Letter to the Committee against Torture regarding issues for Australia (2010)

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Letter to the Committee against Torture regarding issues for Australia

Australian Human Rights Commission

President

Human Rights Commissioner

The Hon Catherine Branson QC

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4 September 2010

Mr Joao Nataf

Secretary a.i. Committee Against Torture

Human Rights
Treaties Branch

UN Office of the High Commissioner for Human Rights

Dear Mr Nataf

List of issues for Australia

Thank you for giving the Australian Human Rights Commission (the Commission)
the opportunity to provide information to the Committee Against Torture (the
Committee) that is relevant to the implementation of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the
Convention) in Australia.

The following comments will primarily concentrate on the issues raised by the
Committee in its Concluding Observations and by the Rapporteur for Follow-Up on
Concluding Observations. They also update the Committee on recent developments
in Australia.

Issue 1: Legal protection of basic human rights

The issue of legislative protection of basic human rights is relevant to the
Convention because in accordance with article 2, Australia should take effective
legislative measures to prevent acts of torture.
The 2009 National Human Rights Consultation recommended that Australia
should adopt a federal Human Rights Act. The Australian Government’s
response to the Consultation, the Australian Human Rights Framework (the
Framework), did not implement this recommendation. The Commission encourages the
Australian Government to revisit the question of a Human Rights Act as part of
its review of the Framework in 2014.
Nevertheless, the Framework contained a number of important initiatives
relevant to the Convention, namely the commitment to enhanced human rights
education for the community and the public sector; establishing a federal
parliamentary scrutiny committee on human rights; and requiring that all new
federal legislation be accompanied by a statement of compatibility with
Australia’s human rights obligations. Two bills which provided for the
establishment of the parliamentary committee and required the production of
statements of compatibility respectively lapsed when the Parliament was
dissolved for the federal election on 21 August 2010.
Human rights training that is provided under the Framework should include
targeted training of immigration detention officials (of both the Department of
Immigration and Citizenship and contracted detention service providers),
military personnel and members of the Australian Federal Police, in accordance
with Australia’s obligations under article 10 of the Convention.

Issue 2: The mandate of the Commission

The Australian Human Rights Commission does not have legal powers to
effectively monitor Australia’s compliance with the Convention. The
Commission cannot investigate complaints of breaches of the Convention under the
Commission’s ‘human rights’ functions.
The Commission recommends that the Convention should be declared under
section 47 of the Australian Human Rights Commission Act 1986 (Cth). The
effect of this declaration would be that the Commission’s statutory
functions under section 11 of the Act in relation to ‘human rights’
would include the rights set out in the Convention; and the Aboriginal and
Torres Strait Island Social Justice Commissioner’s functions under section
46C(1) could be exercised in relation to the Convention.

Issue 3: Anti-terrorism laws and practice

The Australian Government has introduced more than 50 new counter-terrorism
laws since 2001, often without adequate consideration of their potential impacts
on human rights including Australia’s obligations under the
Convention.
In August 2009, the Attorney-General released a National Security
Legislation Discussion Paper. Many of those who made submissions argued for
greater human rights protection. Following this consultation, legislation was
introduced in March 2010 (the National Security Legislation Amendment Bill 2010
and Parliamentary Joint Committee on Law Enforcement Bill 2010). These bills
lapsed when the Parliament was dissolved for the federal election on 21 August
2010.The Senate Legal and Constitutional Affairs Committee conducted an inquiry
into these Bills, to which the Commission made a detailed
submission.^[1]
Issues that remain of particular concern to the Commission include:
1. The pre-charge detention regime. Under the current regime the Australian
  Federal Police (AFP) have the power to arrest and detain a person, without a
  warrant, for an indefinite period of time, while the AFP investigates whether
  the person committed a terrorism offence. The Commission recommended that the
  maximum length of pre-charge detention should be four
  days.^[2] The Senate Committee
  recommended that there be a three day cap on unspecified time that may be
  disregarded when calculating the total period of lawful pre-charge detention.
  The Committee further recommended that the Australian Law Reform Commission
  conduct a public inquiry into the pre-charge detention
  regime.^[3]
2. Preventative detention and control orders. These issues were not discussed
  in the Discussion Paper and were not part of the proposed amendments. They are
  both proposed to be reviewed by the Council of Australian Governments
  (COAG).
3. The powers of detention of the Australian Security and Intelligence
  Organisation (ASIO). ASIO powers to detain and question a person to collect
  intelligence are not due for review until 2016. The Commission recommends that
  these provisions be reviewed as soon as possible.
In 2010, the Commission welcomed the Australian Government’s
commitment to appoint an Independent National Security Legislation Monitor.
Importantly, the Monitor will review whether national security legislation is
consistent with Australia’s international human rights obligations as well
as review and report on the operation and effectiveness of national security
legislation. The Commission looks forward to the prompt appointment of the
Monitor.

Issue 4: Immigration detention

The Commission has a number of ongoing concerns
about aspects of Australia’s immigration law and policy which are relevant
to the Convention.
While the Commission has welcomed recent reforms such as the Australian
Government’s ‘New Directions in Detention’
policy,^[4] key aspects of this policy
have not been implemented in legislation. The Commission welcomed the
introduction of the Migration Amendment (Immigration Detention Reform) Bill
2009. While the Commission expressed some concerns about the bill and suggested
amendments, the Commission is disappointed that the bill lapsed when the
Parliament was dissolved prior to the 21 August federal
election.^[5]
The Commission has repeatedly recommended that Australia’s system of
mandatory detention of ‘unlawful non-citizens’ should be
abolished,^[6] and that the Migration Act 1958 (Cth) should be amended to accord with international
law by requiring that a decision to detain a person, or a decision to continue a
person’s detention, is subject to prompt review by a court.
The Commission is concerned about the high number of people currently in
immigration detention facilities in Australia, and the increasing length of time
many people are being held in
detention.^[7] The prolonged detention
of asylum seekers can have serious detrimental impacts on their mental health
– particularly when their detention is combined with the uncertainty of
not knowing what the outcome of their refugee claim will be.
The Commission has serious concerns about the impacts of mandatory detention
on families with children and unaccompanied minors. The Minister for Immigration
and Citizenship has stated that ‘while there will be occasions when
children will be accommodated in low security facilities within the immigration
detention framework...the priority will always be that children and their
families will be promptly accommodated in community
detention’.^[8] However, families
with children and unaccompanied minors are predominantly detained in low
security immigration detention facilities. Community Detention is no longer
available on Christmas Island and is barely being used on the Australian
mainland.^[9]
The Commission is also concerned about the impacts of detaining asylum
seekers in remote locations such as Christmas Island, Curtin and Leonora (in
Western Australia). The remoteness of these locations restricts asylum
seekers’ access to legal assistance, health and mental health services,
religious and community support and limits the transparency of their detention
arrangements. The Commission has repeatedly recommended that the Australian
Government should stop using Christmas Island as a place in which to hold people
in immigration detention.^[10]
The Commission remains of the view that the Australian Government should
codify in legislation minimum standards for conditions and treatment of people
in immigration detention, with content guided by international human rights law.
Asylum seekers who arrive in excised offshore places are barred from the
refugee status determination system under the Migration Act, and instead go
through a non-statutory refugee status assessment process. The Commission has
significant concerns about this process, particularly the failure to provide
sufficient legal safeguards for asylum seekers and the consequent increased risk
of refoulement. The Commission has consistently recommended that the
Australian Government should repeal the provisions of the Migration Act relating
to excised offshore places, and that all claims for asylum should be assessed
through the refugee status determination system that applies under the Migration
Act.
Finally, on 9 April 2010, the Australian Government suspended processing of
new refugee claims by asylum seekers from Sri Lanka and Afghanistan for three
and six months respectively.^[11] The
Commission expressed serious concern that the suspension could lead to the
prolonged or indefinite detention of asylum seekers, and that this could have
detrimental impacts on their mental health. The Commission welcomed the lifting
of the suspension for Sri Lankan asylum seekers on 6 July 2010. The Commission
has urged the Australian Government to lift the suspension for Afghan asylum
seekers as a matter of urgency.

Issue 5: Complementary protection

Complementary protection and diplomatic assurances are relevant to article 3
of the Convention.
In Australia, the claims of people who may not fall within the definition of
‘refugee’ under the Refugee Convention, but who nonetheless must be
protected from refoulement can only be considered after they have been
rejected at each stage of the refugee status determination process. They can
then request that the Minister for Immigration and Citizenship exercise his or
her discretionary power to grant them a visa on public interest grounds.
The Minister may consider Australia’s non-refoulement obligations under international treaties in making decisions based on such
requests. However, the Minister’s power is discretionary and
non-compellable. In addition, the Minister is not obliged to give reasons for
the decision and the decisions are not reviewable.
The Commission has previously recommended that a legislated system of
complementary protection be adopted by the Australian Government in order fully
to implement Australia’s non-refoulement obligations under the
Convention, the ICCPR and the CRC.
In September 2009, the Australian Government introduced
into Parliament the Migration Amendment (Complementary Protection) Bill 2009
(Cth). The Commission welcomed the introduction of the Bill. If passed, it would
have enacted a complementary protection system in the Migration Act, under which
a person entitled to complementary protection would be granted a visa with the
same conditions and entitlements as visas granted to refugees.
However, the Commission expressed some concerns about the scope of the
statutory complementary protection system proposed by the Bill, including
that:
1. it would not apply to asylum seekers who arrive in excised offshore
  places
2. it would not offer adequate protection for people who are stateless
1. it should be broadened to provide that Australia has protection obligations
  where a child would suffer serious harm because of a breach of his or her rights
  under the CRC
1. it should be broadened to provide that Australia has protection obligations
  where a non-citizen would suffer serious harm because of a breach of his or her
  rights under the ICCPR.
The Commission is disappointed that the bill lapsed when
the Parliament was dissolved prior to the 21 August federal
election.

Issue 6: Diplomatic assurances

The Commission is of the view that Australia is not relieved of its human
rights obligations to people who are returned to their country of origin simply
by obtaining diplomatic assurances from the receiving country. This is
particularly the case where there are substantial grounds for believing that a
person would be in danger of being subjected to torture or ill-treatment upon
return.
Australia should ensure that follow-up mechanisms, such as the monitoring of
treatment of returnees, are put in place to ensure that diplomatic assurances
are honoured. Australia should also take into account the receiving
country’s record of honouring its assurances in deciding whether or not to
remove an individual from Australia. The Commission is particularly concerned
that the Australian Government should take appropriate precautions regarding the
return of failed asylum seekers to Sri Lanka and Afghanistan.

Issue 7: Extradition and mutual assistance

The Commission is concerned that there is no requirement in the Mutual
Assistance in Criminal Matters Act 1987 (Cth) (Mutual Assistance Act) to
consider the human rights record of a country requesting mutual assistance.
Concern about a country’s human rights record does not, of itself, provide
a reason to refuse a request for mutual assistance. However, it is important
that the Mutual Assistance Act contains strong safeguards to ensure that a
request for mutual assistance is refused if granting the request may result in a
violation of a person’s human rights in the requesting country.
The Australian Government has proposed to amend the Mutual Assistance Act to
include a mandatory ground for refusal of mutual assistance where there are
substantial grounds to believe the provision of the assistance would result in a
person being subject to torture.^[12] While the Commission supports this proposal, it is concerned that there is no
similar proposal for situations that may potentially involve cruel, inhuman or
degrading treatment or punishment. The Commission recommends that a new
mandatory ground for refusal be introduced which states that mutual assistance
must be refused if, in the Attorney-General’s opinion there are
substantial grounds for believing that granting the request may result in a
breach of the prohibition against torture or cruel, inhuman or degrading
treatment or punishment.
The Commission is also concerned that the grounds for refusing extradition
under the Extradition Act 1988 (Cth) do not extend to situations where
extradition would result in cruel, inhuman or degrading treatment or punishment.
The Commission recommends that a new ground of refusal be introduced to ensure
that extradition is refused in situations where it would result in human rights
violations including cruel, inhuman or degrading treatment or punishment.

Issue 8: Prisoners

The Commission has no power to compel entry to prisons and no jurisdiction
to receive complaints from state prisoners. Pursuant to article 11 of the
Convention, the Commission is concerned about human rights conditions in
Australian prisons, including prisoner transport, disproportionate incarceration
of Indigenous Australians and prison conditions.

Prisoner transport

Case study: Mr Ward’s Death

The death of an Aboriginal elder in a transport van in Western Australia in
2007, and the subsequent coronial investigation, highlighted a range of systemic
failures with prisoner transport in Western Australia.
Mr Ward, aged 46, was arrested for allegedly drink-driving. He was charged
with one count of drink-driving and then driven 570 kilometres to a courthouse,
remanded in custody and driven a further 353 kilometres to a prison. The journey
from Laverton to Kalgoorlie on 27 January 2008 lasted approximately four hours
and outside temperatures were in the mid 40s. There was no functioning air
conditioning or ventilation in the van. Mr Ward died from heat stroke and also
suffered third degree burns.
The Commission made a submission to the Inquest into the Death of Mr Ward in
the Coroners Court of Western Australia. The Commission submitted that the
transportation was cruel, inhuman and degrading. The key systemic deficiencies
with the system of prisoner transport in Western Australia that preceded and
contributed to Mr Ward’s death were the design and condition of the
vehicle fleet, particularly the relevant Mazda van, compounded by inadequate
policies and procedures relating to prisoner transport and the standard of
training and instruction. The failure of the officers to exercise adequate care
on the day – namely the failure to perform adequate pre-departure checks,
particularly of the air-conditioning; the failure to provide Mr Ward with
adequate water; and the failure to adequately monitor Mr Ward during the journey
or conduct welfare stops – were inconsistent with Mr Ward’s human
rights. The Commission further submitted that Mr Ward’s death was the
direct result of the failure to take adequate care to protect his life.
The Coroner found that the contractor and the Department of Corrective
Services, as well as the two prison officers all contributed to his death. He
said that the van was ‘not fit for humans’, the death was
‘wholly unnecessary and unavoidable’ and made a number of
recommendations urging extensive changes to the system of prisoner
transport.^[13]
The State Government has said that it supports all of the Coroner’s
recommendations and has granted an ex-gratia payment to Mr Ward’s family
of $3.2 million. Criminal charges have not been brought against the transport
company.

Disproportionate incarceration of Indigenous Australians

The issues of the over-representation of Indigenous women and men in the
criminal justice system, and the overrepresentation of Indigenous young people
in the juvenile justice system, are matters of great concern to the Commission
and are relevant to Article 11 of the Convention. Nationally, Indigenous adults
are 13 times more likely to be imprisoned than non-indigenous people and
Indigenous juveniles are 28 times more likely to be placed in juvenile detention
than their non-indigenous
counterparts.^[14]
This overrepresentation has been dealt with extensively by the Social
Justice Commissioner in his yearly Social Justice Report. In the 2009
Report, the Commission argued that the Australian Government should consider an
approach known as ‘justice reinvestment’, whereby a portion of the
funds planned to spent on imprisonment is diverted to programs and services in
local communities where there is a high concentration of offenders. This
approach attempts to address the underlying causes of crime in communities where
the issue is most acute.
The Commission recommends that the Government commit to specific targets and
timelines for reducing the disproportionate rates of Indigenous peoples in
juvenile detention and adult prisons, including through a greater focus on
preventative measures such as justice reinvestment strategies.

Prison conditions

The Commission is concerned about conditions in some Australian prisons,
particularly due to overcrowding.
The Inspector of Custodial Services in Western Australia recently commented
that overcrowding had ‘reached unprecedented proportions across the entire
Western Australian prison
system.’^[15] The Western Australia Equal Opportunity Commission notes that the state of
Western Australia has a growing prison population as a result of (a) tougher
penalties (b) withdrawal of automatic parole with a dramatic escalation in the
numbers of prisoners refused parole and (c) mandatory
sentencing.^[16]

Case study: Overcrowding in Hakea Prison

The Inspector of Custodial Services in Western Australia recently conducted
an inspection and released a report on Hakea Prison, a maximum security prison.
In 2006, when the prisoner population at Hakea Prison was 670, the Inspector
described the prison as ‘significantly overcrowded’. From 2006 to
2008 the West Australian total prison population grew steadily but comparatively
little new capacity was added to the system. During the 2009 inspection of Hakea
Prison, the prisoner population peaked at over 900.
The Inspector found that overcrowding across the entire prison system in
Western Australia is to blame for the bottleneck of sentenced prisoners clogging
up bed space at Hakea Prison.^[17] A
massive expansion program is currently underway across the State’s prison
system.

Issue 9: Trafficking

Trafficking is an issue of concern under the Convention because Australia
must undertake to prevent any act of cruel, inhuman or degrading treatment or
punishment pursuant to Article 16.
There have been some recent positive developments in addressing trafficking
issues, in changes to the People Trafficking Visa Framework and the Support for Victims of People Trafficking Program. The changes make
victim support available on the basis of need, instead of conditional on whether
a trafficked person can assist police. The changes also abolish temporary
witness protection visas and speed up the process for granting permanent witness
protection visas to trafficked people who have contributed to a criminal
investigation, as well as their immediate family members.
Nevertheless, the Commission remains concerned about cases of trafficking,
as well as cases of forced labour and exploitation of migrant workers on
business (long stay) visas subclass 457. There have been limited legal actions
to address trafficking in Australia and the Commission is only aware of one
award of compensation to a person who was trafficked to
Australia.^[18]
The Commission recommends that laws on trafficking and related offences be
reviewed and that the Government ensure access to effective remedies for people
who have been trafficked. Trafficking in persons offences in the Criminal Code
should comprehensively cover all aspects of the definition of
‘trafficking’ in the Trafficking
Protocol.^[19] In particular, people
who have been trafficked into both sex and non-sex industries should have access
compensation.^[20]

Issue 10: Optional Protocol to the Convention Against
Torture

The Commission welcomed Australia’s signing of the Optional
Protocol to the Convention against Torture (OPCAT). The implementation of
OPCAT would improve Australia’s ability to prevent torture and other acts
of cruel, inhuman or degrading treatment or punishment in places of detention.
The Commission encourages the Government to promptly ratify OPCAT.
In 2008, the Commission commissioned research regarding the options for
implementation of OPCAT in Australia. The report, written by Professors Richard
Harding and Neil Morgan, suggests that Australian should establish a mixed model
National Preventive Mechanism (NPM), with separate NPMs in each state and
territory and a national coordinating NPM. The report recommends that, given its
focus on Australia’s international human rights obligations, the
Commission is the most appropriate body to be the national coordinating
NPM.^[21]

Thank you once again for giving the Commission the opportunity to
contribute information for the preparation of the list of issues for
Australia.

Should you wish to obtain any additional information about any of the issues
raised in this letter, please do not hesitate to contact the Human Rights Unit
at the Commission.

Yours sincerely

Catherine Branson

President and Human Rights Commissioner

^[1] Reference
submission

^[2] Australian Human
Rights Commission, Submission to the Senate Constitutional and Legal Affairs
Committee Inquiry into the National Security Legislation Amendment Bill 2010
(the Bill) and the Parliamentary Joint Committee on Law Enforcement Bill 2010 at
http://www.humanrights.gov.au/legal/submissions/2010/20100506_law_enfor…

^[3] The Committee said that this review by the ALRC should examine, among other
things, what period of pre-charge detention is 'reasonably necessary' to balance
the competing interests of criminal investigations and individuals' right to
liberty, as well as a straightforward legislative framework for a pre-charge
detention regime.

^[4] Senator Chris
Evans, ‘New Directions in Detention – Restoring Integrity to
Australia’s Immigration System’, Seminar – Centre for
International and Public Law (29 July
2008).

^[5] See Australian Human
Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs on the Migration Amendment
(Immigration Detention Reform) Bill 2009 (2009). At http://humanrights.gov.au/legal/submissions/2009/20090731_migration.html (viewed 2 September 2010).

^[6] See Migration Act 1958 (Cth), s 189.

^[7] As of 25 June 2010, there were
4116 people in immigration detention, including 1662 in immigration detention on
the mainland and 2454 in immigration detention on Christmas Island. See
Department of Immigration and Citizenship, Immigration Detention Statistics
Summary (25 June 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 2 September 2010).

^[8] Australian Government Response: Follow Up to the Concluding Observations of the
UN Committee Against Torture, May
2009.

^[9] For example, as of 25
June 2010, there were 566 children in immigration detention in Australia. Of
these, only eight were in Community Detention. See Department of Immigration and
Citizenship, Immigration Detention Statistics Summary (25 June 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 2 September 2010).

^[10] See, for example Australian Human Rights Commission, 2009 Immigration
detention and offshore processing on Christmas Island (2009). At http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 2 September 2010).

^[11] See Chris Evans, Minister for Immigration and Citizenship, ‘Changes to
Australia's Immigration Processing System’ (Joint Media Release with
Stephen Smith, Minister for Foreign Affairs and Brendan
O’Connor, Minister for Home Affairs, 9 April 2010). At http://www.minister.immi.gov.au/media/media-releases/2010/ce10029.htm (viewed 2 September
2010).

^[12] In 2009 the
Government released exposure draft legislation on proposed reforms to
Australia’s extradition and mutual assistance in criminal matters laws.
The Extradition and Mutual Assistance in Criminal Matters Legislation
Amendment Bill proposed a number of amendments to the Extradition Act
1988 (Cth) and the Mutual Assistance in Criminal Matters Act 1987 (Cth).

^[13] Coroner of
Western Australia, Record of Investigation into Death of Ian Ward, 9/09,
p 5 and 130.

^[14] Australian
Institute of Health and Welfare, Juvenile Justice in Australia 2006-2007. At
http://aihw.gov.au/publications/juv/jjia06-07/jjia06-07.pdf (viewed 27 May
2009), quoted in Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2009, p
6.

^[15] Western Australia Office
of the Inspector of Custodial Services, Report of an Announced Inspection of
Hakea Prison, Report No. 63, April 2010, p vii. At
http://www.custodialinspector.wa.gov.au/download.cfm?downloadfile=43C3F…
(viewed 13 August 2010).

^[16] Australian Human Rights Commission, Taking stock of Australia’s human
rights record - Submission by the Australian Human Rights Commission under the
Universal Periodic Review process, fn [54]. At
http://www.humanrights.gov.au/upr/upr_submission2010.html (viewed 13 August
2010).

^[17] Western Australia
Office of the Inspector of Custodial Services, note 15, p
6.

^[18] Natalie Craig, ‘Sex
slave victim wins abuse claim’, The Age, 29 May
2007.

^[19] E Broderick and B
Byrnes, Beyond Wei Tang: Do Australia’s human trafficking laws fully
reflect Australia’s international human rights obligations? (Speech
delivered at Workshop on Legal and Criminal Justice Responses to Trafficking in
Persons in Australia: Obstacles, Opportunities and Best Practice, Monash
University, 9 November 2009),
74.

^[20] See Elizabeth Broderick,
‘Slavery in the 21^st Century, A human Rights Challenge’
(Speech presented at the Australian Human Rights Commission, 16 October
2008).

^[21] Professors Richard
Harding and Neil Morgan, Implementing the Optional Protocol to the Convention
against Torture: Options for Australia, 2008.

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