About the Tasmanian NPM
What is OPCAT?
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is an international agreement designed to strengthen the protection of people deprived of their liberty.
Any state that is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) may become a party to OPCAT. Australia ratified the CAT in 1989, and OPCAT in 2017.
International law provides that torture is a crime in all circumstances; it is never allowed nor justifiable. It is what is known as an absolute and non-derogable prohibition, and a jus cogen, meaning it is binding on all States.
Article 2 of the CAT imposes a positive obligation on a State Party to adopt effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 16 of the CAT extends this obligation to the prevention of ill-treatment.
Despite these obligations, torture and ill-treatment continues to occur in many locations globally.
To improve a Member State’s compliance with the CAT, OPCAT provides a complementary framework developed to strengthen the protection of people deprived of their liberty in places of detention through preventive monitoring, providing advice and recommendations, cooperating with authorities, and education. Recognising that torture and ill-treatment is more likely to occur in places not subject to external scrutiny, OPCAT establishes a system whereby regular visits are made to places of detention by independent, external person(s).
OPCAT is a unique international agreement, requiring that its functions be carried out by both international and national independent monitoring bodies.
At the international level, OPCAT has established a new, standing subcommittee to the CAT, called the ‘Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (the SPT). OPCAT provides that the SPT may visit any place of detention under the jurisdiction of a State Party (to OPCAT). Following a visit, the SPT recommends action to be taken to improve the treatment of detainees or persons being held against their will, including conditions of detention. States party to OPCAT are obligated to receive the SPT and grant it unfettered access to places of detention, certain information, and agree to engage cooperatively with the SPT during its visits. The SPT will visit Australia periodically.
At the national level, upon ratifying OPCAT, the State Party is required to establish a new NPM framework. OPCAT is the first international agreement that includes as a mandatory component the creation of a national body to play a key role in its implementation. Similar to the SPT, NPMs are independent visiting bodies, established at domestic level. Because SPT visits may be multiple years apart and short in duration, the NPM plays a critical role in effectively preventing torture and ill-treatment by being a permanent, regular presence that is able to engage actively with State authorities, stakeholders and civil society.
Australia’s SPT obligations commenced upon ratifying OPCAT in 2017, while it is required to be NPM compliant by January 2023.
What is a national preventive mechanism (NPM)?
The NPM is a visiting body established for the purpose of preventing torture and other cruel, inhuman or degrading treatment or punishment. It is required to be independent in the exercise of its mandate, operations, and finances. The NPM mandate consists of four functions: visiting, advisory, educational, and cooperation. OPCAT does not create any new substantive human rights obligations.
The NPM’s primary function is undertaking preventive monitoring of places of detention. Under this function, the NPM is required to regularly examine the treatment of the persons deprived of their liberty, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment.
Article 4 of OPCAT defines places of detention and deprivation of liberty in broad terms. This recognises that torture and ill-treatment can occur in a wide range of settings. The places visited by the SPT and by NPMs goes beyond prisons and youth justice facilities. In other States, NPMs visit places such as police stations, military detention, detention centres (including pre-trial detention centres and immigration detention centres, and transport vehicles to and from those facilities), mental health facilities, and social care facilities (such as hospitals, aged care, and educational facilities).
During these visits, places of detention are evaluated for compliance with the State’s international human rights obligations, other relevant United Nations norms, applicable domestic laws, and relevant best practice. To effectively exercise their mandate, NPMs are required to have unfettered access to places of detention, private access to persons held in those places, access to related things and information, and contact with authorities. Consistent with their preventive focus, NPMs do not investigate complaints.
Following a visit, NPMs exercise their advisory function by making recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and ill-treatment. The relevant authorities are required by OPCAT to enter into dialogue with the NPM to discuss possible measures to implement its recommendations. The NPM does not have the power to enforce implementation, although it may emphasise observed failures in follow-up reporting.
Alongside these recommendations, NPMs also submit feedback on draft legislation and proposed policy; review rules, methods and practices; deliver education programmes to relevant authorities, stakeholders and the wider public; and cooperate with government and non-government entities to share experiences and improve their effectiveness. The NPM issues an annual report on its activities, and may publish other reports or information relevant to its functions.
NPMs are required to uphold the principle of confidentiality. This means that a person’s personal information obtained by the NPM in the exercise of its functions cannot be published without that person’s consent.
Reprisal against a person for providing information to an NPM or the SPT (or because they may provide information in the future) is prohibited. With respect to the Tasmanian NPM, protection from reprisal has been made a specific offence under section 36 of the OPCAT Implementation Act 2021 (Tas).
What is preventive monitoring?
Under OPCAT, the NPM exercises its functions through a preventive lens. Article 19 of OPCAT outlines the objective of visits as being to strengthen, if necessary, the protection of persons against torture and other cruel, inhuman or degrading treatment or punishment, and with the aim of improving the treatment and the conditions of the persons deprived of their liberty. In other words, visits are aimed at preventing future occurrences of torture and ill-treatment.
The Association for the Prevention of Torture notes that this process “can be understood as any visit to a place of deprivation of liberty, with the objective of identifying root causes of ill-treatment and other human rights problems, understanding systemic issues and finding ways to address them.”
This means that the NPM’s aim is not to respond to specific events, allegations or complaints. Instead their approach is proactive; aiming to ensure that circumstances in which such events, allegations or complaints may occur are less likely to arise. In Tasmania, such complaints or allegations would be made to the Ombudsman, or Tasmania Police. Visits to places of detention are regular, focusing on systemic improvement rather than on any particular individual, and involve ongoing dialogue with relevant authorities.
The prevalence of torture and ill-treatment can be influenced by many factors. Addressing all factors on each visit can be difficult to achieve, and resource intensive. Preventive visits accordingly can take a number of forms, and can be announced or unannounced. Follow-up visits often occur.
To ensure that visits are appropriately thorough, a common approach is for visits to a place to be broken down into ‘themes’, although this may vary on a case-by-case basis. A visit may be comprehensive, in the sense that it will aim to address many or all themes in-depth, on a single occasion. These visits typically take several days. Or a visit may focus on one particular theme only, which may take less than a day. Under each theme, the NPM will typically have regard to relevant standards and guidelines, and may include the involvement external experts (e.g. specialist medical practitioners).
The choice of visit type (e.g. comprehensive, specific theme, ad hoc, or follow-up) and prioritisation of regularity of visits to certain places, and relevant themes, is determined following the principle of proportionality. This principle takes into consideration factors such as strategy, available resources, and analysis of a situation, which can include the identified risk of likelihood of torture and ill-treatment occurring. NPMs are expected to develop an internal program to ensure that it deploys its resources as effectively as possible.
Who is the Tasmanian NPM?
The current Tasmanian NPM is Mr Richard Connock.
Mr Connock was appointed as Tasmanian NPM in February 2022 by the Governor of Tasmania, the Honourable Barbara Baker AC.
Mr Connock currently also serves as Tasmanian Ombudsman and as the Custodial Inspector, among other related independent bodies. Information about these bodies is available at Ombudsman Tasmania.
The Tasmanian NPM is established under the OPCAT Implementation Act 2021 (Tas).
What does Australia’s NPM model look like?
OPCAT does not specify a particular NPM organisational model, enabling a State Party to set up, designate or maintain one or several NPMs. Around the world, States that have established NPMs have generally done so differently. In a similar way, Australia’s approach to NPM implementation will also be unique.
The ‘Australian NPM’ collectively consists of a network of NPMs set up by each state and territory government, and the Commonwealth government.
This multi-NPM approach was selected by Australian governments due to jurisdictional complexities arising from Australia’s federated system of government. In Australia, each state and territory government, and the Commonwealth government, operate and maintain power over certain places of detention—notably prisons and other detention facilities, court cells, police cells, health facilities, and social care facilities. Accordingly, Australian governments will each give effect to Australia’s NPM obligations separately, for persons deprived of liberty under their respective jurisdiction and control. Similarly, all Australian governments are required to take steps to ensure that the SPT can exercise its visiting mandate.
All Australian NPMs will operate independently, while the Commonwealth NPM (the Commonwealth Ombudsman) holds an additional responsibility of coordinating and facilitating information flows among the network.
In Tasmania, the NPM framework currently consists of a single, dedicated and independent body, which has been established by the Tasmanian Parliament under standalone legislation, the OPCAT Implementation Act 2021 (Tas). This legislation sets out all of the NPMs powers, functions and duties, and includes specific provisions to facilitate SPT visits.
Careers
Hiring for the office of the Tasmanian NPM is anticipated to commence in mid-2023.
Job vacancies will be advertised on the Tasmanian Government Jobs Website.
More information on NPM
Visit our Resources page for more information on national preventive mechanism and OPCAT.