UN Special Rapporteur Finds Australia Has Likely Breached Convention Against Torture
Thursday 12 March 2015 @ 12.21 p.m. | Legal Research | Immigration
Recently, a United Nations report found that allegations that Australia was in breach of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) were likely substantiated, or not sufficiently explained by the Australian Government. The report has received a lot of publicity, in particular, because the Federal Government was strongly critical in its response to the report. The Human Rights Council report is due to be tabled on March 16 by the Special Rapporteur on torture, although an advance copy has been circulated. Technically, the report is an addendum, which provides observations by the Special Rapporteur on responses from Member States to questions that were raised in earlier reports.
Allegations Against Australia
The Report deals with the Australian Government’s responses to four specific cases where allegations that could violate the CAT were raised.
Allegations of indefinite detention of asylum seekers, detention conditions, alleged detention of children, and escalating violence and tension at the Regional Processing Centre
In its response, the Government said they were investigating and reviewing the events of 16-18 February (during which Reza Berati died). The Special Rapporteur decided that the Government’s reply “does not sufficiently address the concerns, legal obligations, and questions raised in the initial communication” and said that in “the absence of information to the contrary”, Australia has “violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.”
Allegations concerning two groups of Sri Lankan asylum seekers, their incommunicado detention and deportation to Sri Lanka, in contravention of non-refoulement obligations
This case concerned the interception and on-water detention of two boatloads of refugees. The High Court recently dismissed a claim for damages for false imprisonment arising from the same incident. The Special Rapporteur similarly found that the Government did not sufficiently address the concerns, noting that the Government had responded saying the matters were before the High Court. The report also urged the Government to “refrain from deporting these individuals to Sri Lanka where they risk torture”.
Allegations concerning acts of intimidation and ill-treatment of two asylum-seekers, following their statements regarding the attacks against asylum-seekers between 16-18 February
In its response to this case, the Government said these allegations were also before the courts, and also noted that Australia had adopted 9 out of 13 recommendations of the Department of Immigration’s May review into the incident. The Special Rapporteur was again not satisfied with the result, finding that the reply failed to fully inform him about the status and progress of the case.
Allegations concerning the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and the Migration Amendment (Character and General Visa Cancellation) Bill 2014
These Bills have both passed Parliament and are now Acts. In this case, the Special Rapporteur acknowledged “the comprehensive account of the Government in response to the concerns, legal obligations and questions raised in the initial communication.” However, the Special Rappoteur considered both Bills had elements that could violate the CAT:
“The Migration and Maritime Powers Legislation Amendment… violates the CAT because it allows for the arbitrary detention and refugee determination at sea, without access to lawyers. The Migration Amendment (Character and General Visa Cancelation Bill violates the CAT because it tightens control on the issuance of visas on the basis of character and risk assessments.”
The Report’s Response
Prime Minister Tony Abbott responded to the Report by saying Australians were “sick of being lectured to by the United Nations”. The Sydney Morning Herald reported he said:
“I think the UN's representatives would have a lot more credibility if they were to give some credit to the Australian government for what we've been able to achieve in this area.”
He also said:
“The most humanitarian, the most decent, the most compassionate thing you can do is stop these boats because hundreds, we think about 1200 in fact, drowned at sea during the flourishing of the people smuggling trade under the former government.”
Immigration Minister Peter Dutton also told the paper that the government:
“rejects the views of the special rapporteur that the treatment of illegal maritime arrivals in detention breaches international conventions… Australia is meeting all its international obligations and with other regional nations provides a range of services to people who have attempted to enter Australia illegally.”
The Special Rapporteur, Juan Mendez of Argentina, also spoke to the Sydney Morning Herald, saying:
“I'm sorry that the Prime Minister believes that we lecture. We don't believe so. We try to treat all governments the same way and deal with specific obligations and standards in international law as objectively as we can.”
The Human Rights Law Centre’s Director of Legal Advocacy, Daniel Webb, has said the report should be a “wake-up call”:
“Australia signed up to the Convention Against Torture 30 years ago. We did so because as a nation we agreed with the important minimum standards of treatment it guaranteed. Yet here we are 30 years on, knowingly breaching those standards and causing serious damage to our reputation.”
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