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Experts of the Committee against Torture Commend Australia’s Comprehensive Responses and Statistical Data, Raise Questions on High Imprisonment Rates and Immigration Detention Policies
16 November 2022
The Committee against Torture today concluded its consideration of the sixth periodic report of Australia, with Committee Experts praising the delegation for its comprehensive responses and high-quality statistical data, and raising questions about the country’s high imprisonment rates, and immigration detention policies.
Erdogan Iscan, Committee Expert and Country Co-Rapporteur, congratulated Australia for the excellently organised presentations and the wide-ranging, comprehensive responses from the delegation, as well as the high-quality presentation of statistical data.
Ilvija Puce, Committee Expert and Country Co-Rapporteur, said the Committee was concerned that the imprisonment rate had progressed extensively over the last few years. What alternatives to detention were provided? Why was the imprisonment rate much higher compared to 10 years ago? What alternatives to pretrial detention were provided? What was the total capacity of Australian prisons, and how was capacity estimated? How many prisoners were First Nations persons, and in what conditions were they kept?
Mr. Iscan said the legislative and policy framework for immigration detention in Australia raised significant concerns. Was Australia planning to end the mandatory immigration detention of all refugee, stateless and asylum-seeking children; use immigration detention of adult asylum seekers, refugees and stateless persons as a measure of last resort; prevent arbitrary and indefinite detention; remove the character test requirement for asylum seekers; transfer all asylum seekers, refugees and stateless persons detained on Christmas Island to mainland Australia; and amend domestic laws to uphold Australia’s international non-refoulement obligations?
The delegation said that prison populations had been in decline in Australia since 2018 and prison capacities had dropped over the same period. States and territories had been investing in new fit-for-purpose prisons and other non-custodial measures to reduce the number of people in prisons, and in programmes to reduce the overrepresentation of First Nations people in prison. State and territory governments had implemented programmes to divert people, including Aboriginal and Torres Strait Islander people, from custody. These included restorative justice programmes and programmes for drug dependent offenders.
The delegation said unlawful non-citizens who were not granted a visa were required to go into detention, which could be an immigration detention centre, resident detention arrangement, or community detention. There were estimated to be more than 66,000 unlawful non-citizens in Australia at present, and over 1,300 persons were in immigration detention centres. There were no children in immigration detention; they were instead held in residential detention arrangements. The Government was concerned about the length of time that some people were spending in immigration detention, which was 742 days on average. Every non-citizen held in immigration detention was reviewed each month to ensure efforts were being made to resolve the detention. There were 203 adult males detained at the Christmas Island detention centre.
Introducing the report, Simon Newnham, Deputy Secretary, Integrity and International Group, Australian Attorney-General’s Department and head of the delegation, said Australia took its international human rights obligations, including those under the Convention against Torture and its Optional Protocol, extremely seriously. In 2021, the Government established the Justice Policy Partnership, a collaborative initiative which sought to address the overrepresentation of First Nations Australians in places of detention, and the crisis of Aboriginal and Torres Strait Islander deaths in custody. Regrettably, the Subcommittee on Prevention of Torture suspended its visit to Australia last month. Australia was addressing the difficulties identified by the Subcommittee in accessing some detention facilities in Australia, including by engaging with the New South Wales and Queensland State governments as a matter of urgency.
In closing remarks, Claude Heller, Committee Chairperson, thanked Australia for the constructive spirit. This had been an extremely positive step, and it was hoped that the next stage would see the implementation of the national preventive mechanism and the future visit of the Subcommittee on Prevention of Torture.
In his concluding remarks, Mr. Newnham thanked the Committee for the constructive dialogue. Australia had made major steps forward in combatting violence against women and children and upholding the rights of the First Nations peoples. However, more needed to be done.
The delegation of Australia consisted of representatives from the Attorney-General’s Department; Department of Social Services; National Indigenous Australians Agency; Royal Australian Navy; and the Permanent Mission of Australia to the United Nations Office at Geneva.
Summaries of the public meetings of the Committee can be found here, and webcasts of the public meetings can be found here. The programme of work of the Committee’s seventy-fifth session and other documents related to the session can be found here.
The Committee will next meet in public on Thursday, 17 November at 3 p.m. to consider the third periodic report of El Salvador (CAT/C/SLV/3).
Report
The Committee has before it the sixth periodic report of Australia (CAT/C/AUS/6).
Presentation of Report
SIMON NEWNHAM, Deputy Secretary, Integrity and International Group, Australian Attorney-General’s Department and head of the delegation, said Australia took its international human rights obligations, including those under the Convention against Torture and its Optional Protocol, extremely seriously. Australia was committed to complying with its international obligations, including under the Convention. In October this year, the Government had enacted new legislation to ensure the integrity of the national human rights institution, the Australian Human Rights Commission, by requiring merits-based and publicly advertised appointments. Each jurisdiction of Australia had anti-discrimination legislation and a body dedicated to promoting human rights and equal opportunity.
In response to the Committee’s concluding observations, Australia had in 2017 ratified the Optional Protocol to the Convention. It had also made progress towards establishing a network of national preventive mechanisms in line with the constitutional system; combatting violence against women and children; addressing the overrepresentation of First Nations Australians in places of detention; and protecting the rights and dignity of Australians with disabilities.
The COVID-19 pandemic had presented unique challenges for the protection of human rights, and Australia’s response had been based on respect for human rights and fundamental freedoms.
Australia was deeply committed to improving the lives of First Nations Australians. In July 2022, the Prime Minister announced a public referendum to vote on giving First Nations Australians a permanent voice to Parliament, as called for by the 2017 Uluru Statement. The statement also called for the creation of a Makarrata Commission, which would encourage agreement-making between governments and First Nations and truth-telling about the nation’s history. In 2020, Australia produced the National Agreement on Closing the Gap, which set out ambitious outcomes to improve the lives of indigenous Australians. All Australian states and territories had made progress towards the 17 Closing the Gap targets, including reducing the rates of youth and adult incarceration.
In 2021, the Government established the Justice Policy Partnership, a collaborative initiative which sought to address the overrepresentation of First Nations Australians in places of detention, and the crisis of Aboriginal and Torres Strait Islander deaths in custody. The Government had committed over 81 million Australian dollars to expand justice reinvestment initiatives and to create a National Justice Reinvestment Unit.
The Government had launched a 10-year National Plan to End Violence against Women and Children, which provided a strategic framework for responding to the pervasive problem of gender-based violence. The plan set out actions for prevention, early intervention, response, and recovery and healing. It had been supported with a 1.7-billion-dollar investment. A First Nations National Plan was also being developed through a consultative process. The Government was committed to fully implementing all 55 recommendations of the Australian Human Rights Commission’s Respect@Work Report to address sexual harassment in the workplace.
The Australian Government had launched a new five-year national action plan to combat modern slavery, and was implementing 46 new actions to prevent, disrupt, investigate and prosecute modern slavery, and support and protect victims and survivors. Australia had also implemented its Modern Slavery Act 2018 to drive business action to combat modern slavery in global supply chains. It was also reviewing the Act and would introduce a role of an Anti-Slavery Commissioner to help take forward reforms.
The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 clarified that the Migration Act did not authorise the removal of a person to a country in relation to which a protection finding has been made.
Australia’s Disability Strategy for 2021 to 2031 set out a national framework to improve outcomes for people with disabilities. In 2019, the Government established the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to prevent and better protect people with disability from experiencing violence, abuse, neglect and exploitation.
Australia was committed to implementing the Optional Protocol and providing unrestricted access to information and places of detention for the Subcommittee on Prevention of Torture. Regrettably, the Subcommittee on Prevention of Torture suspended their visit to Australia last month. Australia was addressing the difficulties identified by the Subcommittee in accessing some detention facilities in Australia, including by engaging with the New South Wales and Queensland State Governments as a matter of urgency. The Queensland Government had announced that legislation would be introduced to address legislative barriers to the Subcommittee’s access. Prior to suspension, the Subcommittee successfully visited facilities in six out of eight jurisdictions, as well as facilities under the Commonwealth Government’s control.
The suspension of the Subcommittee’s visit did not change Australia’s commitment to promoting and protecting human rights domestically and internationally. Since ratifying the Optional Protocol, Australia had developed a multi-body national preventative mechanism system. In accordance with this model, each state and territory and the Commonwealth Government had nominated a national preventative mechanism for their jurisdiction and introduced authorising legislation where required.
Questions by Committee Experts
ILVIJA PUCE, Committee Expert and Country Co-Rapporteur, said that she hoped that the delegation saw the dialogue as an opportunity to address outstanding issues. Though Australia ranked favourably in freedom rankings, there had been an uptick in reports of incidents of torture, especially in migrant detention facilities. The Committee hoped that the State party would address these reports.
It was commendable that Australia had incorporated the definition of torture in its legal system and had criminalised torture in national law. How was this law implemented in states and territories? Ms. Puce called for updated information on how Australian law addressed cruel, inhuman and degrading treatment.
The Committee welcomed the work of the Joint Committee on Human Rights, which assessed whether legislation was compatible with Australia’s international human rights obligations. It seemed that the Committee addressed only a small percentage of legislation. On what basis did they select legislation for inspection? How were the findings of the Committee utilised? Had the Committee assessed the compatibility of legislation with the Convention against Torture, and what actions had been taken when legislation was found to be incompatible? How were members of the Committee selected? Was state legislation reviewed in the same way as national legislation?
In what way and at what time did police inform detainees about their rights? Did police inform persons with disabilities about their rights in a way that they could understand? Were all detainees informed about their right to a lawyer, and was there a State legal aid system? How were State lawyers selected? There had been some cases where incorrect medical assessment in detention had led to death in custody. How was access to medical assistance organised in detention facilities? Did police officers assess the need for medical aid, and was the health state of detainees reviewed regularly?
What was the number of deaths in custody occurring over the last three years, broken down by gender and ethnicity? Were relatives of detainees informed about the detention? There were reports of juveniles not being segregated from adult detainees. What was standard practice in this regard? The use of spit guards was an archaic practice that amounted to ill-treatment. What was the justification for the use of spit guards? How did Australia investigate the use of force by police? What was the system for filing complaints about the police’s use of force? How many complaints had been registered in the last three years, and what were the results of investigations into those complaints?
The Committee was concerned that the imprisonment rate had progressed extensively over the last few years. What alternatives to detention were provided? Why was the imprisonment rate much higher compared to 10 years ago? The crime rate had not increased, but the imprisonment rate had. What alternatives to pretrial detention were provided? How many people were detained on remand, broken down by gender, age and ethnicity? How many persons had been sentenced to life imprisonment?
There were more than 40,000 prisoners in Australia. Were prisons overcrowded? What was the total capacity of Australian prisons, and how was capacity estimated? How many prisoners were First Nations persons, and in what conditions were they kept?
Ms. Puce called for more information on the medical care system in prisons. How frequently were medical assessments carried out? What employment opportunities were available for former prisoners, including maximum security prisoners? What education services were prisoners provided with, and how many prisoners were participating in education?
The national guidelines in place regarding detention were not totally in alignment with the Mandela Rules, particularly regarding solitary confinement and restraints. Did laws on the use of solitary confinement and restraints exist in states and territories? Many detained persons in Australia spent 22 or more hours alone in their cells, which amounted to solitary confinement. Such placement reportedly could not be appealed. What safeguards against solitary confinement were provided? Strip searches were commonly conducted in Australian prisons, but contraband was rarely found. What initiatives were in place to eliminate this practice? Were reports that women giving birth and persons on deathbeds were shackled to their beds accurate?
ERDOGAN ISCAN, Committee Expert and Country Co-Rapporteur, noted with appreciation Australia’s stated commitment as well as its endeavours to enhancing human rights standards, including the absolute and non-derogable prohibition of torture and ill-treatment. However, he said that there remained significant issues that had not been addressed.
Mr. Iscan asked about the Government’s position on incorporating international obligations into domestic law. Would the State party consider developing a provision to ensure direct implementation of international treaties to which it was party throughout the entire territory of Australia? This issue was relevant to the recent development when the Subcommittee on Prevention of Torture had to cut short and suspend its 12-day visit on 23 September. He had heard what the head of delegation had said about this issue in his opening remarks, but it would be for the Subcommittee to assess whether the assurances mentioned were sufficient. The Optional Protocol and the Convention were legally binding. What efforts would be made to enact these into domestic law?
In response to a question from the Committee on the steps taken to ensure that asylum seekers on board maritime vessels had access to a fair refugee status determination process, the State party had stated in 2017 that Australia was not currently intending to change legislative or policy settings regarding merits review of on-water screenings. Was this the Government’s current position?
Mr. Iscan commended that Australia was a party to the 1951 Convention relating to the Status of Refugees and to its 1967 Protocol, the 1954 Convention relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. Had these instruments been incorporated into domestic legislation?
The legislative and policy framework for immigration detention in Australia raised significant concerns. Australian law required the mandatory detention of all unlawful non-citizens, including children, and did not provide for periodic or systematic review of the need for continued detention. There was no prescribed maximum period for detention. The determination of an individual’s risk and placement lacked transparency and procedural safeguards. The Working Group on Arbitrary Detention had repeatedly expressed alarm at the rising number of cases brought to its attention. It has issued opinions on several cases involving asylum seekers and refugees, finding circumstances amounting to arbitrary detention.
Long-term immigration detention had a severe impact on the health and psycho-social well-being of asylum seekers and refugees. There were limited prospects for release for refugees with a criminal background. Persons found to be in need of international protection in open-ended detention had in recent years chosen to return to unsafe countries such as Iraq, Afghanistan, Somalia, Sudan, Burundi, Sierra Leone and South Sudan. The Committee expressed concerns about excessive use of force and the inappropriate use of restraints in immigration detention. Most detained persons were concerned for their physical safety, some alleging assaults and sexual assaults, and most expressed a lack of confidence in processes involving the authorities and inadequate follow-up when allegations were raised. This had contributed to a perception that perpetrators acted with impunity. How were allegations investigated?
Status determination procedure to identify non-refugee stateless persons had not yet been established in the national law. Were there plans to establish such procedures? Many refugees were currently on what was termed “a removal pathway” and did not have adequate legal safeguards to protect against the risk of refoulement. Could the State party clarify the situation? Was it planning to end the mandatory immigration detention of all refugee, stateless and asylum-seeking children; use immigration detention of adult asylum seekers, refugees and stateless persons as a measure of last resort; prevent arbitrary and indefinite detention; repeal the sections of the Migration Act that expressly permitted refoulement and enabled Ministers to revoke international protection; remove the character test requirement for asylum seekers; transfer all asylum seekers, refugees and stateless persons detained on Christmas Island to mainland Australia; and amend domestic laws to uphold Australia’s international non-refoulement obligations?
Did law enforcement personnel at all levels receive training on the Convention as well as on guidelines to detect signs of torture and ill-treatment? State police generally had as of 2017 not received training specific to assessing signs of torture. There was seemingly a lack of uniformity to ensure effective training at both the Commonwealth and state and territory levels. Was training on prevention of torture and the Istanbul Protocol mandatory or optional? Was training on non-refoulement provided? How many officials had completed such training?
What steps had been taken to enhance the use of non-custodial measures as an alternative to imprisonment; improve non-custodial accommodation for migrant children and migrant families with children; separate remand prisoners from convicted prisoners; ensure that juveniles deprived of liberty were not held in solitary confinement under any circumstances and held separately from adults; and implement the Mandela Rules regarding solitary confinement?
What reparation was provided to victims of torture and ill-treatment? How many court orders for such reparation had been issued, and what amounts had been paid? What rehabilitation programmes were provided for victims, and did they have access to free legal aid? Why did states and territories not collect data that specifically identified cases of torture and whether compensation had been granted?
Another Committee Expert said that Australia was a party to the Panama Protocol against Human Trafficking and Smuggling. Could the delegation provide specific data about foreign victims? Could such victims access aid and redress?
The Expert expressed concern about the age of criminal responsibility, which was 10 in all jurisdictions. The Attorney General had submitted a recommendation to raise the minimum age for criminal responsibility in the Northern Territory to 12. Were there plans to promote a similar change across the whole country?
One Committee Expert asked if the management of detention facilities was outsourced to private companies. How closely were such companies monitored by the Government? Were these companies required to follow the Istanbul Protocol? What was the maximum duration of preventive detention in law and in practice? Were chemical restraints applied in all places of detention, and had such restraints contributed to severe health consequences?
ILVIJA PUCE, Committee Expert and Country Co-Rapporteur, called on Australia to fully implement national preventive mechanisms in compliance with the Optional Protocol in all states and territories. These mechanisms needed to have access to all places of deprivation of liberty. These mechanisms should also be functionally and financially independent. Further, the mandate of these mechanisms should be stipulated in law. It was problematic that there were differing standards in different jurisdictions.
Responses by the Delegation
SIMON NEWNHAM, Deputy Secretary, Integrity and International Group, Australian Attorney-General’s Department and head of the delegation, said Australia incorporated its international obligations into domestic law through the Constitution, Common Law and state and territory laws. The Parliamentary Joint Committee on Human Rights regularly met to assess the compatibility of legislation with international obligations. There had recently been an increase in funding for the Australian Human Rights Commission.
Complaints against Government agencies could be made to the Commonwealth Ombudsman, as could complaints related to the Australian Federal Police. Records on complaints against the Federal Police were kept.
Access to legal assistance was an important safeguard, and state and territory organizations provided funding for organizations to provide legal representation and advice. The Government had implemented the national legal assistance partnership scheme, a five-year commitment with states and territories running until 2025. Under that scheme, the Australian Government would provide over 2.3 billion dollars over five years to legal aid commissions, community legal centres and Aboriginal and Torres Strait Islander legal services. Legal aid providers used their own criteria, including means and merit tests, to determine eligibility for aid. Under the scheme, legal aid services were to be planned and focused towards Aboriginal and Torres Strait Islanders, persons with a history of family violence, persons in custody, persons in remote or rural areas and persons with disabilities
Detention facilities ensured that detainees received adequate health care and assessed detainees’ health regularly, including their dental and mental health. Every death in custody was considered a tragedy. The Royal Commission into Aboriginal Deaths in Custody had found that there was a disproportionate rate of aboriginal deaths in custody and aboriginals incarcerated. In response to recommendations by the Commission, a custody notification service had been established in each state and territory except for Queensland and Tasmania, where implementation of notification systems was being discussed. Through the notification system, police notified family members, including of First Nations persons, when they were detained.
State and territory governments were aware of the importance of providing separate detention facilities for children and adults, and separate facilities were provided in most cases. In cases where detaining children in adult facilities was unavoidable, children were separated from adults within those facilities.
The use of spit hoods was a last resort measure. Police followed strict guidelines regarding the use of force. The use of spit hoods on children was only used in exceptional circumstances as a measure of last resort when the child in question was a risk to themselves or others. Spit hoods had been banned in several states and territories, and tight regulations were in place regarding length of use.
The over-representation of aboriginal persons in custody was a complex problem based on multigenerational trauma. The Government aimed to reduce the rate of aboriginal persons in custody by 15 per cent by 2031 as part of the Closing the Gap initiative.
Remand prisoners were held separately from convicted prisoners where possible.
The Government was focused on tackling drivers of crime, involving alcohol and drug misuse, and prioritised preventative measures over incarceration. There were also rehabilitation and support programmes for released detainees to reduce recidivism.
Solitary confinement was used as a last resort to ensure the safety of the detainee and detention facility staff, and incidences of solitary confinement were recorded.
Body scanners were significantly reducing the need to conduct strip searches. Procedures were in place to maintain the dignity and privacy of the detainee throughout body searches. There needed to be reasonable grounds to conduct such searches. There were rules regarding the number of officers present. Officers needed to be the same gender as the detainee.
The Commonwealth Ombudsman had been nominated as the Commonwealth national preventative mechanism and the body for overseeing all regional mechanisms. Discussions were ongoing regarding the establishment of national preventive mechanisms in some territories. The Federal Government was working with the Queensland and New South Wales Governments to rectify legislation that prevented the Subcommittee from accessing detention facilities. Australia remained committed to implementing the Optional Protocol through the network of national preventative mechanisms.
The delegation said Australia was committed to its international obligations to refugees and asylum seekers. Australia did not return individuals to locations where they faced torture or ill treatment. A range of mechanisms were in place to ensure that Australia did not remove a person in contravention to its non-refoulement obligations. If a person had a visa application cancelled or refused, they were subject to a pre-removal clearance process to ensure that such persons would not be at risk of non-refoulement. Persons in such proceedings could apply for protection visas.
SIMON, Deputy Secretary, Integrity and International Group, Australian Attorney-General’s Department and head of the delegation, said the Parliamentary Joint Committee on Human Rights was one of a number of Australian mechanisms to ensure Australia’s human rights obligations were being met, including those under the Convention. The Joint Committee complimented Australia’s standing human rights mechanism, improved coordination across all governments, and followed up on recommendations from United Nations bodies. Between 2019 and 2022, the Joint Committee had considered 12 legislative instruments which had obligations on the prohibition of torture. The Government had considered and provided responses to the Committee for 10 of the 12 instruments. The Joint Committee sought to conclude its assessment of bills while they were still before Parliament, resulting in a human rights analysis of 96 per cent of new bills prior to their adoption last year.
Detainees were informed of their rights, and were able to complain about any matter relating to the conditions of detention. Avenues included internal complaint mechanisms, external entities, ombudsman entities and advocacy services. Complaint mechanisms were promoted through the use of posters and pamphlets. State and territory ombudsman offices regularly conducted visits to detention facilities and could receive complaints from inmates. Each jurisdiction in Australia was required to develop its own policies and legislative standards, including when it came to reviews and oversight.
Mr. Newnham said that prison populations had been in decline in Australia since 2018 and prison capacities had dropped over the same period. States and territories had been investing in new fit-for-purpose prisons and other non-custodial measures to reduce the number of people in prisons, as well as programmes to reduce the over representation of First Nations people in prison. State and territory governments had implemented programmes to divert people, including Aboriginal and Torres Strait Islander people, from custody. These included restorative justice programmes and programmes for drug dependent offenders.
All jurisdictions had legislation which stated that solitary confinement must be a last resort, with states and territories assessing the necessity for that segregation. Most jurisdictions had legislation which prohibited the use of solitary confinement for juveniles. There were consistent requirements across jurisdictions to ensure that parents and caregivers were informed when minors were arrested. The Commonwealth government was working closely with state and territory governments to raise the minimum age of criminal responsibility, with a focus on reducing the number of First Nations children who came into contact with the criminal justice system.
Detention for youth was a last resort and was only considered when alternative arrangements could not be found. The Government continued to engage with jurisdictions to make sure that the safety of all youth in detention was realised. The Government was deeply concerned by the overrepresentation of First Nations youth in Australia’s justice system. There were a range of socio-economic factors which contributed to this, including child removal, inter-generational and childhood trauma, and substance abuse, which contributed to higher incarceration rates. State and territory governments were responsible for programmes to divert youth away from the criminal justice system.
The standing Human Rights Mechanism was established in 2016 in Australia to strengthen cooperation with the United Nations. The Government had worked with all jurisdictions to prepare for the visit of the Subcommittee on Prevention of Torture, notifying all jurisdictions of the date. Only New South Wales was unable to facilitate the visit. The Government was committed to working with the Subcommittee and noted that successful visits were conducted in several states and territories before the visit was suspended. Queensland had endeavoured to provide full access to closed mental health facilities and would introduce a bill by the end of the year to permit full access to the Subcommittee. The Australian Government would continue to engage with the Subcommittee, and with New South Wales, and would visit all avenues to have the visit resumed.
States and territories had primary responsibility for places of detention, including adult prisons, juvenile detention centres, immigration detention facilities and psychiatric facilities. The Optional Protocol to the Convention meant every jurisdiction would be required to meet the standards necessary to prevent torture and mistreatment. Each jurisdiction was responsible for providing the necessary funding which ensured those requirements had been met. Where it was needed, states and territories had passed legislation to establish their national preventive mechanism bodies and implement these obligations.
Australian border force staff were provided with an overview of the provisions of the Convention and were given an overview on people trafficking, torture and sexual servitude. Governments in Australia were committed to eliminating the use of restrictive practices, including the use of chemical restraints. The use of chemical restraints in mental health settings was subject to oversight; chemical restraints were rarely used in prisons.
The delegation said that Australia was a nation built on migration and remained committed to a manageable and equitable system of migration. Australia’s approach to managing migration was built on the country’s non-discriminatory visa system, which focused on the contribution a person could make to Australia, rather than their ethnic background or religious beliefs. In 2018/2019, Australia granted more than 9 million visas for non-citizens to travel to Australia. Non-citizens in Australia without a valid visa were unlawful and needed to be detained until their status was resolved, either through granting a visa or their removal.
Australia’s immigration detention regime, introduced by Parliament 30 years ago, remained in place today, and continued to be the subject of judicial scrutiny. Unlawful non-citizens who satisfied certain criteria could acquire lawful status after receiving a bridging visa, meaning they were released from detention and could remain in Australia. The bridging visa was granted based on several factors, including the person’s risk to the community, and their ability to support themselves. Australian legislation provided the relevant minister with the power to intervene in individual cases, and to grant a visa if they believed it was in the public interest to do so. Unlawful non-citizens who were not granted a visa were required to go into detention, which could be an immigration detention centre, a resident detention arrangement, or community detention. There were estimated to be more than 66,000 unlawful non-citizens in Australia at present, and over 1,300 persons were in immigration detention centres. About 90 per cent of these 1,300 people had a criminal history, and 80 per cent were deemed to be of high risk to the community. There were no children in immigration detention; they were instead held in residential detention arrangements.
The Government was concerned about the length of time that some people were spending in immigration detention, which was 742 days on average. Every non-citizen held in immigration detention was reviewed each month to ensure efforts were being made to resolve the detention. Alternatives to detention were considered to limit the time in immigration detention. Where persons seeking asylum were not granted a visa, Australia expected them to leave and to be welcomed back by their States. The Migration Act required reports to be provided for individuals who had been held in immigration detention for more than two years. It was ensured that people in immigration detention received health care services, similar to those available to the Australian public. The Government engaged a private company to manage immigration detention centres. All service provider personnel needed to be of good character and underwent checks and possessed all relevant accreditations. Training and refresher courses were regularly conducted.
As of 30 June, there were 203 adult males detained at the Christmas Island detention centre. The personal circumstances of detainees were considered, to determine their most appropriate centre placement. Persons trying to reach Australia by sea were assessed to ensure they were not returned to a country where they were at a real risk of harm, including torture. If a person could not be safely returned, they were transferred to a regional processing country. Australia’s border programme had acted as a significant deterrent to people smuggling. However, more than 1,200 people had drowned in the effort to reach Australia, and the Government was determined to ensure this would not happen again. Australia would resettle more than 13,000 people under its current humanitarian programme. Measures were in place for the early identification of victims of torture or trafficking, and referrals were made to specialist assessment as appropriate.
The delegation said custody notification services were supported by most judiciaries in Australia, and mandated police to make a phone call to the service when an Aboriginal or Torres Strait Islander entered police custody. When the phone call was put through to the service, the individual in custody was asked a series of questions to assess their wellbeing. Custody notification services were an important safeguard to prevent Aboriginal and Torres Strait Islander deaths in custody. The National Agreement on Closing the Gap came into effect two years ago to accelerate improvements in life outcomes for Aboriginal and Torres Strait Islander people, with a target to reduce the number of adults and youth in custody by 15 per cent and 30 per cent respectively. The total of First Nations adult prisoners in Australia was more than 13,000, with more than 1,000 youth prisoners.
To be eligible for redress under the stolen generation redress scheme, the applicant needed to be a stolen generation survivor and of Aboriginal or Torres Strait Islander descent. The scheme was part of the Government’s ongoing commitment to assist in healing the trauma of the stolen generation. There had been 583 total applications received, in progress, or paid.
The delegation said Australia’s Disability Framework set out a plan to improve the lives of persons with disabilities in Australia, and to create an inclusive society. Liaison officers were available to help persons with disabilities navigate the criminal justice system. The Disability Royal Commission demonstrated the Government’s commitment to seriously deal with the abuse and exploitation of persons with disabilities. The national plan on preventing violence against women and children acknowledged that many victims did not report for a number of reasons, including fear of disbelief or blame. The Government agreed that more needed to be done in this area.
Victims of torture had access to compensation schemes within their relevant jurisdictions, the delegation said. The national redress scheme had been implemented in recognition of historical child sexual abuse which had occurred within Australian institutions. More than 20,000 applications for redress had been received and more than 9,000 payments had been made, totalling around 875 million Australian dollars. The support for the trafficked persons programme allowed victims of trafficking to receive support, including safe and secure accommodation, health services and migration lawyers.
The law of armed conflict placed positive obligations to treat people with dignity and respect, and Australian defence force personnel received training regarding the prohibition of torture. Training was compulsory for all new entrants. Military police officers were trained in recognition and response to allegations of torture.
Questions by Committee Experts
ILVIJA PUCE, Committee Expert and Country Co-Rapporteur, said the issue of First Nations persons in prisons was not yet solved. Trying to understand the root causes could be the only way out of this situation. Reports had been received that a juvenile had been locked in his cell on more than 25 separate occasions for more than 20 hours a day. What measures would the Government take to deal with the situation and eliminate instances where juveniles were put in solitary confinement? Were there a sufficient number of social workers? Could more information be provided regarding the abolition of corporal punishment? Had there been any evaluation of the national action plan for domestic violence? The information provided had been extremely structured and easy to understand, which made the task of the Committee easier; the Committee appreciated Australia’s efforts in this regard.
ERDOGAN ISCAN, Committee Expert and Country Co-Rapporteur, congratulated Australia for the excellently organised presentations and the wide-ranging, comprehensive responses from the delegation, as well as the high-quality presentation of statistical data. For the sole purpose of setting the record straight, Mr. Iscan said the mandate of the Committee was to review compliance of obligations under the Convention; the Committee was not a judicial organ. The visit of the Subcommittee on Prevention of Torture remained suspended until such reassurances were made to the Subcommittee that the visit could resume. The Committee had no competence in that regard.
Mr. Iscan asked for more information on measures to ensure uniformity at a national level with international standards on the treatment of persons with disabilities in institutions? Australia had enhanced its legislation on counter terrorism since 2011; however, he was concerned about the legal framework in place, including people being allowed to be held in secret detention for up to 48 hours.
A Committee Expert said the legal reform regarding the minimum age of criminal responsibility was encouraging. It was hoped the Committee could provide the last international push for it to go through. How would it be ensured that all victims of trafficking had access to support and redress, not just those with visas?
Another Committee Expert commended that Australia had ratified almost all Conventions except for two. Would Australia envisage ratifying the remaining two instruments: the Convention on the Prevention of Enforced Disappearances and the Convention on the Protection of Migrant Workers and Members of their Families?
Responses by the Delegation
SIMON NEWNHAM, Deputy Secretary, Integrity and International Group, Australian Attorney-General’s Department and head of the delegation, said there had been disturbing reports regarding inappropriate conduct in youth detention facilities. Each jurisdiction had a different approach when it came to the segregation of minors. However, in all cases, this segregation was used to protect the person and not as punishment. All separations were recorded and those who were separated were consistently reviewed during their time in separation. Tasers were used as a tool of last resort, and only when there was a risk of serious physical harm. Reporting on the use of tasers was mandatory in all jurisdictions.
There were a range of measures in place to ensure that the detention of terrorism suspects was not arbitrary and protected the community. The court needed to be satisfied that there were no less restrictive measures which could be imposed. All victims of trafficking were granted a visa, enabling them to have access to the support programmes for trafficking victims. The delegation recognised the disproportionate number of First Nations children in juvenile detention. First Nations people held the solutions and needed to be part of developing the solutions for these young people. These young people had complex needs, including dealing with generational trauma and foetal alcohol syndrome.
The use of the “stop, search and seizure” powers for terrorism suspects did not limit the person being held in custody from accessing a lawyer. Corporal punishment was not a social norm in Australia and was prohibited in residential settings, foster care settings, schools, juvenile justice settings and detention centres, in the majority of jurisdictions. Several programmes had been implemented to ensure that all children were given the opportunity to learn in a safe and supportive school environment.
The previous national plan for domestic violence had not achieved the desired outcome, which was to reduce the prevalence of domestic violence and sexual assault. It was learned that there was no adequate outcomes framework. However, the plan did result in an increase in awareness around domestic violence and people’s propensity to report. There had been a significant increase in domestic violence during the pandemic, and a subsequent need for increased support. The Government was working to develop a data set regarding demand for frontline services, which would provide important insight.
Closing Remarks
CLAUDE HELLER, Committee Chairperson, thanked Australia for the constructive spirit and said the dialogue had been able to address the complex issues outlined in the report. This had been an extremely positive step, and it was hoped that the next stage would see the implementation of the national preventive mechanism and the future visit of the Subcommittee on Prevention of Torture.
SIMON NEWNHAM, Deputy Secretary, Integrity and International Group, Australian Attorney-General’s Department and head of the delegation, thanked the Committee for the constructive dialogue. Australia took the questions and guidance provided seriously, and looked forward to receiving the Committee’s concluding observations. Australia had made major steps forward in combatting violence against women and children and upholding the rights of First Nations peoples. However, more needed to be done. There needed to be willingness to address the structural causes, and Australia remained committed to the implementation of the Convention in all states and territories.
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