Human Rights Committee examines the report of Australia

GENEVA (19 October 2017) - The Human Rights Committee this morning completed its consideration of the sixth periodic report of Australia on its implementation of the provisions of the International Covenant on Civil and Political Rights.

Presenting the report, John Quinn, Permanent Representative of Australia to the United Nations Office at Geneva, noted that Australia took its human rights obligations with the utmost seriousness, and that the Government was conscious of the further expectations and responsibilities placed on it as a member of the Human Rights Council.  The Government was committed to upholding the civil and political rights of all Australians and to leaving no one behind.  It welcomed robust but respectful debate on human rights issues.  The right to equality before the law and to a fair trial were imperative in a democratic society, which was why the Government had committed record funding to the legal assistance sector.  The Government’s efforts to counter terrorism were informed by its commitment to human rights and the rule of law, and it strived to get the right balance between security and individual rights and civil liberties.  The Government prioritised achieving substantive gender equality and improving outcomes for Aboriginal and Torres Strait Islander Australians. 

In the ensuing discussion, Experts observed a generally strong record of Australia in the field of human rights, including the presence of a robust civil society and the national Human Rights Commission.  However, they regretted that Australia routinely failed to implement the views of the Committee on individual communications.  Experts also raised a series of concerns regarding Australia’s non-compliance with the principle of non-refoulement,  the highly punitive character of detention in offshore facilities, the length of migrant detention, inclusion of children and unaccompanied migrants in the mandatory migrant detention, poor safety conditions in offshore detention facilities, the failure of the Government to take responsibility for the regional processing centres in Papua New Guinea and Nauru, and attempts to create a veil of secrecy about conditions in those centres.  Other concerns included the plethora of counter-terrorism measures that did not seem to be proportionate to the situation on the ground, collection and access to metadata by intelligence agencies, revocation of citizenship due to terrorism charges, the rights of indigenous peoples and their overrepresentation in the penitentiary system, domestic violence, especially against indigenous women, hate crimes and racial profiling, businesses and human rights, sex reassignment surgeries and recognition of same-sex marriages, and non-consensual sterilisation procedures for persons with disabilities. 

In concluding remarks, Andrew Walter, Acting First Assistant Secretary of the Criminal Justice Policy and Programs Division of the Attorney-General’s Department, thanked Committee Experts for their questions and comments, noting that the delegation had appreciated the spirit with which they engaged with the delegation.  The discussion was an important opportunity to reflect on the human rights situation in Australia, Mr. Walter noted, adding that there was always room for improvement. 

Margo Waterval, Vice-Chairperson of the Committee, thanked the Government of Australia for its efforts to improve the country’s human rights situation.  The remaining concerns would be reflected in the Committee’s concluding observations.

The delegation of Australia consisted of representatives from the Attorney-General’s Department, the Department of Social Services, the Department of Immigration and Border Protection, the Department of the Prime Minister and Cabinet, the Department of Foreign Affairs and Trade, and the Permanent Mission of Australia to the United Nations Office at Geneva.   

The Committee will next meet on Thursday, 19 October, at 3 p.m. to consider the fifth periodic report of Jordan (CCPR/C/JOR/5).

Report

The sixth periodic report of Australia can be read here: CCPR/C/AUS/6.

Presentation of the Report

JOHN QUINN, Permanent Representative of Australia to the United Nations Office at Geneva, stated that Australia is a vibrant, culturally diverse nation.  The First Australians, the Aboriginal and Torres Strait Islander peoples, are the oldest continuous living culture in the world, who have made a unique and vital contribution to the nation.  Australia is also a migrant nation.  One in four Australians were born overseas.  The country has generous immigration and humanitarian programmes.  In 2017-2018 Australia would provide a minimum of 16,250 places under its Humanitarian Migration Programmes.  Since July 2015, the country has granted permanent protection to more than 44,000 people through that programme.  From that diversity, Australia has built a cohesive society based on shared common values – respect, equality, inclusion, freedom and the rule of law.  Two days ago, Australia was elected to the Human Rights Council for the 2018 to 2020 period.  It took its human rights obligations with the utmost seriousness, and the Government was conscious of the further expectations and responsibilities placed upon Council members.  The Government was committed to upholding civil and political rights of all Australians and to leaving no one behind.  It welcomed robust but respectful debate on human rights issues. 

The right to equality before the law and to a fair trial were imperative in a democratic society.  The Government had committed record funding to the legal assistance sector – more than 1.7 billion dollars over five years to 2020 to fund legal aid commissions, community legal centres, and Aboriginal and Torres Strait Islander legal services.  The Government’s efforts to counter terrorism were informed by its commitment to human rights and the rule of law.  Australia strived to get the right balance between security and individual rights and civil liberties.  It thus maintained a comprehensive regime of safeguards to ensure that security considerations did not erode Australians’ fundamental rights and freedoms.  The Independent National Security Legislation Monitor was an independent agency tasked with the ongoing review of the operation, including the effectiveness and implications of Australia’s counter-terrorism and national security legislation.  In addition, the independent Inspector General of Intelligence and Security reviewed the actions of the Australian Intelligence Community, to ensure that Government agencies acted legally and with propriety, that they complied with ministerial guidelines and directives, and that they respected human rights.  The Government was further strengthening its oversight, accountability and integrity structures by increasing the powers of the Attorney-General relating to the country’s intelligence communities and domestic security arrangements. 

The Government had three priorities to address the remaining obstacles in achieving substantive gender equality: strengthening women’s economic security, including their workforce participation; supporting more women into leadership positions; and ensuring that women and their children were safe from violence.  Women in Australia continued to experience unacceptable levels of violence and addressing that issue was a particular focus of the Government.  Aboriginal and Torres Strait Islander Australians continued to experience poorer outcomes than non-indigenous Australians.  The Closing the Gap Strategy contained measures to improve their education, health and employment outcomes.  The Government was also committed to meaningful recognition of indigenous Australians in the Constitution.  Changes to the Constitution could only take place following a successful referendum where the majority voted in a majority of states and an overall majority of voters voted in favour of the proposition.  It was of particular concern that indigenous Australians were overrepresented in the criminal justice system.  As of June 2016, 27 per cent of all prisoners were indigenous, despite the fact that they comprised only three per cent of the population.  In 2017-2018, the Government would provide 264 million dollars through the Indigenous Advancement Strategy to improve community safety and address the drivers of violence, abuse and neglect in indigenous communities.  The Government also prioritised indigenous economic participation and empowerment as a means of addressing the underlying drivers of the gap between indigenous and non-indigenous Australians. 

Australia was undertaking ground-breaking work on disability.  The National Disability Strategy 2010-2020 provided a ten-year national policy framework for improving the lives of persons with disabilities.  In the next several decades, the country’s ageing population would have a range of implications on the country’s economy.  Age discrimination was prohibited under the law, but the Government was concerned about reports of the abuse of the elderly in Australia.  It had committed 15 million dollars to protect the rights of older Australians and conduct relevant research. 

Questions by Committee Experts

Experts regretted that the report was three years late.  They observed a generally strong record of Australia in the field of human rights, a robust civil society and the national Human Rights Commission.  They welcomed the delegation’s remarks on age discrimination, and the passage of the Parliamentary Scrutiny Act.

As for the work of the Australian Law Reform Commission, did the State party envision any follow-up to the report?  What was the Government’s current relationship with the national Human Rights Commission, especially in light of the Government’s harsh comments about the Commission’s report on the mistreatment of children in institutions? 

With respect to dissemination and public awareness of the Covenant, had there recently been training on international human rights law for public servants? 

What was the outcome of the Universal Periodic Review recommendation to Australia to begin a consultative process on a national plan of action on businesses and human rights?  How was Australia moving on the implementation of the recommendations made by treaty bodies?  Was information available about the proposal to create a standing national human rights mechanism with respect to reporting?

As for individual communications received by the Committee, the Committee had found it troubling that the State party had used the follow-up procedure to re-argue its case.  The views of the Committee should be implemented by States in good faith.  It was unacceptable for States to almost routinely fail to implement the views of the Committee, to self-judge their own human rights record, and to pick and choose which recommendations to implement.  Australia had only complied with one out of 11 remedies, and it had a very low grade in compliance for a country that claimed to be a leader in the field of human rights.  Unfortunately, Australia had very little to be proud of, Experts stressed.

Concern remained about whether the practice of sterilisation of person with disabilities without their consent continued.  What was the State party’s explanation about that practice and its compatibility with the Covenant?  What was the number of approved sterilisations?  What was the role of family courts in sex reassignments, especially in the case of children?  It seemed that the courts’ approach was based on gender stereotypes. 

As for the effective domestic implementation of the Covenant, what had been undertaken to effectively guarantee the Covenant rights?  Did domestic courts invoke the Covenant and use it as a source of law?  How did the State party ensure that the provisions of the Covenant were effectively implemented?  The Committee was concerned that the State party showed no intention of withdrawing its reservations to certain articles of the Covenant.             

A disturbing level of domestic violence against indigenous women persisted in Australia.  Indigenous women were 45 times more exposed to domestic violence than non-indigenous women.  Experts welcomed the State party’s efforts to reduce violence against women.  Was there any independent mechanism engaged in the evaluation of the national plan of action to reduce violence against women?  What were the practical ways to address that problem?  Was there a constructive dialogue with the affected groups to engage them in policy development? 

It was unclear what had been achieved through the programme “Stop the Violence.”  What were the Government’s follow-up action plans?  What were the significant legislative amendments to the Family Law of 2011 and how could they reduce the level of domestic violence? 

Experts also addressed Australia’s specific legislative measures undertaken to ensure that counter-terrorism measures were in line with the Covenant.  They welcomed the establishment of the Independent National Security Legislation Monitor, but remained concerned that some of those measures had been adopted hastily.  Experts were also concerned that little action had been taken to ensure that counter-terrorism laws conformed with the Covenant, such as authorisation of preventive detention.  The Government had just approved a new package of counter-terrorism powers.  What was the mechanism to review and implement the recommendations of the national Human Rights Commission?  What steps had been taken to implement the recommendations of the Committee against Torture? 

As for equality and non-discrimination, Australia had made considerable progress.  What steps did the State party intend to take to ensure protection on the basis of age and religion?  What were the plans to address the cost of anti-discrimination lawsuits?  Did the Government plan to take measures to protect autistic women from discrimination?  What were the plans to implement the Committee’s views on discrimination on the basis of sexual orientation and gender identity?

What was being done to ensure access to surrogacy for same-sex couples and hormone treatment?  Was the Marriage Act consistent with the principle of equality for same-sex couples?  In light of the postal survey on family and marriage, Experts warned that human rights were not determined by public polls. 

What were the safeguards for preventing the use of evidence obtained through torture or cruel and degrading treatment and punishment?  What were standards for the use of less lethal force by police?  There were repeated reports of the use of Tasers against the indigenous population.  Who investigated allegations of the excessive use of force by the police?

Was there a fading interest by Australia in the Covenant?  There was a case of massive police brutality, for which the Government had denied responsibility.  It was imperative that victims had effective access to remedies.   What mechanisms were in place to ensure that victims had access to remedies? 

Replies by the Delegation 

The delegation assured that it was not true that Australia’s interest in the Covenant was fading.  As for the sterilisation of persons with disabilities, the Government did not require sterilisation of persons with a disability under any circumstances and it could be performed only with a person’s consent.  Guardianship tribunals made such decisions on behalf of persons with diminished ability to make independent decisions. 

Turning to medical interventions on children with intersex characteristics, the delegation explained that those were within the bounds of parental authority.  However, that was not true when medical interventions were invasive and irreversible.  The Court found that matters within the Carla case fell within the bounds of permissible parental authority and did not require court decision.  This decision was controversial and inconsistent with previous court decisions.  The Government was closely following such cases to ensure that the rights of children were protected.  Treatment for transgender children allowed hormone therapy, whereas surgical treatment was not considered for children under the age of 18. 

The National Framework for the Protection of Children was implemented through three-year action plans, which focused on vulnerable children, including indigenous children.  Enhancement of data collection was one of the priorities of the Framework. 

The 2011 national plan to reduce violence against women and children had set out an ambitious agenda to address the root causes of violence through four three-year action plans.  The national counselling and hotline services were in operation.  The Government had consulted with civil society in developing the national plan.  All Australian Governments were committed to independently evaluate each action plan in order to inform subsequent action plans. 

The delegation acknowledged that the rate of violence against indigenous women was appalling.  Several packages of assistance were specifically designed for indigenous women, focusing on police response to violence in indigenous communities, improved access to remote communities, training packages for nurses, counselling and legal support.  Those measures were developed in consultation with indigenous organizations and communities.  There were trauma-based and family-centred approaches.                

Police investigation of crimes against indigenous persons was a complex issue, particularly in remote areas.  The authorities were looking into how to encourage victims of violence to report and lodge complaints.  A new ministerial council on indigenous affairs, comprising ministers charged with indigenous affairs at all levels of Government, had been recently established, and it would play a key role in aligning strategic priorities in indigenous matters across the country. 

The Parliamentary Joint Committee on Human Rights conducted reviews of legislation which engaged Australia’s human rights obligations.  As for the relationship between the national Human Rights Commission and the Government, the delegation stated that it was good and that the Government held the Commission in high esteem.  While savings measures have been applied in line with other Government agencies, additional funding had been provided to the Commission for specific projects.

As for human rights education for the judiciary, regular workshops and conferences on topical issues were held.  In the context of migration, human rights training was provided to border officials. 

There was no limitation of access to surrogacy for same-sex couples, except in Western Australia, where surrogacy is only available on the basis of infertility, which indirectly excludes single men and men in same sex relationships from surrogacy arrangements.
As for marriage equality, the Government would support the introduction of a private member’s same sex marriage bill if the population supported the ‘yes’ position in the same sex marriage postal survey. 

The Government was of the view that supported decision-making for persons with disabilities could be necessary as a measure of last resort to ensure to, for example, access to medicines.             

As for counter-terrorism measures and national security, Australia like many like-minded countries was facing a situation of heighted risk of terrorism.  Some 40 people had been convicted on terrorism charges in Australia.  The country had a strong comprehensive counter-terrorism legislative framework, which remained under constant review to ensure that it continued to be necessary and proportionate.  Terrorism offences had the same procedural safeguards as other offences.  Questioning and detention warrants were subject to reporting requirements.  More intrusive powers were used as a last resort.  The Government had preventive approaches to countering terrorism.

Preventive detention orders had never been used at the Commonwealth level, whereas four orders had been used at the state and territory level.  Stop, search and seizure powers had not been used.  The Government regularly implemented the decisions of the Independent National Security Legislation Monitor.  The recommendations of the national Human Rights Commission and of other bodies regarding security legislation were considered during general reviews of terrorism legislation. 

With respect to the view of the Committee against Torture that the definition of the terrorist act in Australia’s Criminal Code was vague, the delegation stated that, after detailed consideration by Australia, the definition would not be changed.  

Evidence obtained under torture or other cruel and degrading treatment or punishment was inadmissible under the common law, the Evidence Act of 1995 and the Foreign Evidence Act of 1994.  The Australian Security Intelligence Organization Act of 1979 stipulated immunity for intelligence operatives during special intelligence operations but only within the confines of their authority and no immunity applied to acts of torture.  As for the use of force, it should be proportionate to the level of risk.  The oversight of law enforcement agencies was performed through a range of approaches, including at the Federal level, by the Commonwealth Ombudsman.  All states and territories had independent complaint mechanisms. 

The federal anti-discrimination framework did not include religion as a ground for discrimination, but some states and territories did include discrimination based on religious grounds. 

As for the Committee’s views on individual communications, the Government of Australia did not consider them binding under international law, but it would consider them in good faith and implement them when appropriate. 

The Government was committed to conducting consultations on businesses and human rights and it had commissioned a stock take.  In June 2017 it had established a multi-stakeholder advisory group to consider this issue.
 
Follow-up Questions by Experts

Experts noted that the Committee was tasked to interpret the Covenant rights and that States parties should give full consideration to the Committee’s views on individual communications in good faith. 

The delegation needed to demonstrate the compatibility of non-therapeutic sterilisation procedures with the Covenant. 

The Committee was concerned about the collection of metadata and access to metadata by intelligence agencies as part of counter-terrorism measures.  Compared to previous recommendations by independent monitors that had recommended some 82 changes to counter-terrorism laws, there seemed to be less scrutiny by independent monitors recently.  Had there been any changes in the scope and role of the Independent Monitor?

With respect to the high level of violence against indigenous women, Experts noted that the remoteness of indigenous communities could not be used as an explanation for the prevalence of violence.    

Replies by the Delegation

The delegation explained that the Government was engaged in the Committee’s communications procedures.  Where Australia receives adverse views from the Committee it conducts a comprehensive review, including an in-depth analysis of the Committee’s views, conducts consultation across relevant Australian state, territory and federal Government agencies, prepares a detailed response to any adverse view from the Committee, and routinely publishes the Committee’s views.  The Government did not consider the views of the Committee binding, but it did believe that they constituted an important indicator of a State’s obligations under the Covenant.

The Telecommunications (Interception and Access) Act 1979 requires the retention of data in the telecommunications industry for a period of two years.  The objective of the law was to help police and security agencies have access to data in investigating criminal and national security matters. Robust safeguards were in place to govern the collection of data. 

As for the revocation of citizenship, an amendment had been made to the Australian Citizenship Act of 2007 which allowed the revocation of the Australian citizenship of people with dual citizenship under certain circumstances.  The law guaranteed that no person would be rendered stateless as the result of that process.  According to the law, a person could be stripped of nationality if he or she was involved in terrorist activities.  So far, only one person had lost citizenship because they belonged to a terrorist group. 

The delegation clarified that the Australian Government expects that the rights of a child or woman with disability will be fully considered in all decisions about medical treatment, including sterilisation.  Part of the controversy surrounding the Carla case had arisen because of concerns that the issues were not fully explored in relation to the rights of the child.  Sex reassignment surgery was not a precondition for the change of gender identity in Commonwealth identification documents.  State and territory requirements vary.

As for the issue of remoteness, the delegation reminded that Australia was the sixth largest country in the world, with over 1,000 indigenous communities, most of which are in remote or very remote areas.  Some 90 per cent of the landmass was remote, but only three per cent of the population lived there.  Communities living there depended on the road network, which was sometimes closed due to weather conditions.  Past practices of the removal of indigenous communities underlined much of the trauma they had experienced.  Accordingly, the Government had adopted an approach of place-based solutions for indigenous communities and to improve the delivery of services to them, including by using new technologies.  The Government was also working to create employment opportunities for indigenous communities, such as, for example, community night patrols tasked to help address community safety issues.  Strategies for addressing violence in indigenous communities included working with community leaders, SMS reminders for court dates and follow-up on progress.

Second Round of Questions by Experts

Experts raised the issue of non-refoulement, and noted that the Committee’s interim measures issued in the context of individual communications were legally binding on States parties.  The failure to honour them raised problems of compliance. 

It seemed that standards applied by the Attorney-General in the extradition process did not comply with the Covenant.  How was adherence honoured in both practice and law in the extradition practice?  What were the standards of review applied by courts to those decisions?

Any asylum seekers arriving by sea were subject to processing in the offshore detention facilities in Papua New Guinea and Nauru, often remaining three to four years.   The Manus and Nauru island facilities were scheduled to be closed down soon.  Was it true that the Migration Act had been amended in recent years and that the amendments had made Australia’s non-refoulement obligations irrelevant?

As for interceptions at sea, since 2013 Australia had pushed backed almost 800 boats.  The entire asylum assessment was conducted at sea without the right to appeal and a fair procedure, with speedy interviewing.  Boats from Indonesia were returned immediately.  Was that an accurate portrayal of the Operation Sovereign Sea?  People intercepted at sea should be processed within the State territory.  Experts found this quite shocking for a country that claimed had an exemplary human rights record.
What were plans to end that process and ensure that non-refoulement was fully respected both in practice and in law?  Were there plans to amend the Maritime Act and provide full processing of asylum requests in a safe environment?  Was it true that there was a fast-track review of asylum demands?  What were the plans to ensure that all persons intercepted at sea had access to fair and efficient non-refoulement and access to legal assistance and the right to appeal?

Experts observed the highly punitive character of detention in offshore facilities.  What measures had been taken to protect people from inhumane treatment when they accepted “voluntary return”?

Experts also raised concern about incitement to discrimination, hostility and violence on the basis of cultural, religious and ethnic background.  Civil society reported that that migrants from African countries and Muslims encountered a high level of racial profiling.  Was data available on reported hate crimes?  What training was offered to police personnel to ensure sensibility about racial profiling?  How did the State party plan to ensure the adoption of comprehensive anti-discrimination legislation at the federal level?

What consultations had been conducted with indigenous communities to address priorities in the Northern Territories?  The Parliamentary Joint Committee had found in 2016 that the blanket application of policies and lack of consultation with indigenous communities had raised human rights concerns.  Could the delegation respond to those concerns, especially about restrictions on investment in the Northern Territories?

As for the land rights of indigenous communities, there were concerns about the high threshold of proof for the indigenous land use agreements.  Were there plans to address those problems?  What steps had been taken to respond to the recommendations of the Australian Law Reform Commission?  What steps did Australia plan to establish a national reparation scheme for the “lost generation”?  Were there any plans to establish a national reparation scheme for the victims of the stolen wages policies?

Experts asked for clarification about the budgetary cut for the national Human Rights Commission, and the action plan on businesses and human rights.  They also inquired about the oversight of the collection of metadata and access to private emails by intelligence agencies.

While Experts did not question Australia’s right to exercise border control, they were concerned about the treatment of migrants seeking asylum, namely the length of their detention.  The duration of detention had to be necessary and proportionate, and individuals had to be afforded a fair opportunity to refute claims against them.   Detaining some in order to deter others was a very difficult proposition for Experts to understand.

Why was there an increase in long-term detention?  What was the standard of review exercised by courts reviewing immigration detention cases?  Was there a periodic review of decisions to detain by the judiciary?  Studies had documented high rates of mental health problems among people in immigration detention in Australia, whose gravity appeared correlated to the length of detention.  Were safeguards available to children against arbitrary detention and was there access to mental health care in detention facilities?

There were also concerns about the practice of detaining asylum seekers, refugees and stateless persons alongside convicted criminals whose visas had been cancelled.  Another concern was safety in detention facilities and in alternative community arrangements in Nauru and Manus Island, namely murders, self-harm and sexual abuse.  Was there an arrangement with Papua New Guinea regarding the closure of the Manus Island detention centre?   How did the State party respond to the allegations that the Government had put into effect harsh measures in order to induce men to leave, such as cutting off power and water?  Would the State party move all refugees and asylum seekers from the Manus Island to Australia upon closure of the detention facility there?  Would it repeal mandatory provisions of the Migration Act? 

What was the rationale for including children generally, and unaccompanied children in particular, in the mandatory detention policy?  How did the State party respond to concerns that the exercise of legal guardianship by Australian border and immigration officers was not in the best interest of the child because they were under the obligation to deport all unauthorised migrants? 

Experts questioned the official position that the Australian Government lacked responsibility for the Regional Processing Facilities in Nauru and the Papua New Guinea.  They noted that there appeared to be a deliberate structuring of immigration detention facilities in ways which would render the monitoring of its compatibility with national law and international law obligations very difficult.  The Australian national Human Rights Commission was denied entry to the offshore detention facilities.  Experts were concerned about attempts to create a veil of secrecy about conditions in the offshore facilities.  Were there still plans to close the Christmas Island detention facility? 
Why was it that people arriving by sea could not ask for family reunification, whereas those arriving by air could? 

There was a move to restrict international funding for campaigning, including for activist groups, and plans to limit the right to protest at the state and territories level.  What was the federal Government’s position on that? 

As for the independent investigation of complaints against police, it seemed that state-level coroners did not have investigative powers.  If the police were responsible and investigated their own actions, what kind of confidence did that inspire in communities?  
Experts also raised the issue of complicity of businesses in trafficking in human beings.

With respect to conditions in prisons, would all prisons and detention centres be covered by the Optional Protocol and would there be a special focus on children?  As for the disproportionately high number of indigenous people in prisons, what solutions were envisaged to fight that? 

Experts raised concern that the plethora of counter-terrorism measures and emergency powers could lead to an exception becoming a normal state of affairs.  Of special concern were indefinite detention orders.  Wasn’t that situation out of proportion compared to what was happening in reality?  As for the juvenile justice system, Experts advised that the age of criminal culpability should be increased. 

What measures were in place to enhance access to justice for indigenous communities?  What was the status of the reform of the legal aid system and was there any independent evaluation of funding support for it?  Were legal aid services readily available to those who needed them?  Had the State party thought of removing the provision on “unsound mind” from the Electoral Act?

Experts inquired about the right to participation in public life and decision-making processes by indigenous people.  There was no presentation in leading positions in politics and businesses.  Were there plans to amend the Native Title Act of 1993 so that it included adequate consultation with the affected communities, especially with respect to the management of their lands in the allocation of land for mining and for nuclear waste disposal?

Experts drew attention to the arrest of indigenous peoples, such as the case of the death of Ms. Dhu, because they had not paid outstanding fines.  Some had been taken away from their children, which was not consistent with the trauma-based approach. 

Replies by the Delegation

ANDREW WALTER, Acting First Assistant Secretary of the Criminal Justice Policy and Programmes Division of the Attorney-General’s Department, reiterated that email content was not metadata for the purposes of Australia’s data retention laws, and that access would require a warrant.  All Government agencies were subject to budgetary reductions.  The funding for a number of commissioners of the national Human Rights Commission had been reduced from seven to six.  The Commission received additional funding to undertake specific projects.   

Mr. Walter explained that the coroners had the power of a court to take evidence from a range of people involved in cases.  They based their decisions and findings, and had resources to identify witnesses and evidence they would like to take.  They did not rely exclusively on evidence provided by the police. 

As for businesses and human rights, the delegation explained that the report of the multi-stakeholder advisory group had now been considered.  The Government would focus on a number of key initiatives to further business and human rights in Australia, but it would not proceed with the adoption of a plan.  It would focus on addressing modern slavery in production chains.

With respect to the consultation with indigenous peoples, the Australian Government worked with indigenous communities to ensure that their needs were met.  The key areas of focus were: recognition of their history and heritage, developing a true partnership with them, reducing indigenous disadvantages, empowering communities led by indigenous peoples, living in safe communities, education, health and wellbeing, employment, land and the environment.  Australia supported indigenous leaders in identifying indigenous needs, bringing about positive changes and appropriate policies, and developing place-based solutions at the local level.  The Government had an ongoing dialogue with Dr. June Oscar, the first indigenous woman named as Aboriginal and Torres Strait Islander Social Justice Commissioner.  Consultation had also occurred with the National Congress of Australia’s First Peoples, the Redfern Statement Alliance and the Prime Minister’s Indigenous Advisory Council.

Indigenous Australians were involved in the development of the White Paper on Developing Northern Australia in order to support investment, the indigenous business sector and innovation, and the management of indigenous land.  Land tenure reform pilots were part of the programme.  An independent review of the Stronger Futures in the Northern Territory Act of 2012 had been found largely effective, and the Government was currently considering its response to three reviews, including two parliamentary reviews.      

As for the imprisonment of indigenous peoples, the rate was indeed appalling, which was of great concern to the federal, state and territories governments.  While noting that state and territory governments are responsible for the administration of their justice systems, the Commonwealth Government was keen to support local governments in addressing that problem, especially addressing root causes such as substance and alcohol abuse, poor education and employment outcomes, as well as historical trauma experienced by indigenous peoples. 

Early findings of adult through care models had so far indicated a reduction in the rates of reoffending and reimprisonment among adult indigenous persons.  The Government had asked the Australian Law Reform Commission to inquire into the overrepresentation of indigenous peoples in prisons.  Indigenous courts were in place in a number of States and Territories, in order to provide a culturally appropriate response to issues around access to the justice system.  With respect to the imprisonment of indigenous people for the non-payment of fines, the Western Australian government has announced a review of current arrangements that are leading to the imprisonment of indigenous persons for minor offences.

A group of powerful and influential indigenous people were currently represented in key Government, public service and advisory positions.  There are also new indigenous leaders emerging in Australia.  The Government did consult with indigenous communities about nuclear waste disposal on their land and it did not impose such decisions without their approval. 

The Native Title Act required native title claimants to have a connection with the land and waters in accordance with their traditional laws and customs. This connection must have been maintained from generation to generation but does not require native title claimants to have continuously occupied the claim area. The Native Title Act provides that native title holders are entitled to compensation on just terms for any loss, diminution, impairment or other effect of certain acts on their native title rights and interests.  Native title holders are entitled to negotiate native land use agreements.  Following the McGlade decision, the Government amended the Native Title Act to confirm the validity of all affected Indigenous Land Use Agreements, protecting the benefits they provide the indigenous and non-indigenous parties.  This was done following consultation with states, territories, native title organisations and industry groups.

Australia sought to permanently dismantle criminal networks of migrant smugglers through the Operation Sovereign Borders.  There is no pathway to Australia and there have been no successful ventures in over three and a half years and consequently no known deaths at sea.  People who seek to enter Australia illegally by sea would be safely returned to their countries of origin, countries of departure or a regional processing country where any claims for protection would be assessed under that country’s domestic law.  Australia’s approach was consistent with the principle of non-refoulement and Australia’s international obligations.  Robust safeguards were implemented so that persons were not returned to situations where they faced significant harm.  They were interviewed by highly trained officers and afforded an interpreter where needed.  The review process was thorough and it used current country information to inform the assessment.       

The Migration Act and procedures ensure that non-refoulement obligations are appropriately considered prior to the removal of a person from Australia.  Robust assessment mechanisms were in place to ensure the circumstances of individuals are taken into account.  As for the fast-track assessment process for asylum seekers, some 15,000 asylum claims had been assessed and the remainder are being assessed as a high priority on a case-by-case basis.  Very few individuals have been excluded from access to independent merits review, with the vast majority of applications refused automatically referred to the review body.  Those not able to access review include if they had access to a third safe country, if they provided false documents and justification for asylum, or if they had previously been refused protection. 

Australia did not have a policy of indefinite mandatory immigration detention for unlawful citizens.  Detention remains a measure of last resort and the decision to detain is based around an assessment of individual risk. This serves to protect the Australian community from harm, manage unknown risks posed by those who arrive illegally and those who repeatedly breach visa conditions or do not cooperate with their removal.  Immigration detention was not limited by a prescribed period; it ended when a relevant visa was issued or the person is removed from Australia.  The reason for detention is clearly communicated to the individual.  In many cases where immigration detention is prolonged, it is because the individuals concerned have commenced judicial action to prevent their removal from Australia.  The Commonwealth Immigration Ombudsman is legislatively required to review the lawfulness and necessity of detention for people who have been detained for two years or more.  There are also internal reviews of the appropriateness of detention conducted by specified review managers.       
   
There were currently five persons in detention with adverse security assessment made by the Australian Security Intelligence Organisation.  The Governments of Papua New Guinea and Nauru were responsible for managing the Regional Processing Centres and transferees located within their jurisdiction.  Australia had assisted these sovereign countries through capacity building, including in developing robust refugee status determination procedures that are compliant with UNHCR standards and in providing appropriate services to transferees in their care, including mental health and other health services, education services, and accommodation and care services.  All children of school age had transitioned into local schools.  The Papua New Guinea Government was proceeding with the closure of the regional processing facility by the end of October 2017, and the Government would provide a number of accommodation options for both refugees and non-refugees with the technical support of the Australian Government.  Persons found not in need of asylum would be expected to depart.  

Secrecy provisions of the Australian Border Force Act of 2015 have recently been amended to clarify the intent of the original legislation and make clear that information is only protected if disclosure could prejudice the security, defence or international relations of Australia, the prevention, detention or investigation of offences, the protection of public health or safety, as well as certain sensitive personal or commercial information. Disclosure continues to be permitted where authorised by another law of the Commonwealth or states, to reduce a threat to life or health and in the course of employment. There have been zero charges laid for breaches of these secrecy provisions to date. The offence of the disclosure of protected information under the Act remained in place. 

Follow-up Questions by Experts

Experts inquired whether the Government was involved in the assessment of the situation in the Manus Island detention facility.  They observed that there seemed to be a mandatory detention policy for unlawful citizens in Australia because they all faced deportation at some point in time.

As for the secrecy provisions on the offshore detention facilities, contracts for employees prohibited them from speaking about the conditions in those facilities. 

With respect to voting rights, Queensland maintained a blanket ban on prisoners’ right to vote, which disproportionately affected indigenous peoples.   

Concluding Remarks

ANDREW WALTER, Acting First Assistant Secretary of the Criminal Justice Policy and Programmes Division of the Attorney-General’s Department, said that the delegation would provide additional answers in writing.  He thanked the Committee Experts for their questions and comments, noting that the delegation had appreciated the spirit with which they engaged with the delegation.  The Government also thanked civil society which had engaged with the Government during the review process.  He said the discussion was an important opportunity to reflect on the human rights situation in Australia, adding that there was always room for improvement.  The Government would work with states and territories and civil society to address issues raised in the concluding observations.  Australia was committed to the improvement of human rights domestically and in the region.

MARGO WATERVAL, Vice-Chairperson of the Committee, thanked the Government of Australia for its efforts to improve the country’s human rights situation.  The remaining concerns would be reflected in the Committee’s concluding observations.

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For use of the information media; not an official record