Tortured truth: Australia’s non-compliance with the Convention

The article below was written for the special Children's Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons, the Human Rights Law Centre and UNICEF Australia. 

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Tortured truth: Australia’s non-compliance with the Convention

Australia was recently reviewed by the UN Committee against Torture for its compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly referred to as the Convention Against Torture.

(You can read about the Human Rights Law Centre’s advocacy on this issue here: UN finds Australia’s treatment of asylum seekers violates the Convention Against Torture)

The Convention Against Torture, which came into force on 26 June 1987, compels State parties to take positive steps to prevent torture (and other cruel, inhuman or degrading treatment or punishment) and to pass domestic laws to prohibit torture. The Convention Against Torture also prohibits State parties from returning or extraditing persons to a State where there are substantial grounds for believing they would be subjected to torture. While the definition of ‘torture’ is very strict, the type of treatment taken to constitute ‘cruel, inhuman or degrading treatment or punishment’ is much broader. For example, in its review of Australia’s compliance with the Convention Against Torture, the Committee considered situations of detention where the State has control and custody over the individual (such as mandatory immigration detention), violence against women and the involuntary sterilisation of persons with a disability to all fall within its ambit.

Many of the Committee’s observations and recommendations related (either explicitly or implicitly) to Australia’s treatment of children and found that although Australia is making tentative steps in the right direction it remains far from a model signatory.

Noteworthy steps since Australia’s 2008 review

The Committee commended Australia on steps taken since its last review in 2008 to observe its obligations toward children under the Convention Against Torture. These included:

Passing the Family Law Legislation Amendment (Family Violence and Other Measures) Act in 2011. The Amendment affords greater protection to children, expanding the definition of ‘abuse’ to include psychological harm suffered as a consequence of exposure to family violence, directing the court to place greater emphasis on protecting the child from harm when determining their ‘best interests’ and removing the controversial ‘friendly parent’ provision from the Family Law Act.

Adopting the National Action Plan to reduce Violence against Women and Their Children 2010-2022. The Plan is designed to target domestic and family violence and sexual assault, incorporating school and community initiatives, social media campaigns and telephone counselling and support services.

Australia still has work to do

The Committee found that Australia still has work to do to ensure that its laws, policies and practices ensure a level of protection for children (amongst others) that reflects its obligations under the Convention Against Torture.

The Committee expressed concern and made recommendations relating to a number of issues affecting children. Several areas of concern are outlined below, although we note that positive developments are taking place in these areas, highlighting that there is potential for change:

Indigenous incarceration. Indigenous persons are imprisoned at 15 times the rate of non-indigenous Australiansand their overrepresentation in the criminal justice system is having a negative impact on Indigenous young people. The Committee recommended addressing the underlying causes of Indigenous incarceration, reconsidering mandatory sentencing laws to allow for greater judicial discretion and providing better legal aid and support services.

Encouragingly, there appears to be increasing awareness around this issue in Australia and a mounting push for change. This is made clear in the Social Justice and Native Title Report 2014, tabled in Parliament in December 2014 by the Aboriginal and Torres Strait Islander Social Justice Commissioner, which discusses recent initiatives relating to indigenous youth incarceration. Notable examples include the newly formed National Justice Coalition, which consists of a group of peak Aboriginal, human rights and community organisations from across Australia working towards reducing the overrepresentation of Aboriginal and Torres Strait Islander people in the criminal justice system. To do so, they are promoting safer communities, and community ‘justice reinvestment’ initiatives such as the Bourke Justice Reinvestment Project and the Cowra Justice Reinvestment Project which focus on investing in evidence based prevention and treatment programs by reinvesting money that would have been spent on imprisonment into services that address the underlying causes of crime in communities with high concentrations of offenders.

Child sexual abuse. The current Royal Commission into Institutional Responses to Child Sexual Abuse has helped to increase public awareness about issues relating to child sexual abuse. However, while the Royal Commission’s findings and recommendations will no doubt be important in addressing the cultural and institutional issues that underlie the problem, it is not a court of law and its findings and recommendations will not be legally binding. Reflecting this, the Committee recommended that Australia ensure that all allegations of sexual abuse result in criminal investigations, prosecutions and sufficient redress and compensation for victims. There are some signs that this recommendation is already being heeded, such as the recent charges laid against Philip Wilson, the Catholic Archbishop of Adelaide, for concealing child sexual abuse by a priest in the Maitland-Newcastle Diocese of the Catholic Church after a 5-year investigation by the NSW police.

Mandatory immigration detention. Detention continues to be mandatory for all unauthorised arrivals, including children, until the individual concerned is either granted a visa or removed from the Country. As at 28 February 2015, 240 children were being held in closed immigration detention facilities both domestically and abroad.

The Committee was highly critical of the practice, finding that "the combination of … harsh conditions, the protracted periods of closed detention and uncertainty about the future… creates serious physical and mental pain and suffering".

The Committee suggested that the subjection of anyone - but especially children - to these conditions amounts to "cruel, inhuman or degrading treatment" prohibited under article 16 of the Convention Against Torture. The Committee called on the Australian government to honour its’ obligations under the Convention Against Torture as well as Convention on the Rights of the Child in ensuring that “families with children are not detained or, if at all, only as a measure of last resort… and for as short a period as possible”.

Since the Committee conducted its review, the Australian Human Rights Commission has published its own report entitled ‘The Forgotten Children’ which presents the results of its national inquiry into children in immigration detention. The report found that, owing to the significant mental and physical illness and development delays caused by prolonged detention of asylum seeker children, Australia was in breach of its international obligations. As a result, the AHRC has called for a royal commission into the issue and the end of mandatory detention. While it must be noted that the number of children in immigration detention has decreased since its peak in 2013, there is much more to be done in this area and the publication of the AHRC’s report, and the surrounding media coverage, has cast a light on this continuing issue.

Sterilisation of persons with disabilities. Following the High Court’s 1992 decision in Marion’s case, the authorisation of either the Family Court of Australia or a state or territory guardianship tribunal is required before a child that lacks capacity can undergo a sterilization procedure. However, the Committee remained concerned by reports that involuntary or coerced sterilisation of children with disabilities remains an ongoing practice. The Committee recommended enacting national uniform legislation prohibiting sterilisation without the free and informed consent of the person involved.

The issue was previously considered by the Australian Government in a 2013 Senate committee inquiry. Many submissions to the Senate committee echoed the sentiments of the Committee in calling for a nation-wide general prohibition on the sterilisation of persons with disabilities without their free and informed consent. Others argued against a broad-based prohibition, claiming that a blanket-ban was a form of discrimination that neglected the needs of children and other disabled persons who are mentally incompetent. After reviewing the submissions, the Senate committee recommended a prohibition on the sterilisation of people with disabilities without their consent, unless it can be proven that their capacity to consent will never develop. The Senate Committee also recommended that each Australian jurisdiction use the same definition of ‘capacity’ to ensure that an individual’s right to “autonomy and bodily integrity” doesn’t fluctuate across state borders.

Neither the Committee’s concluding observations nor the Senate Committee’s inquiry appear to have triggered any national legislative reform or action.

Where to from here?

In its appearance before the Committee in November 2014, the Australian delegation stated, in relation to the Convention Against Torture, that it:

"takes its obligations under the Convention very seriously. Since ratifying the Convention in 1989, Australia has worked to ensure Australia's laws, policies and practices are consistent with our international obligations.”

The Committee’s concluding observations would suggest there is much more work to be done to ensure that Australia affords a level of protection to children consistent with its human rights obligations. Disappointingly, many of the Committee’s recommendations arising out of this review mirror those made in the 2008 review, and many were also raised by the Committee on the Rights of the Child in its own Concluding Observations in 2012. This suggests that Australia has been slow to make important changes to its laws, policies and practices as they pertain to the treatment of children.

Australia’s compliance with its human rights obligations more broadly will come under review later this year by the UN Human Rights Council as part of the Universal Periodic Review. It will be interesting to see whether the findings and recommendations of the AHRC’s ‘The Forgotten Children’ report will influence the Council and whether the Council will adopt the recommendation of the Joint NGO Submission on behalf of the Australian NGO Coalition that Australia should develop a National Plan for Children. These recommendations would help to address some of the Committee’s concerns outlined above.

With this ongoing scrutiny of Australia’s compliance with its international obligations in relation to the treatment of children, and in particular its obligation to protect them from torture and other cruel, inhuman or degrading treatment, we look forward to seeing how the political and legal landscape in this area will change over the next few years before the Committee’s next scheduled review in 2018.

Henry Wells is a Summer Clerk and Tim Craven a Law Clerk at King & Wood Mallesons.