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 submission to the Commonwealth Attorney-General’s Department considers each of 145 recommendations made to Australia by the international community during Australia’s Universal Periodic Review before the UN Human Rights Council.

The recommendations ranged from enacting a comprehensive national Human Rights Act, to recognising same-sex marriage, to enshrining Indigenous and racial equality rights in the Constitution, to abolishing mandatory immigration detention.

The Centre’s submission considers each of these recommendations in terms of Australia’s concrete obligations under international human rights law and identifies whether, on that basis, they must be accepted, should be accepted, or should be rejected.

According to a legal analysis of the recommendations conducted by the Human Rights Law Centre, the Australian Government must immediately implement at least 55 of the UPR recommendations in order for Australia to avoid continuing breaches of its legal obligations under international law.  The HRLRC’s media release is available in [PDF] and [word].

Australian NGO Coalition

The Centre has also been involved in the coordination of a major NGO Coalition submission to the Attorney-General’s Department regarding prioritisation and practical implementation of the 145 recommendations.

The Australian Government has committed to fully consider the recommendations “in the coming months” and to formally respond to them at the UN Human Rights Council in Geneva in June. Australia’s response presents both a test and an opportunity for the protection of human rights at home and the enhancement of our international standing and reputation abroad.

For further information about Australia’s Universal Periodic Review, see http://www.hrlrc.org.au/content/universal-periodic-review-ngo-delegation-updates/.

The Baillieu Government has the opportunity to shift from existing policies that are expensive, inefficient and ineffective and advance an evidence-based reform agenda that breaks the cycle of offending and strengthens community safety and cohesion. 

Recognising this, the Human Rights Law Centre has prepared a short policy paper for the Victorian Government regarding correctional reform which would, consistent with the Baillieu Government’s public commitments:

• contribute to a fairer, safer and more just Victoria;
• enhance transparency and accountability in government and public service; and
• uphold rights and freedoms.

Consistently with these commitments, the paper recommends that the Baillieu Government should:

• strengthen evidence-based correctional and community policies and programs which target causes of offending, promote rehabilitation and reduce recidivism; and
• establish an independent, effective, publicly accountable and adequately resourced prison inspectorate to monitor and report on prison operations and conditions. 

The purpose of this List is to outline those issues which the Committee would like Australia to address and respond to in its next periodic report to the Committee, due in 2012. 

The issues on which the Committee specifically seeks information and responses from Australia include:

• information regarding the legal entrenchment of human rights in Australia, including through a Human Rights Act and constitutional recognition of Indigenous people;
• the human rights compatibility and impacts of counter-terrorism legislation, including in relation to the powers of ASIO and the AFP;
• mechanisms for monitoring and oversight of places of detention, including prisons;
• the right to health and access to adequate health care for detainees, including prisoners and persons detained in immigration facilities;
• trafficking of women and children;
• violence against women;
• the operation and impact of laws that criminalise homelessness and poverty;
• complementary protection and the prohibition against refoulement;
• the operation and impact of Australia’s refugee and asylum seeker policies, including in relation to mandatory detention, offshore processing, and the detention of families and children;
• the over-representation of Indigenous people and people with mental illness in the criminal justice and prison systems;
• Australia’s extradition law, policy and practice; and
• police use of force, the investigation of police-related deaths and police monitoring and accountability mechanisms. 

The List of Issues Prior to Reporting is available at www2.ohchr.org/english/bodies/cat/docs/followup/AdvanceVersion/Australia_AV_en.pdf. 

The Centre’s submission to the Committee, which significantly informed the Committee’s List of Issues, is at www.hrlrc.org.au/content/topics/counter-terrorism/torture-and-ill-treatment-submission-to-un-committee-against-torture-on-australia-24-august-2010/

On 8 November 2010, the Human Rights Law Resource Centre made a Submission to UN CESCR on the Right to Sexual and Reproductive Health of Prisoners and Detainees.

The HRLRC submission examines the particular sexual and reproductive health rights of prisoners, noting that the principles referred to in the submission also apply to people held in immigration detention, psychiatric facilities and other places of detention. 

The HRLRC considers that special consideration should be given to the rights of persons in detention in the general comment because:

• persons deprived of liberty are placed in a vulnerable position; and
• the fact of detention imposes upon the State additional positive duties to ensure the protection of their human rights.

Furthermore, the HRLRC considers that the rights of women detainees require particular attention in order to ensure non-discrimination in the provision of the right to sexual and reproductive health.

The Committee is likely to develop a List of Issues for Australia Prior to Reporting at its next session in November 2010. 

In the Centre’s view, the Committee should seek for Australia to detail the human rights compatibility of domestic law, policy and practice in the following areas:

• migration law, policy and practice, particularly in relation to refugees and asylum seekers;
• prisoners’ rights and conditions of detention;
• policing, police use of force and police-related deaths;
• counter-terrorism law, policy and practice;
• violence against women;
• homelessness;
• aspects of involuntary treatment of people with mental illness or disability;
• the lack of domestic prosecution of alleged war crimes and crimes against humanity; and
• gaps in Australian law, policy and practice with respect to exposing persons to the death penalty or torture or ill-treatment abroad, whether through extradition, the provision of mutual assistance in criminal matters, or the provision of police to police agency assistance. 

On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Facts

Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women’s prison with an emphasis on release preparation and community integration. 

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time. 

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)). 

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.  

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’. 

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner. 

Decision

Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

• the commitment to the treatment that Ms Castles has already demonstrated;
• her willingness to pay for further treatment; and
• her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.     

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions. 

The right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health case is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person.  

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’. 

The right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that:  

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights. 

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter. 

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic). 

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office).  

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. 

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’. 

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.   

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

A coalition of 68 NGOs - coordinated by the Human Rights Law Resource Centre, Kingsford Legal Centre and the National Association of Community Legal Centres - has submitted a 5 page Report to the UN Human Rights Council on Australia, setting out key human rights issues and concrete recommendations, including in relation to:

• the legal recognition and protection of human rights
• Australia’s cooperation with international human rights mechanisms
• equality and non-discrimination
• women’s rights
• children’s rights
• the rights of people with disability
• GLBTI rights
• Indigenous rights, including in respect of the Northern Territory Intervention, the criminal justice system, native title, the Stolen Generations, Stolen Wages, and access to adequate health care, housing and education
• the rights of migrants, refugees and asylum seekers
• prisoners’ rights and conditions of detention
• police use of force and oversight and complaint mechanisms
• the administration of justice
• homelessness
• mental health care
• human rights and counter-terrorism
• business and human rights
• international assistance and Australian foreign policy

The report was submitted to the UN Human Rights Council in Geneva on 12 July 2010.

Further information on Australia’s review under the UPR process is available at www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/universal-periodic-review-of-australia-in-february-2011/.

The submisssion of the Australian Human Rights Commission for the UPR is at http://www.humanrights.gov.au/upr/index.html.

Amnesty International and the Aboriginal and Torres Strait Islander Legal Services of Australia have also made NGO submissions on Australia for the UPR.

The Australian Government report for the UPR is at www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_InternationalHumanRights_UniversalPeriodicReview. 

The report focuses on the standard of living and quality of health care and health services for Aboriginal and Torres Strait Islanders, people in prison and immigration detainees. 

Section II the report considers the international and national legal framework within which the right to health is considered in Australia, and discusses the recognition of international human rights under Australian law.  On this issue, the Special Rapporteur concludes that the Australian Government should take steps to comprehensively enshrine human rights, including the right to health, in Australian law.  He further recommends that such rights be recognized as enforceable and justiciable. 

Section III of the report considers the issue of Indigenous health, including as to health status, the underlying social determinants of health (including severe socio-economic disadvantage and social exclusion), and access to health care services and primary health care. 

Section IV of the report focuses on the right to health of detainees in Australia, including prisoners and immigration detainees, and notes that all persons deprived of liberty are entitled to the right to the highest attainable standard of health, to be treated with humanity and dignity, and to have equal access to health services as those in the community.  The Special Rapporteur observed inconsistencies and inequalities in treatment and and access to services across different facilities, and was particularly concerned with the disproportionate impact of incarceration on Indigenous populations, as well as persons with mental illness.  He also observed that Australia’s continuing policy of mandatory detention poses significant barriers to the realization of the right to health for asylum seekers and refugees.

Section V of the report sets out the Special Rapporteur’s conclusions and recommendations pertaining to each of the areas discussed above, including that Australia should:

• Ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, and establish an independent national preventive mechanism to conduct regular inspections of all places of detention;
• Pass legislation restoring the Racial Discrimination Act vis-à-vis the Northern Territory as a matter of priority, and introduce constitutional protection of the rights of Indigenous peoples;
• Develop a national health policy which includes a detailed plan for the full realization of the right to health;
• Implement legislative or other guarantees to ensure that the opinions of national representative Indigenous bodies, such as the National Congress of Australia’s First Peoples, are taken into account;
• Give priority to education in human rights throughout the country, particularly in respect of education for health professionals;
• Address, as a matter of urgency, the qualitative and quantitative inadequacy of educational services for remote communities;
• Ensure that Indigenous communities have control over allocation of resources, by providing local governance monitoring structures;
• Allocate additional funding to health promotion programmes throughout the Northern Territory;
• Increase engagement with community health providers by prisons, which would improve continuity of care and facilitate reintegration into the community;
• Increase resource allocation for diagnosis, treatment and prevention of mental illnesses within prisons;
• Assess and invest in the primary health care sector throughout the prison system;
• Undertake research regarding indigenous incarceration issues as a matter of urgency, and ensure that new interventions concerning prevention of incarceration and treatment during incarceration are evidence-based and appropriately evaluated;
• Reconsider the policy of mandatory detention of irregular arrivals;
• Assess the viability of providing on-site interpreters in immigration detention facilities;
• Place detainees with a history of torture and trauma in community detention; and
• Reconsider the appropriateness of detention facilities continuing to operate on Christmas Island, and assess provision of mental health services to this population as a matter of priority.

The Special Rapporteur’s report is at www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.Add4.pdf. 

A Briefing Paper prepared by the HRLRC to assist the Special Rapporteur is available at www.hrlrc.org.au/content/topics/esc-rights/right-to-health-briefing-paper-on-australia-to-un-special-rapporteur-on-the-right-to-health-sept-2009/.  

The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights.  The Court did, however, order that the matter be expedited and brought on for speedy trial within a month given the urgency of the issues. 

Facts

The plaintiff, Kimberley Castles, is a 45 year old woman currently held as a low security prisoner at Tarrengower prison.  She is serving a three year sentence, commencing November 2009, for social security fraud.  Prior to her imprisonment, Ms Castles was undertaking IVF treatment.  The course of treatment was interrupted by her imprisonment and she will become ineligible for IVF when she turns 46 in December 2010.  Her chances of becoming pregnant diminish every month without treatment. 

Following her imprisonment, Ms Castles made repeated requests to the Secretary of the Department of Justice to grant the approvals necessary for her to continue IVF treatment while a prisoner.  When the Secretary failed to make a decision or grant the approvals, Ms Castles sought an injunction to restrain the Secretary from ‘continuing to neglect, fail or refuse to grant the permits and approvals necessary to access IVF treatment’. 

In seeking this order, Ms Castles relied on her rights under the Charter of Human Rights and Responsibilities to privacy and family (s 13(a)), to equality and non-discrimination (s 8), to humane treatment in detention (s 22) and to protection of family and children (s 17) and the Secretary’s correlate duty, in determining whether to grant the necessary approvals, to properly consider and act compatibly with these human rights (s 38).  Ms Castles also relied on provisions of the Corrections Act and the common law and fiduciary duties owed to her as a prisoner. 

Decision

Justice Osborn held that there was a serious issue to be tried in respect of the rights, but that the balance of convenience did not favour the grant of the injunction.  The Court did determine, however, that the matter was ‘deserving of expedition’ and ordered that it be ‘brought on for hearing within one month’. 

The Court arrived at the conclusion than an interlocutory injunction should not be granted for a number of reasons, including that:

• The Secretary ‘accepted that the plaintiff is entitled to determination of her application for a permit in accordance with law and the defendants have identified specific factual considerations properly regarded as relevant to the exercise of that discretion.’
• The plaintiff is not presently legally entitled to IVF treatment under the Assisted Reproductive Treatment Act 2008, as she has not yet received the necessary criminal record and child protection checks.  
• The ‘operational considerations and constraints’ raised by the defendants, including in relation to prison safety, security and ‘the provision of adequate facilities’ are matters of ‘serious public importance’.  Justice Osborn considered that the Court is not equipped to ‘second guess the Secretary’s exercise of discretion in circumstances where it appears on the evidence that it was open to her [to make the decision she did], and she is in a position to assess operational issues, which the Court is not’. 
• ‘One their face’, the operational considerations referred to above ‘fall within the category of matters comprehended by s 38(2) of the Charter’ (which provides that a public authority is not bound to act compatibly with human rights if, as a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted differently or made a different decision). 
• On the material before the Court, the case that the Secretary was ‘bound to make a decision contrary to that which she has made, is weak’.
• A speedy trial of the matter can be fixed and liberty to apply for further orders can be reserved to the parties.

Accordingly, the matter was fixed for trial on 1 June 2010. 

The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2010/181.html. 

Phil Lynch is Executive Director of the Human Rights Law Resource Centre. 

The Centre is acting for Ms Castles, together with Blake Dawson, Ron Merkel QC and Michael Borsky of Counsel.