Australia

COMMITTEE AGAINST TORTURE Fortieth session 28 April – 16 May 2008

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION

Concluding observations of the Committee against Torture

AUSTRALIA

1. The Committee considered the third periodic report of Australia (CAT/C/67/Add.7) at its 812th and 815th meetings (CAT/C/SR.812 and 815) held on 29 and 30 May 2008, and adopted, at its 828th meeting (CAT/C/SR.828), the following concluding observations.

A. Introduction

2. The Committee welcomes the submission of the third periodic report of Australia as well as the detailed and thorough replies to the list of issues and the addendum, which provided additional information on the legislative, administrative, judicial and other measures taken by the State party for the implementation of the Convention. The Committee also notes with satisfaction the constructive dialogue held with a competent and multi-sectoral delegation.

3. The Committee notes with satisfaction that the State party has submitted its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting under international human rights treaties.

GE.08-42166

B. Positive aspects

4. The Committee notes with appreciation the legislative amendments adopted in 2005 related to the immigration detention. In particular, the Committee welcomes:

(a) The changes in law and in practice with respect to children in immigration detention;

(b) The closure of the offshore processing centres in Nauru and Papua New Guinea and the decision to end the so-called Pacific Strategy;

5. The Committee welcomes the Government’s apology to the Aboriginal and Torres Strait Islander peoples for past policies and laws which resulted in the removal of children from their families and communities.

6. The Committee notes with appreciation the State party’s commitment to become a party to the Optional Protocol to the Convention.

7. The Committee welcomes the State party’s ratification of the Rome Statute of the International Criminal Court on 1 July 2002.

C. Main issues of concerns and recommendations

Article 1

8. The Committee, while noting that the Australian Government is considering the enactment in Commonwealth law of a specific offence of torture which would have extraterritorial application, is concerned that the State party does not have an offence of torture at the Federal level and that there are gaps in the criminalization of torture in certain States and Territories (arts. 1 and 4).

The State party should ensure that torture is adequately defined and specifically criminalized both at the Federal and States/ Territories levels, in accordance with article 1 of the Convention.

Article 2

9. The Committee is concerned that the Convention has been only partially incorporated into Federal law and noted that the State party does not have a constitutional or legislative protection of human rights at the Federal level, i.e. a Federal Bill or Charter of Rights protecting, inter alia, the rights contained in the Convention.

The State party should fully incorporate the Convention into domestic law, including by speeding up the process to enact a specific offence of torture at the Federal level. The State party should continue consultations with regard to the adoption of a Bill of Rights to ensure a comprehensive constitutional protection of basic human rights at the Federal level.

10. The Committee, while noting that there are a number of legislative and procedural safeguards ensuring that individuals are treated in accordance with their rights, is nonetheless concerned about the following issues related to the State party’s anti-terrorism laws and practice:

(a) The increased powers provided to the Australian Security Intelligence Organization (ASIO), including the possibility of detaining a person for renewable periods of seven days for questioning, which pose some difficulties especially due to the lack of a right to a lawyer of choice to be present during the questioning and of the right to seek a judicial review of the validity of the detention;

(b) The lack of judicial review and the character of secrecy surrounding imposition of preventative detention and control orders, introduced by the Anti-Terrorism Act (No.°2) 2005;

(c) Reports concerning the harsh conditions of detention of unconvicted remand prisoners charged with terrorism-related offences, also taking into account their status of accused (and not convicted) persons.

The State party should:

(a) Ensure that the increased powers of detention of ASIO are in compliance with the right to a fair trail and the right to take proceedings before a court to determine the lawfulness of the detention;

(b) Guarantee that both preventative detention and control orders are imposed in a manner that is consistent with the State party’s human rights obligations, including the right to a fair trial including procedural guarantees;

(c) Ensure that accused remand prisoners are separated from convicted persons and are subject to separate treatment appropriate to their status as unconvicted persons.

11. The Committee is concerned at the mandatory detention policy for those persons who enter irregularly the State party’s territory. In this respect, the Committee is especially concerned at the situation of stateless persons in immigration detention who cannot be removed to any country and risk being potentially detained ‘ad infinitum’.

The State party should:

(a) Consider abolishing its policy of mandatory immigration detention for those entering irregularly the State party’s territory. Detention should be used as a measure of last resort only and a reasonable time limit for detention should be set; furthermore, non-custodial measures and alternatives to detention should be made available to persons in immigration detention;

(b) Take urgent measures to avoid the indefinite character of detention of stateless persons.

12. The Committee welcomes information from the State party indicating the recent end of the policy of transferring asylum-seekers to offshore processing centres. Yet the Committee notes that “excised” offshore locations, notably Christmas Island, are still used for the detention of asylum-seekers who are subsequently denied the possibility of applying for a visa, except if the Minister exercises discretionary power.

The State party should end the use of “excised” offshore locations for visa processing purposes in order allow all asylum-seekers an equal opportunity to apply for a visa.

13. The Committee notes that the provision of a medical practitioner of the arrested person’s choice is not a statutory right, but rather a duty of care requirement for Australian Federal Police members undertaking custodial duties.

The State party should ensure the right to appoint a fully independent medical practitioner, preferably of the arrested person’s choice.

14. The Committee notes with appreciation the work of the Human Rights and Equal Opportunities Commission (HREOC) to protect and promote human rights in the State party, but regrets that:

(a) While HREOC is empowered to investigate complaints related to torture and other cruel, inhuman or degrading treatment arising from the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, the Convention against Torture is not included in HREOC’s complaint handling jurisdiction;

(b) HREOC can only make recommendations of an advisory nature;

The State party should consider strengthening and extending the mandate of the HREOC, inter alia, to the handling of complaints for violation of the Convention against Torture, including for acts committed by intelligence agencies officers. Furthermore, the Committee urges the State party to give adequate follow-up to the recommendations of HREOC.

Article 3

15. The Committee is concerned that the prohibition of non-refoulement is not enshrined in the State party’s legislation as an express and non-derogable provision, which may also result in practices contrary to the Convention. The Committee also notes with concern that some flaws related to the non-refoulement obligations under the Convention may depend on the exclusive use of the Minister’s discretionary powers thereto. In this respect, the Committee welcomes the information that the same Minister for Immigration and Citizenship has indicated that the high degree of discretionary authority available to him under existing legislation should be reconsidered.

The State party should explicitly incorporate into domestic legislation, both at Federal and States/Territories levels the prohibition whereby no State party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture (non-refoulement), and implement it in practice. The State party should also implement the Committee’s previous recommendations formulated during the consideration of the State party’s second periodic report to adopt a system of complementary protection ensuring that the State party no longer solely relies on the Minister’s discretionary powers to meet its non-refoulement obligations under the Convention.

16. The Committee reminds States parties that under no circumstances can they resort to diplomatic assurances as a safeguard against torture or ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return.

The State party, if resorting to diplomatic assurances