COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF AUSTRALIA
The Committee against Torture this morning began its consideration of the periodic report of Australia on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Caroline Millar, Ambassador and Permanent Representative of Australia to the United Nations Office at Geneva, said that the Government intended to take preparatory action to accede to the Optional Protocol to the Convention against Torture and would consider the enactment of the specific offence of torture in Australian law. Australia’s compliance with international obligations was ensured not only through prohibition under criminal laws in all jurisdictions, but also through an interrelated system of parliamentary, judicial and administrative structures, laws and institutions. These ensured that the actions of public officials were subject to rigorous scrutiny and review. Any power to exercise authority on behalf of the Government had to have a sound legislative basis. Australia was currently protecting human rights through strong democratic institutions and processes. All Australian jurisdictions undertook practical measures to ensure that all officials involved in the custody, interrogation and treatment of detained or imprisoned persons understood their obligations under the Convention.
Serving as Rapporteur for the report of Australia, Committee Expert Fernando Marino Menendez said he saw three major positive developments. The first one was the closure of offshore detention centers for asylum seekers in Papua New Guinea and Nauru. The second was the announcement that the new Government was considering acceding to the Optional Protocol and the third was the consideration of the enactment of a specific offence of torture. He also questioned the powers of the Immigration Minister which were considered to be excessive. His powers were unchecked by other authorities. His decisions should be submitted to a judicial review. Also, detention on the assumption of terrorism was seen as posing special problems.
Luis Gallegos Chiriboga, the Committee Expert serving as Co-Rapporteur for the report of Australia, wondered why there was a project for a detention centre to be built on Christmas Island, when those in Papua New Guinea and Nauru were being closed. More information was also requested on the so-called super-maximum security prisons. This formulation led to concerns that there was a period of isolation of un-judged persons. Also, the absence of a definition of torture in Australian law was a gap that needed to be addressed.
Other issues of concern raised by Experts included the rehabilitation of victims of torture, the trafficking of women and violence against women in prisons. Was there any follow up planned after the official apology to Aborigines? On the extraterritorial obligations of troops abroad, why had the abuses in Abu Ghraib not been investigated, as Australian Forces had also been present in Iraq?
The delegation of Australia also included members of the Attorney-General’s Department, the Department of Immigration and Citizenship and the Australian Permanent Mission to the United Nations Office at Geneva.
The delegation will return to the Committee at 3 p.m. on Wednesday, 30 April 2008, to provide its responses to the questions raised today.
Australia is among the 145 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will begin its consideration of the fifth periodic report of Sweden.
Report of Australia
The periodic report of Australia (CAT/C/67/Add.7) notes that Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Federal Government and those of the six States and two internal self-governing territories. As the State and Territory Governments are responsible for many of the government activities that give effect to the Convention, the Federal Government has consulted extensively with the State and Territory Governments in preparing this report. The Government has also consulted widely with relevant NGOs in the preparation of the report. The Human Rights and Equal Opportunity Commission, Australia’s national human rights institution, was also invited to comment.
Major changes since the last report include the replacement of the Crimes at Sea Act 1979 by the Crimes at Sea Act 2000. Like its predecessor, this Act extends Australia’s criminal jurisdiction offshore. The Crimes (Aviation) Act 1991 performs a similar function with regard to crimes committed on an Australian aircraft. Specific offences against the person targeting female genital mutilation have been enacted in every jurisdiction in Australia. In most jurisdictions, it is now also an offence to remove a child from the jurisdiction in which they reside for the purpose of performing female genital mutilation. On the detention and questioning of persons in relation to terrorist offences, in 2003 the Australian Security Intelligence Organisation Act 1979 (ASIO Act) was amended to prevent and deter terrorist activity by enhancing the Australian Security Intelligence Organisation’s (ASIO) intelligence gathering capabilities. The ASIO Act now empowers ASIO to seek a warrant to question, and in limited circumstances detain, a person who may have information relevant to a terrorism offence. Among other safeguards in the ASIO Act and in the Protocol, the subject of a warrant must be treated with humanity and with respect for human dignity, and must not be subject to cruel, inhuman or degrading treatment.
Presentation of Report
CAROLINE MILLAR, Ambassador and Permanent Representative of Australia to the United Nations Office at Geneva, said that Australia continued to implement, monitor and enforce mechanisms to proscribe and prevent acts of torture and other cruel, inhuman or degrading treatment or punishment in all Australian jurisdictions. Australia appreciated that the Committee had re-scheduled their appearance from the thirty-ninth session to the current session. The appearance would have fallen in a caretaker period, pending the outcome of the Federal election last November. There had been a change of Federal Government following the election. The current periodic report covered the period between 1997 and 2004, during which the former Government had been in place. The current Government had submitted an Addendum to the former Government’s written responses.
Ms. Millar noted that on 13 February of this year, the Australian Prime Minister had formally apologized on behalf of the Australian Parliament for the laws and policies of past governments which had resulted in the removal of Aboriginal and Torres Strait Islander children from their families and communities. This National Apology heralded a new partnership with Australian indigenous peoples, based on respect, cooperation and mutual responsibility. The Government was committed to becoming a party to the Optional Protocol to the Convention against Torture. The Government intended to take preparatory action to accede to the Optional Protocol and would consider the enactment of the specific offence of torture in Australian law. The requirements for a national preventative system under the Optional Protocol were being examined. There were already a range of independent Federal, State and Territory bodies which were reviewing the conduct of public officers. However, Australia ensured that its domestic legislation, policies and practice complied with the treaty obligations before becoming a party to the treaty.
Australia’s compliance with international obligations was ensured not only through prohibition under criminal laws in all jurisdictions, but also through an interrelated system of parliamentary, judicial and administrative structures, laws and institutions, Ms. Millar said. These ensured that the actions of public officials were subject to rigorous scrutiny and review. Any power to exercise authority on behalf of the Government had to have a sound legislative basis. Australia was currently protecting human rights through strong democratic institutions and processes. The separation of powers ensured that the executive, legislative and judicial arms were both independent and accountable to each other.
Ms. Millar said that all Australian jurisdictions undertook practical measures to ensure that all officials involved in the custody, interrogation and treatment of detained or imprisoned persons understood their obligations under the Convention. This was achieved through the development of guidelines and through the training and scrutiny of police, prison officers and detainee managers. There was little scope for persons acting in an official capacity to breach the Convention.
Ms. Millar highlighted some of the key developments since the last report. The process of immigrations operations had been improved. The system aimed to ensure that all persons were treated justly and fairly. In 2005, the Government had reformed the management of immigration detentions. The current government had taken these reforms further by stating that children would no longer be held in immigration detention centres under any circumstances. The conditions for detention had also been improved. After the election of the new Government, the policy of sending asylum seekers to offshore centers was ended and remaining asylum seekers had been resettled to Australia. In 2002, Australia had also ratified the Rome Statute of the International Criminal Court. Australian Defence Forces were bound by this legislation. Personnel responsible for the questioning of detainees received extensive training on humanitarian obligations under international law.
Questions Raised by Committee Experts
FERNANDO MARINO MENENDEZ, the Committee Chairperson serving as Rapporteur for the report of Australia, said that he saw three major positive developments. The first one was the closure of offshore detention centers for asylum seekers in Papua New Guinea and Nauru. The announcement that the new Government was considering acceding to the Optional Protocol and the enactment of the specific offence of torture were also welcomed. But he wondered if there was a risk that a parliamentary law could reduce international standards of torture prevention.
On the detention of asylum seekers, it was seen as being sometimes lengthy and they had a status like detainees. Did they have facilitated access to justice? Mr. Marino Menendez said that if a person was not expelled, then they should be freed. Also, the powers of the Immigration Minister were considered to be excessive. His powers were unchecked by other authorities. His decisions should be submitted to a judicial review. He wondered how long the detention of a person could continue for.
Detention on the assumption of terrorism was seen as posing special problems, noted Mr. Merino Menendez. The respect of fundamental rights could no longer be guaranteed. Could such people be detained when no offence had been proved? Could they be indefinitely held simply for the purpose of interrogation? Was there a protocol for the conduct of such interrogations for army, police and security officials? Were interrogation techniques clearly defined? Some believed that some of the techniques used were similar to torture. Also, on crimes committed outside the Australian territory, these should be prosecuted by the Australian authorities. To what extent was this possible under Federal law? Did the Australian Constitutional law make it possible for Australian citizens to complain to Australian courts for acts committed abroad?
On the situation of Aborigines, Mr. Marino Menendez noted the action taken by the Canadian House of Commons and also wondered whether Australia was ready to sign the United Nations standards on the situation of indigenous people.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Australia, wondered why there was a project for a detention centre to be built on Christmas Island, when those in Papua New Guinea and Nauru were being closed. He also asked on the training of security agents contracted for missions abroad.
More information was requested on the so-called super-maximum security prisons. This formulation led to concerns that there was a period of isolation of un-judged persons. Also, what was being envisaged with regard to the rehabilitation of victims of torture? Other issues mentioned by Mr. Gallegos Chiriboga concerned corporal punishment for children, human trafficking, migrants, indigenous persons and the extraterritorial obligations of troops abroad. Also, the absence of a definition of torture in Australian law was a gap that needed to be addressed.
Other Committee Experts asked questions related to the rehabilitation of victims of torture. It was noted that victims had not been helped. The delegation was asked to expand on this issue. On human trafficking and violence against women, it was noted that a high number of women in prisons were also subjected to abuses. On deaths in custody, what was the ethnicity of the female victims? Also, why had the abuses in Abu Ghraib not been investigated, as Australian Forces had also been present in Iraq? Was there any follow up planned after the official apology to Aborigines?
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