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16 November 2000
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CAT
25th session
16 November 2000
Morning
Australian Delegation Outlines Performance Under the Convention,
Receives Questions on Compliance with Treaty
The Committee against Torture began review this morning of a second periodic report of Australia, with the panel's 10 Experts asking a Government delegation, among other things, about procedures for refoulement of persons who had been denied political asylum; the causes of a high incarceration rate among indigenous persons; and methods of restraint used against persons held in custody.
Australian officials also were asked about recruitment of police and prison officers; about training of medical personnel in recognizing signs of torture; and about protecting prisoners who complained of maltreatment from reprisals and intimidation by prison guards.
The Australian delegation will respond to the questions at the Committee's afternoon meeting of Friday, 17 November.
The delegation was led by Les Luck, Permanent Representative of Australia to the United Nations Office at Geneva, who said in an introductory statement that through its network of laws and institutions, Australia had established a level of implementation and understanding of its obligations which provided for the protection of human rights which was amongst the best in the world.
Mr. Luck said a series of measures had been taken to reduce incarceration rates and the general disadvantaged status of the country's indigenous people. He said that the Australian Government had reviewed its interaction with the United Nations human rights treaty system and felt that improvements could be made to the way the system operated.
Other members of the delegation were Bill Campbell, First Assistant Secretary of the Office of International Law of the Australian Attorney-General's Department; Peter Heyward, Counsellor at the Permanent Mission of Australia to the United Nations Office at Geneva; Robyn Bicket, Counsellor on Immigration at the Permanent Mission; and Jennifer Meehan, First Secretary of the Mission.
Australia, as one of the 123 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is required to submit periodic reports to the Committee on Government efforts to implement the treaty. States parties also customarily send Government delegations to answer questions.
The Committee will reconvene at 3 p.m. to continue its review of a third periodic report of Belarus.
Second periodic report of Australia
The report (CAT/C/25/Add.11) reviews implementation of the Convention on an article-by-article basis and has a series of appendices and tables detailing, among other things, relevant criminal legislation and Australia's participation in other human-rights treaties. The report states that "Australia relies on the detailed Convention definition of torture when interpreting the Convention for domestic purposes" but notes that the Convention does not define "cruel, inhuman or degrading treatment or punishment" and that as a result "Australia understands that the acts or conduct encompassed by this expression entail some lesser degree of severity than those defined as 'torture', which nevertheless are inconsistent with the inherent dignity and rights of the person". Treaties are not self-executing in Australia and unless they are incorporated in domestic legislation do not create rights for or impose substantive obligations on citizens, according to the report. Australia implements the Convention through the Common Law, its democratic system of Government and an extensive range of laws and practices at the Commonwealth, State and Territory levels. These laws and practices give persons a remedy in circumstances where there would be a breach of the Convention.
Among other things, the report details the activities of a Royal Commission into Aboriginal Deaths in Custody from 1980-1989, which found that 99 Aboriginal and Torres Strait Islander people had died in custody but that the deaths were not caused by deliberate violence or brutality by police or prison officers; the Royal Commission did cite many system defects in relation to the care of persons in custody, however, and as a result recommended, among other things, that Australia declare the Committee against Torture competent to hear individual complaints from Australians under the terms of Convention article 22, a recommendation that was implemented in 1993; and it recommended that Australia become a party to the Optional Protocol of the International Covenant on Civil and Political Rights, a recommendation also followed. Also, the report describes the work of a Royal Commission into the New South Wales Police Service beginning in 1994 which came up with recommendations later implemented, including a bill setting a fixed period of time for a person to be kept in detention after arrest (8 hours), and specifies what can be done and what facilities must be made available to a person being questioned; in addition there was establishment of "integrity testing" of police officers and establishment of a Police Integrity Commission.
Introduction of report
LES LUCK, Permanent Representative of Australia to the United Nations Office at Geneva, said that through its network of laws and institutions and its federal system of Government, Australia had established a level of protection of human rights that was among the best in the world. Acts that constituted torture or cruel treatment were criminal offenses in all jurisdictions; female genital mutilation was now a criminal offense in all States and territories except Western Australia where however it was regarded as an offense under existing criminal law; additional disciplinary penalties applied to acts of torture carried out by public officials in any jurisdiction.
Australia had a high level of acceptance, protection and observance of human rights, Mr. Luck said. This respect for human rights, including those covered by the Convention, was founded upon Australia's liberal, democratic system of representative and responsible Government, an independent judiciary, respect for the rule of law, a free press and the tolerance and openness of the Australia people themselves.
Through this network of laws and institutions, Australia had established a level of implementation and understanding of its obligations which provided for the protection of human rights which was amongst the best in the world, Mr. Luck added. Fundamental to the implementation of human rights treaties in Australia, including the Convention against Torture, was the federal system of Government. Under that system, there was a division of political and legal responsibilities between the Federal Government and the Governments of the Australian States and Territories. In giving effect to its obligations under the Convention, the Australian Government relied on the active participation and cooperation of the State and Territory Governments. Torture and other cruel, inhuman or degrading treatment or punishment was not tolerated by any level of Government in Australia.
Concerns had been expressed by the Committee about provisions for mandatory sentencing under Northern Territory and Western Australian legislation, Mr. Luck said, and while the federal Government did not believe the provisions were in breach of the Convention, and felt they reflected the extent of community concern about repeat and property offenses in those areas, the federal Government was concerned about the potential impact of the laws on persons under age 18, and had committed 5 million Australian dollars per annum to the Northern Territory for a number of measures, including diversionary programmes for juveniles and the establishment of indigenous interpreter services.
The Government recognized that indigenous people were disadvantaged within the Australian community, Mr. Luck said, and numerous responses had been directed at the problem; programmes had reduced the per capita rate of indigenous deaths in prison to where it was lower than the rate for non-Aboriginal people; the level of over-representation of indigenous people in prison had fallen over the last 6 years; and legislation in Queensland provided for diversion of low-risk indigenous offenders from prisons to community corrective services facilities and provided that, wherever possible, indigenous prisoners should remain as close as possible to their communities.
All individual communications lodged so far with the Committee from persons in Australia related to the non-refoulement obligation of article 3 of the Convention and related to persons who had unlawfully entered Australia and had unsuccessfully sought refugee status, Mr. Luck said. Migration laws required that unlawful non-citizens be detained; the standard of such detention care was high; particular attention and review was made of the situations of those who said they feared torture if repatriated, and care was provided to those suffering trauma from torture already committed before they arrived.
Australia considered that its refugee-determination procedure, combined with a system for ministerial intervention on public-interest grounds, ensured compliance with the Convention, Mr. Luck said. The Government, meanwhile, was concerned about increasing resort to the communication mechanism to the Committee under Convention article 22 by failed asylum-seekers in an effort to delay their removal from Australia, and in future the Government would more closely examine each request for interim measures rather than automatically complying with such requests.
Australia had recently reviewed its interaction with the UN treaty committee system, Mr. Luck said, and it had long held the view that improvements could be made to the way the system operated; a more effective system would lead to even better protection of human rights.
Also participating in introduction of the report was BILL CAMPBELL, First Assistant Secretary of the Office of International Law of the Attorney-General's Department of Australia. Mr. Campbell reviewed the Australian federal system of Government and said, among other things, that treaties were not self-executing in Australia and did not form part of Australian law, but it was the Government's policy not to enter into treaties unless Australian laws were in conformity with them. He added that no single federal law gave effect to the Convention, which in part reflected that federal action alone would not be adequate or sufficient to give effect to the Convention. Therefore, Australia had chosen to implement the Convention through a combination of its strong democratic institutions, the common law and an extensive range of statutes and administration at the State and Federal levels.
Consideration of the Report
Serving as rapporteur on the situation in Australia was Committee Expert ANDREAS MAVROMMATIS who said he found the report and its introduction reassuring, as there had been some reports in the media that might have been interpreted as indicating a weakening commitment in Australia to human rights -- a stand that might have given some comfort to other countries, including some of Australia's neighbours. Of course the Committee sought and received information on Australia from outside sources, including non-governmental organizations (NGOs), and considered it carefully, and of course Australia was not perfect -- no country was. Of course poverty had created waves of economic migrants around the world who attempted to masquerade as asylum seekers; and it was clear that there could be public reaction against such a trend; and it was clear that in some such cases human rights could suffer as a result.
Provided that all acts of torture covered in article 1 in the Convention were covered by domestic law, the Committee had no standing to complain if the Convention's definition of torture was not itself contained in domestic law, Mr. Mavrommatis said; but it would be interesting to know if such universal coverage was in fact true and airtight, or if complaints of maltreatment had surfaced that were not covered by domestic law and were covered by article 1. He also wondered if mandatory sentencing, used in some regions of Australia, while understandable in specific cases, could in fact lead to cruel and unusual punishment in other circumstances. He noted that no complaint filed by an individual in Australia charging torture had ever been received by the Committee.
He asked if a criminal penalty in one Australian state prescribing prison terms for homosexual acts between consenting adults was still in effect and could be justified, and what actually resulted from the law; if additional detailed information could be given on recommendations of various committees and commissions looking into complaints of maltreatment, including of Aboriginals -- particularly if some recommendations had not been implemented; if studies had been made of social, cultural or historical reasons on why indigenous persons were present in unusually high rates in prisons; if responses could be given to complaints from two NGOs, and considered by the country's Ombudsmen, on specific cases of persons in custody, including that of an inmate who complained of maltreatment by a prison warden, had the complaint rejected, was subsequently charged with false accusation, and had his sentence increased as a result; and if that outcome would not have a chilling effect on the filing of complaints by other inmates.
Convention article 3 amounted to an absolute prohibition against refouling a person if there were reasonable grounds that he might undergo torture, Mr. Mavrommatis said. He said he was concerned about the Australian system of automatic detention of illegal immigrants, about the reported isolation of some detention centres, and about the length of the detentions, sometimes of several years. He asked if any efforts had been made to speed up the processing of these detainees.
Mr. Mavrommatis also asked about measures of restraint sometimes used on persons in custody, about which some complaints had been received -- it was charged that sometimes ropes were used, or pepper spray, which might cause pain or even affect breathing -- and if use of these methods was being reviewed.
Serving as second rapporteur on the situation in Australia was Committee Expert OLE VEDEL RASMUSSEN, who complimented the country for its system for training immigration officers on human rights and the standards of the Convention. He asked, among other things, about recruitment of police and prison officers, as he had received information, for example, that former South African officials with bad records had been recruited to serve in such positions; about whether Aboriginals had been recruited to serve as prison officers; about what training, if any, was given to medical personnel to aid them in recognizing signs of torture and in preventing torture; if a policy could be established of videotaping all police interrogations, rather than restricting videotaping to interrogations of persons suspected of "serious crimes"; and if penalties given for some specific cases of police maltreatment, resulting, for example, in fines but not suspension from duty, had been sufficient for the offenses committed.
Mr. Rasmussen also asked how many complaints of torture or maltreatment had been filed against police officers in the past two years, and what had been the results; if a mechanism existed to allow prisoners to file complaints with a "competent authority" and if those filing complaints and their witnesses were protected against reprisals or intimidation by guards, as the Committee had received reports that such abuses occurred; if prisoners could complain directly to a prison governor, and, if so, what response was set in motion; if records were kept of each case in which restraint was used against a prisoner; what kind of restraint tools were carried by prison guards, and what weapons, such as batons and firearms, were carried; what punishments could be meted out to prisoners, who decided on such steps, and if prisoners could appeal punishments given them; and if there was a problem of overcrowding in prisons.
Mr. Rasmussen asked about steps taken to prevent prison suicides, as reports had been received about such suicides; if persons at risk of suicide were kept in isolation; if systematic reviews were carried out of all deaths in prison, and not just the deaths of indigenous inmates; if more efforts were planned to provide prisoners with constructive activities; and if figures could be provided on the number of asylum seekers held in detention and the average length of detention.
Other Committee members also put questions. They asked, among other things, if discrimination existed in the treatment of indigenous people in the Australian justice system; how the Australian report to the Committee was compiled and who had been involved; what was being done in the Australian system of government -- where responsibilities were divided between the Federal Government and the states and territories -- to avoid lacunae in enforcement of the Convention; if there were problems with solitary confinement and excessive use of force in prison and custody situations, as some complaints to this effect had been received; if more than 50 per cent of women in prison were there, as claimed, for "fine default", and if poverty otherwise appeared to play a large role in who was imprisoned; and if persons were sometimes imprisoned for trivial offenses under mandatory sentencing provisions.
* *** *
25th session
16 November 2000
Morning
Australian Delegation Outlines Performance Under the Convention,
Receives Questions on Compliance with Treaty
The Committee against Torture began review this morning of a second periodic report of Australia, with the panel's 10 Experts asking a Government delegation, among other things, about procedures for refoulement of persons who had been denied political asylum; the causes of a high incarceration rate among indigenous persons; and methods of restraint used against persons held in custody.
Australian officials also were asked about recruitment of police and prison officers; about training of medical personnel in recognizing signs of torture; and about protecting prisoners who complained of maltreatment from reprisals and intimidation by prison guards.
The Australian delegation will respond to the questions at the Committee's afternoon meeting of Friday, 17 November.
The delegation was led by Les Luck, Permanent Representative of Australia to the United Nations Office at Geneva, who said in an introductory statement that through its network of laws and institutions, Australia had established a level of implementation and understanding of its obligations which provided for the protection of human rights which was amongst the best in the world.
Mr. Luck said a series of measures had been taken to reduce incarceration rates and the general disadvantaged status of the country's indigenous people. He said that the Australian Government had reviewed its interaction with the United Nations human rights treaty system and felt that improvements could be made to the way the system operated.
Other members of the delegation were Bill Campbell, First Assistant Secretary of the Office of International Law of the Australian Attorney-General's Department; Peter Heyward, Counsellor at the Permanent Mission of Australia to the United Nations Office at Geneva; Robyn Bicket, Counsellor on Immigration at the Permanent Mission; and Jennifer Meehan, First Secretary of the Mission.
Australia, as one of the 123 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is required to submit periodic reports to the Committee on Government efforts to implement the treaty. States parties also customarily send Government delegations to answer questions.
The Committee will reconvene at 3 p.m. to continue its review of a third periodic report of Belarus.
Second periodic report of Australia
The report (CAT/C/25/Add.11) reviews implementation of the Convention on an article-by-article basis and has a series of appendices and tables detailing, among other things, relevant criminal legislation and Australia's participation in other human-rights treaties. The report states that "Australia relies on the detailed Convention definition of torture when interpreting the Convention for domestic purposes" but notes that the Convention does not define "cruel, inhuman or degrading treatment or punishment" and that as a result "Australia understands that the acts or conduct encompassed by this expression entail some lesser degree of severity than those defined as 'torture', which nevertheless are inconsistent with the inherent dignity and rights of the person". Treaties are not self-executing in Australia and unless they are incorporated in domestic legislation do not create rights for or impose substantive obligations on citizens, according to the report. Australia implements the Convention through the Common Law, its democratic system of Government and an extensive range of laws and practices at the Commonwealth, State and Territory levels. These laws and practices give persons a remedy in circumstances where there would be a breach of the Convention.
Among other things, the report details the activities of a Royal Commission into Aboriginal Deaths in Custody from 1980-1989, which found that 99 Aboriginal and Torres Strait Islander people had died in custody but that the deaths were not caused by deliberate violence or brutality by police or prison officers; the Royal Commission did cite many system defects in relation to the care of persons in custody, however, and as a result recommended, among other things, that Australia declare the Committee against Torture competent to hear individual complaints from Australians under the terms of Convention article 22, a recommendation that was implemented in 1993; and it recommended that Australia become a party to the Optional Protocol of the International Covenant on Civil and Political Rights, a recommendation also followed. Also, the report describes the work of a Royal Commission into the New South Wales Police Service beginning in 1994 which came up with recommendations later implemented, including a bill setting a fixed period of time for a person to be kept in detention after arrest (8 hours), and specifies what can be done and what facilities must be made available to a person being questioned; in addition there was establishment of "integrity testing" of police officers and establishment of a Police Integrity Commission.
Introduction of report
LES LUCK, Permanent Representative of Australia to the United Nations Office at Geneva, said that through its network of laws and institutions and its federal system of Government, Australia had established a level of protection of human rights that was among the best in the world. Acts that constituted torture or cruel treatment were criminal offenses in all jurisdictions; female genital mutilation was now a criminal offense in all States and territories except Western Australia where however it was regarded as an offense under existing criminal law; additional disciplinary penalties applied to acts of torture carried out by public officials in any jurisdiction.
Australia had a high level of acceptance, protection and observance of human rights, Mr. Luck said. This respect for human rights, including those covered by the Convention, was founded upon Australia's liberal, democratic system of representative and responsible Government, an independent judiciary, respect for the rule of law, a free press and the tolerance and openness of the Australia people themselves.
Through this network of laws and institutions, Australia had established a level of implementation and understanding of its obligations which provided for the protection of human rights which was amongst the best in the world, Mr. Luck added. Fundamental to the implementation of human rights treaties in Australia, including the Convention against Torture, was the federal system of Government. Under that system, there was a division of political and legal responsibilities between the Federal Government and the Governments of the Australian States and Territories. In giving effect to its obligations under the Convention, the Australian Government relied on the active participation and cooperation of the State and Territory Governments. Torture and other cruel, inhuman or degrading treatment or punishment was not tolerated by any level of Government in Australia.
Concerns had been expressed by the Committee about provisions for mandatory sentencing under Northern Territory and Western Australian legislation, Mr. Luck said, and while the federal Government did not believe the provisions were in breach of the Convention, and felt they reflected the extent of community concern about repeat and property offenses in those areas, the federal Government was concerned about the potential impact of the laws on persons under age 18, and had committed 5 million Australian dollars per annum to the Northern Territory for a number of measures, including diversionary programmes for juveniles and the establishment of indigenous interpreter services.
The Government recognized that indigenous people were disadvantaged within the Australian community, Mr. Luck said, and numerous responses had been directed at the problem; programmes had reduced the per capita rate of indigenous deaths in prison to where it was lower than the rate for non-Aboriginal people; the level of over-representation of indigenous people in prison had fallen over the last 6 years; and legislation in Queensland provided for diversion of low-risk indigenous offenders from prisons to community corrective services facilities and provided that, wherever possible, indigenous prisoners should remain as close as possible to their communities.
All individual communications lodged so far with the Committee from persons in Australia related to the non-refoulement obligation of article 3 of the Convention and related to persons who had unlawfully entered Australia and had unsuccessfully sought refugee status, Mr. Luck said. Migration laws required that unlawful non-citizens be detained; the standard of such detention care was high; particular attention and review was made of the situations of those who said they feared torture if repatriated, and care was provided to those suffering trauma from torture already committed before they arrived.
Australia considered that its refugee-determination procedure, combined with a system for ministerial intervention on public-interest grounds, ensured compliance with the Convention, Mr. Luck said. The Government, meanwhile, was concerned about increasing resort to the communication mechanism to the Committee under Convention article 22 by failed asylum-seekers in an effort to delay their removal from Australia, and in future the Government would more closely examine each request for interim measures rather than automatically complying with such requests.
Australia had recently reviewed its interaction with the UN treaty committee system, Mr. Luck said, and it had long held the view that improvements could be made to the way the system operated; a more effective system would lead to even better protection of human rights.
Also participating in introduction of the report was BILL CAMPBELL, First Assistant Secretary of the Office of International Law of the Attorney-General's Department of Australia. Mr. Campbell reviewed the Australian federal system of Government and said, among other things, that treaties were not self-executing in Australia and did not form part of Australian law, but it was the Government's policy not to enter into treaties unless Australian laws were in conformity with them. He added that no single federal law gave effect to the Convention, which in part reflected that federal action alone would not be adequate or sufficient to give effect to the Convention. Therefore, Australia had chosen to implement the Convention through a combination of its strong democratic institutions, the common law and an extensive range of statutes and administration at the State and Federal levels.
Consideration of the Report
Serving as rapporteur on the situation in Australia was Committee Expert ANDREAS MAVROMMATIS who said he found the report and its introduction reassuring, as there had been some reports in the media that might have been interpreted as indicating a weakening commitment in Australia to human rights -- a stand that might have given some comfort to other countries, including some of Australia's neighbours. Of course the Committee sought and received information on Australia from outside sources, including non-governmental organizations (NGOs), and considered it carefully, and of course Australia was not perfect -- no country was. Of course poverty had created waves of economic migrants around the world who attempted to masquerade as asylum seekers; and it was clear that there could be public reaction against such a trend; and it was clear that in some such cases human rights could suffer as a result.
Provided that all acts of torture covered in article 1 in the Convention were covered by domestic law, the Committee had no standing to complain if the Convention's definition of torture was not itself contained in domestic law, Mr. Mavrommatis said; but it would be interesting to know if such universal coverage was in fact true and airtight, or if complaints of maltreatment had surfaced that were not covered by domestic law and were covered by article 1. He also wondered if mandatory sentencing, used in some regions of Australia, while understandable in specific cases, could in fact lead to cruel and unusual punishment in other circumstances. He noted that no complaint filed by an individual in Australia charging torture had ever been received by the Committee.
He asked if a criminal penalty in one Australian state prescribing prison terms for homosexual acts between consenting adults was still in effect and could be justified, and what actually resulted from the law; if additional detailed information could be given on recommendations of various committees and commissions looking into complaints of maltreatment, including of Aboriginals -- particularly if some recommendations had not been implemented; if studies had been made of social, cultural or historical reasons on why indigenous persons were present in unusually high rates in prisons; if responses could be given to complaints from two NGOs, and considered by the country's Ombudsmen, on specific cases of persons in custody, including that of an inmate who complained of maltreatment by a prison warden, had the complaint rejected, was subsequently charged with false accusation, and had his sentence increased as a result; and if that outcome would not have a chilling effect on the filing of complaints by other inmates.
Convention article 3 amounted to an absolute prohibition against refouling a person if there were reasonable grounds that he might undergo torture, Mr. Mavrommatis said. He said he was concerned about the Australian system of automatic detention of illegal immigrants, about the reported isolation of some detention centres, and about the length of the detentions, sometimes of several years. He asked if any efforts had been made to speed up the processing of these detainees.
Mr. Mavrommatis also asked about measures of restraint sometimes used on persons in custody, about which some complaints had been received -- it was charged that sometimes ropes were used, or pepper spray, which might cause pain or even affect breathing -- and if use of these methods was being reviewed.
Serving as second rapporteur on the situation in Australia was Committee Expert OLE VEDEL RASMUSSEN, who complimented the country for its system for training immigration officers on human rights and the standards of the Convention. He asked, among other things, about recruitment of police and prison officers, as he had received information, for example, that former South African officials with bad records had been recruited to serve in such positions; about whether Aboriginals had been recruited to serve as prison officers; about what training, if any, was given to medical personnel to aid them in recognizing signs of torture and in preventing torture; if a policy could be established of videotaping all police interrogations, rather than restricting videotaping to interrogations of persons suspected of "serious crimes"; and if penalties given for some specific cases of police maltreatment, resulting, for example, in fines but not suspension from duty, had been sufficient for the offenses committed.
Mr. Rasmussen also asked how many complaints of torture or maltreatment had been filed against police officers in the past two years, and what had been the results; if a mechanism existed to allow prisoners to file complaints with a "competent authority" and if those filing complaints and their witnesses were protected against reprisals or intimidation by guards, as the Committee had received reports that such abuses occurred; if prisoners could complain directly to a prison governor, and, if so, what response was set in motion; if records were kept of each case in which restraint was used against a prisoner; what kind of restraint tools were carried by prison guards, and what weapons, such as batons and firearms, were carried; what punishments could be meted out to prisoners, who decided on such steps, and if prisoners could appeal punishments given them; and if there was a problem of overcrowding in prisons.
Mr. Rasmussen asked about steps taken to prevent prison suicides, as reports had been received about such suicides; if persons at risk of suicide were kept in isolation; if systematic reviews were carried out of all deaths in prison, and not just the deaths of indigenous inmates; if more efforts were planned to provide prisoners with constructive activities; and if figures could be provided on the number of asylum seekers held in detention and the average length of detention.
Other Committee members also put questions. They asked, among other things, if discrimination existed in the treatment of indigenous people in the Australian justice system; how the Australian report to the Committee was compiled and who had been involved; what was being done in the Australian system of government -- where responsibilities were divided between the Federal Government and the states and territories -- to avoid lacunae in enforcement of the Convention; if there were problems with solitary confinement and excessive use of force in prison and custody situations, as some complaints to this effect had been received; if more than 50 per cent of women in prison were there, as claimed, for "fine default", and if poverty otherwise appeared to play a large role in who was imprisoned; and if persons were sometimes imprisoned for trivial offenses under mandatory sentencing provisions.
* *** *