In early November, the Australian Government was scheduled to appear before the UN Committee against Torture to discuss Australia’s compliance with the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment over the last 5 years. Less than a week before the review, the Australian Government withdrew, citing that an election had been called and the Government entered ‘caretaker mode’. At best, this is a very weak rationale. At worst, it is a blatant attempt to avoid human rights scrutiny in the context of an election. The review would have involved the Government engaging in a constructive dialogue regarding Australia’s performance with independent international human rights experts. The review is retrospective and would not have involved the Government making any legislative, fiscal or other commitments. At the conclusion of the review, the Committee would have issued ‘Concluding Observations’, setting out positive aspects of Australia’s performance and recommendations as to further compliance with the Convention. It is perhaps no coincidence to Australia’s withdrawal that these Concluding Observations were due for release on 23 November, the day before the federal election. The Australian Government had good reason to be nervous as to what these Observations may have included. The right to be free and effectively protected from torture and other forms of cruel, inhuman or degrading treatment or punishment is a fundamental human right. The Convention against Torture absolutely prohibits any form of cruel treatment and commits Australia to take all necessary action to prevent, investigate and remedy torture or other cruel treatment. The day before Australia was to be reviewed, a coalition of non-government organizations – including the Human Rights Law Resource Centre, Amnesty International, the National Association of Community Legal Centres and the NSW Council of Civil Liberties – made submissions and gave evidence to the Committee that various aspects of Australian law, policy and practice are incompatible with this non-derogable norm.
At the most fundamental level, in the absence of a national Charter of Rights, the prohibition on torture and other cruel, inhuman or degrading treatment or punishment is not adequately enshrined in Australian law. Unlike in comparative jurisdictions such as the United Kingdom, New Zealand or Canada, there is no national legislative or constitutional human rights instrument against which laws, policy and practice which may impair freedom or human dignity are measured or counterbalanced.
Consequently, under the suite of more than 40 anti-terror laws enacted since 11 September 2001, a person who is suspected of having any knowledge or information about terrorism may be detained without charge with no (or only very limited) judicial authorization or oversight. They may be prohibited contact with a lawyer and, where contact is permitted, it can be monitored by authorities. Both the detainee and the lawyer may be denied information as to the basis or purpose of the detention, and the lawyer may be denied information regarding the treatment of his or her client. It is an offence, punishable by up to 5 years imprisonment, for the detainee and his or her lawyer, family or guardian, to disclose details as to the investigation or treatment. It is well recognised that there is a strong interrelationship between incommunicado detention and torture and, moreover, that incommunicado detention may, in and of itself, amount to cruel, inhuman or degrading treatment. Accordingly, the Human Rights Committee has stated that States have an obligation not only to prohibit torture, but also to enact and promote safeguards against detention incommunicado, including by granting access to detainees to doctors, lawyers and family.
The absolute prohibition against torture subsumes an obligation to investigate and remedy allegations of torture. International scrutiny regarding Australia’s acquiescence in the detention and treatment of Australian citizens David Hicks, Mamdouh Habib and Jack Thomas, together with the Australian Government’s failure to properly investigate their corroborated allegations of torture, would probably not have been a welcome election issue.
In November 2000, following the previous periodic review of Australia, the Committee against Torture recommended that Australia ‘continue its efforts to address the socio-economic disadvantage that, among other things, leads to a disproportionate number of Indigenous Australians coming into contact with the justice system’. Seven years on, the Australian Government would have good reason to be concerned as to the Committee’s views on implementation of this recommendation. Indigenous peoples in Australia are among the most highly incarcerated peoples in the world. While Indigenous Australians account for approximately 2.4% of the population, at least 24% of the prison population is Indigenous. Over the last six years, the rate of Indigenous imprisonment in Australia has risen by 23%, the highest rate in ten tears. In 2003, Indigenous children between the age of 10 and 14 were 30 times more likely to be incarcerated than non-Indigenous children of the same age.
The treatment of non-Indigenous prisoners and Australian prison conditions would also have been of concern to both the Committee and the Government. Human rights courts and tribunals from around the world have consistently held that a failure to provide adequate facilities so as to ensure that prisoners are not subject to degrading conditions, including particularly the failure to provide adequate health care to mentally ill prisoners, may amount to a violation of the prohibition against torture. According to the European Court of Human Rights, and other bodies such as the UK Court of Appeal and the UN Human Rights Committee, it is incumbent on a state to ‘organise its penitentiary system in such a way that ensures respect for the dignity of detainees, regardless of financial or logistical difficulties’. Despite this, there is significant evidence that mental health care in Australian prisons is manifestly inadequate and may amount to a level of neglect that constitutes degrading treatment or punishment. The number of forensic patients and mentally ill inmates in Australian prisons is increasing, without a proportionate increase in health resources. Recent research indicates that of a total Australian prison population of around 25,000, approximately 5000 inmates suffer serious mental illness. There is substantial evidence from across Australia that access to adequate mental health care in prisons is grossly inadequate, that the mentally ill in prison are often ‘managed’ by segregation, and that such confinement – often for very long periods – can seriously exacerbate mental illness and cause significant psychological harm. According to evidence given by the Victorian Institute of Forensic Mental Health to a recent Senate Select Committee, ‘currently in Australia the provision of care to mentally ill prisoners is rudimentary at best. Rarely are proper provisions made’.
A related concern for both the Committee and the Government would have been that unconvicted remand prisoners, particularly persons accused of ‘terrorist’-related offences, are routinely held in highly oppressive conditions that are demonstrably injurious to mental health. In a recent Victorian case in which a terrorist accused sought bail on the grounds that the conditions were so oppressive as to constitute ‘exceptional circumstances’, a Supreme Court judge stated that the ‘conditions in Acacia Unit in Barwon Prison are such as to pose a risk to the psychiatric health of even the most psychologically robust individual’. His Honour went on to say that, ‘Close confinement, shackling, strip searching and other privations to which the inmates at Acacia Unit are subject all add to the psychological stress of being on remand, particularly as some of them seem to lack any rational justification. This is especially so in the case of remand prisoners who are, of course, innocent of any wrongdoing.’ This concern is shared at an international level, with the UN Working Group on Arbitrary Detention recently commenting on the 'particularly severe' conditions of detention of remand prisoners, the ‘extraordinarily restrictive conditions’ of detention prescribed for any person charged with a terrorist offence, and the lack of sufficient discretion for judges to decide on bail applications in such matters.
Australia’s immigration law and policy would have been another area of major concern for the Committee against Torture and therefore the Australian Government. Australia’s continued policy of mandatory indefinite detention of asylum-seekers – particularly in light of the documented deleterious impact of such detention on the physical and mental health of asylum-seekers, especially children – breaches numerous articles under both the Convention and instruments such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Australia’s repudiation of any responsibility for monitoring or following up on cases of asylum-seekers who do not receive protection in Australia and are consequently deported would have also made for some uncomfortable discussion. There is substantial evidence that asylum-seekers who have been returned by Australia to their country of origin have been tortured and even killed. Australia regularly deports asylum-seekers to countries which are not signatories to the Refugees Convention (such as Malaysia and Thailand) and to so called ‘safe third countries’ (such as China) in which the use of torture and other cruel or degrading treatment remains widespread.
International scrutiny and accountability – particularly by experts such as the Committee against Torture – is critical to the effective promotion and protection of human rights. A constructive dialogue about how Australia could more fully implement its obligations under international human rights law should be welcomed and not eschewed for short-term electoral gain. There was once a time when Australia was a world leader and very active participant in the development and operation of international human rights standards and monitoring mechanisms. Let us hope that such a time dawns again soon.
Philip Lynch is Director of the Human Rights Law Resource Centre