Involving civil society in preventing ill treatment in detention: maximising OPCAT’s opportunity for Australia

ABSTRACTNew Zealand was an early adopter of the Optional Protocol to the Convention Against Torture (OPCAT) and its unique preventive approach. It is now over 10 years since New Zealand established its multi-body National Preventive Mechanism (NPM) to fulfil its obligations under the OPCAT. This paper provides a critical analysis of the extent to which New Zealand’s NPM has improved the protection of human rights of those deprived of their liberty. The paper unpacks domestic legal and policy settings and assesses them against New Zealand’s binding international obligations. In particular it considers the extent to which New Zealand’s NPM has influenced change in the legislative framework, conditions in places where people are deprived of their liberty, restrictive practices, and the treatment of vulnerable populations deprived of their liberty. It further considers current limitations on the OPCAT mandate and how this impacts on New Zealand fulfilling its binding international human rights obligations. The paper identifies both good practice and lessons learned for States who are considering ratifying OPCAT, or who are in the process of establishing NPMs.

According to the Optional Protocol to the Convention against Torture (OPCAT), national preventive mechanisms (NPMs) are required to conduct regular visits to detention centres and provide recommendations to authorities for preventing torture. Following its ratification of OPCAT, Nigeria established its NPM, known as the National Committee Against Torture (NCAT), in 2009 and enacted the Anti-Torture Act of 2017, which prohibits the use of torture in Nigeria without any exceptions. To comply with OPCAT requirements and create an effective NPM, Nigeria dissolved the 2009 NCAT and inaugurated a new NCAT in 2022. In 2024, the National Human Rights Commission (NHRC) was designated as the NPM, with a specialised department tasked with preventing torture. This raises an important question: If the previous two NCATs as an NPM could not comply with OPCAT requirements, how could we be sure that the NHRC, with its specialised department, will effectively prevent torture as prescribed by OPCAT? To address this question, this article investigates the previous NCATs’ compliance with OPCAT requirements. It then analyses the NHRC as the newly designated NPM and interrogates its ability to meet OPCAT standards. The article concludes that several factors, such as the lack of adequate legal documentation establishing the 2009 and 2022 NCATs, insufficient resources, lack of functional independence, and limited funding, played a role in non-compliance. However, the NHRC already has an established structure and the capability to investigate human rights violations, albeit not with a preventive focus. Therefore, while the designation of the NHRC as the NPM through the 2024 order, along with its specialised department, meets specific standards, the clarity regarding the structure, funding, and unannounced visitation of this specialised department remains uncertain.

The UK government ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) in 2003. The OPCAT expressly requires that each state signatory should designate a National Preventive Mechanism (NPM). NPMs are national bodies that have the mandate to conduct regular visits to places of detention as well as make recommendations to the state to improve the situation of the persons deprived of their liberty. This article examines the international and national mechanisms for monitoring those deprived of their liberty in social care and psychiatric institutions, with particular reference to the current practice of the Care Quality Commission (CQC) monitoring body in England. The article examines the role of the UN Subcommittee on the Prevention of Torture (SPT) in monitoring at an international level and analyses the key elements for an effective national monitoring body (NPM) in this context, drawing on OPCAT, the recommendations of the SPT and the experience of the CQC and its predecessor, the Mental Health Act Commission. The article maintains that there is a need to safeguard procedural standards, such as a regular system of unannounced visits, operational and financial independence from the state, and a blend of appropriate expertise of visiting teams, including service user involvement. The article concludes that there is potential for the UN SPT and the Convention on the Rights of Persons with Disabilities (CRPD) Committee to develop guidance for monitoring bodies on implementing substantive standards, to ensure that the rights of patients detained in such settings are adequately protected and promoted.

ABSTRACTAustralian parliaments and courts have recognised that aged care facilities with closed units can be places of (civil) detention where patients/consumers are deprived of their liberty. Current monitoring of these places of detention is substandard and inadequate, as evidenced by the multiple federal and state inquiries into South Australia’s Oakden Older Persons Mental Health Service. The monitoring of closed aged care facilities needs urgent strengthening via the use of rigorous, human-rights-based standards. The urgency to improve the system of monitoring for this form of civil detention coincides with Australia’s 2017 ratification of the Optional Protocol to the Convention Against Torture (OPCAT). Australia’s commitment to OPCAT ushers in the establishment of National Preventive Mechanisms (NPMs) at the federal and state levels to strengthen monitoring of all places of detention in Australia. The Federal Government has indicated that Australia’s NPMs will initially focus on ‘primary’ places of detention. While closed aged care facilities are less traditional places of detention, this paper argues that the Federal Government, if it has learned anything from Oakden, should not delay strengthening its system of monitoring for these closed facilities.

Since the UN Optional Protocol to the Convention against Torture (OPCAT) came into force in 2006, the institutional landscape governing monitoring in European prisons has become increasingly complex. Already subject to regular monitoring visits by the European Committee for the Prevention of Torture (CPT), the majority of Council of Europe Member States are now also States Parties to the OPCAT. Accordingly, these States Parties may be subject to periodic visits by both the CPT and the UN Subcommittee for the Prevention of Torture (SPT). Under OPCAT, States Parties must also designate or establish their own independent National Preventive Mechanisms (NPMs), which undertake regular visits to all places of detention across the state. The result is that prisons in the majority of Council of Europe States now receive three levels of external scrutiny. The present chapter provides the background context, explaining the ECPT (European Convention for the Prevention of Torture) and OPCAT frameworks before exploring in greater detail the practical implications of this more complex area and in particular the relationships between the different monitoring bodies.

This chapter assesses implementation of the United Nations Optional Protocol to the Convention against Torture (OPCAT), and National Preventive Mechanism (NPM) designation processes and outcomes specifically, in Latin America. It shows that NPM designation processes have varied considerably in the region between countries depending on two sets of factors: (i) the degree of official and institutional resistance to designation of effective monitoring; and (ii) pre-existing capacity on the part of domestic structures tasked with monitoring duties. The empirical analysis of four country case studies (Argentina, Costa Rica, Peru and Mexico) demonstrate that even in situations of high levels of state resistance high-capacity candidate agencies can have a powerful, even decisive, impact. Interestingly, strong capacity can co-exist with resistance and can mitigate the pernicious effects of resistance to designation of potentially effective NPMs. These findings are important for any assessment of the potential of NPMs and monitoring of detention facilities more generally. Not only do they highlight key factors that shape domestic processes of treaty implementation during the post-ratification phase, but they also put the spotlight on the central political and institutional conditions that determine the effectiveness of monitoring institutions to protect the rights of persons deprived of liberty.

Australia has recently ratified the Optional Protocol to the Convention against Torture (OPCAT) in order to improve the oversight of Australia’s prisons and detention centres, following major human rights violations exposed in them in 2016. Ratification offers an opportunity to appraise the effectiveness of monitoring and oversight in Australia, and the limitations of human rights protections in the Australian context. Australia’s prisons and youth detention centres are to be monitored by a network of independent inspecting bodies, which are likely to include existing Ombudsman and human rights bodies. The Office of the Commonwealth Ombudsman has the task of coordinating the new inspection bodies. This article reviews the existing protections of rights in Australia and considers the implications of ratification of OPCAT. The article concludes that implementation will require consideration of the effectiveness of the current bodies monitoring prisons and youth detention and their capacity to take on the role of preventing human rights violations, including their independence from government, as the states and territories decide on the establishment of their National Preventive Mechanisms. Implementation will also require an understanding of Australia’s historical ambivalence towards international human rights engagement and the impact of its federated system.

This study examines the ideological impact of international prison inspectorates on national correctional systems, concentrating on how these bodies influence the balance between rehabilitative and retributive penological philosophies. While their primary mandate is to monitor prison conditions and prevent ill-treatment, inspectorates such as the European Committee for the Prevention of Torture (CPT), the Optional Protocol to the Convention Against Torture (OPCAT) National Preventive Mechanisms (NPMs), and the International Committee of the Red Cross (ICRC) subtly shape penal ideologies through their engagement and recommendations. The research sets out three objectives: to identify the penological philosophies promoted by selected international inspectorates, to analyse their rhetorical and strategic approaches in influencing prison systems, and to assess the tangible impact of these efforts on national policies and prison practices. A qualitative, comparative case study method is used, incorporating content analysis of inspectorate reports and communications, national legislation, and interviews with key stakeholders. Preliminary findings reveal a consistent promotion of rehabilitative and human rights-based approaches by these bodies. The CPT emphasizes normalization and reintegration, OPCAT NPMs focus increasingly on conditions supporting rehabilitation, and the ICRC advocates humane treatment, which underpins rehabilitative ideals. Impacts include legislative reforms, the introduction of rehabilitation programs, and shifts in official discourse. However, these changes vary across countries and are often limited by political, economic, and cultural barriers. The study concludes that international inspectorates, though often operating subtly, contribute significantly to shifting correctional ideologies toward more balanced, rehabilitative models. It adds to penological scholarship by illuminating the mechanisms through which global oversight fosters internal penal reform.

This article discusses the findings of an exploratory study involving semi-structured interviews with a sample of Mental Health Act (MHA) Commissioners. MHA Commissioners are employed by the Care Quality Commission (CQC) in England to monitor patients who are deprived of their liberty under the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The study was designed to examine the impact of the transfer of responsibility of mental health detention monitoring in April 2009 from the Mental Health Act Commission to the CQC. The interviews were devised around the United Nations Optional Protocol to the Convention Against Torture (OPCAT) framework, which provides a useful benchmark for effective monitoring of deprivations of liberty to national inspection bodies (known as National Preventive Mechanisms), such as the CQC. Article 18 of the OPCAT advises a regular system of preventive visits by independent expert monitors, as well focussing on the promotion and protection of human rights. There is paucity of data on the work of MHA Commissioners in England to date and the author was unable to locate any previous studies on the subject. This study is timely and important as the CQC has been heavily criticised following the abuses uncovered at Winterbourne View care home and in the wake of the Mid Staffordshire Inquiry. Consequently, in 2012, the CQC undertook a major strategic review. The findings of this study suggest that, whilst there is some evidence of compliance, the CQC still has some way to go to effectively fulfil its monitoring duties in line with the provisions of the OPCAT.

ABSTRACTHM Chief Inspector of Prisons for England and Wales is mandated under domestic law to visit and report on prison conditions and the treatment of prisoners. The Inspectorate's detailed monitoring work provides valuable and authoritative insights into individual prison establishments as well as the overall conditions in prisons and the treatment of prisoners in England and Wales. In spite of this, the implementation of HMIP's recommendations remains low. Furthermore its ability to make recommendations on wider regulatory and policy matters to government departments and relevant authorities remains limited in the absence of a more robust statutory framework. The article argues that HMIP's ability to influence prison reform could be bolstered by making fully operational its mandate under the Optional Protocol to the Convention against Torture (OPCAT) as well as by strengthening the collective UK National Preventive Mechanism (NPM).

Standards for the protection of people deprived of liberty have been developed over the last 60 years, but have evolved and progressed steadily since the adoption of the UN Convention Against Torture in 1984. Although the revision in 2015 of the UN SMR for the Treatment of Prisoners targeted only certain key areas of the rules, there was a significant progression in universal protections surrounding healthcare, vulnerable groups, discipline, the investigation of deaths and torture, and access to legal representation, among other areas. It is now an established practice that the prevention of torture and other forms of cruel, inhumane or degrading treatment (CIDT) or punishment goes well beyond the consideration of individual complaints of physical or psychological ill-treatment. Places of detention in each state should be governed by national laws, regulations, and standards of practice. The Optional Protocol to the Convention against Torture (OPCAT) established both international and national monitoring mechanisms for the prevention of torture.

Australia's mandatory detention policy allows for non-citizens without a valid visa to be held in sites of immigration detention on an indefinite basis. This means that asylum seekers who arrive without a valid visa can be detained from their time of arrival to Australia until their protection claim is finalised, unless ministerial discretion is exercised to enable their release into the community. Thousands of asylum seekers who arrived by boat have consequently endured long periods of indefinite detention in prison-like conditions in facilities established by the Australian government, both within Australia and in offshore locations. Many of these sites are in remote locations and there is limited monitoring provided by formal state and non-state bodies across this detention network that is systematic, transparent and independent. There are also few civil society groups and individuals with the capacity to assume a monitoring role. This article explores the inhibiting factors of monitoring immigration detention in Australia and offshore locations, and the prospects for securing systematic and transparent independent scrutiny should Australia ratify the Optional Protocol to the Convention against Torture (OPCAT). It also highlights the limits of an OPCAT-consistent monitoring system in the promotion and protection of the rights of asylum seekers.

Civil society theory tends to posit that civil society is normatively positive; in its ideal form, civil society is functional in character. Additionally, civil society is assumed to have ameliorative effects on inequality and stratification, however, much of the existing civil society literature does not address the converse relationship of how social inequality might affect civil society. It was hypothesized that social inequality related to class, race, gender, and age would lead to differences in attitudes towards and structural conditions related to access to and inclusion in civil society, as well as to actual participation in civil society on the part of residents. These hypotheses were tested using cross-tabulation comparisons of data taken from a 2004 survey of residents in 99 Iowa communities, and then examined further using Lazarsfeld’s elaboration model, utilizing additional test variables. Findings indicated that social class, race, and to a lesser extent, age, continue to play a significant role in actual access to and inclusion in civil society, as well as personal participation in civil society. Contrary to theoretical expectations, gender did not apparently play a significant role in civil society activity in this study. Little support was indicated for a defining role of attitudinal measures of civil society inclusion, access, and participation.

The fact that civil society groups play important roles in post-conflict peacebuilding has entered the mainstream of international conflict resolution dogma. Rarely do local civil society groups get a seat at the negotiation table for peace accords. Although the exclusion of civil society from peace negotiations may streamline the process, the absence of civil society voices and interests at the negotiating table can negatively impact the sustainability of a peace agreement during peacebuilding. Surveying a wide variety of different peace processes, a strong correlation was found between active civil society participation in peace negotiations and the durability of peace during the peacebuilding phase. Cases in which civil society groups actively engaged in peace negotiations seemed to enjoy more sustained peace in the peacebuilding phase. This holds true also for cases in which civil society groups did not have a direct seat at the table, but did exercise significant influence with the negotiators because they were democratic actors. War resumed in many cases not characterized by direct or indirect civil society involvement in the peace negotiations. No claim of causality is made; the sustainability of peace surely rests on causes as complex and dynamic as the initiation of war does. However, these findings do call attention to the need for further research to understand the special impact that civil society inclusion at the peace table may have.

Although research on smart cities increasingly acknowledges the involvement of civil society actors, most studies fall short when it comes to clarifying the specific modalities of civil society involvement. By probing into the smart city ecology that has developed around the Amsterdam Smart City-Foundation, we explore not only the extent to which the civil society is part of a smart city ecology but also what role civil society actors hold within this ecology. This article draws on data gathered and analyzed through quantitative and qualitative methods. The qualitative analysis focuses on analyzing the institutional dynamics that shape civil society involvement in Amsterdam’s smart city ecology. The quantitative data are used to unravel the relational dynamics by quantifying collaborative patterns between different types of organizations in Amsterdam’s smart city ecology. Our findings reveal that powerful institutional dynamics, manifested through normative pressures, favor the involvement of socially oriented civil society actors. At the same time, however, relational dynamics that shape the collaborative patterns in the projects of the ecology rather exclude the socially oriented civil society at the benefit of an economically oriented civil society. In other words, while the entire ecology rhetorically adheres to an ethos of pervasive civil society involvement, politically, socially, and civically oriented civil society actors lack inter-organizational collaboration—even in the supposedly inclusive context of Amsterdam.