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COMMITTEE AGAINST TORTURE HEARS RESPONSE OF AUSTRALIA
30 April 2008
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Committee against Torture
30 April 2008
The Committee against Torture this afternoon heard the response of Australia to questions raised by Committee Experts on the periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on 29 April, Caroline Millar, Permanent Representative of Australia to the United Nations Office at Geneva, in her opening remarks, referred to several issues relating to the implementation of the Convention such as the question of whether treaties in Australia were self-executing, the powers of the Human Rights and Equal Opportunity Commission, a Bill of Rights in Australia, and Australia’s understanding of its non-refoulement obligation. The delegation said on immigration matters, that training was given to immigration officials, including on interviewing techniques and post traumatic stress or other psychological or emotional issues from which applicants might suffer when arriving in Australia. The delegation noted that new reforms had now led to the fact that children were no more held in immigration detention centres. If families were detained, it would be in community arrangements. On the new detention centre on Christmas Island, it was noted that the island was part of the Australian territory and Australian law was applicable there.
The Committee will submit its conclusions and recommendations on the report of Australia towards the end of the session on Friday, 16 May 2008.
As one of the 145 States parties to the Convention against Torture, Australia is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Friday, 2 May, it is scheduled to begin consideration of the third periodic report of Algeria (CAT/C/DZA/3).
Response of Australia
Responding to a series of questions raised by Committee Experts on 29 April, the delegation of Australia said that, with regard to the implementation of the Convention, treaties were not self-executing in Australian law, but that Australia implemented fully its obligations under the Convention. Regarding immigration matters, it was noted that training was given to immigration officials, including on interviewing techniques and post traumatic stress or other psychological or emotional issues from which applicants might suffer when arriving in Australia. If a person was granted a protection visa, this conferred work rights. If a protection visa was refused, the applicant received an extensive written explanation of the decision and the ways to appeal this decision.
On the power of the Immigration Minister, the delegation noted that whenever the Minister used his intervention powers, a written explanation of the decision was provided to each house of Parliament. Regarding the detention of asylum seekers, people were liable for detention when they did not hold a visa, not because they were asylum seekers. Over 98 per cent of asylum seekers were not in detention. The lawfulness of a detention could be appealed before courts. If a visa was refused or cancelled, the person could also appeal such decisions. Detainees were informed about their rights to apply for a visa. Free migration assistance was provided to asylum seekers in detention. Cases in which someone had been in detention for more than two years were automatically reviewed by the Ombudsman.
The delegation noted that new reforms had now led to the fact that children were no longer held in immigration detention centres. If families needed to be detained, this was in community arrangements. In community detention, children and minors had access to primary schooling and English classes.
On the new detention centre on Christmas Island, it was noted that the island was part of Australian territory and Australian law was applicable there. Thus people detained there would have access to the Australian High Court. Families were not accommodated in the detention centre, but placed in accommodation in the community on Christmas Island. Healthcare was provided to everyone who needed it in immigration detention. After their release, asylum seekers were given support and settlement services, depending on the kind of visa they obtained. Under negligence and criminal law, detainees could also seek compensation for their treatment in detention centres.
If an allegation of sexual assault arose in immigration detention centres, the relevant investigating agency was immediately informed and an independent investigation was conducted. A mental health team was also available to every person in an immigration detention center if needed.
Concerning counter-terrorism legislation, the delegation said that suspects of involvement in terrorism were not subjected to indefinite detention or indefinite interrogations. Preventive detention was allowed only to prevent an imminent terrorist attack or preserve evidence of a terrorist attack. Such a person could be detained for a maximum of 14 days under state law. Questioning during such preventive detention was prohibited and it was noted that such a detention had not taken place to date. Australian security agencies were also able to detain persons who may have information on a terrorist offence in limited circumstances for a maximum of 160 hours, where authorised under warrant.
On the limits of interrogation techniques that were being used, the delegation underlined that Australia opposed any use of torture or inhuman or degrading treatment. Certain interrogations techniques like waterboarding or sleep deprivations were not permitted. Counter-terrorism laws had also been recently reviewed by independent committees. It was concluded that the current counter-terrorism laws were necessary, based on the current threat of terrorism.
Concerning extradition, it was the Attorney-General or Minister for Home Affairs who accepted any extradition request. A magistrate then determined the person’s eligibility for surrender. The Attorney-General or Minister for Home Affairs then decided whether or not to surrender the person. The Minister would not extradite a person where there was a substantial risk of torture.
On the implementation of Australia’s Convention obligations overseas, the delegation noted that an Australian official committing the crimes of torture anywhere in the world would be liable to prosecution in Australia. All acts of torture committed in armed conflicts were considered an offence of Australian law and could be prosecuted. On the transfer to other States of detainees and their protection, appropriate measures were taken to ensure that detainees were dealt with properly when transferred to other forces. In Afghanistan and Iraq, Australia did not have any detention management role. In response to a question regarding Abu Ghraib prison, Australia had not been involved in the interview of detainees and had not been involved in any detention centre in Iraq.
In response to questions about prisons and overcrowding, only two Australian States had occupancy rates above capacity. Reducing these rates was an important issue for the Government and several measures had already been taken in this regard. In response to a question about ‘super-maximum’ prisons, segregated custody was only used when the inmate presented a serious threat to: the personal safety of any other person; the security of a correctional center; or the good order and discipline within a correctional centre. However it did not involve total isolation from other detainees.
Speaking on violence against women, the delegation said that since January 2004 Australian Federal Police investigative teams had undertaken over 150 investigations and assessments of trafficking allegations. These investigations had led to 34 people being charged with trafficking-related offences and seven convictions, five for slavery matters and two for sexual servitude. There were currently seven matters and 18 defendants before the Australian courts. Three of the matters were at the appeal phase. The initiatives included tougher and nationally consistent laws and best practice. Regarding female genital mutilation, it was hard to get statistics and to define at which stages State authorities become aware of such cases.
On indigenous issues, the delegation said that, while Australia had voted against of the United Nations Declaration on the Rights of Indigenous Peoples, the new Government recognised the importance of the Declaration globally. The priority of the Government was to close the gap between indigenous and non-indigenous people in different aspects, such as life expectancy, employment, literacy and mortality rates for children under five. A national housing strategy was also being planned. The Australia Government intended to establish an effective national representative body for indigenous Australians. The Government was currently considering options for consultation prior to making any decisions on the form of the body.
The new Australian Government was firmly committed to human rights and to the United Nations human rights system, said the head of the delegation. The Committees had been vital in the promotion of international human rights norms. The role of this committee was viewed with seriousness. The new Government had already shown its commitment in this area in a short time frame. The National Apology to the Aborigines, the building of a new partnership with indigenous people, the closing of offshore processing centres and the planned accession to the Optional Protocol were part of these new developments.
Questions by Committee Experts
FERNANDO MARINO MENENDEZ, the Committee Expert serving as Rapporteur for the Report of Australia, was concerned about the fact that there was an absence of a Federal criminalisation of the offence of torture, while some Australian States had legislation which contained a specific offence of torture. He asked whether a law from the Federal Parliament could lower the standards of criminalisation of States. He queried whether there was a danger that there might be a lowering of standards of protection because of the absolute sovereignty of the Parliament, and whether this could lead to discrimination on how cases were dealt with.
On the principle of non-refoulement, Mr. Marino Menendez wondered whether there was a legal norm for it. Concerning diplomatic guarantees for extraditions, he asked whether the Government followed up such cases or whether it considered this was not a matter for the Australian Government. Also, he noted that the concept of extra-territoriality seemed to have more importance in Australian law for crimes against humanity and genocide, but not for torture.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the Report of Australia, asked whether the Convention was mentioned in the contracts of private detention personnel. Australia’s action concerning consideration of the Declaration on the Rights of Indigenous Peoples was welcomed.
Other Committee members made comments and asked questions about who decided over delegating the right to use force to private personnel in places of detentions and who was made responsible in cases of torture. Also, it was noted that the words “community detention” brought to mind the words “house arrests”, and it was hoped that people detained there were dealt with according to the Convention.
Response by Delegation
Responding to additional questions raised, the delegation of Australia said that the intention behind the enactment of any new Federal legislation would be to strengthen not weaken Australia’s commitment to human rights obligations. Concerning the diplomatic guarantees, Australia had never relied on diplomatic guarantees in the context of extradition or immigration issues, thus they could not talk about practices in terms of follow-up measures.
Concerning extradition, the delegation noted that legislation ensured that person should not be extradited if there were risks of torture. Formal Immigration Detention Standards referred to Australia’s international obligations, requiring centre staff to respect detainees’ human rights, and required that detainees could not be discriminated against. Detainees had the right to hygiene. It was noted that around 500 persons were currently in detention, it was a very low number and most of them were not asylum seekers. The detention was regularly reviewed every 28 days to make sure that any visa assessment processes were moving forward.
A significant amount of people that went in and out of immigration centres were often illegal foreign fishers. Without a visa, a person became liable for immigration detention. Theoretically a lot of people could be detained, but in practice bridging visas were issued and detention numbers were very low. A range of options were explored in each case to minimise detention
Also, the delegation said that the rights were no different if it was a private or public agency running a place of detention. On community detention, there were no visible signs of detention. People were free to move without escort, for example to go out or go to school.
____________
For use of the information media; not an official record
30 April 2008
The Committee against Torture this afternoon heard the response of Australia to questions raised by Committee Experts on the periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on 29 April, Caroline Millar, Permanent Representative of Australia to the United Nations Office at Geneva, in her opening remarks, referred to several issues relating to the implementation of the Convention such as the question of whether treaties in Australia were self-executing, the powers of the Human Rights and Equal Opportunity Commission, a Bill of Rights in Australia, and Australia’s understanding of its non-refoulement obligation. The delegation said on immigration matters, that training was given to immigration officials, including on interviewing techniques and post traumatic stress or other psychological or emotional issues from which applicants might suffer when arriving in Australia. The delegation noted that new reforms had now led to the fact that children were no more held in immigration detention centres. If families were detained, it would be in community arrangements. On the new detention centre on Christmas Island, it was noted that the island was part of the Australian territory and Australian law was applicable there.
The Committee will submit its conclusions and recommendations on the report of Australia towards the end of the session on Friday, 16 May 2008.
As one of the 145 States parties to the Convention against Torture, Australia is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Friday, 2 May, it is scheduled to begin consideration of the third periodic report of Algeria (CAT/C/DZA/3).
Response of Australia
Responding to a series of questions raised by Committee Experts on 29 April, the delegation of Australia said that, with regard to the implementation of the Convention, treaties were not self-executing in Australian law, but that Australia implemented fully its obligations under the Convention. Regarding immigration matters, it was noted that training was given to immigration officials, including on interviewing techniques and post traumatic stress or other psychological or emotional issues from which applicants might suffer when arriving in Australia. If a person was granted a protection visa, this conferred work rights. If a protection visa was refused, the applicant received an extensive written explanation of the decision and the ways to appeal this decision.
On the power of the Immigration Minister, the delegation noted that whenever the Minister used his intervention powers, a written explanation of the decision was provided to each house of Parliament. Regarding the detention of asylum seekers, people were liable for detention when they did not hold a visa, not because they were asylum seekers. Over 98 per cent of asylum seekers were not in detention. The lawfulness of a detention could be appealed before courts. If a visa was refused or cancelled, the person could also appeal such decisions. Detainees were informed about their rights to apply for a visa. Free migration assistance was provided to asylum seekers in detention. Cases in which someone had been in detention for more than two years were automatically reviewed by the Ombudsman.
The delegation noted that new reforms had now led to the fact that children were no longer held in immigration detention centres. If families needed to be detained, this was in community arrangements. In community detention, children and minors had access to primary schooling and English classes.
On the new detention centre on Christmas Island, it was noted that the island was part of Australian territory and Australian law was applicable there. Thus people detained there would have access to the Australian High Court. Families were not accommodated in the detention centre, but placed in accommodation in the community on Christmas Island. Healthcare was provided to everyone who needed it in immigration detention. After their release, asylum seekers were given support and settlement services, depending on the kind of visa they obtained. Under negligence and criminal law, detainees could also seek compensation for their treatment in detention centres.
If an allegation of sexual assault arose in immigration detention centres, the relevant investigating agency was immediately informed and an independent investigation was conducted. A mental health team was also available to every person in an immigration detention center if needed.
Concerning counter-terrorism legislation, the delegation said that suspects of involvement in terrorism were not subjected to indefinite detention or indefinite interrogations. Preventive detention was allowed only to prevent an imminent terrorist attack or preserve evidence of a terrorist attack. Such a person could be detained for a maximum of 14 days under state law. Questioning during such preventive detention was prohibited and it was noted that such a detention had not taken place to date. Australian security agencies were also able to detain persons who may have information on a terrorist offence in limited circumstances for a maximum of 160 hours, where authorised under warrant.
On the limits of interrogation techniques that were being used, the delegation underlined that Australia opposed any use of torture or inhuman or degrading treatment. Certain interrogations techniques like waterboarding or sleep deprivations were not permitted. Counter-terrorism laws had also been recently reviewed by independent committees. It was concluded that the current counter-terrorism laws were necessary, based on the current threat of terrorism.
Concerning extradition, it was the Attorney-General or Minister for Home Affairs who accepted any extradition request. A magistrate then determined the person’s eligibility for surrender. The Attorney-General or Minister for Home Affairs then decided whether or not to surrender the person. The Minister would not extradite a person where there was a substantial risk of torture.
On the implementation of Australia’s Convention obligations overseas, the delegation noted that an Australian official committing the crimes of torture anywhere in the world would be liable to prosecution in Australia. All acts of torture committed in armed conflicts were considered an offence of Australian law and could be prosecuted. On the transfer to other States of detainees and their protection, appropriate measures were taken to ensure that detainees were dealt with properly when transferred to other forces. In Afghanistan and Iraq, Australia did not have any detention management role. In response to a question regarding Abu Ghraib prison, Australia had not been involved in the interview of detainees and had not been involved in any detention centre in Iraq.
In response to questions about prisons and overcrowding, only two Australian States had occupancy rates above capacity. Reducing these rates was an important issue for the Government and several measures had already been taken in this regard. In response to a question about ‘super-maximum’ prisons, segregated custody was only used when the inmate presented a serious threat to: the personal safety of any other person; the security of a correctional center; or the good order and discipline within a correctional centre. However it did not involve total isolation from other detainees.
Speaking on violence against women, the delegation said that since January 2004 Australian Federal Police investigative teams had undertaken over 150 investigations and assessments of trafficking allegations. These investigations had led to 34 people being charged with trafficking-related offences and seven convictions, five for slavery matters and two for sexual servitude. There were currently seven matters and 18 defendants before the Australian courts. Three of the matters were at the appeal phase. The initiatives included tougher and nationally consistent laws and best practice. Regarding female genital mutilation, it was hard to get statistics and to define at which stages State authorities become aware of such cases.
On indigenous issues, the delegation said that, while Australia had voted against of the United Nations Declaration on the Rights of Indigenous Peoples, the new Government recognised the importance of the Declaration globally. The priority of the Government was to close the gap between indigenous and non-indigenous people in different aspects, such as life expectancy, employment, literacy and mortality rates for children under five. A national housing strategy was also being planned. The Australia Government intended to establish an effective national representative body for indigenous Australians. The Government was currently considering options for consultation prior to making any decisions on the form of the body.
The new Australian Government was firmly committed to human rights and to the United Nations human rights system, said the head of the delegation. The Committees had been vital in the promotion of international human rights norms. The role of this committee was viewed with seriousness. The new Government had already shown its commitment in this area in a short time frame. The National Apology to the Aborigines, the building of a new partnership with indigenous people, the closing of offshore processing centres and the planned accession to the Optional Protocol were part of these new developments.
Questions by Committee Experts
FERNANDO MARINO MENENDEZ, the Committee Expert serving as Rapporteur for the Report of Australia, was concerned about the fact that there was an absence of a Federal criminalisation of the offence of torture, while some Australian States had legislation which contained a specific offence of torture. He asked whether a law from the Federal Parliament could lower the standards of criminalisation of States. He queried whether there was a danger that there might be a lowering of standards of protection because of the absolute sovereignty of the Parliament, and whether this could lead to discrimination on how cases were dealt with.
On the principle of non-refoulement, Mr. Marino Menendez wondered whether there was a legal norm for it. Concerning diplomatic guarantees for extraditions, he asked whether the Government followed up such cases or whether it considered this was not a matter for the Australian Government. Also, he noted that the concept of extra-territoriality seemed to have more importance in Australian law for crimes against humanity and genocide, but not for torture.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the Report of Australia, asked whether the Convention was mentioned in the contracts of private detention personnel. Australia’s action concerning consideration of the Declaration on the Rights of Indigenous Peoples was welcomed.
Other Committee members made comments and asked questions about who decided over delegating the right to use force to private personnel in places of detentions and who was made responsible in cases of torture. Also, it was noted that the words “community detention” brought to mind the words “house arrests”, and it was hoped that people detained there were dealt with according to the Convention.
Response by Delegation
Responding to additional questions raised, the delegation of Australia said that the intention behind the enactment of any new Federal legislation would be to strengthen not weaken Australia’s commitment to human rights obligations. Concerning the diplomatic guarantees, Australia had never relied on diplomatic guarantees in the context of extradition or immigration issues, thus they could not talk about practices in terms of follow-up measures.
Concerning extradition, the delegation noted that legislation ensured that person should not be extradited if there were risks of torture. Formal Immigration Detention Standards referred to Australia’s international obligations, requiring centre staff to respect detainees’ human rights, and required that detainees could not be discriminated against. Detainees had the right to hygiene. It was noted that around 500 persons were currently in detention, it was a very low number and most of them were not asylum seekers. The detention was regularly reviewed every 28 days to make sure that any visa assessment processes were moving forward.
A significant amount of people that went in and out of immigration centres were often illegal foreign fishers. Without a visa, a person became liable for immigration detention. Theoretically a lot of people could be detained, but in practice bridging visas were issued and detention numbers were very low. A range of options were explored in each case to minimise detention
Also, the delegation said that the rights were no different if it was a private or public agency running a place of detention. On community detention, there were no visible signs of detention. People were free to move without escort, for example to go out or go to school.
____________
For use of the information media; not an official record
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