torture.

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National Preventive Mechanisms under OPCAT

A state party must establish one or several independent NPMs within one year of OPCAT entering into force or after the state party ratifies or accedes to the Protocol. The NPM can be a new national body created specifically for this purpose, or an existing body.
The following are essential elements of a NPM as set out under Part IV (Articles 17 – 23) of the Protocol:

  • a mandate to undertake regular preventive visits
  • independence (functional independence, independence of personnel)
  • expertise (required capabilities and professional knowledge)
  • necessary resources
  • access (to all places of detention; to all relevant information; the rights to conduct private interviews)
  • appropriate privileges and immunities (no sanctions for communicating with the NPM; confidential information shall be privileged)
  • dialogue with competent authorities regarding recommendations
  • power to submit proposals and observations concerning existing or proposed legislation.

In contrast to the confidentiality of the SPT, NPMs are not necessarily restricted to working on a confidential basis and Article 23 of the OPCAT requires states to publish and disseminate the annual reports of the NPM.

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Is Australia a party to OPCAT?

Australia is a party to the CAT. The Australian Government signed the OPCAT on 19 May 2009, but has not yet ratified the agreement.

In signing the OPCAT, the Australian Government has taken a significant step towards establishing greater oversight and inspection of its places of detention. Once Australia ratifies the OPCAT and becomes a full party, it will be required to establish a National Preventive Mechanism – a national system of inspections of all places of detention.

In May 2009, when announcing that Australia had signed the OPCAT, the federal Attorney-General noted that a National Preventive Mechanism would be established in consultation with the states and territories. 

On 28 February 2012, OPCAT was tabled in the Commonwealth Parliament. The treaty was referred to the Joint Standing Committee on Treaties for consideration. The Commission made a submission to the Committee recommending that the Australian Government should ratify OPCAT and work promptly towards its full implementation in Australia. On 21 June, the Committee tabled its report which supported OPCAT and recommended that binding treaty action be taken.

The Australian Government at the recent UPR stated that Australia is actively considering OPCAT. Consultations are occuring with states and territories on necessary steps to implement the obligations under OPCAT.

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How has OPCAT been implemented internationally?

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. Examples of single body NPMs include Spain, Switzerland and Mexico. The United Kingdom is an example of a NPM based on themes and Germany is an example where the divisions are based on jurisdiction.

United Kingdom

On 31 March 2009, the UK Minister of State designated 18 existing inspection bodies to fulfill the requirements of the OPCAT. Since 1 April 2009, Her Majesty’s Inspectorate of Prisons (HMIP) has operated as the coordinating function for the UK’s NPMs.

New Zealand

New Zealand amended its Crimes of Torture Act 1989 to allow visits by the SPT and the establishment of NPMs and subsequently ratified the OPCAT in March 2007.

New Zealand’s designated NPMs are:

  • The New Zealand Human Rights Commission
  • The Office of the Ombudsmen
  • The Independent Police Conduct Authority
  • The Office of the Children’s Commissioner
  • The Inspector of Service Penal Establishments.

Each of these bodies is responsible for different places of detention. The New Zealand Human Rights Commission is the national coordinating NPM.

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Options for implementing OPCAT in Australia

According to Article 29 of the Protocol, the provisions of OPCAT extend to all parts of federal States.

There are two potential models for an Australian NPM:

  • a unified NPM covering all categories and places of detention in Australia
  • a mixed model NPM where each State and Territory establishes a single body to cover all categories and places of detention within that jurisdiction, while a national NPM has responsibility for categories and places of detention within the Commonwealth’s direct legislative power, as well as being the peak national body.

A unified Commonwealth NPM would require the establishment of a very large agency, as it would need to monitor all categories and places of detention across eight state and territories jurisdictions as well as the Commonwealth itself. Designating a single body can be particularly challenging for federal states such as Australia. It can create jurisdictional issues as well as access issues because there is only one body to reach all places of detention.

In 2008, the Commission released a report of research it commissioned into options for implementing the OPCAT in Australia. The report, written by Professors Richard Harding and Neil Morgan, suggests that Australia should establish a mixed NPM model, with separate NPMs in each state and territory and a national coordinating NPM. The report suggests that, given its focus on Australia’s international human rights obligations, the Commission is the appropriate body to be the national coordinating NPM. In almost all states with a national human rights institution, upon ratification of OPCAT, that body has been designated as the NPM.

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Towards implementation of OPCAT

Civil society has an important role to play in the process of first determining Australia’s NPM and subsequently in the NPMs themselves. Education and awareness amongst members of the public is vital if the OPCAT is to be successful. The Commission, together with the Asia Pacific Forum of National Human Rights Institutions, hosted a seminar on 25 November 2009 on ‘Implementing the OPCAT in Australia’.

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How is OPCAT relevant to the Commission’s work?

The OPCAT assists Australia in meeting its existing international human rights obligations.

Once Australia becomes a party to the OPCAT, the Australian Government will be required to establish a national system of visits to all places of detention, including prisons, juvenile detention, immigration detention and other places where people are deprived of their liberty.

The Commission has undertaken past work aimed at protecting the human rights of immigration detainees, prisoners, and young people in the juvenile justice system.

In particular, the Commission has reported on the conditions of immigration detainees in Australia since the introduction of mandatory immigration detention in 1992. The President, on behalf of the Commission, conducts regular inspections of immigration detention facilities in order to monitor whether the conditions and the treatment of immigration detainees comply with Australia’s human rights obligations.

The establishment of a NPM under OPCAT would facilitate a greater level of transparency and accountability with regard to conditions for, and treatment of, people in immigration detention in Australia.

The Commission has recommended that the Australian Government should ratify the OPCAT and establish an independent National Preventive Mechanism to conduct regular inspections of all places of detention. 

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Useful links

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