Header image for news printout

Committee against Torture considers the report of Australia

11 November 2014

The Committee against Torture today concluded its consideration of the fifth periodic report of Australia on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, John Quinn, Permanent Representative of Australia to the United Nations Office at Geneva, said that the Government had taken an effective, comprehensive, whole-of-government approach to combating human trafficking, slavery and forced marriages, and had amended the Commonwealth Criminal Code in 2013 to strengthen existing offences of slavery and slavery-like practices and to introduce new standalone offences of forced marriages and forced labour. The protection of migrants and asylum seekers had been strengthened and Australia had committed 2,200 places to Iraqis fleeing the violence. Australia was working towards constitutional recognition of indigenous peoples and had allocated 4.8 billion Australian dollars to the Indigenous Advancement Strategy to support two key priorities of getting children to school and adults to work.

Committee Experts recognized crucial pieces of legislation adopted in recent years, including on the offence for torture and on human trafficking and domestic violence, and stressed that there must be no impunity for acts of torture committed in the framework of counter-terrorism. The definition of terrorism was too broad and Experts wondered if it would be amended in accordance with the recommendations of the Human Rights Committee. Committee Experts raised a number of concerns with regard to refugees and asylum seekers, namely processing at arrival, the situation of children, and the transparency of the refugee determination process. The Aboriginal population represented almost two thirds of the prison population and Experts asked about measures to reduce the over-imprisonment of Aboriginals, including women and youth, and to adequately address their death in custody. Australia was a leader on dealing with violence against women, but the level of domestic violence in the society was endemic.

In concluding remarks, Mr. Quinn reiterated the importance Australia accorded to the process and this treaty body.

Claudio Grossman, Committee Chairperson, in concluding remarks, expressed appreciation for the dialogue with Australia, whose comments and information would be taken into account in the concluding observations.

The delegation of Australia included representatives of the Department of Immigration and Border Protection, Attorney-General’s Department, Department of Foreign Affairs and Trade, and the Permanent Mission of Australia to the United Nations Office at Geneva.

The Committee will reconvene in public on Wednesday, 12 November, at 10 a.m. to consider the combined third to fifth periodic report of the United States (CAT/C/USA/3-5).

Report

The fifth periodic report of Australia can be read via the following link: (CAT/C/AUS/4-5).

Presentation of the Report

JOHN QUINN, Permanent Representative of Australia to the United Nations Office at Geneva, introducing the report, said that Australia had a federal constitutional system with legislative, judicial and executive powers distributed between the Government and the six States and two internal self-governing Territories; this meant that nine governments shared the responsibility for the implementation of the Convention against Torture. The Commonwealth Criminal Code now included a specific offence of torture and applied also to acts of torture committed outside of Australia. The Government had taken an effective, comprehensive, whole-of-government approach to combating human trafficking, slavery and forced marriages, and had amended the Commonwealth Criminal Code in 2013 to strengthen existing offences of slavery and slavery-like practices and to introduce new standalone offences of forced marriages and forced labour. The amendment also provided protection to vulnerable witnesses and victims of trafficking while giving evidence in criminal proceedings.

The policies to ensure the protection of migrants and asylum seekers and prevent their exploitation at the hands of people smugglers had been strengthened. Australia had also responded to the call by the High Commissioner for Human Rights for a coordinated resettlement response to humanitarian crises and had committed in 2014-2015 a minimum of 2,200 places for Iraqis, including ethnic and religious minorities fleeing the violence in northern Iraq. While recognizing the humanitarian imperative of affording protection, Australia stressed that a robust return process of those found not to be in need of protection was fundamental to the integrity of the status determination process. The Parliamentary Joint Committee on Human Rights, established in March 2012, explicitly scrutinized all federal legislation against Australia’s international human rights obligations. All Bills and disallowable legislative instruments brought before the Parliament were tabled with a Statement of Compatibility setting out how the legislation was consistent with Australia’s international human rights obligations. Australia had made significant changes in the management of the portfolio of indigenous affairs, including the establishment of the Prime Minister’s Indigenous Advisory Council, and was working towards the recognition of indigenous peoples in Australia’s Constitution. The Indigenous Advancement Strategy, to which 4.8 billion Australian dollars had been allocated, would support two key priorities of getting children to school and adults to work. The Government was also considering ways to improve safety and reduce indigenous contact with the justice system.

Questions by Country Rapporteurs

CLAUDIO GROSSMAN, Committee Chairperson, acting as the Country Rapporteur, recognized crucial pieces of legislation adopted in recent years, including on the offences of torture, human trafficking and domestic violence, the progress made in the constitutional recognition of indigenous peoples and the establishment of the Joint Parliamentary Human Rights Committee. Mr. Grossman stressed that there must be no impunity for people who committed acts of torture in the framework of counter-terrorism.

With regard to refugees and asylum seekers, Mr. Grossman raised a number of issues of concern including processing at arrival, mandatory detention of migrants, the situation of children, the transparency of the refugee determination process, and attempts to change the standard of proof for the application of Article 3. The delegation was asked to provide further information on the length of the refugee determination procedure, the approach to investigating deaths of migrants in institutions run by private contractors, people smugglers tried and convicted in Australian courts, the foreseen changes in the law allowing the detention of asylum seeking children, and the refugee determination procedure for persons returned the Sri Lanka who allegedly suffered beatings and violence upon their return.

A statement that violence against women and domestic violence fell outside of the preview of the Convention against Torture was contrary to the established practice of the Committee to examine those issues, stressed the Chairperson and asked whether special measures were being taken to protect women from violence and how those programmes were being funded.

The Chairperson also asked the delegation to update the Committee about the status of the Human Rights and Anti-Discrimination Bill, the updating of the constitution with the prohibition of racial discrimination, and to provide additional information about the efforts to involve civil society in some key areas of activities including indigenous affairs, the visa status system and family reunification for victims of trafficking, and the status of the implementation of the Optional Protocol.

KENING ZHANG, Committee Expert acting as Country Rapporteur, welcomed the allocation of funding for human rights education in primary and secondary schools, and the involvement of the Government in human rights education and training in the public sector, including in its immigration services. It was important that the legal system had a focus on ensuring the knowledge of new laws among the judiciary and law enforcement and immigration officers.

There were reports that, because of overcrowding, some inmates were housed in shipping containers; and that prisoners, who had more chronic health needs than the general population, did not have access to all the medicines they needed or to the mental health services and sometimes had to pay for a second opinion. The delegation was asked about the measures to reduce the number of persons in prisons and to ensure adequate access to health care, including mental health services. An issue of concern was the imprisonment of the Aboriginal population, which represented almost two thirds of the prison population; what was being done to reduce the over-imprisonment of Aboriginals, in particular of Aboriginal women and youth, and to adequately address the death of Aboriginals in custody.

Questions by the Committee Experts

An Expert asked about the identification of torture victims among asylum-seekers and what was being done to ensure they were not returned to their country of origin. Australia was already investigating allegations about sexual exploitation of prisoners in Nauru Island, and the Expert asked what measures were in place to ensure the protection of complainants from reprisals by the guards.

Prison overcrowding did not seem to be even throughout the country and there were prisons which housed fewer prisoners than capacity, while other prisons suffered chronic overcrowding, while the prison population was on the increase, particularly among the Aboriginal population. Experts asked about the living conditions in the suicide-resistant cells, application of alternatives to detention, the high prevalence of death in custody and plans to completely drop the detention of minors and put them in custody instead.

Another Expert asked about the position of the Government on the counter-terrorism provisions that allowed police officers to indeterminately detain suspects, the system in place to ensure the independence of the police carrying out investigations into allegations of various human rights violations, investigations into excessive use of force by the police and the sentences handed down, and the reported indeterminate detention of persons with mental health illnesses.

Australia was a leader on dealing with violence against women, but the level of violence against women in the society was endemic. Could the delegation comment on the non-governmental organization report on systematic sexual violence by Catholic clergy and update the Committee on the Royal Commission created on institutional responses to sexual abuses of children? What were the reasons behind the substantive increase of incarceration of women, particularly indigenous women? What was the position on the Convention relating to the Status of Stateless Persons, which legal instruments applied to people arriving at Australian borders without visas, and could the delegation update the Committee on the case of the torture of four persons in Afghanistan for killing an Australian soldier?

An Expert commended the criminalization of torture and the sentence commensurable with the gravity of offence, but raised concerns about domestic violence and the manner in which Australia dealt with refugees and migrants, stressing that the Convention against Torture ensured the minimum human rights standards in the performance of State officials. The advanced judiciary review system was a model for other countries, but in the absence of a Bill of Rights, the system of enforceability of the rights of citizens was lacking; how could citizens ensure that they received remedies if their rights were breached?

The delegation was asked to explain the structures to review and respond to family violence, measures to reduce violence against indigenous women and women with disabilities; and to describe the system in place to ensure the implementation of recommendations issued by United Nations human rights treaty bodies.

CLAUDIO GROSSMAN, Committee Chairperson, acting as the Country Rapporteur, also asked additional information about the system of solitary confinement, different layers of discrimination including on the grounds of sexual orientation, and people unfit to stand trials. There were reports of Australia providing military training to Sri Lanka and Indonesia and the Committee wondered if it also included how to deal with boat people. The definition of terrorism was too broad; would it be amended in accordance with the recommendations by the Human Rights Committee? What was the number of days that a person could be detained without access to a lawyer?

Other issues that Experts raised in the discussion included the assessment of risk of torture, statistics made public in relation to asylum seekers, the plans to establish a national preventive mechanism which would have access to all places of detention, including for migrants, and the treatment of evidence obtained under torture.

Replies by the Delegation

Responding to the questions and comments made by the Committee Experts, the delegation said, concerning engagement with civil society organizations, that there were several mechanisms already in place which ensured dialogue on various human rights issues. There was a network of over 40 organizations which supported the recognition of indigenous peoples by the Constitution, and the Government also consulted on various international treaties and migration issues. With regard to the Constitutional recognition of the Aboriginal and Torres Island populations, the head of the delegation reaffirmed the strong commitment of the federal Government; it had established a review panel on the subject which had made a number of recommendations for the recognition and the preceding referendum.

There was zero tolerance towards violence against women and their children and Australia believed that keeping women and their families safe was the most fundamental step towards ensuring their security and prosperity. Australia had allocated 200 million Australian dollars for the National Plan to Reduce Violence against Women and their Children 2010-2022, a long-term strategy for achieving a significant and sustained reduction in violence against women that was the overarching mechanism that brought together the efforts of governments and civil society across Australia. The Second National Action Plan 2013-2016 recognized the diversity of the needs and experiences of women with disabilities, women from cultural and linguistically diverse backgrounds and indigenous women. The Government was committed to reducing the barriers to reporting domestic violence in Australia.

Human rights in Australia were protected through a range of means and complaints on human rights violations could be examined by Australia’s Human Rights Commission and a number of other bodies that investigated complaints. Additionally, the Parliamentary Joint Committee on Human Rights examined all legislation for its compatibility with human rights. On the status of the 2012 Human Rights and Anti-Discrimination Bill, the delegation said that this bill had been proposed by the previous Government which now had been suspended and was not a part of the current Government’s legislative portfolio; the current Government was considering the ratification of the Optional Protocol to the Convention against Torture.

The Human Trafficking Visa Framework enabled people who were suspected victims of human trafficking and slavery to remain lawfully in Australia. In 2013, the Commonwealth Crime Act had also been amended to protect vulnerable witnesses giving evidence in Commonwealth criminal proceedings, including victims of human trafficking, slavery and slavery-like offences.

In September 2014, there were 3,314 persons held in immigration detention and 3,076 held in community detention; in the coming months this figure should be down to just over 1,200 persons held in detention and this dramatic drop would be achieved through expansion of community options such as bridging visas, and the existing community detention programme. It was projected that within months there would be very few children held in detention. Nauru and Australia had agreed to implement an open centre arrangement for those remaining at the regional processing centres. Australia maintained that migration detention was an essential element of border control. Efforts were continuing to improve living conditions in the detention centres, including access to quality health care. All children had education goals tailored to their needs and a variety of activities such as arts, sports, music and family activities.

The recent death of an asylum seeker was under investigation and it was premature to make a connection between the quality of medical care and the death of the person. Mental health services were provided as well; in case specialist care was not available at the reception centre, the asylum seekers and their families would be transferred to a centre where they could receive the needed care. The allegations of criminal conduct in the detention centres in Nauru were under investigations under the Nauru jurisdiction.

The Australian Migration Act provided that any person who entered Australia by sea, including Christmas Island, became an unlawful non-citizen. Unauthorised maritime arrivals after July 2013 were liable for transfer to regional processing country centres. Unauthorised maritime arrivals before July 2013 would be processed in Australia and many received bridging visas.

On statelessness, the delegation said that Australia implemented its obligations arising from the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness through its Citizenship Act. Australia granted citizenship to stateless persons born in Australia or to Australian parents, and recognized the difficulties in returning stateless asylum seekers to the country of their habitual residence. In 2013-2014 there had been over 9,000 protection visas lodged, while 9,000 refugee determination status cases had commenced.

In accordance with the long-standing opposition to the death penalty, Australia would not extradite a person for an offence punishable by the death penalty. Evidence obtained through torture was excluded from courts. Measures to reduce overcrowding in prisons included building of new infrastructure and new facilities and operational changes. A range of non-custodial setting options and bail related initiatives and programmes had been developed aiming at keeping people out of custody and addressing or reducing any pre-trial delays, where appropriate. The Sex Discrimination Act provided for protection of discrimination on the grounds of sexual orientation and gender equality.

Each Australian jurisdiction had their own guidelines for the use of force and firearms by law enforcement officials, which were in line with the Basic United Nations Principles; the underlying principle for each of those guidelines was that the use of force was the last resort. Each jurisdiction also had their guidelines for coroners’ inquests into deaths in custody. Since 1991, the Australian Institute of Criminology had been operating the death in custody programme and had monitored each case.

Significant efforts had been made to improve the living conditions of the indigenous people and the Indigenous Advancement Strategy was in place which aimed to get children to school and adults to work and to ensure that laws of the land applied in the indigenous communities. The Government was funding several programmes to reduce the indigenous contact with the criminal justice system. Also in place were projects to reduce offences, incarceration and recidivism among indigenous women. All Australian states and territories had agreed to the national Indigenous Law and Justice Framework which aimed to eliminate indigenous disadvantage in law and justice through various initiatives and programmes.

The Government was committed to reducing the number of juveniles in the criminal justice system and various steps were being taken to divert youth from crime, create special procedures for dealing with juveniles in the criminal justice system and to provide alternative punishment for youth, such as community support programmes. The Government was funding activities that prevented victimization and reduced the contact of indigenous young people with the criminal justice system.

People suffering from mental illness or impairment were held not to be criminally responsible for committing an offence and legislation provided alternatives to sentencing or imprisonment. A pilot Mental Health Court Diversion Programme in Western Australia delivered an individualized care plan for support interventions for adults and children with a mental illness who were assessed as clinically suitable. The Government and state and territory governments were working to achieve better law and justice outcomes for persons with disabilities through the National Disability Strategy 2010-2020.

The Royal Commissions were the most empowered investigative mechanisms in Australia; the Royal Commission on Institutional Child Sexual Abuse was wide-ranging and examined how any public or private organization caring for children, such as schools, churches, sports clubs and government organizations had responded to allegations and instances of child sexual abuse. Its aim was to uncover where systems had failed to protect children so it could make recommendations on how to improve laws, policies and practices.

Further Questions by the Committee Experts

CLAUDIO GROSSMAN, Committee Chairperson and the Country Rapporteur, said that changing the Constitution was not easy and required that a procedure was followed and asked how the process of constitutional recognition of indigenous populations was evolving and when the recognition might happen. States were responsible for breaches of the Convention if they failed to prevent violence against women, investigate acts of violence or to provide reparation and rehabilitation to victims. The Chairperson asked about more detailed statistics on violence perpetrated against vulnerable individuals in prison, including indigenous persons, and the status of ratification of the Optional Protocol signed in 2009. Australia had a high standard of effective control of its borders, and all asylum seekers arriving to Australia were detained and transferred to offshore centres; the Chairperson wondered about the consequences for the principle of non-refoulement of such high standards of control and the impact of the mandatory detention and failure to apply granular analysis to individual cases.

KENING ZHANG, Committee Expert acting as Country Rapporteur, asked the delegation to provide further information on laws giving the Australian Human Rights Commission the power to monitor the implementation of the Convention against Torture; whether it was true that only victims of trafficking participating in criminal proceedings could get their visa extended; and on the intentions to appoint an independent legal guardian for unaccompanied minors, instead of having as the legal guardian the Immigration Minister, who was detaining them in Nauru and Papua New Guinea, which represented a clear conflict of interest.

Experts also asked the delegation to comment on the provision in the migration laws allowing that a person whose asylum had been refused in Australia be returned to a country of origin, even if there was even a slightest risk of torture; about the manner in which victims of human rights violations, such as indigenous victims of historic child abuse, could vindicate their rights; the purpose of the referendum on the constitutional recognition of indigenous persons, because it was not institutions who granted human rights, but human rights were inalienable to human beings; and the detention of children.

Further Responses by the Delegation

In response to the issues raised by the Experts, the head of the delegation said that the federal system with nine jurisdictions could also drive the innovation. Historically, the population voted no on constitutional changes and the Australian Government was determined to properly implement the constitutional recognition of indigenous persons properly. Australia took domestic violence and violence against women seriously and had devoted 200 million dollars to fight the phenomenon. The new Government was looking at a number of issues, including on the ratification of the Optional Protocol. Trafficking was a global scourge and Australia was focusing on modern forms of slavery, for which community awareness was crucial.

Concerning the “Turn back the boat” policy, the delegation said that an enhanced screening process had been put in place and, where relevant, arrangements for access to legal representatives were made. The draft Migration and Maritime Powers Amendment Act currently before the Parliament gave the power to immigration officials to remove persons who did not have the right to remain in Australia.

Access to health care in detention centres was better than in some rural communities in Australia, and many detainees enjoyed standards of care that were not available to some members of the general population. The Australian immigration system made a difference between a held detention and community detention, which had people living in a community, without guarding and security arrangements; currently there were over 600 children in held detention and it was expected that within the coming months almost all of them would be moved to community detention.

International laws were incorporated into the national legislation, and vindication of rights was made through national courts, or by the use of other mechanisms such as the Australian Human Rights Commission or through the Office of the Ombudsmen.

Concluding Remarks

CLAUDIO GROSSMAN, Committee Chairperson, expressed appreciation for the dialogue with Australia, whose comments and information would be taken into account in the concluding observations.

JOHN QUINN, Permanent Representative of Australia to the United Nations Office at Geneva, said that the composition of the delegation and the presence of high-level officials therein was an indicator of the importance Australia accorded to the process and this treaty body.
_______________

For use of the information media; not an official record