19 October 1999]
INTRODUCTION
A. Preparation and structure of report
1. Australia ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) on 8 August 1989. Pursuant to article 27, the Convention came into force for Australia on 7 September 1989.
2. This is Australia’s combined second and third reports to the Committee against Torture. It is submitted by Australia under article 19, paragraph 1, of the Convention. This Report updates Australia’s first report under the Convention (“the first report”) and highlights significant changes to law and practice which occurred between the first report of 1991 and 30 June 1997, unless otherwise indicated. Cross-references to Australia’s first report are included throughout this report so that significant changes may be clearly identified.
3. Relevant cross-references to Australia’s third and fourth Report under the International Covenant on Civil and Political Rights (ICCPR) [1] and Australia’s first report under the Convention on the Rights of the Child (CRC) [2] are made at the end of each part of this report in order to draw this information to the attention of the Committee while avoiding duplication of this information.
B. The Australian federal system
4. 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. For the purposes of this report, the two internal self-governing territories may be regarded as standing substantially in the same position as the states. In each of these political units there is a parliament elected by the people, an executive, formed by the majority party or parties in parliament and which is responsible to the parliament, and an independent judiciary. The federal constitutional system was described in some detail in Australia’s first report, under the heading General Political Structure. We also refer the Committee to Australia’s core document for a more detailed description of the operation of Australia’s federal constitutional system and, in particular, to the sections headed. The law in Australia – nature and composition and Implementation of human rights treaties.[3]
I.
IMPLEMENTATION AND ADOPTION OF THE CONVENTION
– ARTICLE 1 AND
ARTICLE 2, PARAGRAPH 1
A.
Article 1 - Definition
of “torture and other cruel, inhuman or degrading treatment
or punishment”
5. Australia relies on the detailed Convention definition of torture when interpreting the Convention for domestic purposes.
6. Australia notes that the Convention does not define “cruel, inhuman or degrading treatment or punishment”. However, 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. Australia understands that the expression encompasses such acts as excessive punishments out of proportion to the crime committed, or treatment which grossly humiliates and debases a person. However, Australian domestic law is not constructed around these terms and therefore does not distinguish between the two types of conduct as such. Accordingly, in this report, unless otherwise indicated, measures which address “torture” also address “other cruel, inhuman or degrading treatment or punishment”.
B. Legal status and implementation of the Convention in Australia
7. Treaties are not self-executing in Australia. A treaty per se does not form part of Australian law unless it is incorporated by legislation (be it at federal, state or territory level) and, in the absence of such legislation, it cannot create rights in, or impose substantive obligations on, Australian citizens and residents. However, treaties can be relevant to the interpretation of statutes and are a source for the development of the common law. Also, the High Court of Australia has held that they can give rise to a procedural right to be heard in relation to the making of certain administrative decisions.[4] The act of Australia becoming a party to the Convention did not have the effect of changing or overriding any federal, state or territory laws or institutions. Thus, a person cannot go to an Australian court and simply claim that his or her rights under the Convention have been violated. In the absence of specific legislation which has incorporated those rights into federal, state or territory law, a person has no cause of action.
8. However, with one exception relating to the extension of Australian jurisdiction overseas, it was not necessary to enact new legislation to give effect to Australia’s obligations under the Convention. This is because it was clear from consultations between state and federal governments that Australian laws already were consistent with the obligations under the Convention. In order to extend Australia’s jurisdiction to persons suspected of having committed acts of torture outside Australia as required by Australia of the Convention enacted the Crimes (Torture) Act 1988.
9. Torture and other cruel, inhuman or degrading treatment or punishment is not tolerated in Australia. Such acts are a criminal offence and/or civil wrong in all Australian jurisdictions (see appendix two). If such acts are performed by public officials additional disciplinary penalties may apply (see appendix three).
C. Mechanisms for scrutiny of actions taken by public officials
1. Standing scrutiny mechanisms
11. A parliamentary committee is an example of a standing scrutiny mechanism. In each jurisdiction in Australia, parliaments have established a number of standing parliamentary committees which inquire into specific areas of special interest or public concern. The purpose of parliamentary committees is to perform functions which a parliament as a whole is not suited to perform, such as carrying out investigations, hearing witnesses, sifting evidence, discussing matters in detail and formulating findings and recommendations. Through its committees, parliaments are able to obtain information from governments, to receive advice from experts and to seek public comment on matters under investigation. The committees produce reports setting out their findings and recommendations which are then tabled in the relevant parliament.
12. Specialist statutory authorities, such as the Human Rights and Equal Opportunity Commission (HREOC) and the Federal Ombudsman, consider matters relevant to the conduct of public officials. HREOC has the legislative power to conduct inquiries into any act or practice that may be inconsistent with, or contrary to, any human right as defined under section 3 of the federal Human Rights and Equal Opportunity Commission Act 1986, including:
– The rights under the International Covenant on Civil and Political Rights;
– The rights of the mentally retarded;
– The rights of children;
– The right to religious freedom; and
– The rights of disabled persons.
2. Extraordinary scrutiny mechanisms
13. A Royal Commission is an example of an extraordinary scrutiny mechanism which may inquire into major issues of public concern. In each jurisdiction in Australia, legislation provides that a state governor, territory administrator or the Governor‑General (as the case may be) may issue a Royal Commission of Inquiry on the recommendation of the Government. A Royal Commission has the legislative power to: summons witnesses; call evidence; issue search warrants; receive sworn evidence; and communicate information it has received to the relevant authority for prosecution under the law. A Royal Commission produces a public document at the end of its term. A number of Royal Commissions have been instigated by governments throughout Australia to monitor specific situations where violations of the rights of individuals or groups of individuals subject to Australia’s jurisdiction may have occurred.
D. A sample of inquiries conducted
by standing and extraordinary mechanisms
of public scrutiny
14. In the reporting period, a number of inquiries were established into matters which raised issues relevant to the conduct of public officials. These included:
- Asylum, Border Control and Detention, Federal Parliamentary Inquiry by the Joint Standing Committee on Migration, February 1994 (see annex 1);
- Human Rights and Mental Illness. Report of the National Inquiry into the Human Rights of People with Mental Illness, HREOC, September 1993 (see annex 2);
- Royal Commission into Aboriginal Deaths in Custody. National Report, Commissioner Elliott Johnston, Canberra, 1991 (see annex 3);
- Royal Commission into the New South Wales Police Service Final Report, Commissioner The Hon. Justice JRT Wood, May 1997 (see annex 4);
- Integrity: but not by trust alone. Inquiry into Australian Federal Police and National Crime Authority Complaints and Disciplinary Systems, Report No. 82 Australian Law Reform Commission (ALRC), 1996 (see annex 5);
- The National Inquiry into Children and the Legal Process, by the ALRC and the HREOC;
- The Inquiry into the Detention of Unauthorised Arrivals in Australia by the HREOC.[5]
15. The recommendations of such inquiries are carefully considered by federal, state and territory governments. Copies of the reports issued in the reporting period and, where available, the relevant government’s response will be made available for the information of Committee members. For the information of the Committee, a brief summary of the key issues and recommendations contained in some of these reports is set out below. The inclusion of these summaries for the information of the Committee should not be taken to suggest that all matters canvassed in the reports are relevant for the purposes of the Convention.
1. Federal Parliamentary Inquiry into Asylum, Border Control and Detention
16. A significant examination and revision of Australia’s immigration detention policy was undertaken by the Parliamentary Joint Standing Committee on Migration which published its report, Asylum, Border Control and Detention, in February 1994. This Committee was supportive of Australia’s immigration control system and recommended that those arriving without, or with insufficient, documentation should be detained upon arrival.
17. However, the Committee did recommend that a mechanism for the release of asylum seekers from detention in the form of a bridging visa be implemented. The Committee recommended that such bridging visas be made available to “persons who are particularly vulnerable to any effects of long term detention, namely those persons with a special need based on age, health, or previous experiences of torture or trauma” (recommendations 11 and 12).
18. In response to these recommendations, Bridging Visa E (051) was introduced. The conditions under which it can be granted to an immigration detainee are set out in sub-regulation 2.20(9) of the Migration Regulations.[6] This mechanism is intended for use in exceptional circumstances only when an unlawful non-citizen in detention has a special need arising from his or her health or previous experience of torture or trauma.
19. The Committee also examined the idea of community release of detainees but questioned the ability of care and welfare groups adequately to support released detainees in the absence of government assistance and oversighting. The notion that the costs associated with release would be cheaper than the costs associated with running detention facilities was rejected after taking into account both direct and indirect costs such as accommodation, clothing and food as well as living, medical and health costs. Further, the Committee was concerned that the chance of persons breaching conditions of release and absconding was significant.
20. The findings and recommendations of the Committee, particularly its support for Australia’s detention policy, remain the subject of debate within Australia.
2. National Inquiry into the Human Rights of People with Mental Illness
21. In June 1990, HREOC announced its intention to undertake a National Inquiry into the Human Rights of People with Mental Illness. The National Inquiry held public forums, public hearings, informal consultations and private hearings, and received approximately 900 written submissions from individuals, organizations and government authorities. The final report of the National Inquiry was tabled on 18 October 1993.
22. The National Inquiry examined the provision of public and private mental health services. In its general findings, the National Inquiry noted that the then existing relationship between public and private psychiatric systems militated against optimum patient care. The National Inquiry recommended that the federal Government, in consultation with state and territory governments, service providers, mental health professionals and related staff, and people with mental illness, should develop and implement national standards concerning the regulation and maintenance of psychiatric care and treatment.
23. In relation to in-patient care and treatment, the National Inquiry found that the rights of people with mental illness to receive care in a safe, therapeutic environment were not being universally respected. It found there had been instances of violations and abuse, and the right to treatment with humanity, respect and dignity was frequently disregarded. The National Inquiry recommended that independent statutory complaints investigation bodies be established in each state and territory to redress this situation. The National Inquiry also found that disturbed and mentally ill adolescents often end up in the juvenile justice system because no one has been able to recognise or address their underlying problems. It found that services for such young people in correctional institutions were limited.
24. In response to the National Inquiry, federal, state and territory governments have developed a National Mental Health Strategy (the NMHS) to improve public and private mental health facilities. Under the NMHS, national mental health service standards were developed and adopted in 1996. These national standards are based on the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. As part of the NMHS in each state and territory, Health Ministers are in the process of reforming their mental health legislation to ensure that the legislation conforms with the new national standards.
25. Under the Medicare Agreement (1993-1998),[7] all jurisdictions in Australia are committed to establishing a complaints body to resolve complaints in relation to health care providers, both public and private. It is envisaged that a Health Complaints Unit will be established in the office of the Ombudsman in each state and territory. It is proposed that this body deal with complaints against public medical officers and some residential carers in government institutions. The federal Government also adopted a number of mechanisms aimed at prevention of, and early intervention in, the development of mental illness in young people, in particular young homeless people.
3. Royal Commission into Aboriginal Deaths in Custody
26. The Royal Commission into Aboriginal Deaths in Custody was established jointly by the federal and state governments in August 1987. Its final report was tabled in federal Parliament on 9 May 1991. The Royal Commission investigated the deaths in custody from 1 January 1980 to 31 May 1989 of 99 Aboriginal and Torres Strait Islander people. It found that the deaths were not caused by deliberate violence or brutality by police or prison officers. However, the Royal Commission did find many system defects in relation to the care of persons in custody, many failures to exercise proper care and a generally poor standard of care. The Royal Commission also found that the principal explanation for the high numbers of Aboriginal and Torres Strait Islander deaths in police and prison custody was the over-representation of these people in both forms of custody. The final report made 339 recommendations which covered diverse areas ranging from police practices, prisons and the criminal justice system to Aboriginal and Torres Strait Islander social and health issues.
27. In 1992, all the states and territories joined with the federal Government in a national response to the Royal Commission’s final report. All governments supported the overwhelming majority of the Royal Commission’s 339 recommendations, and joined in making specific commitments to act on those recommendations. All governments are now cooperating in a comprehensive program of monitoring of the implementation of these recommendations and they report annually to their parliaments on their progress. In line with the Royal Commission’s recommendations, the federal Government established a deaths in custody monitoring and research program within the Australian Institute of Criminology. This programme has been effective in keeping all governments and the community informed about trends in the incidence and patterns of deaths in all forms of custody throughout Australia.
28. Recommendation 333 of the Royal Commission into Aboriginal Deaths in Custody stated:
‘While noting that in no case did the Commission find a breach of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, it is recommended that the Commonwealth Government should make a declaration under Article 22 of the Convention and take all steps necessary to become a party to the Optional Protocol to the International Covenant on Civil and Political Rights in order to provide a right of individual petition to the Committee against Torture and the Human Rights Committee, respectively.’
29. This recommendation has been fully implemented. On 28 January 1993 the Government of Australia made declarations under Articles 21 and 22 of the Convention (see appendix 1).
30. Implementation of other recommendations is ongoing. Notwithstanding actions to date, Aboriginal and Torres Strait Islander deaths in custody continue to occur.
31. In addition to the monitoring of the implementation of the Royal Commission’s recommendations undertaken by Australian governments, the Aboriginal and Torres Strait Islander Social Justice Commissioner[8] may also monitor implementation as part of the Commissioner’s role to carry out research for the purpose of promoting respect for the human rights of Aboriginal persons and Torres Strait Islanders and promoting the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders. In October 1996, the Commissioner published a report which uses the findings of 61 coroners inquests as a means of independently auditing implementation of the recommendations. A copy of the report, entitled Indigenous Deaths in Custody 1989-1996, is provided for the information of the Committee.
4. Royal Commission into the New South Wales Police Service
32. The Royal Commission into the New South Wales Police Service commenced on 13 May 1994 to investigate allegations of widespread corruption and partiality in the work of police officers at all ranks. The scope of the inquiry included the management and administration of the Service and the manner in which the existing police culture might have directly or indirectly contributed to improper practices.
33. The Royal Commission recommendations aimed to impose a regime whereby police are accountable for the action they take while on duty and the Police Service is accountable for upholding professional standards and ensuring that police behaviour is, at all times, consistent with those standards.
34. The key recommendations of the Royal Commission deal with the organization and management structure of the Service, the exercise of police powers during arrest, detention and charging, and testing of the integrity of individual police officers.
35. Although intended to address the accountability concerns of the New South Wales Parliament, many of the recommendations aim to raise the standing of victims’ rights and ensure that New South Wales continues to provide its residents with safeguards against the abuse of police powers.
36. The New South Wales government has fully supported all the Royal Commission recommendations in principle. The Police Service and other key agencies such as the Premier’s Department are working individually and jointly to implement the recommendations. The New South Wales Police Commissioner has indicated that progress towards full implementation is well under way.
37. Recommendations in this inquiry that may be relevant to the Convention Against Torture include:
(a) The Williams Bill, which
(i) Sets a fixed period of time that a person can be kept in detention after arrest (8 hours); and
(ii) Specifies what can be done and what facilities must be made available to a person being questioned;
(b) Integrity testing. The Police Legislation Further Amendment Act 1996 provides statutory authority to conduct integrity testing programmes on officers who are suspected of serious misconduct and to remove from duty police officers whose lack of ethics undermines the criminal investigative skills of colleagues;
(c) Police Integrity Commission. The establishment of a Police Integrity Commission whose primary functions relate to the detection, prevention and investigation of serious police misconduct.
E. Other treaties
38. Australia has accepted scrutiny of its human rights record at the international level. Australia is a party to the six major human rights conventions. In addition to making declarations under articles 21 and 22 of the Convention, Australia has acceded to the Optional Protocol to the ICCPR and made the declaration under article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination. Other relevant treaties to which Australia is a party are listed at appendix one for the information of the Committee.
F. Cross-references
39. In addition, the Australian Government wishes to draw the attention of the Committee to the following references in the third and fourth reports under the ICCPR and the CRC:
– ICCPR art. 2;
– CRC, art. 2: Non discrimination – see paragraphs 170 - 198.
II. NO LIMITATION OR DEROGATION OF THE CONVENTION IN PUBLIC EMERGENCIES – ARTICLE 2, PARAGRAPHS 2 AND 3
A. Declaration of a state of emergency
40. In Australia, the federal, state and territory governments have the power to declare states of disaster or emergency. States of disaster or emergency are declared at times of natural disasters such as floods, droughts, cyclones and bushfires. There is no provision in Australian law for exceptions to the prohibition on torture at these times. Nor is there provision for such an exception in case of war, threat of war, internal political instability or other public disaster or emergency. Derogation is expressly prohibited under the federal Crimes (Torture) Act 1988 which covers acts of torture outside Australia. Section 11 of that Act provides that it is not a defence in a proceeding for an offence under that Act that the act of torture was committed out of necessity arising from war, threat of war, internal political instability, public emergency or any other exceptional circumstance, nor that the act of torture was committed under the orders of a superior officer or public authority.
41. States of disaster or emergency may be declared only in conformity with the laws enacted in each jurisdiction. The governing laws in each jurisdiction are drafted in similar terms. States of disaster or emergency must be officially declared before exceptional measures may be taken. One of the main purposes of a declaration of a state of disaster or emergency is to provide a basis for practical and financial assistance to any part of the country which has been declared disaster or emergency affected. In general, these laws provide that exceptional measures may only be taken during a declared state of disaster or emergency in order to:
– Ensure the protection of life and property;
– Rescue injured or endangered persons;
– Remove anything from or secure anything to land that is a threat to the life or health of a person;
– Expedite the termination of the disaster or emergency; and
– Facilitate other emergency measures for the relief of suffering and distress.
B. Cross-references
42. The chapter on article 4 in Australia’s third report under the ICCPR gives a comprehensive and detailed overview of the legal framework for the declaration of states of emergencies in Australia. See also the chapter in the third report under the ICCPR on article 5: Derogation of existing rights. We refer the Committee to these chapters of Australia’s third report under the ICCPR for further relevant information.
III. LEGALLY PUNISHABLE OFFENCES, EXPULSION AND EXTRADITION – ARTICLES 3, 4, 5, 6, 7, 8 AND 9
A. Jurisdiction of the Government of Australia
43. Australia’s territorial jurisdiction extends to all states and territories, including the internal territories of the Australian Capital Territory, the Northern Territory, the Jervis Bay Territory and the external territories. The external territories are the Australian Antarctic Territory, Norfolk Island, the Cocos (Keeling) Islands, Christmas Island, the Territory of Ashmore and Cartier Islands, the Coral Sea Islands Territory and the Territory of Heard Island and McDonald Islands. Australia’s territorial jurisdiction also includes its territorial seas. A fuller description of the Australian territories is found in the chapter on article 1 in Australia’s third report under the ICCPR.
44. Australia generally exercises jurisdiction in relation to all people within its territory, whether nationals or non-nationals, including permanent and temporary residents and visitors. The obligations under article 5 of the Convention to establish jurisdiction when offences are committed on an Australian ship or aircraft are fulfilled by the federal Crimes at Sea Act 1979, the federal Crimes (Aviation) Act 1991 and corresponding state and territory legislation.
45. There are also limited cases where Australia exercises jurisdiction over acts by nationals and non-nationals committed abroad. For example, under the federal Crimes (Torture) Act 1988 a person in Australia suspected of having committed acts of torture outside Australia will be subject to prosecution under the relevant Australian criminal law in the same manner as if that act had been committed in Australia. A copy of this Act was included as appendix E in Australia’s first report.
B. Domestic criminal penalties
46. As stated in Australia’s first report, acts of torture which involve the infliction of physical pain and suffering committed within Australia’s jurisdiction are offences under Australia’s criminal law. The criminal law similarly prohibits attempts to commit these offences, and aiding, abetting or conspiring to commit these offences. State and territory governments have principal responsibility for legislating in these areas. Acts which constitute cruel, inhuman or degrading treatment or punishment are also offences under the laws of Australia. We refer the Committee to table 1 in the appendices for a list of the relevant legislation, delegated legislation or policy guidelines which proscribe conduct contrary to articles 4, 5 and 16 of the Convention.
47. As also stated in Australia’s first report, mental pain and suffering are indirectly covered by the criminal law. There is common law authority with application in Australia for the view that an assault which causes an hysterical or nervous condition is an assault occasioning actual bodily harm (R. v. Miller [1954] 2 QB 282 and R. v.Chan‑Fook [1994] 2 All ER 552).
48. Offences relevant to attempted acts of torture, the commission of torture, complicity in the commission of torture and the ordering of torture by a person in authority attract penalties of imprisonment in all jurisdictions. The relevant provisions and penalties of federal, state and territory criminal law were outlined in Australia’s first report to the Committee and are updated and summarized in Appendix two: Offences and penalties. The operation of sentencing principles throughout Australia is described in detail in the chapter on article 15, under the heading ‘Sentencing’, in Australia’s third report under the ICCPR.
National model criminal code
49. On 28 June 1990, the Standing Committee of Attorneys‑General (SCAG) placed the question of the development of a national model criminal code for Australian jurisdictions on its agenda. In order to advance this concept, SCAG established a Model Criminal Code Officers Committee consisting of an officer from each Australian jurisdiction with expertise in criminal law and criminal justice matters. In 1994, the federal Government and the State and Territory Premiers’ Leaders Forum endorsed the Model Criminal Code project as one of national significance. Since then, state and territory governments have been developing and implementing, on a progressive basis, model offences and penalties. SCAG’s objective is for implementation of the Model Criminal Code by all jurisdictions by the year 2001. It is expected that the model criminal code will be implemented progressively in much the same way as the United States Model Penal Code has been implemented. The United States Model Provisions have now been enacted in most States of the United States. In Australia, parts of the Code have already been adopted federally and by most state and territory governments.
50. A report on the Code released by the Model Criminal Code Officers Committee proposes that torture be an aggravating factor for any non‑fatal offence against the person (from assault to abduction) which carries an additional penalty of up to five years’ imprisonment over and above the normal criminal penalty. The final report draws on consultations on a discussion paper released in 1996.
C. Expulsion, refoulement and extradition
1. Expulsion
51. Non-citizens become liable for deportation under section 200 of the federal Migration Act 1958: as a result of criminal convictions for which they receive a sentence of imprisonment for one year or more (sect. 201); threats to national security coupled with an adverse security assessment (sect. 202); or convictions for serious crimes related to national security (sect. 203). Deportation is not mandatory. The decision to deport a person liable to deportation is a matter for the exercise of the personal discretion of the Minister for Immigration or the Minister’s delegate pursuant to section 200.
52. A person liable for criminal deportation has a right (with certain exceptions) to a decision on his or her case as soon as possible after sentencing and has a right to appeal to the Administrative Appeals Tribunal (AAT) against a decision that he or she be deported. Where the right of appeal exists, the AAT is invested with determinative powers of review and is therefore able to overturn a decision by the Minister.
53. The federal Government is mindful of maintaining a balance between the need for community protection against criminal behaviour and the human rights of the deportee and his or her family, including the consideration of whether the deportee may suffer persecution in the country to which he or she is to be deported. The most important broad criteria on which decisions to deport are based are: the nature of the crime; Australia’s international human rights obligations; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future; and any family and/or social ties that already exist.
2. Refoulement
54. Australia offers protection visas to asylum seekers who meet the United Nations definition of a refugee, as set out in the 1951 Convention and 1967 Protocol relating to the Status of Refugees (the Refugee Convention). Australia also offers protection visas to asylum seekers who meet the guidelines for stay in Australia on humanitarian grounds. The effect of the protection visa is to allow a person to remain permanently in Australia and, after satisfying the statutory criteria for citizenship, including a residency requirement, to be granted Australian citizenship.
55. The process of granting a protection visa involves a determination of refugee status made by an immigration officer. Unsuccessful applicants can seek review of the decision by taking the matter to the Refugee Review Tribunal (RRT). The RRT is an independent statutory merits-review body which has the power to affirm, vary or remit to the Minister (for reconsideration) decisions regarding refugee protection.
56. On return from the RRT each unsuccessful case is assessed by the Department of Immigration and Multicultural Affairs against the Minister’s Guidelines for Stay in Australia on Humanitarian Grounds. The guidelines are intended to assist in the identification of persons of humanitarian concern who do not meet the Refugee Convention definition of “refugee” but who nonetheless face a significant threat to personal security, human rights or dignity. Such cases are then referred to the Minister who may exercise his or her discretionary power under section 417 of the Migration Act 1958 to substitute the decision of the RRT for one that is more favourable to the applicant. Any individual or body may request the Minister to exercise his or her discretionary powers under section 417 in a particular case.
57. Where there is a perceived error of law in the decision of the RRT, it is possible to appeal the decision to a single judge of the Federal Court for judicial review of the decision. Applications for appeal must be lodged within 28 days of receipt of the RRT decision. The Federal Court has the power to either uphold the refusal to grant a protection visa or to direct that the application be reassessed. Further appeal to the Full Bench of the Federal Court is also available.
58. An extraditable offence is generally one which is punishable by at least a maximum period of imprisonment for one year in both Australia and the requesting State. The Committee’s attention is drawn to the chapter on article 8 in Australia’s first report where the general law in relation to extradition is described.
59. In order to meet Australia’s obligations in relation to extradition under the Convention, subparagraph 22(3)(b) of the federal Extradition Act 1988 prohibits the surrender of a person who has been found to be eligible for extradition by a domestic court unless the federal Attorney-General is satisfied that, upon surrender, the person will not be subjected to torture.
60. Further, regulations under the Extradition Act 1988 apply the Act to the States parties to the Convention. This enables Australia to consider a request for extradition from a State party in relation to a person alleged to have committed an offence referred to in article 4 of the Convention. The request for extradition would be dealt with in accordance with the requirements of the Extradition Act 1988. We draw the Committee’s attention to the Extradition (Torture) Regulations which were included as appendix G in the first report. Table 4 lists all of the States parties to the Convention with which Australia has extradition arrangements. This list updates appendix G of the first report.
61. Australia has developed a network of modern bilateral extradition treaties. These treaties contain a range of safeguards as grounds upon which an extradition request may be refused. For example, extradition may be refused if the offence for which extradition is sought is a political offence, the person whose extradition has been requested is likely to be prosecuted, punished or otherwise prejudiced because of race, religion, nationality or political opinion, or the offence for which extradition is being sought is an offence which is punishable by torture or cruel, inhuman or degrading treatment.
4. Mutual assistance in criminal matters
62. As outlined in the first report in the chapter on article 9, Australia meets its obligations under the Convention to provide mutual assistance in criminal matters through the operation of the Mutual Assistance in Criminal Matters Act 1987. Section 7(1) of this Act applies the Act to all foreign countries. This permits Australia to provide assistance to another country, subject to certain safeguards and requirements provided for in the Act. This assistance includes:
– The taking of evidence, or the production of any document or other article, for the purposes of a criminal proceeding; and
– The issue of a search warrant and the seizure of anything relevant to a criminal proceeding or investigation.
63. Where Australia has a mutual assistance treaty on criminal matters with another State party to the Convention, it would look to use that treaty as the basis for providing assistance to, or requesting assistance from, that State.
D. Cross-references
64. See also:
– Third Report under the ICCPR articles 6, 7, 9, 10, 14 and 15;
– First report under the CRC, article 22: Refugee children – paragraphs 1351 - 1381; article 34: Special protection measures – sexual exploitation and abuse – paragraphs 1735 - 1764; article 35: Sale, trafficking and abduction – see paragraphs 1767 - 1777; article 37(a): The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment – paragraphs 392 - 438.
IV. PREVENTATIVE LEGISLATIVE, ADMINISTRATIVE, JUDICIAL AND OTHER MEASURES – ARTICLES 10, 11 AND 16(1)
65. As a matter of general practice, all rules and practices regarding the custody and treatment of persons in detention, including their interrogation where applicable, are subject to ongoing internal review in all Australian jurisdictions. The attention of the Committee is drawn to the chapter on article 11 in the first report for a description of these review mechanisms.
B. Preventative measures
1. Police officers
66. As stated in the first report in the chapter on article 10, relevant legislation and policy instructions in every jurisdiction in Australia direct police officers to assume responsibility for the safety and welfare of the public, including prisoners (see table 1).
67. Police officers in each Australian jurisdiction are trained in the relevant law applicable to their duties. This training details the circumstances in which force may be used in the course of their duties but emphasises that force is only to be applied where necessary and to the minimum extent necessary. The training of police officers varies from state to state, but all states have established intensive and regular programs in which police officers receive information about their statutory obligations. The Australian Federal Police also have a similar program.
68. As stated in Australia’s first report in the chapter on article 10, the administration of prisons and the training of prison officers is a matter for each state and territory in Australia. National guidelines modelled on the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment have been developed. Relevant state and territory legislation and policy instructions (see table 1) direct prison officers to assume responsibility for the care and custody of prisoners. This includes the express obligation to interact with prisoners in a way that is both humane and courteous, and with respect for their human dignity.
69. As with police officers, the training of prison officers varies from state to state, but all States have established intensive and regular programmes in which prison officers receive information about their statutory obligations. This training details the circumstances in which force may be used but emphasises that force is only to be applied where necessary and to the minimum extent necessary.
3. Military personnel
70. Australian Defence Force (ADF) members participating in international or non-international armed conflict are bound by the federal Geneva Conventions Act 1957. The Geneva Conventions Act as amended by the federal Geneva Conventions Amendment Act 1991 implements the 1949 Geneva Conventions and Additional Protocol One. Under section 7 of the Geneva Conventions Act, any person who, in Australia or elsewhere, commits, aids, abets or procures the commission by another person of a grave breach of any of the Conventions is guilty of an indictable offence. Grave breaches include wilful killing, torture or inhuman treatment, including biological experiments, or wilfully causing great suffering or serious injury to body or health.
71. Information regarding the prohibition against torture or other cruel, inhuman or degrading treatment or punishment is included in a range of military courses which contain international humanitarian law components and which target service members at different stages of their careers. In particular, instructions on the basic principles of international humanitarian law are given to ADF members deployed as peace-keepers and in other operations.
72. Detailed instructions under the federal Defence Force Discipline Act 1982 for the administration of military detention centres prohibit the use of force against detainees (Defence Instruction (Army) 58‑1) and provide that persons held in detention under the Act are to be treated with humanity and with respect for human dignity, and are not to be subjected to cruel, inhuman or degrading treatment. The punishment of ADF members who have committed offences under the Defence Force Discipline Act 1982 is detailed in Australia’s first report in the chapter on article 10 under the heading “Military personnel”.
4. Immigration officers
73. Immigration officers who have responsibility for the location and, where appropriate, the detention of unlawful non‑citizens exercise compliance and enforcement functions. These officers are provided with training to ensure that they understand the legal parameters within which searches and detention may be carried out.
74. An immigration officer may only use such reasonable force as is necessary for the exercise of his or her powers under the federal Migration Act 1958. This includes the power:
– To search for and seize – under the authority of a validly issued search warrant – any document such as tickets or passports reasonably suspected of being used to enter Australia unlawfully;
– To detain a person for questioning for up to four hours if there is a reasonable suspicion that the person is not lawfully in Australia;
– To search a person for the purposes of the Migration Act without subjecting that person to greater indignity than necessary; and
– By operation of law, to place a person in administrative detention.
75. Immigration officers, whether based in Australia or overseas and who conduct interviews with possible victims of torture and trauma, receive training on matters which include cross-cultural sensitivity and advice on identifying possible victims of torture and trauma for referral to appropriate counselling and support services.
76. The federal Government has announced its intention to contract out the delivery of detention and removal services at immigration detention centres including guarding, catering, health, welfare and educational services. The successful detention service provider will have to deliver detention services in accordance with Immigration Detention Standards to be developed by the Department of Immigration and Multicultural Affairs in consultation with the Federal Ombudsman’s Office. These Standards will set out the Government’s obligations to meet the individual needs of detainees in a culturally appropriate way while at the same time providing safe and secure detention. They will specify the distinctive nature of services that are required in an immigration detention environment, and will emphasise the need for sensitive treatment of the detainee populations which might include torture and trauma sufferers, family groups, children and the elderly, persons with a fear of authority and persons who are seeking to engage Australia’s protection obligations under the Refugee Convention. The Immigration Detention Standards will set out standards for the selection, training and personal attributes of the staff of the service provider who will be engaged in guarding and security services at Immigration Detention Centres.
77. The Department of Immigration and Multicultural Affairs will monitor the contractor’s performance closely and will retain an official presence at each immigration detention centre. Moreover, although the Government intends to contract out the delivery of detention services, it will continue to have a duty of care towards detainees.
5. Customs officers
78. Public officers exercising statutory powers relating to investigations and passenger processing under the federal Customs Act 1901 are trained to be particularly sensitive to the rights and dignity of members of the public. Examples of the kind of functions under the Customs Act for which this training is considered necessary include:
– Interviewing of a person suspected of having committed a federal offence; and
– Physically detaining and searching a person seeking to enter Australia who is suspected of carrying prohibited goods.
79. The conduct of officers is prescribed by law and the Australian Customs Service takes seriously its responsibility to provide training for officers to ensure that their conduct is both lawful and appropriate.
80. In conducting personal searches of individuals, customs officers must not use more force or subject a person to greater indignity than is reasonable and necessary during the course of their duties. A customs officer must have reasonable grounds to conduct a search. Any frisk or external search must be carried out by an officer of the same sex as the detainee and in the presence of a third person (also of the same sex), usually another customs officer, who acts as a witness. Special administrative and legislative arrangements govern persons under 18 years of age or who are otherwise in need of protection. Interpreter facilities are provided where detainees are unable to communicate with reasonable fluency in English.
6. Public medical officers
81. In every jurisdiction in Australia, the law regulates the rights of adults and children to consent to medical and dental treatment (see table 1). As stated in the first report, medical education and professional ethical codes ensure and underline the particular responsibility of the medical profession towards the preservation of life and the minimisation of suffering of all persons.
82. In Australia, institutions which provide care for a range of people, such as children in out‑of‑family care, people with disabilities and the frail aged, may be run by Government or by the private sector. Restraint or detention of a resident is generally circumscribed by law and may only be used when reasonable or necessary for the welfare of an individual at a particular time. The laws of each state and territory provide specific avenues of complaint to that person or his or her advocate, parent or guardian, or mediator (see appendix three) and guarantee that an independent advocate, guardian or mediator may represent the interests of a person in residential care.
83. The conduct of residential carers is a matter for each state and territory government in Australia. Conduct of a residential carer in a public institution which is contrary to the welfare and safety of an individual is punishable by law (see table 1). During the induction of residential carers in public employment, an employer will provide education and information about the appropriate standards of treatment required of the officer in the performance of his or her duties. At this time, staff are generally issued with detailed written instructions on their obligations towards residents, including a written charter of resident rights designed to ensure that the treatment of residents is consonant with their human dignity.
84. Public school teachers have a responsibility to regulate the behaviour of students. In every state and territory relevant legislation (see table 1) and policy guidelines strictly circumscribe disciplinary measures which may be used by public school teachers. The use of school detention, corporal punishment, suspension or expulsion of a student may only be used if, in all the circumstances, it is reasonable and necessary for the punishment of a student. There are no exceptions to this rules.
85. Teacher training is a matter for each state and territory. However, each state and territory requires its student teachers to complete pre-service and in-service training courses. Amongst other things, these courses emphasize the fact that all public school teachers must understand the lawful basis on which they may treat and punish students under their care and control. In order to sensitize teachers to the most appropriate ways to respect the dignity of all students, specialized elective training is also offered in relation to the treatment of female and male students, students with disabilities and students from diverse cultural backgrounds.
V. THE RIGHT TO PROCEDURAL GUARANTEES, ARTICLES 12, 13, 14, 15 AND 16
A. Use of statements induced by torture
87. The common law in relation to the use of statements induced by torture applies in the Northern Territory, South Australia, Tasmania and Victoria. We draw the attention of the Committee to the chapter on article 15 in the first report for a description of the relevant common law.
88. Federal legislation (Crimes Act 1914 and Evidence Act 1995) and New South Wales legislation (Evidence Act 1995) provide for the exclusion of admissions influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind. These laws also provide that the court has a general discretion to exclude involuntary admissions of guilt, as well as illegally or improperly obtained evidence. Further, section 424A of the New South Wales Crimes Act 1900 provides that, in the absence of a reasonable excuse, the failure of a police officer to tape-record an interview with an accused person renders inadmissible any admission made by the accused.
89. Sections 570-570H of the Western Australian Criminal Code provide that, in the absence of a reasonable excuse, the failure of police officers to video‑tape an interview of a person accused of a serious offence will render inadmissible any admission made by the accused. Similarly, section 10 of the Queensland Criminal Law Amendment Act 1994 provides that no confession which has been induced by a threat or promise may be received in evidence in any criminal proceeding.
B. The
complaint and investigation of acts of torture and other cruel, inhuman
or degrading treatment or punishment
90. The legal system in Australia is described in general terms in the first report. In Australia’s core document more specialized complaints and investigation bodies are described under the headings Administrative law remedies and Specialized human rights machinery.
91. We also draw the Committee’s attention to the chapters on articles 12 and 13 in the first report which outline the steps normally taken in making an investigation into the conduct of a public official. In order to expand on this information, Australia now provides the following details.
92. As noted above, an act by any person, including public officials, which amounted to torture or other cruel, inhuman or degrading treatment or punishment may be an offence under the general criminal law (see appendix two) and so would be investigated and prosecuted like any other criminal offence in Australia.
2. Civil sanctions
93. We refer the Committee to the part of this report headed Compensation for acts of torture or other cruel, inhuman or degrading treatment or punishment (sect. D below) for a description of the general civil law sanctions which exist throughout Australia against such actions of any individual.
C. Complaints mechanisms
95. The disciplinary arrangements for any government employee who fails to meet these standards have some fundamental common features. Proceedings are usually conducted by independent administrative tribunals, or courts that are regulated by law and the due process of the law. Depending on the severity of the conduct involved, sanctions could include formal admonition, a fine, suspension from employment with or without pay, or transfer, demotion or dismissal from employment, in addition to any applicable criminal sanction.
1. Ombudsmen and Parliamentary Commissioners
96. In general, complaints authorities which regulate the conduct of particular occupational groups (see appendix three) have the power to conduct investigations on their own initiative, or upon complaint from individuals or groups. This is true also for Ombudsmen and Parliamentary Commissioners who, through the operation of specific federal, state and territory legislation (see table 2), have jurisdiction to review independently the acts of any public officer at their own initiative, as well as in response to a complaint. Any person has the right to make a complaint to the Ombudsman or Parliamentary Commissioner. No special standing is required. There is no fee for making a complaint to the Ombudsman or Parliamentary Commissioner.
97. In every jurisdiction, the Ombudsman or Parliamentary Commissioner has the power to investigate the acts of public officials and to investigate matters of administration of the executive government. In Queensland and South Australia this power does not extend to police officers because a separate specialist body has been set up for that purpose (see appendix 3.1). The investigative powers of the Ombudsman or Parliamentary Commissioner include the ability to enter premises, inspect documents, require persons to attend and answer questions and to produce documents. Each Ombudsman or Parliamentary Commissioner has the statutory power to form an opinion on a matter brought to his or her attention, and make recommendations in relation to it to the relevant public authority.
98. Where an Ombudsman or Parliamentary Commissioner forms the opinion that the public authority has failed to take appropriate action in response to its report and recommendations, he or she may report on this failure to the appropriate decision‑maker. In some cases this will be the responsible minister and, ultimately, depending on the jurisdiction, the Prime Minister, the Governor in Council (in Victoria), or the Premier (in States other than Victoria). The Ombudsman or Parliamentary Commissioner also has the power to make special reports to Parliament, a step which is only taken if an adequate response appears not to be forthcoming. In addition, all the Ombudsmen and Parliamentary Commissioners publish annual reports in which they can highlight instances of non-compliance.
99. To illustrate to the Committee how the powers of the Ombudsman operate, Australia notes that the Federal Ombudsman investigated the conduct of customs officers in November 1994 in relation to the external search of a female Taiwanese national.
100. Newspaper articles contained sensational allegations that a woman had suffered a nervous breakdown at Sydney Airport after she had been forcibly stripped naked by Customs Officers and her clothes torn during a struggle. These reports also sparked several written complaints from members of the public and civil rights organizations.
101. The Minister responsible for Customs ordered an investigation and a review of procedures with particular reference to the incident reported in the media. The Australian Customs Service investigation found that officers acted correctly and in accordance with legislation and operating guidelines. The review of procedures led to the Australian Customs Service introducing an automatic review by an independent Justice of the Peace in cases where a person does not consent to an external search. A number of other changes to procedures, designed to further safeguard the rights of passengers being detained for personal search, were also made.
102. The Federal Ombudsman also initiated an investigation which found that ‘...there were reasonable grounds to search her [the Taiwanese woman] and ... the level of force used by Australian Customs Service Officers was limited to the level necessary to detain her and to conduct the search.’ The Ombudsman commented that newspaper reports at the time did not accurately reflect the true facts of the case.
2. Complaints about the conduct of police
103. Complaints about police conduct are generally dealt with at first instance by an internal investigation body, subject to review or monitoring by an external body such as the Ombudsman. Several jurisdictions have created specific legislative schemes for the investigation of complaints about police. These are summarized at appendix 3.1. The following examples illustrate how these complaints procedures operate.
(a) Investigation into alleged use of excessive force by the Victoria Police
104. The Deputy Ombudsman (Police Complaints) in Victoria conducted an investigation into the alleged use of excessive force by the Victoria Police against demonstrators at the Richmond Secondary College on Monday, 13 December 1993. His report in this instance was tabled in the Victorian Parliament (Deputy Ombudsman’s Report Number 11 – November 1994).
105. The Deputy Ombudsman received a number of complaints from demonstrators who had been removed by police after staging demonstrations outside a suburban school. Around the same time he also received complaints from demonstrators who had been outside a government office complex and had been removed by police. Because of the nature of the public complaints and the level of public interest, he commenced an investigation into both events. The combined report of his investigations was laid before both houses of the Victorian Parliament.
106. This summary focuses on the investigation of complaints arising from the policing of the school protest.
107. The Deputy Ombudsman’s staff interviewed 28 civilian witnesses, 19 police (including a police training instructor) and three ambulance officers. The site of the complaint and video footage were also viewed, as were medical reports of injuries. The Deputy Ombudsman’s report summarized the evidence of key witnesses, video evidence, and relevant policy instructions and training procedures. The Deputy Ombudsman then drew conclusions regarding general and specific complaints, the actions of individual police members and the planning and conduct of the police operation in general. He drew conclusions as to whether or not police actions were lawful or justified.
108. The Deputy Ombudsman then made a series of recommendations regarding improvements to policy and procedures for “crowd control” situations. He also made recommendations regarding a number of individual police members, although these were presented to the Chief Commissioner and to complainants, but not to Parliament. As a result, disciplinary charges were laid against a number of police members and crowd control policies and procedures were reviewed.
(b) Investigation into an alleged assault by the South Australian Police
109. By way of further example, a prisoner was brought to a suburban police station in South Australia and, in the course of being charged, the prisoner punched one of the arresting officers. The prisoner was restrained by a number of other officers present. While the prisoner was fully restrained, face down on the floor, the arresting officer punched the prisoner to the head three times.
110. The incident was recorded on the video monitor and came to the attention of the Officer-in-Charge of the police station, who reported the matter to his superiors. The prisoner complained to the Police Complaints Authority in South Australia.
111. Following an investigation, the arresting officer was charged with assault, found guilty and fined $400. He was subsequently transferred by the Commissioner of Police from operational duties for a period of six months, during which time his conduct and performance were closely monitored.
112. Various other police officers who were present at the time of the assault will also be subjected to internal disciplinary action owing their failure to report the assault and their subsequent denial when interviewed that the assault had occurred.
3. Complaints about the conduct of prison officers
113. In relation to prisons, complaints may generally be made directly to the Prison Manager or, alternatively, to Official Visitors or Inspectors, who are independent persons with the statutory function of visiting prisons and inquiring into the treatment and condition of prisoners. The Ombudsman also has jurisdiction in most states to receive complaints about the treatment of prisoners. These complaints mechanisms are summarized at appendix 3.2.
114. In New South Wales, prisoners are also able to send privileged letters to a range of organizations including the Anti-Discrimination Board, the Legal Aid Commission, the Independent Commission Against Corruption, the Privacy Committee and HREOC.
4. Complaints about the conduct of military personnel
115. Defence (Inquiry) Regulations, made pursuant to the federal Defence Act 1903, provide for the establishment of General Courts of Inquiry, Boards of Inquiry and the appointment of Investigating Officers to inquire into matters concerning the Defence Force including complaints about the behaviour of Defence Force members. Section 101 of the federal Defence Force Discipline Act 1982 relates to the investigation of disciplinary offences. Investigations are carried out by military police and naval police coxswains and may eventually lead to charges being laid against Defence Force members. These charges are then heard by service disciplinary tribunals. There are also external bodies which inquire into possible complaints raised about Defence Force personnel. They are the Federal Ombudsman (Deputy Ombudsman (Defence)) and HREOC. These complaints mechanisms are summarised at appendix 3.3.
5. Complaints about the conduct of immigration officers
116. Were a complaint to arise in relation to the conduct of an Immigration Officer, it could be made to the Minister or the Secretary or a Regional Director of the Department of Immigration and Multicultural Affairs, and it would be investigated internally. Internal investigations are conducted by the Internal Investigations Section of the Departmen