The Bill, introduced by Greens’ Senator Sarah Hanson-Young, responds to concerns about Australia’s treatment of children and persons claiming to be children who are suspected of people smuggling crimes.

The Bill was introduced after revelations that a number of Indonesian children arriving in Australia onboard people smuggling boats were being detained and imprisoned. Some of those children were detained for significant amounts of time in Australia, including in adult correctional facilities. A number of those children were detained on the basis of now discredited wrist x-ray analysis techniques.

If passed, the Bill would make a number of important changes including:

• enshrining the ‘benefit of the doubt’ principle in domestic law to ensure that persons who claim to be children are treated as such, unless a court decides otherwise;
• encouraging best-practice when it comes to assessing and proving a suspect’s age;
• enacting time limits to reduce waiting periods for the laying of criminal charges and applying for age determination hearings before a Magistrate; and
• ensuring that no child charged with people-smuggling offences is detained in an adult correctional facility.

The HRLC considers that that enactment of the Bill is necessary to give effect to Australia’s obligations under international human rights law, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

“There is no place for mandatory sentencing in a healthy democracy governed by the rule of law,” said Rachel Ball, the HRLC’s Director of Policy and Campaigns.

The Bill to be introduced by Greens Senator Sarah Hanson-Young seeks to remove the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling.

Ms Ball – who last November gave evidence about the laws to the Senate Legal and Constitutional Affairs Committee – said the mandatory sentencing requirements of the Act prevent judges from exercising common sense or discretion. The laws have recently been criticized by one judge as imposing “savage penalties upon the ignorant, who are simply being exploited by organisers”.

“We’re not talking here about the organisers of people smuggling operations. These are generally young men or boys recruited from small Indonesian villages with the promise of a bit of cash for jobs like cooking rice,” Ms Ball said.

Mandatory sentences for people smuggling offences contravene the prohibition on arbitrary detention and the right to a fair trial contained in the International Covenant on Civil and Political Rights. These principles require that the punishment fit the crime, but mandatory sentencing prevents the Court from differentiating between serious and minor offending and from considering the particular circumstances of the individual.

The HRLC is urging MPs of all parties to use Senator Hanson-Young’s Bill as an opportunity to fix flawed legislation that puts Australia out of step with other modern democracies.

“Even the Government majority on the Senate Legal and Constitutional Affairs Committee has expressed concern regarding the impacts of the application of mandatory sentencing on individuals hired as boat crew for people smuggling vessels and has recommended that the Attorney-General review the legislation,” Ms Ball said.

“This regime threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. It violates human rights, costs taxpayers tens of millions of dollars and is likely to have no impact on people smuggling. It’s time we fixed it,” Ms Ball said.

For further details or comments, contact Rachel Ball on 0434 045 919

HRLC outlines further issues for Australia to include in report to UN Committee against Torture (3 Nov 2011)

On 3 November 2011, the HRLC made a submission to the Australian Government outlining the issues of torture and ill-treatment that Australia should address in its forthcoming periodic report to the UN Committee against Torture, in addition to those already identified by the Committee in the List of Issues Prior to Reporting. The submission identifies five key issues which were not addressed in the LOIPR, but which the HRLC considers engage Australia’s legal responsibilities in relation to torture and ill-treatment, being:

• criminalisation and prevention of torture;
• non-refoulement and bilateral and regional arrangements to address people smuggling;
• treatment of prisoners and conditions of detention;
• involuntary psychiatric treatment; and
• violence against women.

UN Committee gives “Please Explain” list to Australia (21 Dec 2010)

HRLC submission to UN Committee against Torture on Australia for preparation of List of Issues Prior to Reporting (24 Aug 2010)

The Bill amends the people smuggling offences in the Migration Act 1958.

Existing sections 233A and 233C of the Migration Act establish a primary people smuggling offence and an aggravated people smuggling offence. Both of these offences are established inter alia where another person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry to Australia, of another person that is a non-citizen, and that non-citizen had, or has, no lawful right to come to Australia.

The Bill retrospectively defines “no lawful right to come to Australia” contained in the people smuggling offences to mean no lawful right under domestic law to come to Australia. This is notwistanding that a person may have a clear and lawful right under international law to come to Australia.

The HRLC Submission to the Senate Legal and Constitutional Affairs Committee focuses on the human rights implications of the Bill.

In particular, the HRLC has identified the following concerns:

• the Bill contravenes the prohibition on retrospective criminal laws contained in article 15 of the International Covenant on Civil and Political and Political Rights, Australian common law and Government guidelines;
• the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling contravenes the prohibition on arbitrary detention (article 9 of the ICCPR) and the right to a fair trial (article 14 of the ICCPR); and
• the Bill violates Australia’s obligation to act in “good faith” by seeking to indirectly avoid its obligations under the Convention Relating to the Status of Refugees.

In essence and effect, the Bill toughens an already draconian regime which threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. This regime violates human rights, threatens the rule of law, costs taxpayers tens of millions of dollars in legal fees and detention costs and is likely to have no impact on people smuggling. The HRLC recommends that the Committee call for the Bill to be rejected.

The Monitor was appointed under the Independent National Security Legislation Monitor Act 2010 (Cth) and is empowered to review and report on Australia’s counter-terrorism and national security legislation, including its compliance with Australia’s international human rights obligations.

The HRLC submission identifies a range of provisions which require reform to ensure compatibility with human rights, including those relating to:

• the definition of “terrorist act”;
• control orders;
• preventative detention;
• ASIO detention powers;
• the listing of “terrorist organisations”; and
• offences relating to association with a terrorist organisation.

The HRLC submission also identifies that the onus is on the government to keep Australia’s counter-terrorism laws and measures under continual review so as to ensure that any infringement of human rights is demonstrably justified, remains strictly necessary, and is reasonable and proportionate.

Victoria Police use force, on average, every 2.5 hours. Almost three quarters of these incidents involve the use of capsicum spray. There have been at least 12 people shot dead by Victoria Police in the last decade, while numerous others have died in police custody.

A new report by the Human Rights Law Centre has found that human rights-compliant regulation, training and monitoring of Victoria Police would reduce the incidence of use of force, provide better guidance and support to police in enforcing the law and protecting the community, and increase public confidence in policing.

The report, Upholding Our Rights, is based on an extensive survey of international best practice in human rights-compliant policing, together with consultations with people with mental illness, Indigenous peoples, and young people of African descent. Input was also obtained from Acting Chief Commissioner of Police, Ken Lay.

“Current systems for regulating, monitoring and investigating police use of force are inadequate,” said Anna Brown of the Human Rights Law Centre. “In recent years, Victoria Police has made welcome improvements to training, including by promoting the importance of human rights and increasing the emphasis on communication and conflict de-escalation. However, nearly three years on from the fatal shooting of 15 year old Tyler Cassidy, it is clear that more needs to be done to reduce the frequency of incidents involving the use of force by police in Victoria.”

According to Ms Brown, “The next step must be to reform the law and the Victoria Police Manual to make clear that force is only lawful as a last resort and when strictly necessary. It should be used with the utmost restraint and in a manner which minimises damage and injury.”

In addition to containing constructive and practical recommendations as to police training and law reform, the report also recommends better monitoring and investigation of police use of force.

“Our research and consultations indicate that excessive use of force is a significant issue for people with mental illness, homeless people, Aboriginal and Torres Strait Islander people and young people, particularly of African descent. It also identifies a real risk of ‘mission’ creep’. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” said Ms Brown. “An independent body, such as the Victorian Equal Opportunity and Human Rights Commission, should be mandated and resourced to monitor where and when police are using force, for what purpose, and against whom.”

The report also reveals that Victoria’s systems for investigating police-related deaths are incompatible with international standards and Victoria’s Charter of Human Rights. “Currently, if someone dies from a police shooting or in police custody, the investigation is conducted by Victoria Police, giving rise to a serious conflict of interest,” said Ms Brown. “Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes.”

Ms Brown said that “If the Victorian Government is serious about transparency and accountability, we need to ensure that these principles are upheld when Victorian citizens are injured or killed by Victoria Police.”

The Human Rights Law Centre hopes that the report will be a useful resource and guide to reform for Victoria Police, the government and civil society. “Human rights can provide a valuable framework for police regulation and action that emphasises human dignity while also enabling police to use force in a way that is lawful and enhances community safety. As Victoria Police has itself written, ‘human rights protection is synonymous with good policing in liberal democratic societies’.” In his input to the report, the Acting Police Commissioner wrote that Victoria Police is “committed to working closely with stakeholders to improve the processes and training relating to the effective use of tactical options as well as investigation processes.”

The report was supported through a grant from the Legal Services Board of Victoria Grants Program.

Contact:

Anna Brown, Human Rights Law Centre – (03) 8636 4432 or 0422 235 522 or anna.brown@hrlc.org.au

Documents:

Upholding Our Rights: Towards Best Practice in Police Use of Force – Final Report

Upholding Our Rights – Background Research Paper

Police-related deaths can occur in a range of ways including police shootings, police pursuits and other deaths in police custody. There are on average over 16 police-related deaths every year in Victoria. Despite this, there is no independent agency to investigate those deaths for the State Coroner. Victoria Police has traditionally been responsible for investigating police deaths.

A system in which police investigate police-related deaths undermines public confidence, is fundamentally flawed and a breach of human rights obligations. Jurisdictions such as Northern Ireland, England and Wales, Ontario (Canada) and New Zealand have moved to establish a system under which police related deaths are independently investigated.

In Part 1 of this report, we document the progress that has been made both in Australia and overseas in terms of raising standards in police accountability with the introduction of independent agencies to investigate police-related deaths. The experience in these jurisdictions, which we have witnessed first hand, clearly demonstrates that civilian agencies undertake immediate and effective investigations.

We respond to the traditional arguments that are put forward to resist such reform to modernise our death investigation system in Part 2. In our analysis, establishing an independent investigation system in Victoria would be cost effective, transparent, fair and ultimately in our police officers’ best interests.

While police continue to investigate police-related deaths in Victoria, it will remain as an issue of significant public concern. Our report recommends that the State Government address this concern by strengthening and modernising our death investigation system by establishing and resourcing an independent agency to investigate police-related deaths in Victoria.

The Bill, introduced in response to recent unrest in the Christmas Island and Villawood Immigration Detention Centres, broadens the already significant power afforded to the Minister or his delegate to refuse to grant, or to cancel, a visa on character grounds.

The HRLC opposes the Bill on the basis that:

1. it excludes asylum-seekers from international refugee protection on grounds that would be deemed impermissible under the 1951 Convention Relating to the Status of Refugees;
2. it may result in the return of a person to a territory where he or she faces persecution, contrary to obligations of non-refoulement contained in several international human rights treaties to which Australia is a party; and
3. it is unprincipled and incoherent for the Australian government to impose sanctions on detainees who ‘demonstrate a fundamental disrespect for Australian laws, standards and authorities’ when the fact and conditions of detention itself constitutes a contravention of international laws, standards and authorities.

The HRLC considers that the more effective and rights-compliant way of deterring criminal behaviour of persons in immigration detention would be to remove the cause of offending behaviours by repealing the provisions of the Migration Act 1958 relating to mandatory detention.

The Human Rights Law Centre was pleased to make an oral statement to the Council in response to the High Commissioner’s report, calling on Australia to urgently redress the incompatibility of mandatory immigration detention with our international human rights obligations.

The High Commissioner’s report contained the following statement on Australia:

“While in Australia last week, I visited immigration detention centres and met with representatives of migrant, refugee and asylum seeker communities. The urgent need for Australia to develop alternatives to the current hardline and unsustainable immigration detention policies, as well as to effectively counter new forms of racism and Islamophobia emerging in this multicultural society, is striking. I should add that while in Australia, I also had the priviledge of visiting Aboriginal communities in Northern Territory and Queensland, where I learned first hand about the discrimination and disadvantages facing indigenous peoples, as well as about policy challenges for the Government in addressing them. The unique identify of Aboriginal people deserves Constitutional recognition, and with it better protection in law and practice would follow.

The Ambassador for Australia then took floor to make a statement on the High Commissioner’s report, particularly as it relates to Australia’s practice of mandatory immigration detention.

The Human Rights Law Centre subsequently made an oral statement to the UN Human Rights Council in response to the High Commissioner’s report and Australia’s statement as follows:

Mr President,

The National Association of Community Legal Centres and the Human Rights Law Centre welcome the report of the High Commissioner for Human Rights and strongly support the work of her office.

We were pleased to meet with the High Commissioner during her recent mission to Australia.  We welcome those parts of her report dealing with Australia’s policy of mandatory immigration detention and Indigenous disadvantage and disempowerment.

Overall, Australia’s engagement with the UPR and the Human Rights Council, including the Government’s engagement with civil society, has been very constructive.  We record our concern, however, that statements made by Australia regarding immigration detention during the UPR and repeated by the Ambassador today do not reflect Australian law, policy or practice.  The facts are as follows.

1. Australian law provides for mandatory detention of “unlawful non-citizens” and does not allow for judicial consideration of the need for detention in individual cases.  Immigration detention is not, as Australia asserted, a measure of last resort.  Asylum seekers who arrive in Australia informally are detained as a matter of course before other options have been exhausted.  The law does not impose time limits on detention and the Government may and does detain people in immigration detention indefinitely.
2. Detention is not only used as a last resort or for the shortest practicable time.  As of 15 April 2011 there were 6872 people in immigration detention.  More than 4200 of those people had been detained for longer than six months, and 1222 people had been detained for longer than 12 months.   
3. As at 15 April 2011, there were 1048 children in immigration detention.  Since the Australian Government’s announcement in October 2010 that it would move unaccompanied minors and vulnerable family groups out of immigration detention facilities, the number of children in detention has increased by more than 300. 

Australia does have a strong commitment to and record on the promotion and protection of human rights.  Immigration detention practices, however, remain a significant blight.

We look forward to working candidly and constructively with the Australian Government and the Council to redress this situation.

Thank you Mr President.

A coalition of leading human rights and refugee advocacy organisations – comprising the HRLC, Human Rights Watch, the Refugee Council of Australia, the Asylum Seeker Resource Centre, the Refugee and Immigration Legal Centre and the Migrant and Refugee Rights Project at UNSW – is gravely concerned that Australia’s responses to questions from the international community did not accurately reflect Australian law, policy or practice on refugee and asylum seeker issues.

Accordingly, on 4 May 2011, the coalition sent a letter to the UN Ambassadors of each of the countries which raised concerns about Australia’s migration policies.

The letter provides accurate and up-to date information regarding:

• the fact that Australian law provides for mandatory, indefinite detention without judicial oversight;
• the fact that detention is not only used as a last resort or for the shortest practicable time;
• children in detention; and
• conditions of immigration detention.

The missions to which the letter was sent include those of Sweden, Norway, Slovenia, Pakistan, Guatemala, Ghana, the Philippines, Brazil, Switzerland, East Timor, Morocco and the United States.

The coalition is urging those countries to raise these concerns with Australia both, both bilaterally and in the Human Rights Council itself.