Optional Protocol To The Convention Against Torture Research Articles

Preventing torture and other cruel, inhuman or degrading treatment of children in detention in Australia

This article considers the multitude of inquiries and investigations into the treatment of children in youth detention in Australia over the past five years (2017–2022) as well as examples of practices that constitute torture and other cruel, inhuman or degrading treatment under international law (in particular, solitary confinement, use of restraints and force and strip searching). It explores how Australia might move beyond reacting to such treatment to preventing it because of the international and national monitoring and oversight mechanisms introduced by the Optional Protocol to the Convention Against Torture (OPCAT).

Human rights oversight of correctional institutions in Australia

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.

Africa, Prisons and COVID-19

Africa’s prisons are a long-standing concern for rights defenders given the prevalence of rights abuses, overcrowding, poor conditions of detention and the extent to which the criminal justice system is used to target the poor. The paper surveys 24 southern and east African countries within the context of COVID-19. Between 5 March and 15 April 2020 COVID-19 had spread to 23 southern and east African countries, except Lesotho. The overwhelming majority of these countries imposed general restrictions on their populations from March 2020 and nearly all restricted visits to prisons to prevent the spread of the coronavirus. The pandemic and government responses demonstrated the importance of reliable and up to date data on the prison population, and any confined population, as it became evident that such information is sorely lacking. The World Health Organization recommended the release of prisoners to ease congestion, a step supported by the UN Subcommittee on Prevention of Torture. However, the lack of data and the particular African context pose some questions about the desirability of such a move. The curtailment of prison visits by external persons also did away with independent oversight even in states parties to the Optional Protocol to the Convention against Torture (OPCAT). In the case of South Africa, prison monitors were not listed in the ensuing legislation as part of essential services and thus were excluded from access to prisons. In the case of Mozambique, it was funding being placed on hold by the donor community that prevented the Human Rights Commission from visiting prisons. The COVID-19 pandemic has highlighted long-standing systemic problems in Africa’s prisons. Yet African states have remained remarkably reluctant to engage in prison reform, despite the fact that poorly managed prisons pose a significant threat to general public health care.

Prison Inspection and Monitoring: The Need to Reform European Law and Policy

Prison inspection and monitoring bodies are important safeguards against breaches of human rights. In recent years, prison inspection and monitoring has become a key focus for international human rights standards, particularly through the introduction of the Optional Protocol to the Convention against Torture (OPCAT) and the UN’s Standard Minimum Rules for the Treatment of Prisoners, which recognize the need for robust and effective systems of prison oversight. This article contends that European legal standards on inspection and monitoring have not kept pace with international developments. The content of European law concerning domestic-level prison inspection and monitoring is not clear, nor has it been consolidated or examined in depth. Through engaging in comparative analysis with international instruments, this article analyses standards promulgated by Council of Europe and European Union bodies on inspection and monitoring, arguing that they need reform in light of international developments. Taking the opportunity presented by the revision process for the European Prison Rules and associated commentary, the article proposes improvements to European legal frameworks. It welcomes proposals for stronger powers for inspection and monitoring bodies, advocates for a specific instrument on prison inspection and monitoring and calls for more empirical understanding of how such bodies operate in practice.

Aged care, detention and OPCAT

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.

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

ABSTRACTCivil society advocacy was an important factor contributing to Australia’s ratification of the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT requires States to establish a domestic detention monitoring framework and receive occasional visits from a United Nations (UN) subcommittee, with the aim of preventing ill treatment in closed environments. But what role can and should civil society play post ratification? Civil society has significant experience and expertise working in closed environments. This includes through work providing support, services and programmes for persons deprived of their liberty, and advocating for rights protection or seeking remedies or redress for rights violations. In particular, civil society can bring expertise about vulnerable groups and their experiences in detention, which can enhance the capacity of National Preventive Mechanisms (NPMs) to prevent ill treatment. With 88 OPCAT State Parties at the time of writing, there are many international examples of civil society participation in the OPCAT framework, including civil society’s direct involvement in the NPM. To realise OPCAT’s full potential, Australian Federal and State/Territory governments and potential NPMs must recognise civil society as an essential stakeholder. Civil society must also seize the opportunity that OPCAT presents to actively engage in OPCAT implementation.

The role and scope of OPCAT in protecting those deprived of liberty: a critical analysis of the New Zealand experience

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.

Penal monitoring in the United States: lessons from the American experience and prospects for change

While independent penal monitoring has a history as old as the prison itself, the United States has historically lacked a robust system of monitoring at the federal, state and local level. Studies of the protection of human rights in prisons, and growing experience with robust monitoring systems, like those promoted by the United Nations through the Optional Protocol to the Convention Against Torture (OPCAT) and the Council of Europe highlight the peril for the United States which is not a signatory to OPCAT and has largely failed to create adequate independent systems of monitoring. When practiced routinely monitoring creates conditions that make extreme turns in penal policy less likely and protect human rights in prisons when populist pressures do build. That peril has come to pass as mass incarceration policies have made overcrowding ubiquitous and undiscovered violations of human rights on a mass scale almost inevitable. Instead of routine independent monitoring, the US has relied almost exclusively on judicial decrees, some of which involve independent monitoring. Unfortunately, while courts have great power to order reforms, and have under some conditions produced systemic prison reforms, the adversarial nature of American legalism makes standards based on litigation subject to enforcement resistance by correctional systems. Even this path, however, has been largely foreclosed by the Prison Litigation Reform Act of 1996 (PLRA) which largely cut off prisoner access to the federal courts just as prisons were entering the most perilous phase of overcrowding. Yet it is possible that today the growing human rights crisis in prison and the loss of confidence in correctional leadership to fix those problems is opening up space to place independent penal monitoring at the center of human rights protection in prisons. As the US carceral state enters profound crisis of legitimacy monitoring, in prisons and in analog form across the carceral state institutions, can play a crucial role in making correctional governance both more legitimate and more effective at promoting the human rights of prisoners.

Regulatory Stewardship and Intermediation

The regulator-intermediary-target (RIT) framework exposes the potential for intermediaries to provide alternative channels for capture. In this article, I argue that the risk of capture can be mitigated through what I call regulatory stewardship—a novel conception of regulatory management that involves the intermediaries themselves monitoring the performance of one another. I explore regulatory stewardship by examining a new generation of human rights treaty innovation: the Optional Protocol to the Convention against Torture (OPCAT) and the Convention on the Rights of Persons with Disabilities (CRPD). These instruments differentially formalize relations between intermediaries. I use their contrasting experiences to identify three factors central to effective regulatory stewardship: (1) the nature of the task environment, (2) the quality of rule frameworks, and (3) the approaches adopted by potential stewards in practice. This study argues for the importance of regulatory stewardship within RIT arrangements, particularly where targets are strongly motivated to resist implementation.

The limitations of monitoring immigration detention in Australia

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.

Governing Relationships: The New Architecture in Global Human Rights Governance

The global human rights regime has undergone extraordinary expansion in the last thirty years. It is particularly notable for its profusion of state and non-state actors and levels of formal articulation. This article seeks to make legible the human rights governance architecture from the global to the local level, within an issue-specific domain. Orchestration theory is employed as a general mode of governance, with application across political units and political levels. Orchestration applies when a focal actor enlists and supports third-party actors to address the target indirectly in pursuit of shared governance objectives. Using the UN Optional Protocol to the Convention Against Torture (OPCAT) as an example, the article explores the authority relationship across two central political units (the orchestrator and intermediary), with a focus on how this new global human rights architecture may offer a way of bridging the steps separating international instruments from practices on the ground.

PERSPECTIVES ON MONITORING MENTAL HEALTH LEGISLATION IN ENGLAND: A VIEW FROM THE FRONT LINE.

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.

Governing Relationships: The New Architecture in Global Human Rights Governance

The global human rights regime has undergone extraordinary expansion in the last thirty years. It is particularly notable for its profusion of state and non-state actors and levels of formal articulation. This article seeks to make legible the human rights governance architecture from the global to the local level, within an issue-specific domain. Orchestration theory is employed as a general mode of governance, with application across political units and political levels. Orchestration applies when a focal actor enlists and supports third-party actors to address the target indirectly in pursuit of shared governance objectives. Using the UN Optional Protocol to the Convention Against Torture (OPCAT) as an example, the article explores the authority relationship across two central political units (the orchestrator and intermediary), with a focus on how this new global human rights architecture may offer a way of bridging the steps separating international instruments from practices on the ground.

Monitoring and Oversight of Human Rights in Closed Environments

This edited collection is an outcome of an Australian Research Council Linkage grant project, ‘Applying Human Rights in Closed Environments: A Strategic Framework for Managing Compliance’. As part of the ARC project a major Roundtable was convened in Melbourne in November 2010 to examine the role of monitoring and oversight bodies in protecting human and to identify current practices and future possibilities for mechanisms for accountability and oversight of human rights practices in closed environments. The papers address four broad themes: •What makes an effective monitoring body? What bodies are currently performing human rights monitoring in closed environments in Australia? Where might the Optional Protocol to the Convention against Torture (OPCAT) fit with these schemes? •How do volunteer and advocacy groups produce change and what is their relationship with other monitoring or oversight agencies? •Is ‘human rights’ the most effective framework to be used by monitoring bodies? •How might new initiatives and oversight agencies come to be established and work effectively?

Monitoring those deprived of their liberty in psychiatric and social care institutions and national practice in the UK

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.

The Optional Protocol to the Convention Against Torture (OPCAT): A major step forward in the global prevention of torture

The Optional Protocol to the Convention Against Torture (OPCAT): A major step forward in the global prevention of torture