COVID-19 presents the first challenge to Australia's National Preventive Mechanism (NPM) and its OPCAT obligations. While the NPM obligations do not formally commence until 2022, the Commonwealth Ombudsman's NPM role in federal detention is already established through legislation

On the 23rd of March 2020, the Department of Home Affairs made a decision to cease all visits to Immigration Detention to prevent COVID-19 from entering detention (to date there has been no confirmed cases of COVID-19). This temporary ban includes external scrutiny bodies.

The OPCAT provides an NPM unrestricted access to places of detention (Article 20) however the UN SPT acknowledges limited circumstances where a state may temporarily restrict access to a place of detention. It provided the following advice to NPM's in response to COVID-19

The Department of Home Affairs states it is working with external scrutiny bodies on modified methods of scrutiny. This is important given numerous concerns around social distancing limitations, peaceful protests and Department of Health advice that detention is a elevated risk.

None the less, the Department of Home Affairs ban on the Commonwealth Ombudsman (as NPM) from visiting detention does not meet the ground presented in the SPT's advice. The ban is not of a singular site or for a particular reason (quarentine). Again there are no confirmed cases.

In further advice to NPM's the UN SPT empasises that COVID-19 should not be a reason to cease visiting places of detention. Rather it highlights its importance given this is a period of heightened risk of mistreatement.

While it's encouraging that the Department of Home Affairs is working on alternate methods of external scrutiny, the imposition of a ban without regard to the specifications of the SPT advice are in breach of Australia's OPCAT obligations and must be lifted immediately.

Further this advice accords with guidance provided by the World Health Organisation