Information concerning Australia’s compliance with the Convention Against Torture

 

Submission by the Australian Human Rights Commission

17 October 2014

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Table of Contents

• 1 Introduction
• 2 Statutory powers of the Australian Human Rights Commission
• 3 Independent monitoring and inspection mechanisms, including ratification of the Optional Protocol
• 4 Domestic implementation of human rights obligations
• 5 Criminal justice system and conditions in prisons
  • 5.1 Disproportionate incarceration of Aboriginal and Torres Strait Islander peoples
  • 5.2 Ward inquest and coronial recommendations
  • 5.3 Indigenous legal aid funding
  • 5.4 Access to justice for people with disabilities
  • 5.5 Juvenile justice
  • 5.6 Mandatory minimum sentencing
  • 5.7 Criminal justice system – other Issues
• 6 Counter-terrorism and National Security
• 7 Violence against women
• 8 Immigration detention and asylum seeker policy
  • 8.1 Mandatory immigration detention
  • 8.2 Children in detention
  • 8.3 Refugees with adverse security assessments
  • 8.4 Mental health impacts of detention
  • 8.5 Community detention and bridging visas
  • 8.6 Third country processing
• 9 Other issues
  • 9.1 Issue: Extradition
  • 9.2 Issue: Trafficking
  • 9.3 Sexual Orientation, Gender Identity and Intersex issues (SOGII)
  • 9.4 Royal Commission into Institutional Responses to Child Sexual Abuse
• Attachment 1 – compilation of recommended actions
• References

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1 Introduction

1. This submission is made by the Australian Human Rights Commission. The Commission is an ‘A status’ national human rights institution established and operating in full compliance with the Paris Principles. Information about the Commission can be found at: www.humanrights.gov.au.

2. This submission outlines the Commission’s views on Australia’s compliance with the Convention against Torture and Other Cruel, Inhuman and Degrading treatment of Punishment (CAT).^[1]

3. The submission is based on work that has been undertaken by the Commission in accordance with our mandate and functions. The vast majority of materials provided here has been publicly reported in Australia and has been brought to the attention of the Australian government.

4. In preparing the submission, the Commission has consulted with the Australian Council of Human Rights Authorities, which includes Anti-Discrimination Commissions and Human Rights authorities at the state and territory level.

5. The Commission thanks the CAT Committee for the invitation to submit information pursuant to Rule 63 of the Committee’s Rules of Procedure. We look forward to further engagement in the Committee’s review of Australia’s 4^th and 5^th periodic reports.

6. The submission has been presented according to the thematic issues identified in the Committee’s List of issues prior to the submission of the fifth periodic report of Australia (UN Doc: CAT/C/AUS/Q/5, herein referred to as LOIPR).

7. For each thematic area, the Commission has identified the relevant articles of the Convention and paragraphs of the LOIPR, as well as providing a brief summary of the key issues and proposed recommended actions.

8. The Commission notes that the Australian Government changed following an election on 7 September 2013. The incoming government has yet to formalize its policy on some issues raised in the LOIPR, for example, on ratification of the Optional Protocol to the Convention (OPCAT). Where this is the case, it is noted in the text.

9. The proposed recommended actions are also compiled in Attachment 1 of the submission.

 

2 Statutory powers of the Australian Human Rights Commission

10. The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) sets out the Commission functions and responsibilities to promote and protect human rights. Human rights are defined in section 3 of the Act as the international instruments scheduled to or declared under the Act. This includes the ICCPR^[2] and the CRC.^[3] It does not include the CAT.

11. Nevertheless, the Commission can investigate acts and practices of the Commonwealth that may breach the prohibition of torture, cruel, inhuman and degrading treatment or the right of detained persons to be treated with humanity and with respect for the inherent dignity of the person. This is due to article 7 and 10 of the ICCPR and article 37(a) and (c) of the CRC falling within the definition of human rights in section 3 of the AHRC Act.

12. Since Australia’s previous appearance before the CAT Committee, the Commission has prepared seven reports to Parliament which included findings that the Commonwealth had breached the prohibition of torture, cruel, inhuman or degrading treatment or the right of detained persons to be treated with humanity and with respect for the inherent dignity of the person. These reports were a result of investigations conducted under the AHRC Act.^[4]

13. The Fourth and Fifth periodic reports of the Australian Government^[5] note the exposure draft Human Rights and Anti-Discrimination Bill 2012 proposed including the Convention within the definition of ‘human rights’ for the purposes of the Commission’s functions. The draft exposure Bill was released for public comment in late 2012. However, it did not proceed beyond the draft exposure stage.

14. The Commission has undertaken a range of work that relates to the CAT, as set out in the following table.

3 Independent monitoring and inspection mechanisms, including ratification of the Optional Protocol

15. As the Australian periodic report notes, there is a range of mechanisms across all levels of government that monitor places of detention – such as the independent office of the Ombudsman in each jurisdiction.

16. The scope and breadth of coverage of these mechanisms, however, varies across state, territory and federal governments. The Western Australian Inspector of Custodial Services provides a model for a comprehensive mechanism.

17. Further action is required to ensure that there are appropriate monitoring mechanisms in place to meet Australia’s obligations under Art.2 of the CAT, as well as the specific obligations of the OPCAT.

18. Australia signed the OPCAT on 19 May 2009, but has not yet ratified it.

19. It is practice in Australia that new treaty obligations are not entered into prior to a National Interest Analysis being conducted and reviewed by the JSCOT of the federal Parliament.

20. In 2012, the JSCOT Committee recommended that the government ratify the OPCAT.

21. However, there has been limited progress towards this since 2012:

    • Section 14(1)(e) of the Human Rights Commission Act 2005 (ACT) in the Australian Capital Territory provides the Australian Capital Territory Human Rights Commission with powers of inspection and own-motion reviews.^[11] These powers have been used to develop reports on conditions of detention and health provision to detainees in the ACT.

    • The Northern Territory government introduced the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) (National Uniform Legislation) Bill 2013 to Parliament on 22 August 2013. However the Bill has not been enacted to date.

    • The Australian Government released the country’s third National Human Rights Action Plan on 10 December 2012. The Plan indicates that the government would work with states and territories to move towards ratifying the OPCAT. This commitment was also made at the first review of Australia at the Human Rights Council’s Universal Periodic Review in 2011.

    • However, the Commission is unaware of any action having been taken by the Standing Council on Law and Justice regarding efforts to encourage ratification of the OPCAT or the development of a National Preventive Mechanism since these commitments were made.

22. The Commission has called for the Australian Government to expedite ratification of the OPCAT on a number of occasions, most recently in the Children’s Rights Report 2013 to federal Parliament and in our annual UPR Implementation Progress Report for 2013.^[12]

 

4 Domestic implementation of human rights obligations

 

23. In Australia, there exist broad protections against discrimination and limited legislative protections of other human rights.

24. The President of the Commission has described the Australian approach to the protection of human rights as a form of ‘exceptionalism’:

    By this I mean that relative to comparable common and civil law systems, Australia has adopted a multifaceted and unique regime for human rights protection. We have few constitutional or legislative protections for our traditional freedoms such as freedom of speech or protection from arbitrary detention without trial. We have no Charter or Bill of rights, unlike all other common law countries; for most legal systems, all domestic laws are viewed through the prism of the rights defined in either the relevant Constitution or legislative Charter or Bill of Rights; Australia has no regional court like the European Court of Human Rights or similar courts in Latin America, Africa and the Middle East.

    The consequence is that Australia is increasingly isolated from evolving jurisprudence and from the legal systems with which we share common values.^[13]

25. During 2009, the Australian Government undertook a National Human Rights Consultation, seeking a broad range of views regarding the protection and promotion of human rights. The Commission, and thousands of other individuals and organisations, contributed to the Consultation. The Consultation Committee report, released in October 2009, recommended, among other things, that the federal Parliament adopt a Human Rights Act.

26. In April 2010, the Government responded to this by announcing that it would not introduce a Human Rights Act. Instead, it announced Australia’s Human Rights Framework for 2010-2014, which commits to a variety of measures to strengthen the protection and promotion of human rights in Australia.

27. The Commission particularly commends the government for the passage of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). This has been the main success emerging from the Human Rights Framework. The Act introduced parliamentary scrutiny processes relating to the seven major human rights treaties to which Australia is a party, including the CAT. The legislation:

    • Established the PJCHR to analyse all bills and legislative instruments for compliance with human rights

    • Requires the production of statements of compatibility of bills and legislative instruments with the seven main human rights treaties to which Australia is a party

    • Enables the Attorney-General to refer inquiries to the committee.

28. The PJCHR (and process of statements of compatibility) has quickly established itself as an important mechanism to implement Australia’s international human rights obligations at the domestic level.

29. Since its establishment the PJCHR has produced 31 reports to Parliament analysing hundreds of bills and legislative instruments and highlighting those bills which it considered raised human rights concerns.^[14] Through these reports (and also through the provision of two Practice Notes)^[15] the PJCHR has provided clear guidance to government departments on their expectations about the level of human rights analysis statements of compatibility should contain. This has resulted in noticeable improvements in the quality of statements of compatibility and hence, in the consideration of human rights impacts of new measures.

30. While the Commission welcomed the measures included in the Human Rights Framework, it also indicated that these measures alone were not sufficient to address the weaknesses in Australia’s system of human rights protection.

31. Disappointingly, many of the measures committed to in the Australian Human Rights Framework have not occurred or have dissipated. For example:

    • Grants for human rights education activities were discontinued after the first round of funding

    • A proposed review of the compatibility of all existing legislation with human rights was not completed, nor any results published

    • Limited action has occurred to implement commitments made in Australia’s first Universal Periodic Review, which were also included in Australia’s third NAP on Human Rights from 2012. Implementation of the NAP to date has been slow and many of the actions included will not be achieved within the agreed timeframe.

    • No review of the Human Rights Framework has been conducted despite the commitment to complete this in 2014.

32. Since Australia’s previous appearance before the CAT Committee, numerous steps have been taken towards achieving recognition of Aboriginal and Torres Strait Islander people in Australia’s Constitution:

    • An independent Expert Panel recommended a model for recognition to the Government in 2012

    • In February 2013 the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) was passed – this acknowledges that Aboriginal and Torres Strait Islander people are the first inhabitants of this nation and identifies a broad timeframe for the holding of the referendum to recognise this, and provide other protection, in the Constitution.

    • Funding has been provided to Reconciliation Australia for the Recognise campaign to build community support.

33. The Commission commends the government for these developments. However, the Commission is concerned that the Government has not finalised a model for constitutional change nor announced a timeframe for a referendum to occur.

5 Criminal justice system and conditions in prisons

 

34. The Commission’s jurisdiction does not extend to investigating the compliance of state and territory prisons with the CAT (in particular, the prohibition on cruel, inhuman and degrading treatment). The Commission is concerned about the overrepresentation of Aboriginal and Torres Strait Islander peoples, people with disabilities and the situation of juveniles as well as issues such as mandatory sentencing, overcrowding and police use of force.

5.1 Disproportionate incarceration of Aboriginal and Torres Strait Islander peoples

35. The Commission remains concerned about high and increasing incarceration rates of Aboriginal and Torres Strait Islander children and adults.

    • Aboriginal and Torres Strait Islander peoples are currently imprisoned at a rate of 2,208 per 100,000 which is over 11 times higher than the rate of imprisonment for non-Indigenous people.^[16]

    • Aboriginal and Torres Strait Islander young people are 35 times more likely to be in criminal detention than non-indigenous young people - almost 3 in 5 (59 per cent) of those in detention are Indigenous.^[17]

    • The Aboriginal and Torres Strait Islander imprisonment rate has increased by 51.5 per cent between 2000 and 2010. At the same time, the non-Indigenous imprisonment rate has increased only marginally.^[18]

    • The rate of imprisonment for Aboriginal and Torres Strait Islander women has grown by 58.6 per cent between 2000 and 2010.

36. The overrepresentation of Aboriginal and Torres Strait Islander peoples as both victims and offenders in the criminal justice system remains one of the most glaring disparities between Aboriginal and Torres Strait Islander Australians and non-Indigenous Australians.

37. The Commission has advocated that the solution to this issue lies in focusing on creating safer communities where violence is not tolerated, where victims have access to the entire spectrum of support services and where the emphasis is on the prevention of crime and violence occurring in the first place.

38. To achieve this, the Commission has identified as urgent priorities adopting justice reinvestment programs as well as justice targets and benchmarks.

39. Justice reinvestment has been proposed as a mechanism to address the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples as it looks beyond offenders, to the needs of victims and communities.^[19] Justice reinvestment diverts a portion of the funds for imprisonment to local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested into services that address the underlying causes of crime in these communities, such as parenting programs, early education and care, youth mentoring, numeracy and literacy programs, training and employment pathways.

40. The Senate Legal and Constitutional Affairs Committee, has recommended that the Australian Government should support justice reinvestment trials.^[20] In particular, the Senate Committee recommended that any trial actively involve communities in the process, be conducted on the basis of rigorous justice mapping (the identification of place-based communities and of existing services and gaps in services required to reduce crime) over a minimum time frame beyond the electoral cycle and be subject to a robust evaluation process.^[21]

41. At a state level, the Victorian Equal Opportunity and Human Rights Commission completed research in 2013 which confirmed the compelling need for a more comprehensive and effective approach to reducing the increasing incarceration of Koori women, noting that 80 per cent of Koori women in Victorian prisons are mothers.^[22] Accordingly, preventative and diversionary responses must be tailored to the particular needs and circumstances of these women. Work is underway on a Koori Women’s Diversion Project in that jurisdiction.

42. The Commission welcomed the inclusion of the development of diversionary options for Koori women as an action item under the Victorian Aboriginal Justice Agreement 3 (AJA3) and the re-affirmation of this commitment by the Victorian Government in 2012.^[23] A residential diversion facility remains the highest priority for the Koori Caucus of the Aboriginal Justice Forum, Victoria.^[24]

43. The Commission has for a long period recommended that justice targets be included in the Government’s existing Closing the Gap targets.

44. The Closing the Gap targets set long term and short term goals to improve outcomes for Aboriginal and Torres Strait Islander peoples in relation to health, education and other indicators of well-being. They form the basis for inter-governmental cooperation and funding, and are reported on annually to the Australian people through a report to Parliament by the Prime Minister at the beginning of each parliamentary year.

45. Targets encourage policy makers to focus on outputs and outcomes, rather than just inputs. It is not enough for governments to continue to report on what they do and spend, especially if that appears to be making little positive difference. Targets move us towards accountability and ensure that tax payer’s money is being spent in a results-focused way.

46. The Commission has recommended that appropriate justice targets would include indicators such as rates of imprisonment, recidivism and victimization. They would also take a more holistic approach and include indicators such as involvement with the child protection system, use of diversionary programs, successful transitions to school and employment.^[25]

47. The Commission urges all Australian governments to adopt justice reinvestment approaches and justice targets, such as a target to halve the gap in rates of incarceration for Aboriginal and Torres Strait Islander peoples.

48. The Commission has also emphasised the benefits of drawing on Aboriginal customary law in relation to dispute resolution, and more broadly.^[26] The Commission considers there should be recognition of some of the existing and traditional community structures that guide dispute resolutions as well as recognition that customary law practices can assist with the development of justice reinvestment models and other community justice initiatives.

49. In its 2013 Social Justice and Native Title Report, the Commission expressed concern in relation to blanket alcohol bans, such as those imposed in the Northern Territory Intervention, ‘given the disproportionate rate at which Aboriginal and Torres Strait Islander people are imprisoned in comparison to the non-Indigenous population’.^[27]

50. An Alcohol Mandatory Treatment scheme that commenced in the Northern Territory on 1 July 2013 provides that an adult person who has been apprehended three times in two months for public intoxication may be subject to a Mandatory Residential Treatment Order for up to three months. Individuals can be detained for up to four days before being clinically assessed and another five days before the Alcohol Mandatory Treatment Tribunal makes a decision on their case. The majority of those detained have been Indigenous.^[28]

5.2 Ward inquest and coronial recommendations

51. The Commission intervened in the Coronial Inquest into the death of Mr Ward in 2009. Mr Ward was an Aboriginal prisoner who died shortly after being transported in the back of a van in conditions of excessive heat.

52. The Commission considered that a range of systemic failures had contributed to Mr Ward’s death and submitted that ‘Mr Ward’s treatment during his transportation from Laverton to Kalgoorlie was cruel, inhuman and degrading.’^[29]

53. The Coroner found that ‘the deceased was subjected to degrading treatment and he was not treated with humanity and with respect for the inherent dignity of the human person’ and found that there was therefore a breach of the ICCPR.^[30]

54. The Coroner made a series of recommendations many of which urged improved training and monitoring systems.

55. Following changes to the Inspector of Custodial Services Act (2003) WA, the Office of the Inspector of Custodial Services has conducted regular reviews of prisoner and detainee transport. The 2010 thematic review was the first inspection of custodial transport after the death of Mr Ward in 2008.^[31] The Office revisited custodial transport when undertaking an audit of prisoner and detainee transport in 2012.^[32]

56. The service provider contracted for transportation services at the time of Mr Ward’s death had been disengaged and a new company was fulfilling the contractual requirements for adult prisoner transport. The data suggested that adult prisoners were being transported by appropriate methods.^[33] The Office also conducted a review of regional juvenile transport which examined the transportation of children and youth to and from police. The Review found that the Youth Custodial transport services, in partnership with police had established a custodial transport service for young people from country and regional areas which is safe, reliable and humane.^[34]

5.3 Indigenous legal aid funding

57. The Commission is concerned about funding cuts to the Indigenous Legal Aid Assistance Programme representing 4.45% or $13.25 million over four years.^[35]

58. Indigenous legal aid providers undertake important work to identify systemic reforms that can address the over-representation of Aboriginal and Torres Strait Islanders in criminal justice processes. Cuts to policy and advocacy may impact detrimentally on this longer term, systemic outcome.

59. The Commission notes that the incoming government has also reinstated restrictions in funding agreements that prevent legal services providers and NGOs from conducting advocacy work.

5.4 Access to justice for people with disabilities

60. The Commission’s recent report, Equal Before the Law, expressed concerns about access to justice in the criminal justice system for people with disabilities.^[36] The report found that necessary supports and adjustments for people with disabilities were frequently not provided in the criminal justice system.^[37] The report emphasised the need for Australian jurisdictions to develop a Disability Justice Strategy to address barriers and gaps in access to justice for people with disabilities.^[38]

61. The report cited research^[39] that revealed that people with disabilities have higher rates of interaction with the criminal justice system than other Australians. The Commission also noted with grave concern the high rate of disability among Aboriginal and Torres Strait Islander peoples and their overrepresentation in Australian prisons.^[40]

62. The Commission called upon the states and territories to address access to justice for people with disabilities through the development of disability justice strategies.^[41]

63. At a state level South Australia has developed a Disability Justice Plan.^[42] In the Australian Capital Territory, the Disability and Community Services Commissioner and the Human Rights and Discrimination Commissioner have proposed that the Australian Capital Territory Government adopt a Disability Justice Plan. In Tasmania, discussions have begun on the development of a Disability Justice Plan.

64. The Victorian Equal Opportunity and Human Rights Commission has also recently completed research which examines whether police services are delivered on equal footing for people with disabilities who are victims of crime, compared to those without disability. The research found that people with disabilities face significant and multifaceted barriers when it comes to reporting crime to police, and raises the need for better coordination and governance across and within services systems.^[43]

65. The Commission is also concerned about cases of indefinite detention of people with a cognitive impairment. In some Australian jurisdictions, when people with cognitive impairment are found to be unfit to plead to criminal charges, they become subject to mental health legislation.^[44] The Commission has previously expressed serious concern about the cases of Marlon Noble and Christopher Leo.^[45] Both of these men have been held in indefinite detention. Marlon Noble, prior to his release was in prison for 10 years without being tried or convicted of any crime.^[46]

66. The Australian Law Reform Commission (ALRC) has been conducting an inquiry into Equality, Capacity and Disability in Commonwealth Laws. A component of that inquiry was the release of a discussion paper ^[47] in which the ALRC highlights that the common law test of whether a person is fit to be tried^[48] has come under domestic and international scrutiny. Key criticisms of the test include:

    • the test, by focusing on intellectual ability, generally sets too high a threshold for unfitness and is inconsistent with the modern trial process;

    • the test is difficult to apply to defendants with mental illness because the criteria were not designed for them;

    • a defendant may not be unfit to stand trial even where the court takes the view that he or she is not incapable of making decisions in his or her own interests

67. The ALRC proposed that the Crimes Act 1914 (Cth) be amended to provide that a person is unfit to stand trial if the person cannot:

    • understand the information relevant to the decisions that they will have to make in the course of the proceedings;

    • retain that information to the extent necessary to make decisions in the course of the proceedings;

    • use or weigh that information as part of the process of making decisions; and

    • communicate decisions in some way.

68. The final report of the inquiry will be released shortly.

69. All Australian jurisdictions have enacted legislation dealing with fitness to stand trial. However, the legislation is considered to be complex and in some respects, ambiguous.^[49] The disparity between the legislation of the various states and territories adds further complications. It has been argued that a more streamlined and consistent approach to determining an accused's fitness to plead or stand trial would improve access to justice for people with disabilities, particularly people with intellectual disabilities, whose fitness to plead is likely to be an issue in criminal proceedings.^[50]

5.5 Juvenile justice

(a) Detention rates

70. The Commission remains concerned about rates of young people in detention. In 2012-13, there were 774 children aged 10-17 years in corrective detention on an average day in Australia.^[51] There is a particularly high number of children in detention in the Northern Territory and Western Australia compared to other states and territories.^[52]

71. In 2011 the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs report Doing Time, Time for Doing: Indigenous youth in the criminal justice system,^[53] found that ‘the overrepresentation of Indigenous juveniles and young adults’ has worsened over the last 20 years.^[54]

72. The National Children’s Commissioner has made a number of recommendations in her first Children’s Rights Report to Parliament,^[55] including that Australia consider raising the minimum age of criminal responsibility to an internationally acceptable level, remove children who are 17 years old from the adult justice system in Queensland, and establish a mechanism for investigating abuse at youth detention centres.

(b) Separate custodial sites for children and young people

73. The Commission has expressed concern that all child offenders are still not held in separate correctional centres from adults.^[56]

74. In 2013 the Commission intervened in proceedings in the Supreme Court of Western Australia to provide information on minimum standards in juvenile detention. The matter was a challenge of decisions to declare two units of an adult prison, Hakea Prison, as a juvenile detention centre and to transfer children to Hakea Prison from Banksia Hill Detention Centre. ^[57] In its submissions to the court, the Commission outlined specific areas of concern for children transferred to Hakea Prison. In particular, the Commission was concerned that children were required to stay in lock down for 17 hours per day and that there was regular use of restraints such as handcuffs and strip searches on the children. The application to quash the decisions was dismissed by the Supreme Court of Western Australia.^[58]

75. Similar concerns have been expressed about the transfer of child offenders from the youth justice system into the adult prison system in Victoria. The Victorian Ombudsman reported in 2013 this occurred on 24 instances, with some children held in solitary confinement for 23 hours each day.^[59]

76. Following recent amendments to the Youth Justice Act 2005 (NT), youth detainees in the Northern Territory legal system may now be transferred to a custodial corrections facility temporarily.^[60] The Act has recently been amended to apply to those younger than 15 where there is ‘no practical alternative’.^[61]

(c) Diversionary programs

77. The Commission welcomes the following actions by state governments:

• Victoria – The Victorian Equal Opportunity and Human Rights Commission advised that following the 2012 release of the Victorian government consultation paper, Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria,^[62] the diversion response for young people in contact with the justice system has been strengthened.

• Australian Capital Territory –The strategic direction for youth justice in the ACT is set out in the Blueprint for Youth Justice in the ACT 2012-22.^[63] The Blueprint has a focus on early intervention, prevention and diversion with custody used as a measure of last resort. Early signs point to reduced numbers of young people coming into contact with, or becoming further involved in the youth justice system:^[64]

  • the number of offences committed by young people decreased by 17 per cent

  • the number of young people under supervision decreased by 9 per cent

  • the number of days young people spent in detention reduced by 22 per cent and by 47 per cent for Aboriginal and Torres Strait Islander young people

  • the number of young Aboriginal and Torres Strait Islanders referred to restorative justice by Australian Capital Territory Policing under the trial initiative increased by 45 per cent.

• Tasmania – The Anti-Discrimination Commission advised that there has been a decrease in the number of young people in detention from 18.4 per day in 2012–13 to 11.6 per day during 2013–14. It is considered the decrease is in part reflective of the adoption of a broader range of diversionary programs by Tasmania Police and courts, including the implementation of a pilot Youth Justice Diversion List program involving a single specialist Magistrate dealing with all youth justice matters in southern Tasmania, improved sentencing options (including deferred sentencing and targeted bail programs) and an increased emphasis on the role of therapeutic interventions to target high re-offending rates.

5.6 Mandatory minimum sentencing

78. The Commission has expressed concern about the use of mandatory sentencing laws and their disproportionate impact on Aboriginal and Torres Strait Islander peoples and children.^[65]

79. The Commission intervened in the matter of Magaming v The Queen, ^[66] an appeal to the High Court challenging the constitutional validity of mandatory sentencing for certain people smuggling offences under the Migration Act 1958 (Cth). The Commission submitted that the imposition of mandatory minimum sentences offends the right to be free of cruel, inhuman and degrading treatment protected in article 7 of the ICCPR, ‘to the extent that such a law deprives the defendant of the opportunity to put mitigating circumstances of the offence and the offender which might otherwise reduce the sentence of imprisonment or non-parole period below the statutory minimum, or perhaps have led to the imposition of a non-custodial sentence.’^[67] The High Court by majority upheld the validity of mandatory sentencing in this case.^[68]

80. With regard to the Committee’s question on the repeal of mandatory sentencing laws in the Northern Territory and Western Australia, the Commission notes that mandatory sentencing regimes are still in place. In Western Australia 2013 amendments have extended the application of these provisions to include offences committed against youth custodial officers and certain offences that are committed in connection with declared criminal organisations.^[69] The Northern Territory introduced new mandatory sentencing laws in 2008 and has further extended the mandatory sentencing regime to a range of violent offences in 2013.^[70]

81. The Commission notes that several jurisdictions in Australia currently have legislation providing for the application of mandatory minimum sentences to certain offences.^[71] In January 2014, New South Wales introduced new mandatory minimum sentences for assaults.^[72] Victoria has also introduced new mandatory minimum sentences for violent offences applicable from 1 July 2013.^[73] The 2012 and 2013 Queensland amendments provide for mandatory minimum sentences for sex offences, firearms offences and other offences involving participants in a criminal organisation.^[74]

5.7 Criminal justice system – other Issues

82. Excessive and inappropriate use of force: The Commission intervened in the Inquests into the deaths of Mr David Gurralpa on 1 January 2008 and the death of Mr Robert Plasto-Lehner on 28 December 2007. Mr Gurralpa was in custody at the time of his death and Mr Plasto-Lehner’s death was caused or contributed to by injuries sustained while being held in custody. Mr Gurrulpa was an Indigenous man and Mr Plasto-Lehner had mental health issues.

83. The Commission submitted that the treatment of Mr Plasto-Lehner by the Northern Territory police was ‘inconsistent with both article 10(1) of the ICCPR and the prohibition on inhuman and degrading treatment in article 7 of the ICCPR in respect of police use of a prone restraint and a failure to convey Plasto-Lehner directly to hospital.’^[75] The Commission’s submissions are available here.

84. Taser use: The Commission and the Australian Council of Human Rights Agencies have expressed concern that Tasers are being inappropriately used and have called for more rigorous police training on Taser use. ^[76] The New South Wales Ombudsman and the Queensland Crime and Misconduct Commission have both found Tasers are disproportionately used against Aboriginal and Torres Strait Islander peoples.^[77]

85. Racial profiling: In 2010, the Commission’s report 'In our own words' found the relationship between young African Australians and the police of particular concern. Many young people felt they were being 'over policed'.^[78] In February 2013, Victoria Police held a public inquiry aimed at stamping out racial profiling in police practices as a condition of an agreed out of court settlement in a racial discrimination claim brought on behalf of six young African-Australian men.^[79] The Inquiry’s report found that there was a strong perception of racial profiling by Victoria Police in some Culturally and Linguistically Diverse (CALD) and Aboriginal communities. Victoria Police announced a three year action plan in response.

86. Homelessness: The Victorian Equal Opportunity and Human Rights Commission is concerned about the enactment of criminal laws and the enforcement of existing criminal laws which are likely to have a disproportionate impact on homeless persons. The Victorian Commission advised that recent Victorian legislation provides police with greater powers to give directions to ‘move on’ persons from public places and to arrest persons in contravention of such directions. Police can apply for a court order to exclude a person from a public place for 12 months. Begging remains a criminal offence in Victoria under the Summary Offences Act 1966 (Vic).^[80]

87. Overcrowding in prisons: At the state and territory level there is concern regarding overcrowding in prisons. In Victoria, a report by the Victorian Ombudsman has raised serious concerns about overcrowding in prisons and police cells.^[81] The Ombudsman considered that overcrowded prisons are leading to increased tensions and violence, and there is currently a greater likelihood of deaths and harm in custody.^[82] This arises from issues such the failure to remove obvious hanging points and pressure placed on health care services.^[83] The Tasmanian Government has announced its intention to phase out the use of suspended sentences and replace them with a range of alternative sentencing options.^[84] There is concern that this will lead to overcrowding.

88. There is also concern about overcrowding in the prisoner transportation system. In Victoria, a recent report found that a failure to adequately separate prisoners during transport on 21 occasions since 2009 had increased the risk of prisoner injury or even death.^[85]

89. The Australian Capital Territory Human Rights Commissioner advised that in a 2014 audit of the Alexander Maconochie Centre (AMC), an issue she identified in the 2007 audit, in which women were transferred between Remand Centres each weekend due to overcrowding, had ceased based on her 2007 recommendations.

90. Inhumane and degrading treatment of women prisoners: The Australian Capital Territory Human Rights Commissioner continues to have some concerns with the routine strip searching of women leaving the AMC on transitional release.

91. Access to health care: The 2014 report of the Victorian Ombudsman into deaths and harm in custody found that the inability of prisoners to access Medicare and the Pharmaceutical Benefits Scheme is a significant shortcoming in the current prisoner health model, with the potential to adversely affect the health of prisoners. The Victorian Ombudsman also noted that the issue of prisoner access to Medicare was raised in the 2006 Ombudsman’s report.

92. The Northern Territory Anti-Discrimination Commission has advised they are concerned about the impact of the Correctional Services Act 2014 (NT) ss 92 and 93. The scope of s 92 allows for the provision of healthcare without consent. However, the section does not provide for any safeguards, such as oversight. Also the use of ‘reasonable force’ in treating individuals similarly does not contain safeguards. Section 93 of the Act contains a similar provision in relation to providing medication to a prisoner without consent and provides for the use of reasonable force to achieve this.

 

6 Counter-terrorism and National Security

 

93. The Commission acknowledges the critical importance of ensuring that our security agencies have appropriate powers to protect our national security. Human rights law provides significant scope for such agencies to have expansive powers, even where they impinge on individual rights and freedoms. Such limitations must, however, be clearly expressed, unambiguous in their terms, and legitimate and proportionate responses to potential harms.

94. The Commission welcomed the creation of the INSLM through the passage of the Independent National Security Legislation Monitor Act 2010 (Cth). The INSLM has produced annual reports to the federal Parliament which identify concerns about the operation of the suite of counter-terrorism laws in Australia.

95. The INSLM is required to assist in ensuring that Australia’s Counter-terrorism (CT) Laws are effective in deterring and preventing terrorism, are effective in responding to terrorism, are consistent with Australia’s international obligations and contain appropriate safeguards for protecting the rights of individuals. The INSLM also assesses whether Australia’s counter-terrorism laws are being used for matters unrelated to terrorism and national security.

96. Four reports have been released by the INSLM to date.^[86] In these reports to Parliament, the INSLM has raised concerns about:

    • Control orders^[87]

    • Preventive detention orders – which are described as not effective, not appropriate and not necessary, and that they should be abolished^[88]

    • Questioning and detention warrants – while noting that separate provisions for questioning warrants are appropriate^[89]

    • The need for enhancements to terrorism laws to address involvement of Australians in armed conflict abroad, to better enable passport cancellation,^[90] and the need for clearer definitions relating to terrorism.^[91]

97. In addition to proposing amendments to ensure the appropriateness of counter-terrorism laws, the INSLM has concluded in each report that there is nothing ‘to suggest that the CT Laws have been used during the period under review for matters unrelated to terrorism and national security’.^[92]

98. The INSLM has expressed concern at the failure of successive governments to implement the recommended legislative reforms contained in his reports. In his fourth report he stated:

    It can be said that most of the recommendations in the INSLM’s Third Annual Report itself were designed to enhance the capacity of Australian authorities and agencies to detect, investigate and prosecute terrorist offences. The official silence since those recommendations were made prompts repetition of the comment first expressed in the INSLM’s Third Annual Report: “When there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some skepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws.”^[93]

99. The Commission is concerned that the position of INSLM has remained vacant since the conclusion of the term of the first appointee, Mr Bret Walker SC on 21 April 2014. The Commission notes that the appointment of the next INSLM is under consideration by the Australian government and urges the government to appoint the second INSLM as soon as possible.

100. In 2014, new national security laws have been introduced to Parliament:

     • National Security Legislation Amendment Act (No.1) 2014 (Cth)

     • Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

101. The Commission has provided qualified support for the National Security Legislation Amendment Act (No.1) 2014 (Cth) on the basis that it provides necessary updates to Australia’s national security protections. However, the Commission has also noted that in some instances, the provisions of this law extend beyond what is reasonable in the circumstances and unduly infringe human rights.

102. In particular, the Commission has expressed concern that this law:

     • Provides overly broad immunities and protections to security agencies in the conduct of Special Intelligence Operations (SIOs)

     • Creates new offences about the disclosure of information relating to SIOs that unduly infringe freedom of expression.

103. The Commission has expressed concerns that the Foreign Fighters Bill contains measures that are inconsistent with human rights and not able to be justified as necessary and proportionate responses. In particular, the Commission has expressed concerns that the Bill:

     • Extends the use of control orders; preventative detention orders; stop, search and seizure powers; and ASIO special warrant powers without addressing significant concerns about the breadth of these powers and without demonstrating that the retention of these powers is justified

     • Reduces the threshold for Customs officers to detain people to a level that is too low

     • Introduces new criminal offences relating to ‘declared areas’ and ‘advocating terrorism’ that are poorly defined and insufficiently targeted to their intended purpose.

104. Control orders may impose significant restrictions on freedom of movement and the right to privacy. Preventative detention orders allow the detention of persons without charge. Stop, search and seizure powers involve restrictions on the freedom of movement and the right to privacy. Questioning and detention warrants issued under the Australian Security Intelligence Organisation Act 1979 (Cth) will necessarily involve very significant limitations of the rights in articles 9 and 17 of the ICCPR.

105. The Australian government has, in the Explanatory Memorandum for the Bill,^[94] made general statements about the need to extend the operation of the relevant provisions to address the enduring threat posed by terrorism.^[95]

106. The government has also relied on a recommendation from the Council of Australian Governments Review of Counter-Terrorism Legislation (COAG Review) concerning the continuation of the power to issue control orders.^[96] While it is true that COAG has recommended that the control order provisions in the Criminal Code be extended, the review had also noted that safeguards were inadequate and required substantial change to prevent abuse and to ensure a fair hearing is held.^[97]

107. The same COAG Review had also recommended that the preventative detention order provisions be abolished.^[98] The former INSLM also criticised the control order, the preventative detention order, and ASIO detention warrant regimes.^[99]

108. The Commission has previously advised the Australian government that it has concerns about questioning and detention warrant powers under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth). These concerns, particularly in relation to the lack of adequate safeguards against abuse, have been set out in previous Commission submissions.^[100]

109. Accordingly, the Commission is very concerned that the Foreign Fighters Bill proposes to reduce the standard for the grant of a questioning and detention warrant from the Minister being satisfied that ‘relying on other methods of collecting that intelligence would be ineffective’ to the Minister needing only to be satisfied that ‘having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued.’^[101]

110. The Commission considers that the Australian government has not established that the power to issue control orders and preventative detention orders, anti-terrorism stop, search and seizure powers and ASIO’s special warrant powers is necessary and proportionate to a legitimate aim of protecting the Australian public against terrorism.

111. The parliamentary Joint Committee on Intelligence and Security released a report on the Foreign Fighters Bill on 17 October 2014. The report makes37 recommendations on matters relating to the bill. Recommendation 13, in particular, urges that the use of control orders; preventative detention orders; stop, search and seizure powers; and ASIO special warrant powers be extended for a period of approx. 3 years. Further, it recommends that the Joint Committee review their operation 6 months prior to the proposed date that they cease.^[102]

7 Violence against women

112. Violence against women remains a critical and endemic issue in Australia. The Australian Bureau of Statistics records that 41 per cent of women aged 18 and over have experienced violence in their lifetime.^[103] Seventeen per cent of women have experienced violence from a current or former partner since the age of 15 (compared to 5.3 per cent of men).^[104] Aboriginal and Torres Strait Islander women are 45 times more likely than non-Indigenous women to be victims of domestic violence.^[105]

113. The Australian government has taken significant positive steps to reduce violence against women in the last five years. In particular:

• • In 2010 the Australian government released the National Plan to Reduce Violence against Women and their Children 2010-22. The National Plan is being delivered through four three-year Action Plans, with the Second National Action Plan launched this year. We welcome the development of plans for every State and Territory such as the Action Plan to Address Violence against Women and Children 2012-2015 by the Victorian Government,^[106] and initiatives under these plans such as a Crisis Support Scheme in the ACT.^[107] We also welcome the establishment of the National Foundation to Prevent Violence against Women and their Children (‘Ourwatch’) and the establishment of National Centre of Excellence, now called Australia’s National Research Organisation for Women’s Safety (ANROWS).

  • In November 2011 the federal Parliament enacted the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which seeks to respond more effectively to domestic and family violence and child abuse in the family law system by prioritising the safety of children; expanding the definition of ‘family violence’ to include socially and financially controlling behaviour and exposing a child to family violence; and making it easier for victims to report violence.

114. The Commission notes that a sustained focus and investment is needed to end violence against women and address the root causes of violence against women including gender inequality and harmful gender stereotypes.

115. The Commission welcomes continued periodic data collection, including regular prevalence surveys such as the ABS Personal Safety Survey and the National Community Attitudes to Violence Against Women Survey, and notes that cross-jurisdictional data is essential to inform public policy responses to violence against women. The Commission notes the limited available data on the experiences of violence of specific groups of women, including culturally and linguistically diverse women, Aboriginal and Torres Strait Islander women, women with disabilities and lesbian, trans and intersex women, and recommends addressing this gap as a matter of priority.

116. The Commission is also concerned there is insufficient provision of funding for a range of support services for women experiencing violence, particularly for women living in rural and remote areas and culturally and linguistically diverse women, Aboriginal and Torres Strait Islander women, women with disabilities, lesbian, trans and intersex women.

117. The Commission notes that in addition to evaluating many of the projects funded under the National Plan, the ongoing and consistent monitoring and evaluation of the complete delivery of the National Plan is critical to ensure it realises its initial objectives and achieves short, medium and long term goals

118. The Commission intervened in the Coronial Inquest into the death of Andrea Louise Pickett in 2012. Andrea was an Aboriginal woman murdered by her husband while he was on parole for breaching a Violence Restraining Order following a long history of domestic violence. The matter demonstrates a range of systemic failures by the Western Australian government at the time, including:

     • The failure of the parole system to prevent re-offending, including through failure to assess risk appropriately and ensure appropriate levels of supervision

     • The failure to adequately investigate breaches of restraining orders and allegations of domestic violence promptly, seriously and thoroughly

     • The failure to provide adequate training to police about the nature and consequences of family violence, particularly in relation to Aboriginal women

     • Failures to consider the best interests of the child.

119. In its submissions to the Coronial Inquest the Commission recommended that the state government implement an independent and comprehensive monitoring and evaluation program of the measures taken to implement the state’s obligations with respect to domestic violence.^[108] There is significant value in rigorous monitoring and evaluation of measures to address domestic violence. The Commission’s submission is available here. The Coroner’s findings are available here.

120. At the request of the Australian government, the Commission conducted a Review into the Treatment of Women at the Australian Defence Force Academy (ADFA) and in the Australian Defence Force (ADF) between 2011 and 2013.^[109] A second phase commenced in 2014 and is reviewing the effectiveness of cultural change strategies and initiatives required to improve leadership pathways for women in the ADF.

121. An outcome of the initial review was the establishment of a Sexual Misconduct Prevention and Response Office (SeMPRO) within the ADF that can respond to unrestricted and restricted (confidential) reports of sexual harassment and abuse and provide appropriate support to complainants. SeMPRO also provides an important education and prevention function across the ADF.

122. The Commission commends the ADF for its commitment to improving the treatment of women in the armed forces, including through establishing the SeMPRO.

 

8 Immigration detention and asylum seeker policy^[110]

 

123. In 2013 the Commission published ‘Asylum Seekers, refugees and human rights: Snapshot Report’. This provides a detailed overview of policy in this area, and the Commission’s concerns about human rights compliance. This section of the submission is drawn from that report.

124. Australia maintains one of the most restrictive immigration detention systems in the world. The Commission has for many years called for an end to this system because it leads to breaches of human rights obligations under treaties to which Australia is a party.

125. The Commission acknowledges that immigration detention may be legitimate for a strictly limited period of time in order to conduct health, security and identity checks. The need to detain a person should be assessed on a case-by-case basis taking into consideration their individual circumstances.

126. Australia’s High Court has held in Al-Kateb v Godwin^[111] that it is not contrary to Australian law to keep a person in immigration detention even if the removal of that person from Australia is not reasonably practicable in the foreseeable future. This has been interpreted as meaning there is no time limit on the lawfulness of detention under Australian law.

127. However, a more recent unanimous judgment of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection casts some doubt on indefinite detention.^[112] In this case, the Court confirmed that the Migration Act does not authorise detention at the unconstrained discretion of the Executive. Detention under the Migration Act can only be for the purposes identified in the Act.

8.1 Mandatory immigration detention

128. It is mandatory under the Migration Act for every non-citizen who is in Australia without a valid visa to be detained, regardless of his or her individual circumstances, until they are either granted a visa or removed from Australia.^[113] The majority of unlawful non-citizens are detained in closed immigration detention facilities.

129. The Commission has raised concerns over many years that the system of mandatory detention leads to breaches of Australia’s international human rights obligations because:

     • The detention of an unlawful non-citizen is not based on an individual assessment about whether the particular person needs to be detained

     • Persons who are detained cannot seek judicial review of whether or not their detention is necessary

     • Under the Migration Act there is no time limit on how long a person can be detained, resulting in people being subjected to prolonged and indefinite detention

     • Mandatory immigration detention has significant human impacts, including the deterioration of the mental health of detainees

     • The conditions in many of Australia’s immigration detention facilities are such that they are not appropriate places in which to hold people, especially for prolonged periods of time.

130. The Commission has long recommended that, instead of requiring the mandatory immigration detention of broad groups of people, a person should only be detained if it is shown to be necessary in their individual case. Further, time limits for detention and access to judicial oversight of detention should be introduced to ensure that if a person is detained, they are not detained for any longer than is necessary.

8.2 Children in detention

(a) Mandatory detention of children

131. Children must also be held in closed immigration detention, unless the Minister decides to make a residence determination allowing them to live in community detention.

132. In 2004 the Commission released A last resort? National Inquiry into Children in Immigration Detention (2004 National Inquiry). The report found that Australia’s system of mandatory immigration detention of children was fundamentally inconsistent with Australia’s obligations under the CRC; one reason being that the detention of children is used as a first (rather than last) resort.

133. A last resort? was the catalyst for significant changes in arrangements for the detention of children since 2003. This included that children are no longer detained in high security immigration detention centres and the Migration Act now affirms that minors should only be detained as a measure of last resort.^[114] However, these gains have unravelled since 2011. By July 2013 there were a record large number of children being detained in closed immigration detention facilities.

134. As a result, the Commission commenced a new National Inquiry into Children in Immigration Detention in February 2014. This is to consider the impact of immigration detention on the health, well-being and development of children, and whether laws, policies and practices relating to children in immigration detention meet Australia’s international human rights obligations.^[115] The Inquiry has involved detention centre visits, interviews with families and children in detention, submissions and the conduct of 5 public hearings. The report of the Inquiry will be transmitted to the Government in November 2014 and will be released subsequent to this (likely in December 2014).

(b) Conditions of detention for children

135. Australia has a specific obligation under article 37(c) of the CRC to ensure that children in detention are treated with humanity and respect for their inherent dignity.

136. The Commission has concerns about the conditions of detention in some facilities in which children are detained, due to the harsh physical environments in remote locations (such as at the Leonora Alternative Place of Detention), and the lack of appropriate recreational spaces, activities and access to education in facilities such as those on Christmas Island.

137. Long periods in immigration detention facilities puts children at high risk of serious mental harm, which may amount to cruel, inhuman or degrading treatment in breach of the CRC.

(c) Unaccompanied minors in immigration detention

138. Australia has obligations to children who arrive in Australia unaccompanied, especially those who are seeking asylum, to ensure that they receive special protection and assistance.

139. An important element of the care of unaccompanied minors is effective guardianship. In the absence of their parents, the legal guardian of an unaccompanied minor has the ‘primary responsibility for the upbringing and development of the child’, and is under an obligation under the CRC to act in the best interests of the child.

140. Under Australian law, the Minister is the legal guardian of ‘non-citizen’ unaccompanied minors.

141. The Commission is concerned that the Minister’s role as guardian of unaccompanied minors creates a conflict of interest, as the Minister is also responsible for administering the immigration detention regime under the Migration Act and for making decisions about granting visas. Given these multiples roles, it is difficult for the Minister, or his delegate, to make the best interests of the child the primary consideration when making decisions concerning unaccompanied minors.

142. The Commission has repeatedly recommended that an independent guardian be appointed for all unaccompanied minors in immigration detention, to ensure that their rights are protected. In 2012 the Parliamentary Joint Select Committee on Australia’s Immigration Detention Network also recommended that the legal guardianship of unaccompanied minors in immigration detention be transferred from the Minister.

8.3 Refugees with adverse security assessments

143. The Commission has for several years raised concerns about people who have been found to be refugees but who remain in immigration detention facilities in Australia because they have been denied a protection visa as a result of receiving an adverse security assessment from the ASIO.

144. Such refugees cannot be returned to their country of origin as they have been found to have a well-founded fear of persecution. Australian Government policy requires that they remain in immigration detention facilities unless a third country agrees to resettle them. Third country resettlement appears not to be a realistic solution and therefore individuals, including children, are effectively facing a life sentence in detention, this is despite having not been charged with or convicted of any crime.

145. In October 2012 the Australian Government appointed an Independent Reviewer for Adverse Security Assessments. The Independent Reviewer has recommended in ten cases that ASIO’s adverse assessment be maintained and has seen ASIO overturn adverse security assessments in two cases.

146. One of these cases involved a family of five who had spent over four years in detention as a result of receiving an adverse security assessment. The parents and their three young children (one of whom was born in detention) were released into the community in June 2013 as a result of the Independent Reviewer’s recommendation. No reasons were provided as to why the assessment that led to their prolonged detention was overturned.

147. These decisions highlight the need for greater transparency and accountability in the application of ASIO security assessments to asylum seekers and refugees. The Commission strongly supports independent review of adverse security assessments.

148. Refugees with adverse security assessments and their children remain indefinitely detained in closed immigration detention facilities. Some adults are detained in high security immigration detention centres such as the Villawood Immigration Detention Centre; extremely restrictive environments in which to hold people who could be facing a very long period in detention.

149. In August 2013 the UN Human Rights Committee found that the indefinite detention of a group of 46 refugees with adverse assessments was inflicting serious psychological harm upon them, amounting to cruel, inhuman or degrading treatment.

150. The Commission is of the view that alternative options to indefinite detention in closed facilities should be considered. These alternative options may include, in particular, community detention, if necessary with conditions to mitigate any identified risks. Conditions could include a requirement to reside at a specified location, curfews, travel restrictions, regular reporting and, possibly, electronic monitoring.

8.4 Mental health impacts of detention

151. Rates of mental health problems in the immigration detention population in Australia have been found to be high, and range from depression, anxiety and sleep disorders to post-traumatic stress disorders, suicidal ideation and self-harm.

152. The UN Human Rights Committee found that Australia breached the right not to be subjected to cruel, inhuman or degrading treatment or punishment, and the right of people detained to be treated with dignity, by continuing to detain people in the knowledge that it was contributing to mental illness.

153. In May 2013, the Commonwealth Ombudsman published a report following a two year-long investigation. The investigation was prompted by the increasing number of self-harm incidents in immigration detention. The Ombudsman’s findings in relation to the impact of detention on the mental health of asylum seekers align with the observations of medical practitioners and the Commission.

154. In particular, it has been clearly established that detention for prolonged and uncertain periods of time both causes and exacerbates mental illness, and that there is a strong link between the length of time spent in detention and the deterioration of mental health. It is also known that detention in remote, climatically harsh and overcrowded conditions, and a lack of meaningful activities and adequate services have a negative impact on the mental health of detainees.

155. Research has also found that bringing together groups of people in the same situation, experiencing frustration, distress and/or mental illness, can result in a ‘contagion’ effect; ‘dysfunctional thinking’ can be magnified; behaviours such as self-harm and rioting are reinforced as responses to problems; and witnessing others self-harm can increase the risk of self-harming behaviour in imitation.

156. The impact of mental illness on detainees extends to impaired cognitive function, memory and concentration. This can have a negative impact on a detainee’s case for asylum by impairing their ability to present a coherent, consistent, fact-based claim.

157. The mental health impacts on asylum seekers held in detention can continue to affect a person after they have been released into the community. Studies have found a strong association between past detention, particularly detention for over six months, and ongoing poor mental health in people now living in the community. There are particular concerns about the long-lasting impact of detention on the mental health of children.

158. Since 2011 steps have been taken by the Department to strengthen the mental health services and response across the immigration detention network. The Ombudsman noted in particular the efforts to strengthen the Psychological Support Program and the new Programs and Activities Framework, as well as other reforms to the Department’s systems. However, as many medical professionals have indicated, often it is the detention environment itself which causes mental health concerns. Accordingly, it is the removal of people from immigration detention facilities which, in many cases, will prevent the deterioration of mental health.

8.5 Community detention and bridging visas

159. Since October 2010 the Australian Government has moved increasing numbers of asylum seekers and refugees from closed immigration detention into the community, pending resolution of their claims for protection. This has been achieved through the use of community detention and bridging visas.

160. This approach builds on measures introduced by previous Australian governments, in particular the introduction of the community detention mechanism in 2005. At this time the Migration Act was amended to give the Minister the power to make a ‘residence determination’ in respect of a person in immigration detention, which allows that person to live in a specified residence in the community. A person in this position is said to be in ‘community detention’.

161. The Minister also has the discretion to grant a bridging visa to a person in immigration detention when it is in the public interest to do so.

162. The Commission welcomes the increased use of community arrangements which brings the Australian Government’s treatment of asylum seekers and refugees closer into alignment with its international human rights obligations.

163. On 21 November 2012 the Minister announced that some asylum seekers who had arrived by boat since 13 August 2012 and remained in Australia would be given bridging visas and permitted to live in the community while their claims for protection were assessed. The Minister stated that those asylum seekers would not be permitted to work, and would receive ‘only basic accommodation assistance, and limited financial support’.

164. The Commission strongly supports the use of bridging visas as an alternative to detention. However, the Commission is concerned about the consequences of prohibiting asylum seekers from working.

165. Australia has an obligation under article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[116] to ensure, as a minimum, ‘the right of access to employment, especially for disadvantaged and marginalised individuals and groups’.^[117] Australia may be in breach of this obligation if it denies asylum seekers access to the labour market, especially if this forces them into poverty.^[118]

166. As at 2 September 2013 it was reported that there were over 21,000 asylum seekers living in the community on bridging visas that were prohibited from working.

167. Asylum seekers on bridging visas who experience financial hardship may be eligible for limited financial assistance. Such assistance may be available for a period of up to six weeks to help with the transition from immigration detention to living in the community, or, if certain vulnerability criteria are met, for a longer period.

168. The Commission has raised concerns that the levels of financial assistance available are inadequate to address basic needs. There is evidence that the prohibition on asylum seekers supporting themselves through work has placed a considerable strain on the resources of charitable and other community organisations.

169. There have already been considerable delays in the processing of asylum seekers who arrived after 13 August 2012. From August 2012 until the end of June 2013, asylum claims from this group were not processed. This led to a reported backlog of over 25,000 claims to be processed.

170. A consequence of this is that there are many asylum seekers who may potentially be living on bridging visas without the right to work for years while waiting for their claims to be processed.

8.6 Third country processing

171. The Commission recognises the need for appropriate regional and international cooperation on issues relating to asylum seekers, refugees and the complex challenges associated with forced and mixed migration.

172. International law does not prohibit third country processing of the claims of asylum seekers. However, this does not mean that Australia can avoid its international human rights obligations by transferring asylum seekers to third countries.

173. The Commission has repeatedly expressed concerns about how the current approach to third country processing operates. In June 2013 the PJCHR, having inquired into the regional processing legislation, concluded that the ‘measures as currently implemented carry a significant risk of being incompatible with a range of human rights.’

(a) Non-refoulement

174. The Commission is concerned that the third country processing arrangements may not protect asylum seekers from being removed to a country where they face a real risk of significant harm.

175. Under the third country processing arrangements, the Minister has the discretion to consider assurances from a country that it will not send asylum seekers to another country where they are at risk of refoulement, and to exempt a person from being transferred to a ‘regional processing country’ if issues arise in relation to Australia’s non-refoulement obligations.

176. These discretionary powers do not provide adequate safeguards against breaches by the Australian Government of its non-refoulement obligations. Broad and non-compellable discretionary powers leave the Minister with the power to decide whether or not to expose individual asylum seekers to the risk of violations of their human rights.

177. The principle of non-refoulement under the Refugee Convention and its Protocol^[119] requires States to provide asylum seekers with effective access to ‘fair and efficient asylum procedures’. UNHCR has expressed concern about the refugee status determination framework and procedures currently provided in Nauru and PNG.

178. The Commission has particular concerns about the removal of any LGBTI asylum seekers to a country in which homosexual activity is criminalised, as it is in PNG. The Australian Government stated that LGBTI asylum seekers arriving after 19 July 2013 would not be exempt from transfer to PNG.

(b) Arbitrary detention

179. To date, both the Nauru and Manus Island processing centres are closed detention centres, allowing asylum seekers no freedom of movement. No timeframe has been given as to when or if the facilities will be transitioned to open facilities.

180. All transferees, including children, have been subjected to mandatory detention. There is no individualised assessment of the need for detention. Asylum seekers on Nauru and Manus Island have been subjected to lengthy periods in detention during which no processing was taking place.

181. The PJCHR has similarly concluded that the delays in processing and continued detention of asylum seekers ‘appears to constitute arbitrary detention’. In June 2013, UNHCR found that the practice of mandatory and indefinite detention on Manus Island was arbitrary and therefore in breach of the ICCPR.

(c) Conditions of detention

182. The Commission is concerned about the numerous reports that highlight the poor conditions in the regional processing centres, and the impacts on the physical and mental health of detainees. In particular, claims have emerged of repeated incidents of self-harm and attempted suicide on both Nauru and Manus Island, as well as claims of rape and ill-treatment on Manus Island.

183. Prolonged detention had devastating impacts on some asylum seekers who were detained on Nauru and Manus Island between 2001 and 2008. Some were diagnosed with a range of mental illnesses including depression, anxiety, post-traumatic stress disorder, adjustment disorder and acute stress reaction. There were also high levels of actual and threatened self-harm among these people. Further, there was heavy use of medication including anti-depressants, anti-anxiety, psychotropic and sleeping medication among people in detention on Nauru and Manus Island.

184. The Manus Island regional processing centre remains temporary. Accommodation for single adult males is in tents, and families (when they were on the island), were housed in demountable dongas. In June 2013 UNHCR noted cramped, crowded, hot conditions, hygiene concerns, and insufficient division between families and single adult males. UNHCR found that the conditions on Manus Island were harsh and remained below international standards.

185. In December 2012 UNHCR found the conditions in the Nauru regional processing centre to be ‘harsh and unsatisfactory’ with similar concerns to those on Manus Island: the extreme heat, overcrowding, and lack of privacy.

186. Since that time, construction of more permanent structures on Nauru improved the accommodation for a time. However, following the riot in July 2013, asylum seekers are again accommodated primarily in tents. After the riot, staff from the Nauru regional processing centre published a statement describing the conditions for those in detention as ‘cruel and degrading’.

187. The Commission considers that detaining asylum seekers for a prolonged period of time in temporary facilities where some must live in tents, are subjected to harsh weather, have little privacy, and access to only basic facilities, may breach international human rights standards regarding the conditions and treatment of people in detention.

188. The harsh conditions of detention may also lead to breaches of other human rights, such as the right to an adequate level of health care.

189. The PJCHR expressed concern with the ‘absence of legally-binding requirements relating to minimum conditions in regional processing facilities’, and considered that the Australian Government had not demonstrated that the conditions were consistent with the provisions of the ICCPR, the ICESCR, the CRC and the CAT. The PJCHR found that the cumulative effect of the third country processing arrangements was likely to have a significant impact on the physical and mental health of asylum seekers, contrary to the right to health,^[120] and the prohibition against degrading treatment.

190. The Commission has repeatedly stated that hot, remote locations are not appropriate places to send asylum seeker children, or other vulnerable groups. The mandatory and prolonged detention of children on Nauru and Manus Island breaches the requirement under the CRC to detain children only as a measure of last resort and for the shortest appropriate period of time.^[121] Additionally, the conditions of detention may lead to breaches of other children’s rights, for example their right to the highest attainable standard of health and access to health care services, and their right to education.

(d) Independent monitoring

191. Regular independent monitoring of immigration detention facilities is essential in order to increase accountability and transparency, and thereby guard against human rights abuses. In the past, the Commission has emphasised the need for a more comprehensive monitoring mechanism to ensure that conditions in immigration detention facilities meet human rights standards. The need for such a mechanism is heightened on Nauru and Manus Island due to the limited transparency surrounding the detention operations there, and because the remote locations make them less accessible to media and monitoring bodies.

192. Currently, there is no monitoring body with all of the key features necessary to be fully effective: independence from the Department; adequate funding to fulfil the role; the capacity to maintain an ongoing or regular presence at immigration detention facilities; a specific statutory power to enter immigration detention facilities; comprehensive public reporting for transparency; and the capacity to require a public response from government.

193. Currently, in relation to the regional processing facilities in Nauru, there is a joint advisory committee, jointly chaired by Nauruan and Australian officials, and including a number of members of the Minister’s Council on Asylum Seekers and Detention. There is currently no monitoring or advisory body regarding the Manus Island regional processing facilities.

194. The Commission would expect that arrangements for third country processing would comply with the following requirements:

     • Be consistent with the principle of non-refoulement by ensuring protection for asylum seekers from removal to a country where they face a real risk of significant harm

     • Not breach the requirement to ensure protection from arbitrary detention

     • Provide adequate safeguards for children – particularly those who are unaccompanied

     • Ensure appropriate conditions for detention which respect the inherent dignity of the human person and do not amount to cruel, inhuman or degrading treatment

     • Provide for independent monitoring and oversight of facilities – to ensure compliance with human rights standards, including the adequacy of conditions.

8.7 Proposed amendments to the Migration Act

(a) Complementary protection

195. The Government has proposed to repeal Australia’s complementary protection framework. The Government introduced the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill (2013) (Cth) on December 4 2013, which seeks to repeal the statutory scheme of complementary protection by amending the Migration Act to remove complementary protection as a basis for the grant of a protection visa. The Bill has been passed by the House of Representatives and is before the Senate.

196. In its submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Bill, the Commission raised concerns that the repeal of the statutory complementary protection framework may result in breaches of Australia’s non-refoulement obligations under article 3 of the Convention.^[122]

197. The Bill proposes to remove s 36(2)(aa) of the Migration Act, which provides for complementary protection as a criterion for the grant of a protection visa. In its place, the Minister may implement administrative arrangements to give effect to complementary protection obligations.

198. The Commission is concerned that if s 36(2)(aa) is repealed, the Minister may apply a test in assessing applications for complementary protection that is inconsistent with the obligation of non-refoulement.^[123] It is not clear what actual framework will be used to assess claims for complementary protection. It appears that any such framework will rely on the Minister exercising discretionary powers under Migration Act. Administrative mechanisms used to replace the statutory provision for complementary protection will not be binding.^[124]

(b) S 501 visa cancellations

199. Section 501 (and also sections 501A and 501B) of the Migration Act 1958 (Cth) provides that a non-citizen’s application for a visa may be refused or their visa may be cancelled if the Minister is not satisfied that they pass the ‘character test’.

200. On 25 September 2014, the Government introduced the Migration Amendment (Character and General Visa Cancellation) Bill 2014. This Bill proposes to strengthen powers to refuse an application for a visa or cancel a visa on character grounds.^[125] The Senate Legal and Constitutional Affairs Legal Committee will inquire into the bill and report on 24 November 2014.

201. The Commission has expressed concern about the impact of visa cancellation or refusal under s 501 on those who are found to engage Australia’s non-refoulement obligations.^[126] Under Australia’s mandatory detention regime, individuals who meet this description face the prospect of indefinite detention unless they meet the requirements for a protection visa or there is a third country where they can be resettled in which they do not have a real risk of persecution or significant harm.^[127] As discussed above, this raises serious human rights concerns.

(c) Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

202. On September 24 2014 the Government introduced the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). The Commission holds concerns about several of the changes proposed by the Bill. The Bill has been referred to the PJCHR for report on 27 November 2014. The Commission is currently analysing the Bill and will be in a position to provide further information to the Committee Against Torture at the time of Australia’s appearance in early November.

• (i) International obligations

203. The Bill empowers the Government to remove asylum seekers even where such a removal would be in breach of Australia’s non-refoulement obligations. It inserts a new subsection 197C that provides that for the purposes of mandatory removal of an unlawful non-citizen from Australia, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. The Government has stated that its intention in making this amendment is ‘to make clear that the removal power ... is not constrained by assessments of Australia’s non-refoulement obligations’.^[128]

204. The Bill replaces references to the Refugee Convention in the Migration Act with new narrower statutory definitions. The Commission has serious concern about this element of the Bill.

• (ii) Temporary Protection Visas

205. The legislation reintroduces Temporary Protection Visas (TPVs) of up to three years at a time for unauthorised arrivals who are found to engage non-refoulement obligations.^[129]

206. The Government has stated that the temporary protection visas ‘do not provide a path to permanent protection visas’.^[130]

207. The Bill is intended to address ‘the Government’s objective that any illegal arrivals who seek asylum in Australia will not be granted a Permanent Protection Visa.’^[131]

208. Temporary protection for refugees is not prohibited under the Refugee Convention. However, UNHCR recommends that it is only used in limited circumstances to meet urgent needs in the event of mass cross-border displacement.

209. The Commission has previously raised serious concerns about TPVs when they were last used in Australia (with very similar conditions attached) from 1999 to 2008. In particular, the Commission has expressed the following concerns in the past:

     • The granting of protection to refugees on a temporary basis, and the resulting uncertainty about their future, had a detrimental impact upon the mental health of TPV holders in the past

     • The absence of a right to family reunion, combined with the effective ban on overseas travel, meant that some people faced prolonged and indefinite periods of separation from their families

     • By limiting the grant of TPVs to refugees, on the basis that they arrived by boat without authorisation, Australia may be discriminating against this group contrary to the ICCPR and the Refugee Convention.

• (iii) Limitation of review

210. The Bill proposes to limit the availability of review for unauthorised maritime arrivals who have applied for and been denied a protection visa. These applicants will be subject to a fast track assessment process by a new body, the Immigration Assessment Authority.^[132] They will no longer be entitled to merits review by the Refugee Review Tribunal.

211. The fast track process involves what is described as ‘limited merits review’ that will:

     1. prevent asylum seekers from raising relevant matters on review (other than in exceptional circumstances) if they were not raised with the initial decision maker;

     2. prevent asylum seekers from appearing in person before an independent reviewer to make submissions about their claims, at a time when they are more likely to have received legal advice.

212. The Bill will further limit the rights of review for those who have previously been refused protection, have protection elsewhere or have been considered to have unmeritorious claims. This cohort of applicants, to be known as ‘excluded fast track applicants’, will be excluded from any form of merits review.^[133]

(iv) Maritime powers

213. The Bill proposes to amend the Maritime Powers Act 2013 (Cth). Among other things, this Act provides powers to enforce migration law by intercepting asylums seekers coming to Australia by boat, detaining them and taking them to a place outside Australia.

214. If passed, the amendments would provide that a person may be taken to a destination outside Australia whether or not Australia has an agreement or arrangement with any other country and irrespective of the international or domestic obligations of any other country.

215. The exercise of this power would not be invalid because of a failure to consider Australia’s international obligations, because of a defective consideration of those obligations, or because the exercise of the power is inconsistent with those obligations. Further, the rules of natural justice would not apply to the exercise of these powers. This means that there would be no obligation to ask asylum seekers questions about whether they had a well-founded fear of persecution in any country that they might be taken to.

• (d) Migration Amendment (Protection and Other Measures) Bill 2014 (Cth)

216. On 25 June 2014 the Australian Government introduced the Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) into Parliament.

217. The Bill modifies the threshold test for determining Australia’s protection obligations, including under the CAT.^[134] Under the new test, the Minister can only be satisfied that Australia has protection obligations in respect of a non-citizen if the Minister considers that it ‘is more likely than not’ that the non-citizen will suffer harm if removed from Australia to a receiving country.^[135]

218. In addition, the Bill amends the Migration Act to:

     • Make clear that it is an asylum seeker’s responsibility to specify the particulars of their claim and to provide sufficient evidence to establish their claims for protection.

     • Provide for the Refugee Review Tribunal to draw an unfavourable inference in relation to credibility of claims or evidence that are raised by an asylum seeker at the review stage for the very first time, if there is no reasonable explanation for the failure to raise the claims and evidence before the primary decision maker.

     • Create grounds for refusal of a protection visa application when an applicant refuses or fails to prove their identity, nationality or citizenship, and does not have a reasonable explanation for doing so, including where the applicant provides bogus documents or destroys/discards such evidence.

     • Provide that a protection visa will not be granted to a family member of a protection visa holder unless the family member applied for the protection visa before the protection visa holder was granted their visa.^[136]

219. The Commission notes that the PJCHR has stated that several of the proposals contained in the bill are incompatible with Australia’s non-refoulement obligations.^[137]

 

9 Other issues

9.1 Issue: Extradition

LOIPR: paras 22-23

Relevant provisions of the CAT: Article 3

220. In 2012, the Government passed the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 (Cth). The Act amended s 22(3)(b) of the Extradition Act 1988 (Cth) to align the wording of the Act with Australia’s non-refoulement obligations under article 3 of the CAT.

221. The Act also amended the Mutual Assistance in Criminal Matters Act 1987 (Cth) to provide for mandatory refusal of mutual assistance where there are substantial grounds for believing that if the request for mutual assistance was granted, the person would be in danger of being subjected to torture.^[138] This was previously a discretionary ground.

222. The Commission has welcomed these reforms.^[139]

9.2 Issue: Trafficking

LOIPR: para 12

Relevant provisions of the CAT: Article 2

223. In 2012 the Commonwealth Government passed the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth). The Act introduced measures to fortify the prohibition of trafficking and slavery including the establishment of new offences of forced marriage and organ trafficking and an expansion of the definition of exploitation to include slavery-like practices. The Commission has expressed support for the introduction of these offences informed by a human rights based approach, and noted the need to introduce a federal victims’ compensation scheme for victims of trafficking, slavery and slavery-like conditions and improve support services for victims.^[140]

Child trafficking

224. Australia has ratified the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSC).

225. The Commission welcomes the Government’s initiatives related to child trafficking. These initiatives include the National Plan of Action to Combat Trafficking in Persons: Tomorrow’s Children, Australia’s National Plan of Action against the Commercial Sexual Exploitation of Children and the Australian Policing Strategy to Combat Trafficking in Persons 2011-2013.^[141]

226. However, the Commission notes that the UN Committee on the Rights of the Child has identified concerns regarding measures of implementation, prevention and prohibition of the sale of children, child prostitution, child pornography, and protection of child victims.^[142] In the Children’s Rights Report 2013, the Commission recommended that the Australian government respond formally to the corresponding recommendations made by the UN Committee on the Rights of the Child.^[143]

9.3 Sexual Orientation, Gender Identity and Intersex issues (SOGII)

LOIPR: n/a

Relevant provisions of the CAT: Article 16

227. In 2013, the Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) which has introduced new grounds of discrimination into the Sex Discrimination Act 1984 (Cth), in effect from 1 August 2013. The Commission has welcomed these amendments which prohibit discrimination on the basis of sexual orientation, gender identity and intersex status in specific areas of public life, as set out in the Sex Discrimination Act 1984 (Cth).^[144]

228. Concerns have been raised about the issue of surgical or hormonal interventions on intersex infants.^[145] The Tasmanian Commission advised that whilst there are some instances where surgery or other medical intervention is necessary for the physical well-being of the child, a large number of interventions continue to be made to make them more typically male or female on the pretext that it will protect the child from future discrimination.

9.4 Royal Commission into Institutional Responses to Child Sexual Abuse

LOIPR: n/a

Relevant provisions of the CAT: Articles 2, 12, 16

229. The Commission has welcomed the establishment of a Royal Commission into Institutional Responses to Child Sexual Abuse.^[146] The Commission notes that the Letters Patent provided to the Royal Commission require that it ‘inquire into institutional responses to allegations and incidents of child sexual abuse and related matters’.^[147] The Commission also notes that the scope of the Royal Commission extends to schools, churches, sports clubs and government institutions; the latter at the Commonwealth, state and territory levels. The Royal Commission is to have regard to:
     • the experience of people directly or indirectly affected by child sexual abuse and related matters in institutional contexts
     • focus its inquiry on systemic issues, while being informed by individual cases
     • look to the adequacy and appropriateness of responses by institutions and their officials
     • changes to laws, policies, practices and systems that have over time improved protection against and responses to child sexual abuse

230. The term of the Royal Commission inquiry has been extended for two years from 31 December 2015 to 31 December 2017.^[148]

 

 

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Attachment 1 – compilation of recommended actions

• Statutory powers of the Australian Human Rights Commission

Positive developments: The Commission conducts a wide variety of activities that relate to the implementation of the CAT.

Recommended action: That the Government schedule the CAT to the AHRC Act.

• Independent monitoring and inspection mechanisms, including ratification of the OPCAT

Positive developments: The Joint Standing Committee on Treaties of the Australian Parliament has recommended ratification of the OPCAT.

Recommended action: That the Government ratify the OPCAT as a priority, including by enacting legislation to authorise visits of the SPT as a first step.

• Domestic implementation of human rights obligations

Positive developments: The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) provides broad parliamentary scrutiny processes relating to the seven major human rights treaties to which Australia is a party, including the CAT. This includes the creation of the PJCHR and the requirement that all new legislation and legislative instruments be accompanied by a Statement of Compatibility. The PJCHR has released several reports identifying issues of potential non-compliance with the CAT, which ensures that this issue is before the federal Parliament when decisions on legislation are made.

Numerous positive steps have been taken towards achieving recognition of Aboriginal and Torres Strait Islander peoples in Australia’s Constitution

Recommended actions: That the government ensure domestic implementation of Australia’s international human rights obligations in law, policy and practice. Further, that the government clarify the status of the Australian Human Rights Framework and measures to be put in place from 2015.

That the Government move expeditiously to finalise a model for constitutional recognition of Aboriginal and Torres Strait Islander peoples, and announce a referendum date.

• Criminal justice system and conditions in prisons

Positive developments: The Closing the Gap targets provide national leadership in addressing the socio-economic disadvantage experienced by Aboriginal and Torres Strait Islander peoples.

Some states in Australia have commenced the development of Disability Justice Strategies.

Recommended actions: That Australian governments:

• Adopt justice reinvestment approaches and justice targets, such as a target to halve the gap in rates of incarceration for Aboriginal and Torres Strait Islander peoples.
• Develop and implement a Disability Justice Strategy to ensure people with disabilities have access to justice in the criminal justice system.
• Review mandatory sentencing laws in view of the disproportionate impact on Aboriginal and Torres Strait Islander peoples and children.
• Raise the minimum age of criminal responsibility to an internationally acceptable level.

 

• Counter-terrorism and National Security

Positive developments: The position of the INSLM was created in 2010. The INSLM's role is to review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis.

• This includes considering whether the laws contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security or both, and remain necessary.
• It includes an annual assessment of whether counter-terrorism laws have been used for matters unrelated to terrorism and national security.

Recommended actions: That the Government swiftly appoint a new INSLM and ensure that he or she has sufficient resources to monitor recent proposed changes to national security legislation.

That the Government does not proceed with the Foreign Fighters Bill unless and until significant concerns about the Bill are addressed, including:

• Appropriate safeguards are provided for the use of control orders; stop, search and seizure powers; and ASIO’s special warrant powers
• Preventative detention orders are discontinued
• Appropriate monitoring and review mechanisms are put in place for the matters covered by the Bill.

 

• Violence against women

Positive developments: The Government has taken significant steps to improve responses to violence, such as through amendments to family law legislation to respond more effectively to domestic and family violence and child abuse; and through the introduction of the National Plan to Reduce Violence against Women and their Children 2010-22.

The Australian Defence Force has implemented measures to reduce the incidence of violence against women and sexual harassment in the armed forces. In particular, the Sexual Misconduct Prevention and Response Office (SeMPRO) was established following a review by the AHRC and the senior leadership has demonstrated strong commitment to eradicating violence against women within the armed forces.

Recommended actions: That all Australian governments fully implement the National Plan to Reduce Violence against Women and their Children, including by ensuring appropriate services and funding are provided to particularly vulnerable categories of women.

That governments in Australia ensure that there is rigorous monitoring of the implementation of Coronial Inquest findings, to address systemic failures to protect women from domestic violence.

• Immigration detention and asylum seeker policy

Positive developments: Independent reviews of adverse security assessments by ASIO were conducted from 2012, resulting in the reversing of assessment findings in some instances.

Steps have been taken by the government since 2011 to strengthen mental health services and response across the immigration detention network.

Since October 2010 the Australian Government has moved increasing numbers of asylum seekers and refugees from closed immigration detention into the community, pending resolution of their claims for protection. This has been achieved through the use of community detention and bridging visas.

Recommended actions: That mandatory immigration detention be abolished. Asylum seekers should only be detained if it is shown to be necessary in their individual case. Time limits for detention and access to judicial oversight of detention should be introduced to ensure that if a person is detained, they are not detained for any longer than is necessary.

That an independent guardian be appointed for all unaccompanied minors in immigration detention, to ensure that their rights are adequately protected.

That independent review be provided for all people subject to adverse security assessments. Alternative options to indefinite detention in closed facilities should also be considered for this class of refugee. This may include, community detention options (with conditions to mitigate any identified risks).

That the Government continue to expand the use of alternatives to closed immigration detention such as community detention and bridging visas.

That restrictions be removed from bridging visas that prevent asylum seekers from working.

That legislative safeguards be introduced to protect asylum seekers from being processed in third countries where they face a real risk of significant harm. In particular LGBTI asylum seekers should not be removed to a country in which homosexual activity is criminalised.

That the following Bills not be passed by the Australian Parliament as they are incompatible with Australia’s non-refoulement obligations:

• Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013 (Cth)
• Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
• Schedule 5 of the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
• Migration Amendment (Protection and Other Measures) Bill 2014 (Cth).

Other issues

• Extradition

Positive developments: The Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 (Cth) was enacted in 2012. This amends the Extradition Act 1988 (Cth) to align the wording of the Act with Australia’s non-refoulement obligations under the CAT.

• Trafficking

Positive developments: The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) was enacted in 2013.

A number of initiatives have been undertaken in relation to child trafficking, including the National Plan of Action to Combat Trafficking in Persons: Tomorrow’s Children, Australia’s National Plan of Action against the Commercial Sexual Exploitation of Children and the Australian Policing Strategy to Combat Trafficking in Persons 2011-2013.

• Sexual Orientation, Gender Identity and Intersex issues

Positive developments: New protections against discrimination on the basis of sexual orientation, gender identity and intersex status were included in the Sex Discrimination Act 1984 (Cth) from 1 August 2013.

• Royal Commission into Institutional Responses to Child Sexual Abuse

Positive developments: The Commission welcomes the establishment of a Royal Commission into Institutional Responses to Child Sexual Abuse. The scope of the inquiry extends to abuse in government institutions.

 

References

---

^[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 12 October 1984, 1465 UNTS 85 (entered into force 16 June 1987).
^[2] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
^[3] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
^[4] Reports are available on the Commission’s website: http://www.humanrights.gov.au/publications/reports-minister-under-ahrc-act. The following reports have been completed since Australia’s previous appearance before the CAT:

• Report No. 39: Report of an inquiry into a complaint by Mr Nguyen, Mr Okoye and three other immigration detainees concerning the conditions and conduct of their transportation from one immigration detention centre to another (breach of ICCPR, articles 7 and 10(1)).
• Report No. 40: Report of an inquiry into complaints by 26 immigration detainees concerning interviews that each participated in with officials from the Chinese Ministry of Public Security, being interviews organised by the Commonwealth of Australia (breach of ICCPR, articles 10(1) and 17(1) in relation to 24 of the immigration detainees who had made protection visa applications).
• Report No. 41: Report of an inquiry into a complaint by Mr El Masri about acts and practices of the Commonwealth of Australia in relation to his detention in an immigration detention centre (breach of ICCPR, articles 9(1) and 10(1)).
• Report No. 46: Report of an inquiry into a complaint by Mrs Yousefi, on behalf of herself, her husband and her son, about acts and practices of the Commonwealth of Australia in relation to their immigration detention (breach of ICCPR, articles 7, 9(1) and 10(1); breach of CRC, articles 3(1), 3(2), 19(1), 37(a), 37(c) 24(1) and 28(1)).
• Report No. 51: Report of an inquiry into a complaint by Ms Brown about acts and practices of the Commonwealth of Australia in relation to her detention in an immigration detention centre (breach of ICCPR, articles 9(1) and 10(1)).
• Report No. 55: Report of an inquiry into complaints by two ten year old girls about acts and practices of the Commonwealth of Australia in relation to their immigration detention (breach of ICCPR, articles 9(1), 10(1) and 17(1); breach of CRC, articles 3, 16(1), 37(b) and 37(c)).
• Report No. 62: Report of an inquiry into a complaint by Mr Ince about acts and practices of the Commonwealth of Australia in relation to his detention in an immigration detention centre (breach of ICCPR, articles 7, 9(1), 10(1), 17(1) and 23(1)).

^[5] Committee against Torture, Fourth and fifth periodic reports of States parties due in 2012, Australia, UN Doc CAT/C/AUS/4-5 (2013), paras 29-30. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=930&Lang=en (8 October 2014).
^[6] For all materials relating to the inquiry see: http://www.humanrights.gov.au/national-inquiry-children-immigration-detention-index.
^[7] These reports are available at: http://www.humanrights.gov.au/publications/asylum-seekers-and-refugees?source=our-work.
^[8] The standards are available at: http://www.humanrights.gov.au/publications/human-rights-standards-immigration-detention.
^[9] http://www.humanrights.gov.au/social-justice-and-native-title-reports.
^[10] For example, http://www.humanrights.gov.au/childrens-rights-report-2013.
^[11] Powers of inspection: Corrections Management Act 2007 (ACT) s 6; Children and Young People Act 2008 (ACT) s 153. Own-motion reviews: Human Rights Commission Act 2005 (ACT) ss 14(1)(e) and 48 and Human Rights Act 2004 (ACT) s 41.
^[12] Australian Human Rights Commission, Children’s Rights Report 2013, p 17. At http://www.humanrights.gov.au/publications/childrens-rights (viewed 8 October 2014); Australian Human Rights Commission, Australia’s Universal Periodic Review, Progress Report Prepared by the Australian Human Rights commission on behalf of the Australian Council of Human Rights Authorities (2013). At http://www.humanrights.gov.au/publications/rights-and-freedoms?source=our-work (viewed 9 October 2014).
^[13] Professor Gillian Triggs, Free speech and human rights in Australia (Speech delivered at the Free Speech 2014 Symposium, Ultimo, 7 August 2014). At https://www.humanrights.gov.au/news/speeches/free-speech-and-human-rights-australia (viewed 15 October 2014).
^[14] Parliamentary Joint Committee on Human Rights, Committee Reports: Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries (viewed 10 October, 2014).
^[15] Parliamentary Joint Committee on Human Rights, Guidance Notes and Resources. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources (viewed 10 October, 2014).
^[16] The rate of imprisonment for the general population rate of 188 per 100,000 (based on average daily imprisonment rate): Australian Bureau of Statistics (ABS), Corrective Services Australia June Quarter 2014, 4512.0 (September 2014). At http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0?OpenDocument (viewed 26 September 2014).
^[17] Australian Institute of Health and Welfare, A picture of Australia’s Children, p 102. At http://www.aihw.gov.au/publication-detail/?id=10737423343 (viewed 14 October 2014).
^[18] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission (2011), p 4.132. At http://www.pc.gov.au/gsp/overcoming-indigenous-disadvantage/key-indicators-2011 (viewed 14 October 2014).
^[19] Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the value of a justice reinvestment approach to criminal justice in Australia, para 30. At http://www.humanrights.gov.au/sites/default/files/20130313_jr.pdf (viewed 14 October 2014). Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/justicereinvestment/report/index (viewed 14 October 2014); House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time, Time for Doing: Indigenous youth in the criminal justice system (June 2011). At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/sentencing/report.htm (viewed 12 October 2014); Noetic Solutions, A Strategic Review of the New South Wales Juvenile Justice System: Report for the Minister for Juvenile Justice (April 2010). At http://indigenousjustice.gov.au/db/publications/285011.html (viewed 14 October 2014). See generally Australian Human Rights Commission, Social Justice Reports 2009-2013. At https://www.humanrights.gov.au/publications/aboriginal-and-torres-strait-islander-social-justice?source=our-work (viewed 14 October 2014).
^[20] Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013), p 124. At http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=legcon_ctte/completed_inquiries/2010-13/justice_reinvestment/report/index.htm (viewed 14 October 2014).
^[21] Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013), p 125. At http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=legcon_ctte/completed_inquiries/2010-13/justice_reinvestment/report/index.htm (viewed 14 October 2014).
^[22] Victorian Equal Opportunity and Human Rights Commission, Unfinished business: Koori women and the justice system (2013). At http://www.humanrightscommission.vic.gov.au/index.php/our-resources-and-publications/reports/item/679-unfinished-business-koori-women-and-the-justice-system (viewed 14 October 2014).
^[23] Department of Justice, Victorian Aboriginal Justice Agreement. At http://www.justice.vic.gov.au/home/your+rights/aboriginal+justice+agreement/victorian+aboriginal+justice+agreement (viewed 14 October 2014).
^[24] The Aboriginal Justice Forum is a coordinating body made up of government agencies and the Aboriginal community, which meets regularly to oversee the implementation of the AJA3. The Koori Caucus of the Aboriginal Justice Forum is comprised of representatives of the Aboriginal community.
^[25] M Gooda, Social Justice and Native Title Report 2013, Australian Human Rights Commission (2013), p 102. At http://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2013 (viewed 9 September 2014).
^[26] Australian Human Rights Commission, Submission to the Senate Community Affairs Legislation Committee Inquiry into the: Stronger Futures in the Northern Territory Bill 2011 and two related Bills (6 February 2012), paras 392-397. At http://www.humanrights.gov.au/submission-stronger-futures-northern-territory-bill-2011-2012 (viewed 14 October 2014).
^[27] Australian Human Rights Commission, Social Justice and Native Title Report 2013 (2013), p. 125. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2013 (viewed 10 October 2014).
^[28] Northern Territory Government Legal Focus Group meeting of 10 February 2014 identified 99% of persons involved in the scheme as Indigenous. See discussion in the Law Society of Northern Territory submission to the Six Month Review of the Alcohol Mandatory Treatment Act 2013 (NT), http://lawsocietynt.asn.au/index.php/Latest-News/six-month-review-of-the-alcohol-mandatory-treatment-act.html (viewed 16 October 2014).
^[29] Human Rights and Equal opportunity Commission, Submissions to the Coroner’s Court of Western Australia Inquest into the Death of Mr Ward (28 May 2009), p. 43. At http://www.humanrights.gov.au/inquest-death-mr-ward-2009 (viewed 10 October 2014).
^[30] Coroner’s Court of Western Australia, Inquest into the Death of Mr Ward Ref No: 9/09, p 130.
^[31] Office of the Inspector of Custodial Services, Thematic Review of Court Security and Custodial Services in Western Australia, Report No. 65 (May 2010). At http://www.oics.wa.gov.au/reports/65-thematic-review-court-security-custodial-services/ (viewed 15 October 2014).
^[32] Office of the Inspector of Custodial Services, Prisoner/Detainee Transportation 1 July 2011-31
December 2011. At http://www.oics.wa.gov.au/wp-content/uploads/2013/12/final-report-prisoner-and-detainee-transport.pdf (viewed 15 October 2014).
^[33] Office of the Inspector of Custodial Services, Prisoner/Detainee Transportation 1 July 2011-31
December 2011, p 5. At http://www.oics.wa.gov.au/wp-content/uploads/2013/12/final-report-prisoner-and-detainee-transport.pdf (viewed 15 October 2014).
^[34] Office of the Inspector of Custodial Services, Review of Regional Youth Custodial Transport
Services in Western Australia August 2011, p 25. At http://www.oics.wa.gov.au/wp-content/uploads/2013/12/Report_74_Regional_Youth_Transport.pdf (viewed 15 October 2014).
^[35] Estimates (Legal and Constitutional Affairs Legislation Committee), Questions on Notice Index, Question 34, Additional Estimates 2013-2014 (February 2014). At http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/legconctte/estimates/add1314/AGD/index (viewed 15 October 2014).
^[36] Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (February 2014). At http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf (viewed 13 October 2014).
^[37] Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (February 2014), p 16. At http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf (viewed 13 October 2014).
^[38] Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (February 2014), p 11. At http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf (viewed 13 October 2014).
^[39] Australian Institute of Health and Welfare, The health of Australia’s prisoners 2012 (2013) p 35. At http://www.aihw.gov.au/publication-detail/?id=60129543948 (viewed 13 October 2014); Australian Institute of Criminology, Police shootings of people with a mental illness Research in Practice No. 34 (2013). At http://www.aic.gov.au/publications/current%20series/rip/21-40/rip34.html (viewed 13 October 2014); Australian Bureau of Statistics, Profiles of Disability, Australia, 2009, Comparison of Disability Prevalence between Aboriginal and Torres Strait Islander Peoples and Non-Indigenous Peoples (2013). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4429.0~2009~Main%20Features~Comparison%20of%20disability%20prevalence%20between%20Aboriginal%20and%20Torres%20Strait%20Islander%20peoples%20and%20non-Indigenous%20peoples~10029 (viewed 30 January 2014)
^[40] Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (February 2014), pp 12-13. At http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf (viewed 13 October 2014).
^[41] Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (February 2014), p 11. At http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf (viewed 13 October 2014).
^[42] Attorney-General’s Department, Disability Justice Plan 2014-2017. At http://www.agd.sa.gov.au/initiatives/disability-justice-plan (viewed 13 October 2014).
^[43] Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: the Experiences of People with Disabilities Reporting Crime (2014). At http://www.humanrightscommission.vic.gov.au/index.php/our-resources-and-publications/reports/item/894-beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime (viewed 14 October 2014).
^[44] Detention can occur in prisons in Western Australia under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and in the Northern Territory under the Criminal Code Act 1983 (NT), Part IIA. Detention occurs in psychiatric hospitals in Queensland under the Mental Health Act 2000 (Qld) and the Forensic Disability Act 2011 (Qld) and in Tasmania under the Tasmania Criminal Justice (Mental Impairment) Act 1999 (Tas).
^[45] Australian Human Rights Commission, Social Justice and Native Title Report 2013 (2013), p. 55. At http://www.humanrights.gov.au/publications/aboriginal-and-torres-strait-islander-social-justice?source=our-work (viewed 14 October 2014).; Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (February 2014), pp 12-13. At http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf (viewed 13 October 2014).
^[46] Australian Human Rights Commission, Twenty Years: Twenty Stories: Presumed Guilty. At http://www.humanrights.gov.au/twentystories/videos.html (viewed 14 October 2014).
^[47] Australian Law Reform Commission, Discussion paper on Equality, Capacity and Disability in Commonwealth Laws, May 2014. At http://www.alrc.gov.au/publications/disability-dp81 (viewed 15 October, 2014).
^[48] The Queen v Presser [1958] VR 45, 48.
^[49] DLA Piper, Background paper on Access to Justice in the Criminal Justice System
for People with Disability (2013). At
https://www.humanrights.gov.au/publications/background-paper-access-justicepeople-disability-criminal-justice-system (viewed 13 October 2014).
^[50] DLA Piper, Background paper on Access to Justice in the Criminal Justice System
for People with Disability (2013), p 78. At
https://www.humanrights.gov.au/publications/background-paper-access-justicepeople-disability-criminal-justice-system (viewed 15 October 2014).
^[51] Australian Institute of Health and Welfare, Youth justice in Australia 2012-13 (2014), tables S72 to S123, Table S74, Line 14. At http://www.aihw.gov.au/publication-detail/?id=60129546738&tab=3 (viewed 2 September 2014).
^[52] Australian Institute of Health and Welfare, Youth detention population in Australia 2013 (2013), p 8. At http://www.aihw.gov.au/publication-detail/?id=60129545395 (viewed 10 October 2014).
^[53] House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time, Time for Doing: Indigenous youth in the criminal justice system (2011). At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/sentencing/report.htm (viewed 12 October, 2014).
^[54] House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time, Time for Doing: Indigenous youth in the criminal justice system (2011), p 2. At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=atsia/sentencing/report.htm (viewed 12 October, 2014).
^[55] Australian Human Rights Commission, Children’s Rights Report 2013 (2013). At http://www.humanrights.gov.au/publications/childrens-rights (viewed 10 October 2014).
^[56] Australian Human Rights Commission, Children’s Rights Report 2013 (2013), p. 33. At http://www.humanrights.gov.au/publications/childrens-rights (viewed 10 October 2014).
^[57] Wilson v Joseph Michael Francis, Minister for Corrective Services for the State of Western Australia [2013] WASC 157 (3 May 2013).
^[58] Wilson v Joseph Michael Francis, Minister for Corrective Services for the State of Western Australia [2013] WASC 157 (3 May 2013).
^[59] Victorian Ombudsman, Investigation into Children Transferred from the Youth Justice System to the Adult Prison System (2013), paras 10 and 45. At https://www.ombudsman.vic.gov.au/getattachment/6a579e49-212e-42b0-9d3c-791e2d60e102//reports-publications/parliamentary-reports/investigation-into-children-transferred-from-the-y.aspx (viewed 10 October 2014).
^[60] Youth Justice Act 2005 (NT), s 154. Maximum period is 72 hours unless permission from a Magistrate to extend to 10 days. Sub-section 5 provides that the detainee accommodated in a custodial correctional facility must be kept separate from all prisoners at the facility, including youth prisoners.
^[61] Youth Justice Act 2005 (NT), s 154(6).
^[62] Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria, Department of Justice Victoria (2012).
^[63] ACT Government, Blueprint for Youth Justice in the ACT. At http://www.communityservices.act.gov.au/ocyfs/the_blueprint_for_youth_justice_in_the_act (viewed 15 October 2014).
^[64] ACT Government, Blueprint for Youth Justice in the ACT 2012-22, Annual Progress Report 2013. At http://www.communityservices.act.gov.au/ocyfs/the_blueprint_for_youth_justice_in_the_act/blueprint-for-youth-justice-in-the-act-annual-progress-report (viewed 15 October 2014).
^[65] Australian Human Rights Commission, Social Justice Report 2013 (2013), p 52-53. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2013 (viewed 14 October 2014); Australian Human Rights Commission, Children’s Rights Report 2013 (2013), p 32. At https://www.humanrights.gov.au/publications/childrens-rights-report-2013 (viewed 14 October 2014); T Wilson, Queensland Law Society Mandatory Sentencing Policy Paper Launch (Speech delivered at Queensland Law Society, Brisbane, 4 April 2014). At https://www.humanrights.gov.au/news/speeches/queensland-law-society-mandatory-sentencing-policy-paper-launch (viewed 14 October 2014).
^[66] Magaming v The Queen [2013] HCA 40 (11 October 2013).
^[67] Commission’s submissions in Magaming v The Queen [2013] HCA 40 (11 October 2013). At https://www.humanrights.gov.au/our-work/legal/submissions/submission-court-intervener-and-amicus-curiae (viewed 14 October 2014).
^[68] Magaming v The Queen [2013] HCA 40 (11 October 2013)
^[69] Criminal Code Amendment Act (No 2) 2013 (WA); Criminal Investigation (Identifying People) Amendment Act 2013 (WA). .
^[70] Sentencing Act 2008 (NT), s 78BA as amended by Sentencing Amendment (Mandatory Minimum Sentences) Act 2013 (NT).
^[71] L Roth, ‘Mandatory Sentencing Laws’, NSW Parliamentary Research Service e-brief. At http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/Mandatorysentencinglaws/$File/mandatory+sentencing+laws.pdf (viewed 14 October 2014).
^[72] Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 (NSW)
^[73] Crimes Amendment (Gross Violence Offences) Act 2013 (Vic)
^[74] Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld); Weapons and Other Legislation Amendment Act 2012 (Qld); Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld).
^[75] Australian Human Rights Commission, Submission to the Coroner’s Court of the Northern Territory Inquiry into the deaths of David Gurrulpa and Robert Plasto-Lehner (4 April 2009), para 110. At http://www.humanrights.gov.au/inquest-deaths-david-gurralpa-and-robert-plasto-lehner-2009 (viewed 10 October 2014).
^[76] Australian Human Rights Commission, Australia’s Universal Periodic Report 2012 Progress Report (2012), para 49. At: https://www.humanrights.gov.au/publications/australias-universal-periodic-review (viewed 10 October 2014).
^[77] New South Wales Ombudsman, How are Taser weapons used by the NSW Police Force? A Special Report to Parliament under s. 31 of the Ombudsman Act 1974 (2012). At http://www.ombo.nsw.gov.au/news-and-publications/publications/reports/police/how-are-taser-weapons-used-by-nsw-police-force (viewed 10 October 2014); Queensland Crime and Misconduct Commission, An update on Taser use in Queensland (2012). At http://www.cmc.qld.gov.au/topics/police-and-the-cmc/police-powers-and-practice/taser-use/2011-evaluation-of-taser-reforms (viewed 10 October 2014).
^[78] Australian Human Rights Commission, In our own words - African Australians: A review of human rights and social inclusion issues (2010). At https://www.humanrights.gov.au/our-own-words-african-australians-review-human-rights-and-social-inclusion-issues-2010#engaginghttps://www.humanrights.gov.au/our-own-words-african-australians-review-human-rights-and-social-inclusion-issues-2010 (viewed 10 October 2014).
^[79] Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 (1 March 2012).
^[80] Summary Offences Act 1996 (Vic).
^[81] Victorian Ombudsman, Investigation into Deaths and Harm in Custody (2014). At https://www.ombudsman.vic.gov.au/getattachment/2998b6e6-491a-4dfe-b081-9d86fe4d4921 (viewed 10 October 2014).
^[82] Victorian Ombudsman, Investigation into Deaths and Harm in Custody (2014), pp. 10, 27 and 28. At https://www.ombudsman.vic.gov.au/getattachment/2998b6e6-491a-4dfe-b081-9d86fe4d4921 (viewed 10 October 2014).
^[83] Victorian Ombudsman, Investigation into Deaths and Harm in Custody (2014), pp. 12, 68 ,75 and 105. At https://www.ombudsman.vic.gov.au/getattachment/2998b6e6-491a-4dfe-b081-9d86fe4d4921 (viewed 10 October 2014).
^[84] E Bevin, Plan to scrap suspended sentences in Tasmania to go ahead despite Risdon Prison capacity concerns, ABC News, 10 June 2014. At http://www.abc.net.au/news/2014-06-10/tasmanian-attorney-general-planning-to-scrap-suspended-sentences/5511766 (viewed 10 October 2014).
^[85] Victorian Auditor-General, Prisoner Transportation (2014), p xi. At http://www.audit.vic.gov.au/reports_and_publications/latest_reports/2013-14/20140611-prisoner-transport.aspx (viewed 10 October 2014).
^[86] These can be accessed here: http://www.dpmc.gov.au/INSLM/index.cfm.
^[87] Independent National Security Legislation Monitor, Declassified Annual Report (2012), chapter 2. At http://www.dpmc.gov.au/INSLM/index.cfm (viewed 11 October, 2014).
^[88] Independent National Security Legislation Monitor, Declassified Annual Report (2012), chapter 3. At http://www.dpmc.gov.au/INSLM/index.cfm (viewed 11 October, 2014).
^[89] Independent National Security Legislation Monitor, Declassified Annual Report (2012), chapter 4. At http://www.dpmc.gov.au/INSLM/index.cfm (viewed 11 October, 2014).
^[90] Independent National Security Legislation Monitor, Declassified Annual Report (2014), chapters 3, 5. At http://www.dpmc.gov.au/INSLM/index.cfm (viewed 11 October, 2014).
^[91] Independent National Security Legislation Monitor, Declassified Annual Report (2012), chapter 6. At http://www.dpmc.gov.au/INSLM/index.cfm (viewed 11 October, 2014).
^[92] INSLM 4th report, 28 March 2014, page 2. See also: INSLM 3^rd report, 7 November 2013, p2 ; INSLM 2^nd report, 20 December 2012, p6; INSLM 1^st report, 16 December 2011, p1.
^[93] INSLM 4th report, 28 March 2014, page 2.
^[94] Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s976 (viewed 11 October, 2014).
^[95] Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p 128 para 741 and p 134 para 785. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s976 (viewed 11 October 2014).
^[96] Council of Australian Governments, Council of Australian Governments Review of Counter-Terrorism Legislation (2013), p 54. At http://www.coagctreview.gov.au/Report/Pages/default.aspx (viewed 11 October, 2014).
^[97] Council of Australian Governments, Council of Australian Governments Review of Counter-Terrorism Legislation (2013), p 54. At http://www.coagctreview.gov.au/Report/Pages/default.aspx (viewed 11 October, 2014).
^[98] Council of Australian Governments, Council of Australian Governments Review of Counter-Terrorism Legislation (2013), p 68. At http://www.coagctreview.gov.au/Report/Pages/default.aspx (viewed 11 October 2014).
^[99] Independent National Security Legislation Monitor, Declassified Annual Report (2012), pp 44 and 67. At http://www.dpmc.gov.au/INSLM/index.cfm (viewed 11 October, 2014).
^[100] Please see Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD: Review of Division 3 Part III of the ASIO Act 1979 (Cth) (April 2005). At http://www.humanrights.gov.au/asio-asis-and-dsd (viewed 13 October 2014); Australian Human Rights Commission, Submission to the Independent National Security Legislation Monitor: Review of Counter-Terrorism and National Security Legislation (September 2012). At http://www.humanrights.gov.au/review-counter-terrorism-and-national-security-legislation (viewed 13 October 2014).
^[101] Australian Human Rights Commission, Submission to the Parliamentary Joint Standing Committee on Intelligence and Security Inquiry into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (2 October 2014) paras 35-36.
At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Counter-Terrorism_Legislation_Amendment_Foreign_Fighters_Bill_2014/Submissions (viewed 10 October 2014).
^[102] Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendments (Foreign Fights) Bill 2014, Commonwealth of Australia, Canberra, 2014, Recommendation 13, available online at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Counter-Terrorism_Legislation_Amendment_Foreign_Fighters_Bill_2014/Report1.
^[103] Australian Bureau of Statistics, Personal Safety Survey 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Features12012?opendocument&tabname=Summary&prodno=4906.0&issue=2012&num=&view=) (viewed 10 September 2014).
^[104] Australian Bureau of Statistics, Personal Safety Survey 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Features12012?opendocument&tabname=Summary&prodno=4906.0&issue=2012&num=&view=) (viewed 10 September 2014).
^[105] See A Ferrante et al., Measuring the Extent of Domestic violence (1996), p 34.
^[106] Victorian Government, Victoria’s Action Plan to Address Violence against Women and Children 2012-2015 (2012). At: http://www.dhs.vic.gov.au/about-the-department/plans,-programs-and-projects/plans-and-strategies/women/action-plan-to-address-violence-against-women-and-children (viewed 10 October 2014).
^[107] A Morozow, ‘ACT women with disabilities offered way to escape domestic violence’ (ABC News, 5 August 2015). At http://www.abc.net.au/news/2014-08-05/new-service-for-women-with-disabilities/5650490 (viewed 13 October 2014).
^[108]Australian Human Rights Commission Submission to the Coroner’s Court of Western Australia Inquest into the death of Andrea Louise Pickett (25 June 2012) At: http://www.humanrights.gov.au/sites/default/files/content/legal/submissions_court/guidelines/Submissions%2025%20June%202012%20(2).pdf (viewed 10 October 2014).
^[109] Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force. At https://www.humanrights.gov.au/review-treatment-women-australian-defence-force (viewed 13 October 2014).
^[110] This chapter is largely a summary of the Australian Human Rights Commission publication Asylum Seekers, Refugees and Human Rights: Snapshot Report (2013). At http://www.humanrights.gov.au/publications/asylum-seekers-refugees-and-human-rights-snapshot-report (viewed 16 October 2014).
^[111] Al-Kateb v Godwin (2004) 219 CLR 562.
^[112] Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 (11 September 2014).
^[113] Migration Act 1958 (Cth), ss 189, 196.
^[114] See Migration Act 1958 (Cth), s 4AA.
^[115] For all materials relating to the inquiry see: http://www.humanrights.gov.au/national-inquiry-children-immigration-detention-index.
^[116] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 Jan 1976).
^[117] Committee on Economic, Social and Cultural Rights, General Comment No 18: Article 6 of the Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/GC/18 (2005), para 31. At http://tb.ohchr.org/default.aspx?Symbol=E/C.12/GC/18 (viewed 1 October 2013).
^[118] See P Mathew, Reworking the Relationship between Asylum and Employment (2012), p 117. Note that in this type of situation, the right to an adequate standard of living in article 11(1) of the ICESCR may also be engaged.
^[119] Refugee Convention, art 33.
^[120] ICESCR, art 12.
^[121] CRC, Art 37(b).
^[122] Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Migration Amendment (Regaining Control Over Protection Obligations) Bill 2013 (30 January 2014), para 9. At https://www.humanrights.gov.au/submissions/inquiry-migration-amendment-regaining-control-over-australia-s-protection-obligations (viewed 10 October 2014).
^[123] Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Migration Amendment (Regaining Control Over Protection Obligations) Bill 2013 (30 January 2014), para 27. At https://www.humanrights.gov.au/submissions/inquiry-migration-amendment-regaining-control-over-australia-s-protection-obligations (viewed 10 October 2014).
^[124] Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Migration Amendment (Regaining Control Over Protection Obligations) Bill 2013 (30 January 2014), para 15. At https://www.humanrights.gov.au/submissions/inquiry-migration-amendment-regaining-control-over-australia-s-protection-obligations (viewed 10 October 2014).
^[125] Migration Amendment (Character and General Visa Cancellation) Bill 2014
^[126] Australian Human Rights Commission, Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act (2013), p 3. At http://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-section (viewed 10 October 2014).
^[127] Australian Human Rights Commission, Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act (2013), pp. 14-15. At http://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-section (viewed 10 October 2014).
^[128] Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). At http://www.aph.gov.au/parliamentary_business/bills_legislation/bills_search_results/result?bid=r5346 (viewed 10 October 2014).
^[129] Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). At http://www.aph.gov.au/parliamentary_business/bills_legislation/bills_search_results/result?bid=r5346 (viewed 10 October 2014).
^[130] Minister for Immigration and Border Protection, ‘Reintroducing TPVs to resolve Labor’s asylum legacy caseload’, (Press conference, Canberra, 26 September 2014). At http://www.minister.immi.gov.au/media/sm/2014/sm218131.htm (viewed 17 October 2014).
^[131] Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), p. 6. At http://www.aph.gov.au/parliamentary_business/bills_legislation/bills_search_results/result?bid=r5346 (viewed 10 October 2014).
^[132] Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), schedule 4.
^[133] Explanatory Memorandum, Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), p. 6. At http://www.aph.gov.au/parliamentary_business/bills_legislation/bills_search_results/result?bid=r5346 (viewed 10 October 2014).
^[134] Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth), p 2-3. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5303 (viewed 10 October 2014).
^[135] Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth), p 2-3. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5303 (viewed 10 October 2014).
^[136] Migration Amendment (Protection and Other Measures) Bill 2014 (Cth)
^[137] Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44th Parliament; Bills introduced 1 - 4 September 2014; Legislative Instruments received 2 August - 5 September 2014 (2014) pp 25, 27, 28, 32, 36. At http://www.aph.gov.au/parliamentary_business/committees/joint/human_rights/completed_inquiries (viewed 10 October 2014); Australian Human Rights Commission Statement welcoming PJCHR statement (2 October 2014). At https://www.humanrights.gov.au/news/stories/12th-and-13th-reports-parliamentary-joint-committee-human-rights-welcomed-commission (viewed 10 October 2014).
^[138] Mutual Assistance in Criminal Matters Act 1987 (Cth) s 8(1)(ca).
^[139] Australian Human Rights Commission Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 (1 August 2011) para 6. At: https://www.humanrights.gov.au/extradition-and-mutual-assistance-criminal-matters-legislation-amendment-bill-2011 (viewed 10 October 2014).
^[140] Australian Human Rights Commission Submission to the Attorney General’s Department on the Exposure Draft Bill Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (20 January 2012), para 2. At: http://www.humanrights.gov.au/exposure-draft-bill-crimes-legislation-amendment-slavery-slavery-conditions-and-people-trafficking#Heading154 (viewed 10 October 2014).
^[141] Department of Family and Community Services, Tomorrow’s Children: Australia’s National Plan of Action Against the Commercial Sexual Exploitation of Children (2000). At http://www.dss.gov.au/sites/default/files/documents/tomorrows_children.pdf (viewed 10 October 2014).
^[142] Committee on the Rights of the Child, Consideration of reports submitted by States parties under
article 12, paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography - Concluding Observations: Australia, UN Doc CRC/C/OPSC/AUS/CO/1 (2012), paras 8-33.
^[143] Australian Human Rights Commission, Children’s Rights Report 2013, p 9. At http://www.humanrights.gov.au/publications/childrens-rights (viewed 10 October 2014).
^[144] Sex Discrimination Act 1984 (Cth) ss 5A, 5B and 5C.
^[145] Australian Human Rights Commission Paper on surgery on intersex infants and human rights (July 2009). At: https://www.humanrights.gov.au/surgery-intersex-infants-and-human-rights-2009 (viewed 17 October 2014).
^[146] Royal Commission into Institutional Responses to Child Sexual Abuse. At http://www.childabuseroyalcommission.gov.au/ (viewed 15 October 2014).
^[147] Royal Commission into Institutional Responses to Child Sexual Abuse, Letters Patent. At http://www.childabuseroyalcommission.gov.au/about-us/terms-of-reference (viewed 15 October 2014).
^[148] Attorney General for Australia, Minister for the Arts, ‘Child Abuse Royal Commission granted a two year extension’, (Media Release,12 September 2014). At http://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/ThirdQuarter/2September2014-ChildAbuseRoyalCommissionGrantedATwoYearExtension.aspx (viewed 15 October 2014).