Who's responsible:

Australias Fourth Report under the Convention Against Torture - June 1997 - October 2004

Contents 

RECOMMENDATIONS OF THE COMMITTEE

ABBREVIATIONS

INTRODUCTION

Preparation and structure of the report

Consultation with stakeholders

PART ONE: IMPLEMENTATION OF THE CONVENTION - ARTICLES 1 & 2(1)

1.1 Legal status and implementation of the Convention in Australia

PART TWO: LEGALLY PUNISHABLE OFFENCES, EXPULSION, AND EXTRADITION - ARTICLES 3, 4, 5, 6, 7, 8 & 9

2.1 Jurisdiction of the Government of Australia

2.2 Domestic criminal offences

2.3 Refoulement, expulsion and extradition

2.4 Human rights communications

PART THREE: EDUCATION, TRAINING, REVIEW AND OTHER PREVENTATIVE MEASURES - ARTICLES 10, 11 & 16 (1)

3.1 Preventative measures

3.2 Indigenous peoples and criminal justice

3.3 Mandatory sentencing provisions

3.4 Efforts to reduce overcrowding in prisons

PART FOUR: THE RIGHT TO PROCEDURAL GUARANTEES - ARTICLES 12, 13, 14, 15 & 16

4.1 Investigation and complaints mechanisms

4.2 Protection of complainants

4.3 Sample of investigations and complaints in the reporting period

4.4 Medical and psychological rehabilitation after acts of torture or other cruel, inhuman or degrading treatment or punishment

APPENDICES AND TABLES

APPENDIX ONE: OFFENCES AND PENALTIES

APPENDIX TWO: ADMINISTRATIVE REVIEW OF PUBLIC OFFICER CONDUCT

TABLE 1: LEGISLATION RELEVANT TO AUSTRALIA’S OBLIGATIONS UNDER THE CONVENTION

TABLE 2: STATUTORY COMPENSATION SCHEMES

TABLE 3: BILATERAL EXTRADITION ARRANGEMENTS WITH STATES PARTIES TO THE CONVENTION

Extradition treaties

Non-treaty based extradition relationships

LIST OF ANNEXES

RECOMMENDATIONS OF THE COMMITTEE

The recommendations of the Committee against Torture, made in response to Australia’s Combined Second and Third Report under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment at its 25^th session in November 2000, are addressed as follows:

Recommendation (a)
The State party ensure that all States and Territories are at all times in compliance with its obligations under the Convention (paragraph 11)

Recommendation (b)
The State party consider the desirability of providing a mechanism for independent review of ministerial decisions in respect of cases coming under article 3 of the Convention (paragraph 30)

Recommendation (c)
The State party continue its education and information efforts for law enforcement personnel regarding the prohibition against torture and further improve its efforts in training, especially of police, prison officers and prison medical personnel (paragraph 47)

Recommendation (d)
The State party keep under constant review the use of instruments of restraint that may cause unnecessary pain and humiliation, and ensure that their use is appropriately recorded (paragraph 47)

Recommendation (e)
The State party ensure that complainants are protected against intimidation and adverse consequences as a result of their complaint (paragraph 81)

Recommendation (f)
The State party continue its efforts to reduce overcrowding in prisons (paragraph 72)

Recommendation (g)
The State party continue its efforts to address the socio-economic disadvantage that, inter alia, leads to a disproportionate number of indigenous Australians coming into contact with the criminal justice system (paragraph 65)

Recommendation (h)
The State party keep under careful review legislation imposing mandatory minimum sentences, to ensure that it does not raise questions of compliance with its international obligations under the Convention and other relevant international instruments, particularly with regard to the possible adverse effect upon disadvantaged groups (paragraph 67)

Recommendation (i)
The State party submit its next periodic report by November 2004, and ensure that it contains information on the implementation of the present recommendations and disaggregated statistics (paragraph 1)

ABBREVIATIONS

AAT
Administrative Appeals Tribunal

ACT
Australian Capital Territory

ADF
Australian Defence Force

APMC
Australasian Police Ministers’ Council

ASIO
Australian Security Intelligence Organisation

COAG
Council of Australian Governments

CRC
Convention on the Rights of the Child

DIMIA
Department of Immigration and Multicultural and Indigenous Affairs

FGM
Female Genital Mutilation

FMC
Federal Magistrates Court

HREOC
Human Rights and Equal Opportunity Commission

ICCPR
International Covenant on Civil and Political Rights

IGADF
Inspector-General, Australian Defence Force

IGIS
Inspector-General of Intelligence and Security

JSCOT
Joint Standing Committee on Treaties

NGO
Non-Government Organisation

3 RAR
Third Battalion Royal Australian Regiment

IDS
Immigration Detention Standards

RRT
Refugee Review Tribunal

INTRODUCTION

Preparation and structure of the report

The Australian Government is pleased to present to the Committee against Torture (Committee) Australia’s Fourth Report under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention or Convention against Torture) in accordance with article 19 of the Convention. Australia ratified the Convention on 8 August 1989. The Convention came into force for Australia on 7 September 1989.

2. This report demonstrates that Australia takes its obligations under the Convention seriously and continues to progressively 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 strongly supports international action against torture and deplores such behaviour wherever and whenever it occurs.

3. Australia’s Fourth Report under the Convention covers the period from 30 June 1997 – 29 October 2004. The report includes information on major or significant developments in law and practice relevant to Australia’s obligations under the Convention. It also addresses the issues raised by the Committee in response to Australia’s Second and Third Report under the Convention (Australia’s Second and Third Report) in its 25^th session in November 2000.

4. This report supplements and should be read in conjunction with Australia’s previous reports under the Convention[1] and Australia’s Core Document.[2] Together, these documents outline the legislative, judicial, administrative and other measures in Australia which give effect to Australia’s obligations under the Convention. For the most part, these measures remain substantially unchanged in this reporting round. Thus, where particular articles are not addressed in this report, the Committee is referred to Australia’s previous reports, particularly the Second and Third Report, for up to date information.

5. Australia’s Fourth Report has been prepared with reference to the Committee’s Guidelines for the submission of periodic reports. Where appropriate, overlapping articles have been grouped together and information provided accordingly. The Committee’s recommendations in response to Australia’s Second and Third Report are addressed throughout the report where relevant, rather than in a separate Part.

6. To avoid adding to the burden on the secretariat resources of the Committee, the Government has not attached all documents referred to in the report. Where appropriate, internet addresses are provided rather than hardcopy materials. The Government will provide further information where the Committee so requests when considering the report.

Consultation with stakeholders

7. The Government consulted widely in preparing this report and is grateful to those stakeholders who provided input for their assistance and comments. These comments were taken into consideration in the preparation of the report.

Consultation with State and Territory Governments

8. 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 – New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania – and two internal self-governing territories – the Australian Capital Territory and the Northern Territory.[3] 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. Where relevant, examples of significant legislative developments, programs and policies that have occurred in the States and Territories in the reporting period are included in the report.

Consultation with Non-Government Organisations

8. The Government recognises the important role played by non-government organisations (NGOs) in promoting and implementing the rights set out in the Convention and consulted widely with relevant NGOs in the preparation of the report. The Human Rights and Equal Opportunity Commission (HREOC), Australia’s national human rights institution, was also invited to comment.

9. The comments received from these stakeholders raised a range of issues relevant to Australia’s obligations under the Convention. These issues were taken into consideration in preparing Australia’s Fourth Report.

PART ONE: IMPLEMENTATION OF THE CONVENTION – ARTICLES 1 & 2(1)

1.1 Legal status and implementation of the Convention in Australia

11. Acts constituting torture and other cruel, inhuman or degrading treatment or punishment are a criminal offence and/or civil wrong in all Australian jurisdictions (see Appendix One). In addition, specialist statutory authorities, such as HREOC and federal, State and Territory ombudsmen, are empowered to monitor and investigate the conduct of public officials. Together, these mechanisms ensure that Australia is at all times in compliance with its obligations under the Convention against Torture.[4]

12. The Committee is referred to Part One of Australia’s Second and Third Report for further background information on the implementation and adoption of the Convention in Australia.

13. A number of developments relevant to Australia’s obligations under articles 1 and 2(1) of the Convention have occurred in the reporting period. These include the adoption in 2004 of a statutory Bill of Rights by the Legislative Assembly of the Australian Capital Territory (ACT) and consideration by the Federal Government of Australia’s position regarding ratification of the Optional Protocol to the Convention against Torture (Optional Protocol).

14. The ACT Human Rights Act 2004 incorporates the International Covenant on Civil and Political Rights (ICCPR) into ACT law. Article 7 of the ICCPR prohibits torture, cruel, inhuman or degrading treatment or punishment.

15. The ACT Human Rights Act requires that all ACT legislation be interpreted and applied consistently with human rights unless legislation clearly authorizes otherwise. A human rights argument can be raised in proceedings against ACT authorities including, for example, where an agency has breached its statutory duty or its duty of care towards a detainee. The prohibition on torture, cruel, inhuman or degrading treatment or punishment must also be taken into account when framing legislation and developing operational guidelines. It is intended that the Human Rights Act will be interpreted and applied consistently with international law and internationally accepted standards. The ACT judiciary and other public officials may refer to the Convention against Torture, the ICCPR and other related rules and guidelines for the purpose of interpreting the Human Rights Act.

16. The Government is currently considering whether it will ratify the Optional Protocol to the Convention. On 26 November 2003 the Australian Senate referred this issue to the independent Joint Standing Committee on Treaties (JSCOT), comprising 16 members of the Australian Parliament House of Representatives and Senate for inquiry and report. After requesting and analysing written submissions, and hearing oral arguments, JSCOT issued a report in March 2004.[5] The report found, inter alia, that ‘there is no suggestion that the independent national preventative mechanisms are inadequate in Australia. Commonwealth, State and Territory Governments all conduct education and training programs and have mechanisms to prevent torture’.[6] Consequently, the report recommended against the Commonwealth Government taking binding treaty action with respect to the Optional Protocol at this time.[7]

16. The Government has not yet made a decision about whether it will ratify the Optional Protocol. However, the Government believes that there are appropriate legislative, administrative and judicial measures to prevent acts of torture currently in place in Australia.

PART TWO: LEGALLY PUNISHABLE OFFENCES, EXPULSION AND EXTRADITION – ARTICLES 3, 4, 5, 6, 7, 8, & 9

2.1 Jurisdiction of the Government of Australia

18. As noted in Australia’s Second and Third Report, Australia generally exercises jurisdiction in relation to all people within its territory, whether nationals or non-nationals, including permanent and temporary residents and visitors.

19. The Crimes at Sea Act 1979, referred to in Australia’s previous report, has been replaced 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. Together with corresponding State and Territory legislation, these instruments fulfil Australia’s obligations under article 5 of the Convention. Finally, a person present in Australia who has committed a crime of torture outside Australia would be liable to prosecution under the Crimes (Torture) Act 1988.

20. The Committee is ref erred to paragraph 45 of Australia’s Second and Third Report for further information.

2.2 Domestic criminal offences

21. Acts constituting torture which involve the infliction of physical pain and suffering committed within Australia’s jurisdiction are offences under Australia’s criminal law. Acts constituting cruel, inhuman or degrading treatment or punishment are also offences under Australian law. Appendix One provides an updated list of the relevant criminal provisions and penalties in federal, State and Territory law. Table 1 provides an updated list of other relevant legislation and delegated legislation relevant to Australia’s obligations under articles 4, 5 and 16 of the Convention. The Committee is also referred to paragraphs 46-49 of Australia’s Second and Third Report.

National Model Criminal Code

22. In the reporting period important progress was made in implementing the Model Criminal Code for all Australian jurisdictions:

Female genital mutilation

• Specific offences against the person targeting female genital mutilation (FGM) 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 FGM. Education and awareness raising campaigns aimed at reducing the occurrence of FGM are also being conducted throughout Australia.[8]

Torture

• In 2000 the federal Criminal Code was updated to include a suite of offences against the person. Division 71 of the Code creates offences against the United Nations and Associated Personnel and gives effect to the Convention on the Safety of United Nations and Associated Personnel. For many of these offences, the use of torture is an aggravating offence.

23. Efforts to progressively implement the Model Criminal Code continue across all Australian jurisdictions. For background information on the development and implementation of the Code the Committee is referred to paragraphs 50-51 of Australia’s Second and Third Report.

The Rome Statute of the International Criminal Court

24. Australia ratified the Rome Statute of the International Criminal Court on 1 July 2002 (Statute). The Statute entered into force for Australia on 1 September 2002. In June 2002 the Australian Parliament enacted legislation to facilitate Australia’s compliance with the Statute.[9] This legislation creates offences equivalent to the crimes of genocide, crimes against humanity and war crimes set out in the Statute and ensures the primacy of Australia’s criminal jurisdiction in relation to these crimes.

25. These offences have been incorporated into Division 268 of the Criminal Code Act 1995 with specific reference to torture and inhuman treatment where relevant. These offences operate prospectively from 26 September 2002 and apply to conduct both within and outside Australia. All genocide offences attract life imprisonment. Penalties for crimes against humanity range from 17 years to life imprisonment and war crimes offences attract penalties ranging from 10 years to life imprisonment.

Detention and questioning of persons in relation to terrorist offences

26. 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.[10] 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.

27. The questioning regime contains rigorous requirements that must be met in order for a warrant to be issued and strict safeguards to ensure that the new powers are exercised appropriately. The regime is for intelligence-gathering purposes only, and does not authorise punishment of any kind of a person subject to a warrant.

28. Under the ASIO Act, questioning proceedings are supervised by an independent prescribed authority. Depending on the circumstances, a prescribed authority may be a former judge of a superior court, a current judge of a Supreme or District Court of a State or Territory, or a President or Deputy President of the Administrative Appeals Tribunal (AAT). Detention, if authorised, is supervised by a police officer. A statement of procedures for questioning and detention is set out in the Protocol to the ASIO Act.[11]

29. 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. An official who fails to comply with a direction of the prescribed authority, contravenes a safeguard, or fails to afford a person their rights under the ASIO Act, commits an offence punishable by a maximum of 2 years imprisonment. An official may also be subject to other criminal penalties.

2.3 Refoulement, expulsion and extradition

Refoulement

30. In its Concluding Observations on Australia’s Second and Third Report the Committee recommended that Australia ‘consider the desirability of providing a mechanism for independent review of ministerial decisions in respect of cases coming under article 3 of the Convention’.[12]

31. Consideration of Australia’s non-refoulement obligation under the Convention mainly arises in relation to persons seeking refugee protection in Australia. As a signatory to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (collectively referred to as the Refugees Convention), Australia provides protection to those asylum seekers who engage Australia’s protection obligations under these instruments. Protection is effected through the grant of either a temporary or permanent protection visa. The process of granting a protection visa involves determination of refugee status made by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).

32. Asylum seekers in Australia have access to multiple mechanisms of review with regard to their application for refugee status. First, unsuccessful applicants can seek review of DIMIA’s decision before the Refugee Review Tribunal (RRT) or the AAT depending on the basis for refusal. The Tribunals are independent statutory merits-review bodies which have the power to affirm or vary DIMIA’s decision, to set aside the decision and substitute a new decision or to remit the matter to DIMIA for reconsideration.

33. Where there is a perceived error of law in the decision of the RRT, an applicant can appeal the decision to a single judge of the Federal Court for judicial review. The Federal Magistrates Court (FMC) has also had jurisdiction to review decisions of the RRT since October 2001. Such cases may go on appeal to the Full Federal Court, and may then be the subject of a special leave application to the High Court of Australia (High Court). Under section 75 of the Constitution a person may also seek judicial review in the High Court’s original jurisdiction.

34. On 11 May 2004 the Government announced a package of migration litigation reforms to deal more quickly with migration cases before the courts. Among other things, this package of reforms will direct judicial review applications of RRT decisions to the FMC. In order to ensure that migration cases are dealt with quickly and fairly the Government has appointed eight additional magistrates to the FMC as part of this package.

35. Finally, sections 417[13], 454[14] and 501J[15] of the Migration Act 1958 empower the Minister for Immigration and Multicultural and Indigenous Affairs to substitute a decision of the RRT or AAT that an applicant is not a person to whom Australia has protection obligations under the Refugees Convention with a more favourable decision if the Minister considers it in the public interest to do so.

36. Ministerial Guidelines (Guidelines), originally introduced in 1999 and reissued in 2003, provide guidance to DIMIA officers in identifying cases in which ‘unique or exceptional circumstances’ warrant referral to the Minister for consideration as to whether or not to exercise his/her public interest powers.[16] Most notably, the Guidelines refer to Australia’s international obligations under the Convention against Torture, the Convention on the Rights of the Child (CRC) and the ICCPR as relevant factors in deciding whether the Minister should consider exercising these powers. These powers allow consideration at the executive level of government of the public interest, weighing up the full range of humanitarian or other issues that may arise in relation to a particular individual.

37. The Minister’s public interest intervention powers are transparent, as any decision to intervene must be tabled before each House of the Australian Parliament. The Minister is ultimately accountable to the Parliament and the Australian people for his/her actions in the exercise of these powers.

38. Given existing review mechanisms and processes, the Government does not consider an additional level of review, such as that suggested by the Committee, either necessary or appropriate. Furthermore, the Government maintains that current policy and practice is not inconsistent with Australia’s obligations under the Convention.

Expulsion

39. In December 1998 the Minister for Immigration and Multicultural Affairs issued a policy on criminal deportation that is binding on delegates of the Minister in making deportation determinations.[17] This policy directs decision-makers to consider Australia’s non-refoulement obligations under the ICCPR, the Convention against Torture and the Refugees Convention in making deportation determinations. Decision-makers are directed to obtain advice about the obligations should they be relevant in a particular case. This policy is also binding on the AAT in exercising its power to overturn a decision of the Minister on appeal.

40. The Committee is referred to paragraphs 52-54 of Australia’s Second and Third Report for further information on the processes and legislative provisions relating to criminal deportation in Australia.

Extradition

41. Table 3 provides an updated list of the States parties to the Convention with whom Australia has extradition arrangements. For further information on Australia’s extradition framework the Committee is referred to paragraphs 59-62 of Australia’s Second and Third Report.

2.4 Human rights communications

Communications under the Convention against Torture

42. The Government is aware of 19 communications lodged against Australia under Article 22 of the Convention against Torture in the reporting round.[18] All of these cases involved the actual or proposed removal from Australia of the alleged victim and the claim that Australia thereby breached or would potentially breach article 3 of the Convention. Ten of these cases have since been discontinued or withdrawn. The Committee against Torture has issued Views in response to eight cases, with Views still outstanding in response to one. The Committee found Australia in breach of article 3 of the Convention in one of the eight cases considered (Communication No. 120/1998).

Communication No. 120/1998

43. In Sadiq Shek Elmi v Australia the author claimed that his background and clan membership in Somalia would render him personally at risk of being subjected to torture if forcibly returned to Somalia by Australia. It was alleged that Australia would thereby violate article 3 of the Convention.

44. The Committee found substantial grounds for believing that the author would be in danger of being subjected to torture if returned to Somalia.[19] Accordingly, the Committee considered that Australia had an obligation, in accordance with article 3 of the Convention, to refrain from forcibly removing the author to Somalia or to any other country where he was at risk of being expelled or returned to Somalia.[20]

45. In light of new evidence which arose following the Committee’s consideration of Mr Elmi’s communication, the Minister for Immigration and Multicultural Affairs decided that it was in the public interest to exercise his powers under section 48B of the Migration Act to allow Mr Elmi to make a subsequent application for a protection visa.[21] This application was unsuccessful and Mr Elmi lodged an application for review with the RRT. The Tribunal affirmed the decision that Mr Elmi was not a person to whom Australia owed protection obligations. Mr Elmi departed Australia voluntarily in January 2001.

Communications under the International Covenant on Civil and Political Rights

46. As a party to the first Optional Protocol to the ICCPR Australia has been the subject of a number of complaints to the United Nations Human Rights Committee alleging a violation of article 7 of the ICCPR within the reporting period. Article 7 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. These complaints will be addressed in Australia’s upcoming Fifth Report under the ICCPR.

PART THREE: EDUCATION, TRAINING, REVIEW AND OTHER PREVENTATIVE MEASURES – ARTICLES 10, 11 & 16 (1)

3.1 Preventative measures

47. In its Concluding Observations on Australia’s Second and Third Report the Committee recommended that Australia ‘...continue its education and information efforts for law enforcement personnel regarding the prohibition against torture and further improve its efforts in training, especially of police, prison officers and prison medical personnel’.[22] The Committee further recommended that Australia ‘...keep under constant review the use of instruments of restraint that may cause unnecessary pain and humiliation, and ensure that their use is appropriately recorded’.[23] These recommendations are addressed below.

Police officers

48. Relevant legislation and policy instructions direct police in every jurisdiction in Australia to assume responsibility for the safety and welfare of the public, including prisoners (see Table 1 and paragraphs 66-67 of Australia’s Second and Third Report).

Education and training

49. The Australian Federal Police and all State and Territory police services in Australia continue to maintain regular education and training for police officers in the relevant law applicable to their duties, particularly with regard to the use of force, management of people in custody, the use of restraints, and reporting requirements.

50. For example, in 2000 the South Australia Police introduced Incident Management and Operational Safety Training as a prerequisite course for police undertaking operational duties. This course emphasises safe prisoner management, and includes refresher training on:

• safe handcuffing techniques to minimise injuries to police and prisoners;
• the use of flexcuffs as an alternative/adjunct to handcuffs;[24]
• restraint techniques to minimise or avoid injuries associated with positional asphyxia and conveyances in cage cars; and
• lawful and appropriate use of Oleoresin Capsicum spray and Asp batons.

National guidelines on use of force

51. In 2002, a set of national reporting guidelines was established to provide jurisdictions with a framework and minimum standards to develop use of force information systems that will allow for the meaningful and comparable interpretation of data at a national level. This data is intended to identify training needs for operational safety purposes; monitor the effectiveness of operational training, tactics, procedures and equipment to ensure appropriate behaviour; and monitor use of force trends. Jurisdictions report to the Senior Officers’ Group and Australasian Police Ministers’ Council (APMC) each year.[25]

52. On 17 November 2004, APMC endorsed the National Guidelines for Incident Management, Conflict Resolution and Use of Force: 2004, and agreed that the guidelines be reviewed again in two years to ensure their relevance and currency. The revised guidelines are strategic in nature and outline a set of general, guiding principles, allowing police organisations scope to implement innovative and appropriate solutions to specific situations.

Prison officers

53. All States and Territories in Australia have established intensive and regular programs in which prison officers receive information about their statutory obligations relating to the management and use of weapons, restraint devices, use of force, and reporting requirements (see Table 1 and paragraphs 68-69 of Australia’s Second and Third Report).

On-going monitoring and review

54. Use of force by prison officers in Australia is subject to on-going monitoring and review. For example, in 2002-2003 the former Victorian Chief Commissioner for Police conducted a review into use of force in the Victorian prison system. The review was requested to make recommendations on legislation and procedural and operational guidelines relating to use of force; use of firearms and other operational equipment; best practice training methodology and programs with regard to use of force; and ways of ensuring the consistent application of policies and procedures related to use of force across Victoria.

55. The review recommended various changes to the way in which situations of risk are managed, including in relation to the use of particular operational equipment and specific training methods and programs. The Victorian Minister for Corrections has endorsed the findings of the review and a working party has been formed to progress implementation of the recommendations.

Public school teachers

56. In every State and Territory in Australia legislation and policy guidelines circumscribe disciplinary measures which may be used by public school teachers (see Table 1 and paragraphs 84-85 of Australia’s Second and Third Report).

Corporal punishment

57. Corporal punishment in Australian government schools and some non-government schools has been prohibited in the ACT, New South Wales, South Australia, Queensland, Tasmania and Western Australia. Corporal punishment in government schools is prohibited in Victoria.

58. The issue of corporal punishment was considered by the Model Criminal Code Officers Committee who reported on this issue in September 1998.[26] The Model Criminal Code Officers Committee recommended that a legislative standard of reasonableness be established and that the use of objects in such a way as to cause or risk causing injury be prohibited.[27]

59. In 2003, the Queensland Government amended the Education (Teacher Registration) Act 1988 to prevent teachers moving between the public and private sector when suspected of harmful behaviour to children. Employers of both public and private schools are required to inform the Teacher Registration Board if a teacher is dismissed or resigns as a result of the employer investigating allegations that the teacher’s conduct harmed or could have harmed a child. Similar legislation is in place or is currently being considered in a number of other States and Territories in Australia.

Military personnel

60. Australian Defence Force (ADF) members participating in international or non-international armed conflict are now bound by Division 268 of the Criminal Code Act which was inserted by the International Criminal Court (Consequential Amendments) Act 2002 and includes war crimes, genocide and crimes against humanity (see paragraph 25). This legislation replaces Part 2 of the Geneva Conventions Act 1957 which previously covered such crimes. Australian Defence Force members are also bound by the Defence Force Discipline Act 1982.

61. Throughout their careers, and particularly prior to deployment, service members receive extensive training in humanitarian law principles (see paragraphs 70-72 of Australia’s Second and Third Report).

Immigration officers

62. In February 1998 the Government contracted out detention and removal services at immigration detention centres. This contract is currently held by Global Solutions Limited (Australia) Pty Ltd. The contractor is required to deliver detention services in accordance with the Immigration Detention Standards (IDS) developed by DIMIA in consultation with the Commonwealth Ombudsman’s Office and HREOC.[28]

63. With regard to use of force and instruments of restraint, the IDS provide that:

• only such force as is reasonably necessary and proportionate in the circumstances is to be used;
• non-compliance, uncooperative behaviour or conflict are to be addressed as far as practicable through communication, negotiation and conflict resolution;
• use of force is to be a measure of last resort where all other control methods have failed or have been assessed as inadequate;
• collective, corporal, cruel, inhumane or degrading treatments and punishments are not to be used; and
• only such instruments of restraint are to be used as are reasonably necessary and proportionate in the circumstances and are never to be used as punishment.[29]

64. For further information the Committee is referred to paragraphs 76-77 of Australia’s Second and Third Report.

3.2 Indigenous peoples and criminal justice

65. In its Concluding Observations on Australia’s Second and Third Report the Committee recommended that Australia ‘continue its efforts to address the socio-economic disadvantage that, inter alia, leads to a disproportionate number of indigenous Australians coming into contact with the criminal justice system’.[30] This issue does not appear to relate to Australia’s obligations under the Convention against Torture. The preventative measures detailed in this and previous reports are designed to ensure that all persons who come into contact with the criminal justice system are protected against torture or cruel, inhuman or degrading treatment or punishment.

66. For information relating to the programs and initiatives in Australia targeting indigenous disadvantage the Committee is referred to the Combined Thirteenth and Fourteenth Periodic Report of the Government of Australia under Article 9 of the International Convention on the Elimination of all Forms of Racial Discrimination, submitted to the Committee on the Elimination of Racial Discrimination on 28 November 2003.

3.3 Mandatory sentencing provisions

67. In its Concluding Observations on Australia’s Second and Third Report, the Committee recommended that Australia ‘keep under careful review legislation imposing mandatory minimum sentences, to ensure that it does not raise questions of compliance with its international obligations under the Convention and other relevant international instruments, particularly with regard to the possible adverse effect upon disadvantaged groups’.[31]

68. Where mandatory sentencing provisions exist in Australian law they serve important policy functions. Such provisions are not imposed in a manner that is inconsistent with Australia’s international obligations under the Convention or other relevant international instruments.

69. In October 2001, the Northern Territory Parliament passed legislation repealing all mandatory minimum sentences that previously applied for property offences in relation to both adults and juveniles in the Northern Territory.[32]

70. In Western Australia, mandatory sentences of 12 months imprisonment or detention continue to apply for convicted home burglars who have two or more previous convictions for home burglary. A review of these provisions, tabled in the Western Australian Parliament on 15 November 2001, concluded that the provisions have had little effect on the criminal justice system and that courts generally sentence adult repeat offenders to periods of imprisonment greater than the minimum 12 months mandated by the legislation. In response to the review, the Western Australian Government announced its intention to retain the ‘repeat offender’ provisions on the grounds that Western Australia has the highest rate of burglary in Australia; the legislation has the support of both major parties and the people of Western Australia; the legislation has been appropriately targeted, in that it has affected the small number of repeat juvenile offenders; and in the case of juveniles, the Court can (and does) exercise its discretion where there are exceptional circumstances by imposing a Juvenile Conditional Release Order instead of detention.

71. The Border Protection (Validation and Enforcement Powers) Act 2001, commencing 27 September 2001, amended the Migration Act to include mandatory penalties for certain offences. Section 233C of the Migration Act provides that a court must impose sentences of imprisonment and non-parole periods for persons convicted of organising the bringing of groups, defined under the Migration Act as five or more persons, of non-citizens into Australia or if convicted of certain other offences relating to groups of non-citizens. The Government notes that this legislation is consistent with Australia’s international obligations and does not adversely impact upon disadvantaged groups in the community. Rather, the provisions constitute part of a broader policy to strengthen deterrents against people smuggling and serve to protect disadvantaged groups by ensuring stiffer penalties for convicted smugglers.

3.4 Efforts to reduce overcrowding in prisons

72. In its Concluding Observations on Australia’s Second and Third Report the Committee recommended that Australia ‘continue its efforts to reduce overcrowding in prisons’.[33]

73. Overcrowding in prisons does not necessarily mean that the conditions under which prisoners are held amount to torture or to cruel or inhuman or degrading treatment or punishment. However, corrections facilities in Australia are regularly reviewed to ensure that they can safely accommodate and manage diverse groups of prisoners in humane conditions conducive to rehabilitation. In the reporting period a number of States and Territories in Australia have reviewed existing corrections facilities and have undertaken to upgrade those facilities or to develop new facilities as required.

74. Diversionary programs are also utilised throughout Australia and provide an effective means of reducing incarceration rates. For example, in Tasmania the Youth Justice Act 1997 provides for a range of diversionary mechanisms to reduce the number of young people in custodial facilities. These include formal and informal cautions, fines, probation orders, good behaviour undertakings and community conferences. The Tasmanian Department of Health and Human Services has also sought to reduce the number of young Indigenous people in detention through a program that allows young Indigenous offenders to live in an Indigenous community and participate in activities that increase their cultural and traditional connections as an alternative to a custodial sentence.

PART FOUR: THE RIGHT TO PROCEDURAL GUARANTEES – ARTICLES 12, 13, 14, 15 & 16

4.1 Investigation and complaints mechanisms

75. Most public officers in Australia are governed by specific legislative frameworks and are accountable to specialist complaints authorities that regulate the conduct of particular occupational groups (see Appendix 2). For further information the Committee is referred to Part Five of Australia’s Second and Third Report.

Complaint mechanisms, access to legal redress, and use of evidence in the ASIO questioning regime

76. With the amendment of the ASIO Act in this reporting round (see paragraphs 26-29), significant safeguard mechanisms were put in place to ensure that persons subject to a questioning warrant have access to appropriate procedural protections. The ASIO Act expressly provides that the subject of a warrant can contact the Inspector-General of Intelligence and Security (IGIS) or the Commonwealth Ombudsman at any time to make a complaint. Appropriate facilities must be provided for this purpose, including ensuring that a complaint can be made in private.

77. The IGIS is an important accountability mechanism for Australia’s intelligence agencies. It operates independently of Government and has extensive investigatory powers similar to that of a standing Royal Commission.[34] The IGIS may be present during questioning proceedings and, if the IGIS is concerned about an illegal act or an impropriety occurring during questioning, he or she may advise the prescribed authority. The prescribed authority may suspend questioning until the IGIS’s concerns have been addressed.

78. At any time, the subject of a warrant has a right to seek a remedy relating to the warrant, or the treatment of the subject in connection with the warrant, from a federal court. The subject of a warrant may also contact a lawyer of his or her choice at any time. The lawyer may be present during questioning subject to the direction of the prescribed authority on a case being made out by ASIO for the exclusion of a particular lawyer. If exclusion occurs, the subject may choose another lawyer.

Complaints relating to the conditions of immigration detention centres

79. The IDS establish a complaints mechanism for immigration detainees and ensure that detainees are able to comment or complain without hindrance or fear of reprisal:

• about any matter relating to the conditions of detention to the Services Provider, DIMIA, HREOC or the Commonwealth Ombudsman, or
• in the case of a suspected criminal offence, to the police, or
• in the case of suspected child abuse, to the relevant State/Territory welfare agency.[35]

80. The IDS also require that detainees be informed of their rights and that material advising of the right to complain to HREOC and the Commonwealth Ombudsman be displayed prominently throughout the facilities at all times and be available to detainees on request.

4.2 Protection of complainants

81. In its Concluding Observations on Australia’s Second and Third Report the Committee recommended that Australia ‘ensure that complainants are protected against intimidation and adverse consequences as a result of their complaint’.[36]

Protection against adverse consequences as a result of making a complaint

82. Legislation covering a wide range of areas, including health and community services, correctional services and public administration, protects complainants in all Australian jurisdictions (see Table 1). For example, the Health and Community Services Complaints Act enacted in the Northern Territory in July 2003 makes it an offence to intimidate or take any action against a complainant as a result of making a complaint. A penalty of up to $10,000 or 12 months imprisonment applies for contravention of this provision. Both the Community Services Complaints Commissioner and the Ombudsman are able to investigate any complaint relating to harassment, intimidation or victimisation of a complainant as a result of making a complaint.

83. Another example is section 26 of the Human Rights and Equal Opportunity Commission Act 1986. This section protects a person who provides information or makes a complaint to HREOC, or who alleges that there has been an act or practice inconsistent with or contrary to human rights, by making it an offence to intimidate or coerce such a person.

Disclosure of public interest information

84. A range of legislation throughout Australia also protects individuals, including natural persons and public officers, who make public interest disclosures. Such legislation offers special protection to disclosures about unlawful, negligent or improper public sector conduct. For example, in July 2003 Western Australia enacted the Public Interest Disclosure Act 2003. This Act facilitates the disclosure of public interest information by providing protection for those who make disclosures and those who are the subject of disclosures. It also enables disclosed matters to be investigated and appropriate action to be taken. A person making a disclosure is protected under the Act against any reprisals; civil and criminal liability in the event of making a disclosure; dismissal or having services dispensed with; and breach of confidentiality or secrecy agreements.

85. Similar legislation is in place or is currently being developed in all other Australian jurisdictions.

4.3 Sample of investigations and complaints in the reporting period

Investigation into allegations of brutality in the Army’s Parachute Battalion

86. In April 2001 the Joint Standing Committee on Foreign Affairs, Defence and Trade (Joint Standing Committee) of the Australian Parliament released a report into allegations of systematic mistreatment within the Third Battalion Royal Australian Regiment (3 RAR) which arose in September 1998.[37] These allegations led to a police investigation and charges in a number of instances.

87. The report concluded that an unauthorised system of extra-judicial punishment existed at 3 RAR between 1996 and 1998. The punishment was perpetrated without a hearing on private soldiers who were presumed guilty of certain offences, typically involving theft or drugs, or who were considered to be underperforming. The report found that the punishment primarily took the form of illegal bashings, most often perpetrated on victims by fellow privates, or junior Non-Commissioned Officers.

88. An internal audit of the ADF conducted in response to the allegations found that nothing pointed to the existence of any systemic substitution of violence in any form for the due processes of lawful discipline in the ADF.[38] However, in response to one of the principal recommendations of the audit report, the position of Inspector-General of the Australian Defence Force (IGADF) was established in January 2003. The IGADF provides the Chief of the Defence Force with internal audit and review of the military justice system independent of the ordinary chain of command. The aim of this mechanism is to expose and examine any failures in military justice and to ensure that review and remedy are available.

89. The Government has also implemented a number of further measures in response to the recommendations of the Joint Standing Committee. For example, the Government established the Registrar of Military Justice. The Registrar is currently implementing a case management system to capture all ADF inquiries and matters of ADF discipline. This information is available to the IGADF to support that office in ensuring compliance with due processes, timeliness, transparency and relevant standards in military justice.

The Commission of Inquiry into the Abuse of Children in Queensland Institutions (Forde Inquiry)

90. In August 1998 the Forde Inquiry was established to investigate and report on any unsafe, improper or unlawful care or treatment of children, or any breach of statutory obligation during the care, protection or detention of children in Queensland in certain government and non-government institutions and detention centres between 1911 and 1998. The Report of the findings of this Inquiry was tabled in Queensland Parliament in June 1999.

91. Although the Inquiry identified fewer incidents of abuse, neglect and breaches of statutory obligation in recent history, it considered that such incidents had occurred in many institutions and that children in the care of the State remained at risk of harm at that time. It also found that accountability systems were inadequate and did not ensure that abuse would be prevented or that complaints would be dealt with appropriately.

92. The Inquiry made 42 recommendations aimed at addressing past abuse as well as preventing abuse in the future. The Queensland Government accepted 41 of the recommendations, undertaking to address past abuse and improve youth justice and residential care services. The Government also broadened the application of the recommendations beyond residential care to include child protection and alternative care.

93. A number of significant legislative measures arose out of the Forde Inquiry recommendations. These included the Child Protection Act 1999, the Children’s Services Tribunal Act 2000, the Commission for Children and Young People Act 2000, and the Child Protection (International Measures) Act 2003. Respectively, these instruments increase safeguards for children in the child protection system; establish a merits review process in relation to service provision for children and young people; strengthen the role of the Commission for Children and Young People in promoting and advocating for the rights, interests and wellbeing of children; and implement the child protection aspects of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children in Queensland.

94. In August and September 2000, an independent Committee appointed to monitor the implementation of the Forde Inquiry recommendations reported to Parliament and described the Queensland Government as having taken major steps forward in implementing the recommendations.

HREOC Report, A last resort? The report of the National Inquiry into Children in Immigration Detention

95. On 13 May 2004, HREOC released its Report, A last resort? The report of the National Inquiry into Children in Immigration Detention, covering the period from 1 January 1999 – 31 December 2002. The second of HREOC’s three major findings was that: Children in immigration detention for long periods of time are at high risk of serious mental harm. The Commonwealth’s failure to implement the repeated recommendations by mental health professionals that certain children be removed from the detention environment with their parents amounted to cruel, inhumane or degrading treatment of those children in detention.[39]

96. HREOC was of the opinion that detention of children breached article 37 (a) of the CRC in this regard. That article provides that ‘[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment’.[40]

97. The Government rejects the major findings and recommendations of HREOC’s report. The Government also rejects HREOC’s view that Australia’s system of immigration detention is inconsistent with Australia’s obligations under the CRC. The reasons for these views are discussed further below.

98. Placement of children in immigration detention in Australia only occurs ‘in conformity with the law’, specifically the Migration Act, as required by article 37 (b) of the CRC. A variety of programs are run within immigration detention facilities to ensure detainee development and quality of life as appropriate to the general needs, age and gender of each detainee. For example, general educational, recreational, cultural and religious programs are available to all adult and children detainees. In particular, children may participate in external schooling with children in the community, with the consent of their parents. Medical or other health care, including psychiatric care and referral to specialists, is also available to all detainees as required. All such programs and services are subject to ongoing monitoring and review.

99. The Government has also developed and implemented innovative alternative detention strategies for women, children and detainees with special needs, including voluntary participation for women and children in Residential Housing Projects, foster care placements and community detention arrangements with community groups and NGOs. More information on these measures can be found on DIMIA’s website: www.immi.gov.au.

100. Finally, the Government has developed a system that ensures that the number of children in immigration detention is as limited as possible, that children are only detained as a last resort, and that those who are detained are well cared for. As at 15 December 2004, there was only one child classified as an unauthorised boat arrival in mainland detention centres in Australia and 26 children in alternative detention arrangements in the community.

4.4 Medical and psychological rehabilitation after acts of torture or other cruel, inhuman or degrading treatment or punishment

101. Torture and trauma victims in Australia are predominantly refugees and people who have entered Australia on special humanitarian grounds. Specialist torture and trauma services exist in all Australian States and Territories to assist such people.

102. For example, New South Wales has two specialised services that target survivors of torture and other human rights abuses:

• the Service for the Treatment of Torture and Trauma Survivors which provides counselling, training and medical support to those who have been tortured or traumatised as part of a refugee experience; and
• the New South Wales Refugee Health Service which provides assessments and information and generally protects the health of persons with a refugee background living in New South Wales.

The Committee is referred to paragraphs 137-138 of Australia’s Second and Third Report for further information.

APPENDICES AND TABLES

APPENDIX ONE: OFFENCES AND PENALTIES