Australia - OPCAT Situation
Commonwealth Ombudsman, with state and territory NPMs still to be designated.
Australia ratified the the OPCAT in December 2017, with a declaration under Article 24 of the treaty to postpone the designation of its National Preventive Mechanism for three years (Part IV of the OPCAT).
When Australia ratified the OPCAT it also announced that the Commonwealth Ombudsman would act as NPM Coordinator, with responsibility for coordinating a multiple body NPM across the states and territories. The Commonwealth Ombudsman began work in this role on the 1st of July 2018, following amendments to its regulations which came into effect on the 10th of April 2019. Since beginning this new mandate, the Ombudsman has published a report on places of detention and existing oversight bodies. This report is available here.
In addition to its coordination role, the Commonwealth Ombudsman is also responsible for monitoring immigration detention facilities, military detention facilities and Australian Federal Police holding facilities.
As of February 2022, 4 of the 9 Australian jurisdictions have formally nominated NPMs and 2 other jurisdictions have introduced legislation to support NPM nominations and functions. The Commonwealth, Western Australia (WA), the Northern Territory (NT) and the ACT have formally nominated their NPMs.
Tasmania recently passed the OPCAT Implementation Act 2021 to facilitate the nomination and activities of an NPM, and that Act commenced on 20 January 2022. On 28 February 2022 the Governor of Tasmania appointed Mr Richard Connock as Tasmanian National Preventive Mechanism. The Office of the National Preventive Mechanism is currently in the implementation phase.
South Australia’s (SA) OPCAT Implementation Bill 2021 was introduced in September 2021 and is currently before the SA upper house. The Bill envisages the SA NPM would be the Training Centre Visitor for youth detention facilities, the Principal Community Visitor for prescribed mental health facilities, and Official Visitors for correctional institutions and custodial police stations including court transit vehicles.
On 29 December 2021, NT released the Monitoring Places of Detention (Optional Protocol to the Convention Against Torture) Amendment Bill 2022, for public consultation. In April 2021, the NT Ombudsman was appointed as ‘interim NPM’ to work with relevant stakeholders on issues regarding OPCAT implementation. However, the draft Bill would create a new body, the NT NPM, made up of multiple NPM Inspectors.
Australian Capital Territory
While the ACT has not introduced dedicated legislation for NPMs, the ACT Attorney-General has announced the ACT NPM will be a multi-body NPM consisting of the ACT Ombudsman, ACT Human Rights Commission and ACT Office of the Inspector of Correctional Services.
While WA has not introduced dedicated NPM legislation, in July 2019 WA nominated its NPMs as the WA Ombudsman (for mental health and other secure facilities), and the Office of the Inspector for Custodial Services (for justice-related facilities, including police lock-ups).
Amendments to the Ombudsman Regulations 2017 enable the Office to perform functions as both Commonwealth NPM and NPM Coordinator under the Ombudsman Act 1976. The Commonwealth does not have overarching legislation which reflects Australia’s NPM model, or that provides at the national level for SPT visits.
The remaining three jurisdictions – Queensland, New South Wales, and Victoria are yet to nominate their NPMs.
The SPT member who is the SPT Focal Point for Australia is available here.
Ratification with a declaration under Article 24 to postpone the implementation of its obligations under Part IV (NPM designation) of the OPCAT for three years.