- The concept of “primary places of detention” excludes a number of places where human beings in fact are or may be deprived of liberty, such as old peoples’ homes and a variety of “institutions” where children are or may be deprived of liberty for various reasons, including educational supervision, drug or alcohol rehabilitation, for their own care as orphans, children living in the streets, indigenous children, etc. I just published a comprehensive UN Global Study on Children Deprived of Liberty, where we arrived at the conclusion that the highest number of children are in fact deprived of liberty in these types of ‘institutions’, where the risks of corporal punishment, sexual exploitation, and mental and physical violence are particularly high. Since OPCAT provides that NPMs shall carry out preventive visits to all places of detention, as defined in Article 4, the Australian restriction to “primary places of detention”, although from a pragmatic point of view is understandable, might be considered as violating OPCAT.
- OPCAT leaves it up to individual States Parties to decide whether they prefer to establish one institution as NPM for the entire country or more institutions. In a federal structure as in Australia, it might be good practice to delegate the task of carrying out preventive visits primarily to institutions that are based in the respective individual states and territories. It is also useful to entrust an independent body at the level of the Federal Government, such as the Commonwealth Ombudsman, with a coordinating role. On the other hand, if the individual states and territories, as is the case in Western Australia, entrust more than one body with the task of carrying out such visits, the coordinating role of the Commonwealth Ombudsman might become highly challenging and difficult. We must not forget that each body has a different organisational culture and might apply different standards when carrying out visits to places of detention, interviewing detainees and assessing the risk of torture and conditions of detention.
- States may establish new institutions, by taking into account the Paris Principles for National Human Rights Institutions (NHRIs), or designate existing bodies to carry out the task of an NPM. If states establish new institutions in accordance with the Paris Principles, they usually assess the needs and then provide the necessary budgetary resources before adopting a specific legislative act. If they designate, however, only already existing institutions, as seems to be the case in Australia, there is a certain risk that these institutions will be expected to carry out the additional NPM tasks without the necessary additional financial resources. The experience in other countries shows, however, that the tasks of preparing and conducting preventive visits; of objectively assessing the conditions in different places of detention; of drafting and adopting fairly comprehensive reports on every visit as well as annual reports; of submitting recommendations to the relevant administrative and political authorities; of monitoring the implementation of such recommendations; and of finally coordinating all these activities, is a highly time-consuming responsibility which requires significant financial resources.
In conclusion, I wish to congratulate the Australian Government for having started a comprehensive process of gradually setting up an NPM that has the potential of becoming a model for other federal states to follow. The respective authorities at the federal and state level may, however, wish to bear in mind that OPCAT requires that all places, where human beings are or might be deprived of liberty (thus not only “primary places of detention”), shall be visited; that not too many different bodies will be involved; and that the necessary budgetary resources will be provided. After all, these financial resources shall serve the important goal of effectively preventing torture and other forms of ill-treatment, as well as of improving conditions in all places of detention.
Manfred Nowak is Professor for International Human Rights at the University of Vienna, Scientific Director of the Vienna Master of Arts in Human Rights, and Secretary General of the Global Campus of Human Rights. In 2016 he was appointed Independent Expert leading the UN Global Study on Children Deprived of Liberty. Besides teaching at various prestigious universities, he has published more than 600 books and articles in this field and held various expert functions, such as UN Expert on Enforced Disappearances (1993–2006), international judge in the Human Rights Chamber for Bosnia and Herzegovina (1996–2003), and UN Special Rapporteur on Torture (2004–2010).