EXPERTS PRAISE AUSTRALIA’S HUMAN RIGHTS CONSULTATION, RECENT CHANGES TO MIGRATION POLICIES, AS COMMITTEE CONCLUDES CONSIDERATION OF COUNTRY’S FIFTH REPORT

24 March 2009
HR/CT/707

EXPERTS PRAISE AUSTRALIA’S HUMAN RIGHTS CONSULTATION, RECENT CHANGES TO MIGRATION POLICIES, AS COMMITTEE CONCLUDES CONSIDERATION OF COUNTRY’S FIFTH REPORT

24 March 2009
General Assembly
HR/CT/707
Department of Public Information • News and Media Division • New York

Human Rights Committee

Ninety-fifth Session

2610th & 2611th Meetings (AM & PM)


EXPERTS PRAISE AUSTRALIA’S HUMAN RIGHTS CONSULTATION, RECENT CHANGES TO MIGRATION


POLICIES, AS COMMITTEE CONCLUDES CONSIDERATION OF COUNTRY’S FIFTH REPORT


On Second Day of Discussion, Questions Posed on Detention Policies,

Justice for Aboriginal Peoples, Protections against Religious Discrimination


While welcoming Australia’s National Human Rights Consultation and recent changes to the country’s migration policies, the Human Rights Committee today pressed Government representatives on the need to fine-tune detention programmes, bolster protections against incitement of religious hatred and, perhaps most importantly, redress past and present circumstances of Australia’s Aboriginal peoples.


Wrapping up a two-day consideration of Australia’s efforts to comply with the International Covenant on Civil and Political Rights, Committee expert Michael O’Flaherty, of Ireland, lauded Australia’s Human Rights Consultation, saying such a good practice should be broadcast more loudly.


The Consultation, which aimed to give every Australian a chance to have a say about protecting and promoting human rights, was launched in December 2008 and was expected to conclude in August 2009.  Mr. O’Flaherty was concerned that the six-month timeline for gathering public input was not adequate for the “enormous and important task at hand”, and he recommended an extension of that time frame.


Sir Nigel Rodley, expert from the United Kingdom, was among those concerned about Australia’s immigration and detention policies.  Civil society groups had reported that, while a recent policy shift had indeed resulted in fewer people being detained, that detention remained arbitrary.  The experts had also heard allegations that people were entering the country on valid visas, but were being detained without valid reason ‑‑ often for weeks at a time.  Was there any thought of reviewing the current legislation?


He was also among the experts concerned about the situation of Australia’s Aboriginal peoples.  Did the authorities plan on providing reparations to the surviving victims of the “Stolen Generations”?  What follow-up would come out of the investigation of the past removal of Aboriginal and Torres Strait Islander children and of the efforts of the Human Rights and Equal Opportunity Commission in that regard?


Ahmad Amin Fathalla, expert from Egypt, was concerned that there were no federal laws prohibiting religious discrimination.  He also wondered whether any states or territories had enacted legislation on religions discrimination and vilification.  He was concerned that the country had chosen a broad interpretation of the terms “race” and “ethnic origin” in the Racial Discrimination Act to extend to particular religious groups.  Why not amend the Act with an explicit mention of religion?  As it stood, the matter was confusing and bound to lead to misinterpretation.


Responding to some of the Committee’s concerns, Robert Illingworth, Assistant Secretary, Compliance and Integrity Policy Branch, Department of Immigration and Citizenship, said that, last July, the Government had announced substantial changes to asylum and migration policy, focusing on a new, risk-based approach to immigration detention.  To support the integrity of the programme, three groups would be subject to mandatory detention:  all unauthorized arrivals, for management of health, identity and security risks to the community; unlawful non-citizens who presented unacceptable risks to the community; and unlawful non-citizens who had repeatedly refused to comply with the visa conditions.


He said the Christmas Island Detention Centre had a range of facilities that provided the flexibility to manage individuals and groups with different needs.  The new Immigration Detention Centre had been opened to provide alternative accommodation on the island and to further cater to diverse needs.  That facility operated in “low security mode”, he added.  For most, detention was a “short process”, he said, adding later that the process on Christmas Island, including training, guidelines, national justice and federally funded assistance to asylum-seekers, had been significantly strengthened by the new Government.


Australia did not detain asylum-seekers because they were seeking asylum.  Most of the 4,000 asylum-seekers received each year were processed in the community locally and were never detained.  Regarding circumstances in which detention of an immigrant might end, he said that within four hours of being detained a person was interviewed and then a series of reviews was conducted to consider the grounds for continued detention and whether it was appropriate.


Further, detention was not a shortcut for immigration officers in carrying out their work.  Those officers must first consider the possibility of granting a visa.  The Immigration Department must justify its reasons for recommending detention, and sound reasons must be presented for maintaining it.  The aim was to ensure persons remained in the community while visa and other claims were being considered.  Detention was not the “default setting”, he reiterated.


For her part, Roxane Nolan, Principle Legal Officer, Office of International Law, Attorney-General’s Department told the Committee that religious freedom was guaranteed under the Constitution and the Government had undertaken a number of initiatives to support harmonious relationships among different people, cultures and religions.  Further, since the release of the “Isma-Listen” report, the Human Rights and Equal Opportunity Commission had been conducting a number of projects examining freedom of religion and belief.


Australian Ambassador Andrew Goledzinowski, who headed up the delegation, said there would not be compensation provided for the “Stolen Generations”.  The national apology offered by Parliament last year had not been about compensation, but a response to previous policies of State removal.  Individual claims could be made through the court system.


The Government was committed to setting up a national indigenous body to represent aboriginal and Strait Islander populations, he continued.  The first round of consultation with representatives of those populations had demonstrated widespread support for such a body, he said, noting that consultations had been extended to allow for more time.


In closing remarks, Bruce Smith, Branch Manager, Intergovernmental and Policy Branch, Office of Indigenous Policy and Coordination, Department of Families, Housing, Community Service and Indigenous Affairs added that the Prime Minister had also committed to providing an annual progress report to Parliament on indigenous issues’ reform.  The first annual report was issued last month.


To address what he called the “appalling gap in life opportunities between indigenous and non-indigenous Australians”, he said the Government had set six targets.  They included, among others, closing the 17-year life expectancy gap between indigenous and non-indigenous Australians within one generation; halving the gap of infant mortality rates of indigenous children, which were double that of non-indigenous children, within a decade; and ensuring all indigenous children access to early childhood education within five years.


The Human Rights Committee will meet again at 10 a.m. Wednesday, 25 March, to examine the sixth period report of Sweden on compliance with the International Covenant of Civil and Political Rights.


Background


The Human Rights Committee met this morning to continue its consideration of Australia’s fifth periodic report on compliance with the International Covenant of Civil and Political Rights (document CCPR/C/AUS/5 and Corr.1), which covers the period from January 1997 to June 2006.


Response to Expert’s Questions


The Australian delegation, headed by Ambassador Andrew Goledzinowski, also included Bill Campbell QC, First Assistant Secretary, Office of International Law, Attorney-General’s Department; Bruce Smith, Branch Manager, Intergovernmental and Policy Branch, Office of Indigenous Policy and Coordination, Department of Families, Housing, Community Service and Indigenous Affairs; Robert Illingworth, Assistant Secretary, Compliance and Integrity Policy Branch, Department of Immigration and Citizenship; Helen Horsington, First Secretary, Australian Mission to the United Nations in New York; and Roxane Nolan, Principle Legal Officer, Office of International Law, Attorney-General’s Department.


Answering questions and comments on Australia’s decision to present a core document this year, Ms. NOLAN said that exercise had been an attempt to provide a simple and efficient way to access information on Australia’s compliance with treaties and covenants to which it belonged.  It had also been an attempt to avoid undue duplication.  It considered that the document was consistent with the agreed harmonized reporting guidelines for all monitoring bodies.


She said that it was not Australia’s intention to present a report that constituted a unified report that satisfied all treaties to which it was a party.  All subsequent treaty reports had been and would be full, stand-alone reports that referred to the core document only where relevant.  The current report was “somewhat experimental” and a number of difficulties had been encountered, including regarding ways to keep the information up to date and relevant to subsequent treaty reports.  The Committee might be pleased to hear that Australia was not going to continue the practice.


Turning to other questions on the national child protection framework, Mr. SMITH said that strategy recognized the need to ensure the safety and well-being of all children and would be considered by the Council of Australian Governments within the first half of the year, with implementation to follow.  Indigenous child protection had been identified as one of the six priority areas and, when state and territory input and consideration had been consolidated, would be included in the framework.  The aim, to that end, was to work towards ensuring that mainstream services were more responsive to indigenous children’s needs.


As to whether the Government was taking into account the recommendations of the 2008 report “Women, Domestic and Family Violence and Homelessness”, he said that survey had confirmed, among other things, that there was no single pathway to homelessness and, therefore, no single solution.  The report, compiled by the Australian Office for Women, stressed the need for an integrated approach to the issue.  The findings had informed the ongoing development of the National Council’s Plan for Australia to Reduce Violence against Women and Their Children 2009-2021.  The Government was currently considering the details of that initiative, which had not yet been released to the public.


On other domestic violence matters, he noted that information on numbers of domestic violence orders, such as restraining orders, was generally available.  The most recent information on violence and sexual abuse in Australia indicated, among other things, that in any year, some 500,000 women reported cases of sexual or physical assault.


To questions asked yesterday on the Northern Territory Emergency Response (NTER) to protect aboriginal children from abuse and its relation to the Racial Discrimination Act, Mr. SMITH said the Social Justice Commissioner’s 2007 report had been considered as part of the overall review of the NTER.  Among the overarching recommendations adopted had been the need to ensure that the response would be carried out with respect to Australia’s human rights obligations and in conformity with the Racial Discrimination Act.  He went on to highlight specific judicial training initiatives, including the Australian Government’s Office for Women’s Justice Training Programme.


Next, Mr. ILLINGWORTH said immigration detention was not penal detention, but considered administrative detention.  It was possible to detain immigrants for two years, but such detention was “subject to extremely close and continuing review” by the Government at a number of levels, including on the appropriateness of continuing that detention.  Senior immigration officials reviewed detention cases after the three-month point, and if detention stretched to six months, the case would be reviewed by the Immigration Ombudsman.


He said that, for most, the detention was a “short process”.  Further, detention itself was not a shortcut for immigration offices in carrying out their work.  Those offices must first consider the possibility of granting a visa.  The Department of Immigration must justify its reasons for recommending detention, and sound reasons must be presented for maintaining it.  The aim was to ensure persons remained in the community while visa and other claims were being considered.  Detention was not the “default setting”, he reiterated.


Currently, some 38 individuals in the country had been held in detention for two years or more.  Ten had been placed in non-immigration detention arrangements, which included a range of environments commensurate with the level of risk an individual might present, such as residence determination arrangements.  Such arrangements were unsupervised and the individuals were free to conduct a normal life.  He stressed that other persons could be detained because of clearly identifiable risks, such as consistent non-compliance with orders to leave the country or non-compliance with visa requirements.


On the national human rights consultation, Mr. CAMPBELL said the Consultation Committee was meeting broadly with the community.  It was holding public meetings in 50 locations across the country, including capital cities, regional and remote locations.  Further, as of early March, the Committee had received some 7,000 public submissions on its website.  The Committee was also engaging with such diverse stakeholders as prisoners and other detainees, as well as homeless persons.  Five days of public hearings were set for the end of June 2009.


On education and awareness-raising, he said the Consultation Committee aimed to reach a broad segment of the population and had, therefore, compiled a background paper and summary of the consultation process written in “plain language”.  Information packets were also being made available.  Further, the Australian Human Rights Commission was undertaking a range of activities in relation to the consultation, including the distribution of a “tool kit”.


He said that some $2.8 million (Australian) had been allotted to the consultation process for 2008-2009.  Overall, funding reflected the Government’s desire to receive input and engender the participation of as many Australians as possible, so that people in the bush, as well as in towns and cities, could share their views with the Consultation Committee.  The Committee must report to the Government by 31 August 2009.


Turning next to the Committee’s concerns on Australia’s reservations to the Covenant, Mr. Campbell said the delegation had taken note of comments made by the Committee about the desirability of withdrawing them.  The Government kept those reservations under review, but did not want to withdraw them in circumstances where Australia would be in breach of the Covenant if it did.  On responses to individual communications, he said that the Attorney General’s Department coordinated such responses and notified the relevant departments responsible for the specific issues and sought responses.  The text of Committee’s views and responses were published on an internal website.  The Attorney General monitored individual complaints, he added.


On prisoners of war, detainees, and application of the Fourth Geneva Convention, he said that Australia recognized specific categories of captured persons as eligible for such protection under the Convention, including prisoners of war, criminal detainees, and detained persons.  Even if it found that some detainees did not fit those categories, Australia considered that those persons remained entitled to fundamental guarantees under international humanitarian law.


On balancing human rights and terrorism, he said the Government was aware of the recommendations of the relevant United Nations rapporteur on the matter and considered those recommendations when it reviewed its policies.  Australia also maintained an awareness of international legislation on the matter.  Currently, some 30 persons were being prosecuted for terrorism under the Criminal Code.


To questions asked about changes in the native titles system, Ms. NOLAN said that the delegation’s assertion that such changes did not amount to an “overhaul” of that system stood.  The term “overhaul” did not best reflect the amendments, which were institutional, or other minor changes.


To queries about Abu Ghraib prison, Mr. Campbell said that the Australian Defence Force had not interrogated prisoners, nor was in charge of guarding prisoners at that or any other Iraqi prison.


On human trafficking, Ms. NOLAN said that Australian Federal police had investigated some 270 trafficking cases or allegations since 2004.  Six matters involving 16 defendants under consideration had led to nine convictions.  On the matter of “stay visas”, she said such visas were granted for persons to enter the country, of if their continued presence was required for the administration of criminal justice.  Such visas might be granted to persons required to give evidence as witnesses, or otherwise participate in criminal proceedings.


Experts’ Comments and Questions


MICHAEL O’FLAHERTY, expert from Ireland, expressed concern over the quality of Australia’s protection of human rights for people who were extradited to countries that practice the death penalty.  He wondered if Australia needed to firm up its extradition laws and practices.  He lauded Australia’s National Human Rights Consultation, saying such a good practice should be broadcast more loudly.  He expressed concern, however, that the six-month timeline for gathering public input on ways to protect human rights was not adequate for the enormous and important task at hand, and he recommended an extension of that timeline.  He urged the delegation to extend judicial education to include specific classes on the Covenant.  Further, while acknowledging that Australia had changed its laws to do justice to Mr. Young in the Young vs. Australia case, he urged the Government to give Mr. Young some compensation.


ABDELFATTAH AMOR, expert from Tunisia, asked whether and to what extent hate speeches that fostered racial, religious and other types of hatred had affected the minorities concerned and whether the delegation had any experience with Islamophobia in general and “Arabphobia” in particular.


Sir NIGEL RODLEY, expert from United Kingdom, asked the delegation to clarify the origin of the test ‑‑ whether judicial or legislative ‑‑ to assess if someone extradited to another country might be at risk for torture there.  Concerning the treatment of prisoners at Abu Ghraib, he asked what specific interrogation practices had the October 2003 report of the International Committee of the Red Cross (ICRC) found.  Which ones did Major George O’Kane believe or not?  Which ones were consistent with the Geneva Conventions?  Why was Colonel Mike Kelly’s rather different assessment ignored?  Did Australian authorities plan on providing reparations to the surviving victims of the “Stolen Generations”?  What follow-up would come out of the investigation of the past removal of aboriginal and Torres Strait Islander children and of the efforts of the Human Rights and Equal Opportunity Commission in that regard?  Expressing concern over the use of lethal force by the police, he asked to what extent did federal and state rules relating to the use of police force conform to the norms of succession and proportionality.


ZONKE ZANELE MAJODINA, expert from South Africa, asked how Australia could reconcile an exile zone with its obligation as a State party to the Covenant to provide consistent access to Covenant rights in all areas and jurisdictions.  Pointing to the existence of racial discrimination in the country’s Northern Territory, she asked why Australia had not yet harmonized its policies governing that Territory in accordance with the Covenant’s articles on racial discrimination.


Delegation’s Response


Responding to the experts, Mr. SMITH said many reviews in Australia had been conducted on the issue of how undertakings could be effective, so that the death penalty would not be carried out for extradited people.  The issue of extradition and mutual assistance was under review.  Regarding Justice Finn’s comments on the “Bali Nine” case, he said he was aware of Justice Finn’s judgement on the matter and that a review on police assistance was under way.


In terms of the timeline for the National Human Rights Consultation, he said that, which ever way they did it, they could not win.  They were either told that reviews were too short or too long.  But, while the consultation process may appear to be short, it was actually quite intense and involved many resources and modes of consultation, including 50 meetings with the community.  The August report date already involved a one-month extension.


He said he would respond in detail to Mr. Amor’s question before Thursday, and that he would also need more time to look into the questions posed by Mr. Rodley on Abu Ghraib and torture.


Mr. GOLEDZINOWSKI then took the floor to respond to Mr. O’Flaherty’s question as to why undertakings were valid in terms of the death penalty and not in terms of torture.  He said the answer was that countries that practiced torture were usually not open about it, but those that practiced the death penalty were and could, therefore, be relied on more.  In brief, that was why Australia differentiated between the two.


Mr. SMITH said the priority of the new clearinghouse on indigenous “outcomes” would be to follow up on issues concerning family violence and child abuse.  In terms of reparations to the “Stolen Generations”, he said the Prime Minister’s apology last year was a symbol of healing and a first step towards building a bridge of respect and partnerships to foster it.  In 2007 and 2008, the Government committed an extra $15.7 million to link up family reunion services and bring stolen children home.  In February, the Government announced a further expansion of the link up programme, which would help another 351 families reunite with their children.  Authorities had also set up an indigenous healing foundation, with an emphasis on the unique needs of children of the “Stolen Generations”.  The Government was closing the gap between indigenous and non-indigenous families.  It had recently committed $4.6 million for health care, housing, development and other services for indigenous Australians.


Continuing, he said, there would not be compensation provided for the “Stolen Generations”.  The national apology was not about compensation, but a response to previous policies of State removal.  Individual claims could be made through the court system.  The Government was committed to setting up a national indigenous body to represent aboriginal and Strait Islander populations.  The first round of consultation with representatives of those populations had demonstrated widespread support for such a body, he said, noting that consultations had been extended to allow for more time.


As to why the Government had not immediately appealed provisions in the Racial Discrimination Act as part of the Northern Territory Emergency Response, he said the Government had, in response to the Northern Territory Emergency Response Review Board’s report, announced that it would introduce legislation in the spring to ensure that the emergency response measures were in conformity with the Act.  The Government would move fast during the first half of 2009 to ensure that the rights of indigenous communities were included through the social security tribunal and the administrative appeals tribunal.


Mr. ILLINGWORTH said Australia had a large permanent migration programme based on individual merit and open to all.  The previous Government had set up a multicultural community reference group to provide recommendations, which had since been implemented.  The current Government was focused on reviewing all government-community relations programmes and it had set up an Australian Multicultural Advisory Programme to consider diversity issues of concern to all Australians.  It had three Muslim members.  The Government had also set up a new “Diverse Australia” programme, which provided a strong focus on racial intolerance and grants to small community organizations to build their capacity to manage issues of concern.  In 2008 and 2009, the Government provided more than $600,000 to improve relations between African-Australian communities and broader Australian society.  It also was funding programmes to build on social cohesion, harmony and security and to improve relations between the nation’s Middle Eastern communities and the broader Australian society.


Response to Written Questions


Returning to the experts’ written concerns, Mr. ILLINGWORTH began by answering questions on arbitrary detention and the right to a fair trial (Articles 9 and 14).  He said that last July, the Minister for Immigration and Citizenship had announced substantial changes to Australia’s asylum and migration policy, focusing on a new, risk-based approach to immigration detention.


To support the integrity of Australia’s immigration programme, three groups would be subject to mandatory detention:  all unauthorized arrivals, for management of health, identity and security risks to the community; unlawful non-citizens who presented unacceptable risks to the community; and unlawful non-citizens who had repeatedly refused to comply with the visa conditions.  He said the Christmas Island Detention Centre had a range of facilities that provided the flexibility to manage individuals and groups with different needs.  The new Immigration Detention Centre had been opened to provide alternative accommodation on the island and to further cater to diverse needs.  That facility operated in “low security mode”, he added.


Continuing, Mr. SMITH said that Australia believed it had a range of mechanisms in place to investigate, correct and compensate cases of alleged wrongful arrest, detention and conviction and did not believe there was a need to establish an additional independent review body.  He added that all States and Territories had mechanisms in place to enable the investigation of, and compensation for, such cases.


Turning next to access to mental health care for prisoners, Ms. NOLAN said relevant Australian Government, state and territory authorities provided appropriate support services for mentally ill inmates.  Procedures were in place to ensure that inmates were screened and trained staff certified and monitored their physical and mental state.  She noted that Australia was working to provide better information exchange and boost staff training to enhance such access to health care.  Facilities were also being upgraded to accommodate prisoners with mental illnesses.


On freedom of thought, religion and expression (Articles 18 and 19), Ms. Nolan said religious freedom was guaranteed under the Constitution and the Government had undertaken a number of initiatives to support harmonious relationships among different people, cultures and religions.  She added that the 1975 Racial Discrimination Act prohibited intimidation or violent acts based on race or ethnicity.  The Government had interpreted the Act broadly to also extend such prohibition to cover religious groups.


She said that, since the release of the “Isma-Listen” report, the Human Rights and Equal Opportunity Commission had been conducting a number of projects examining freedom of religion and belief.  Such projects would, among other things, enhance public awareness about Arab and Muslim Australians.  The Commission planned to consult with Commonwealth, state and territory agencies, as well as media outlets and Arab and Muslim communities across Australia.


On dissemination of information about the Covenant, including the Committee’s concluding observations, she said such information was made available in a variety of ways, including through publication on the Commonwealth Attorney Generals’ website.  The Government circulated relevant reports and other information to states and territory agencies, as well as overseas posts.


The Human Rights Commission also worked to disseminate information and raise awareness about the Covenant and human rights principles.  She said Australia also had a “strong and very active” non-governmental organization community that also disseminated information about the Covenant and the work of the Committee.  Further, human rights courses were available in schools and universities for students and public officials.


Expert’s Questions and Comments


PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said he was happy to learn about the proposed changes in migration and immigration policies.  He asked for more information about how the changes would affect illegal immigrants.  He also asked for more details about “unauthorized boat arrivals” and whether such persons would be processed at the Christmas Island detention centre.  Was legal aid provided for indigent persons?


HELLEN KELLER, expert from Switzerland, asked several questions concerning the burden of proof in determining whether exceptional circumstances existed to justify bail for terrorism suspects.  It seemed that a presumption against bail existed for all such persons.  Was that the case?  Given what appeared to be very limited access to the State party’s evidence, did terrorism suspects have fair and reasonable opportunity to meet the burden of proof warranting the granting of bail?


FABIAN OMAR SALVIOLI, expert from Argentina, urged the delegation to remember that any breach of any international law or legal obligations under such laws required compensation or reparations if harm was done.  He also urged the State to set up some sort of transparent mechanism to ensure the eradication of police brutality.


On access to mental health services by mentally ill detainees, he was concerned by persistent reports from national civil society groups that had cited violations that seemed to run counter to the requirements of the Covenant.  The reopening of detention centres on Christmas Island was also cause for concern, especially since the newest facility on the site appeared to be somewhat of a maximum security prison.


Mr. O’FLAHERTY, expert from Ireland, said he noticed there was no overall law prohibiting incitement to violence and religious hatred.  Only three States had such provisions on their books, so that appeared to be a legislative gap on Australia’s part.  He noted that Covenant article 20 was not about “criminalizing thought” or erecting laws against religious defamation.  Rather, it was about sturdy enforcement of freedom of religious expression.  He told the delegation that perhaps it was time to revisit its obligations under that article and, in the spirit of the current situation in Australia and around the world, consider removing its 29-year-old reservation to it.


Next, RAFAEL RIVAS POSADA, expert from Colombia, said Australia’s fifth periodic report revealed a different interpretation of established rules on submission of documentation.  While most of the treaty bodies and Member States had agreed with the need to streamline report presentation and end duplication, they had always been “crystal clear” about the information that was needed to allow the various Committees to carry out their work.


That being the case, such reports, no matter how streamlined, must be thoroughgoing and ensure progress was made towards comprehensive implementation of respective obligations.  While Australia had acknowledged its current submission had been “experimental”, the delegation must likewise admit that the experiment had failed.  He believed that several other members shared his “dissatisfaction and disgruntlement” with the format of Australia’s submission.


Taking the floor for the second time today, Mr. RODLEY, expert from the United Kingdom, expressed concerns about immigration and detention policies.  He said that civil society groups had reported that, while such changes had indeed resulted in fewer people being detained, that detention remained arbitrary.  The Committee had also heard allegations that people were entering the country on valid visas, but were subsequently detained, for various and sundry reasons, for weeks at a time.  For instance, the Committee had heard that five unaccompanied minors had been held in detention for five weeks in a centre on Christmas Island.  Children, he stressed, were not to be detained except as a “very last resort”.  Was there any thought of reviewing current relevant legislation?


BOUZIB LAZHARI, expert from Algeria, asked if the Government intended to enact a law prohibiting religious incitement in the Territory of New South Wales, where more than half of Australian Muslims lived.


On the status of indigenous people, IULIA ANTOANELLA MOTOC, expert from Romania, said she was pleased that the delegation had addressed the situation of indigenous women in Australia.  While there were remarkable policy efforts under way to support and promote indigenous rights, she wondered if the delegation could identify some areas for improvement in that regard.


AHMAD AMIN FATHALLA, expert from Egypt, asked whether any Australian states or territories had enacted legislation on religions discrimination and vilification.  He was also concerned that the country had chosen a broad interpretation of the terms “race” and “ethnic origin” in the Racial Discrimination Act to extend to particular religious groups.  Why not amend the Act with an explicit mention of religion?  As it stood, the matter was confusing and bound to lead to misinterpretation.


RUTH WEDGWOOD, expert from United States, said she believed that, if there was any morally fundamental issue that was going to take Australians at least a generation to solve, it was to somehow to find a way to bring justice to its Aboriginal people.  Australia, “a world leader in so many ways”, had a particular obligation to address the matter comprehensively.


Delegation’s Response


Responding to the experts, Mr. ILLINGWORTH referred to how the state could reconcile arrangements on Christmas Island to provide protection on Covenant grounds for people arriving there by boat.  He said the law had prevented arrivals from applying for visas unless the Prime Minister allowed it.  Protection arrangements, however, did meet basic elements of the refugee process.  Training, guidelines, national justice and federally funded assistance to asylum-seekers on Christmas Island had been significantly strengthened by the new Government.  Australia reconciled the matter by having two processes, both of which identified protection for individuals that needed it.  A person seeking protection on Christmas Island was not removed until his case was explored and he was found to not warrant protection.  That was a change from the old Pacific Strategy.


In terms of Government policy changes concerning detention, he said the Minister’s speech that had been circulated to the experts outlined several policy shifts.  In terms of the impact on indictees concerned, he said most people who may be subjected to detention were not asylum-seekers or unauthorized arrivals.   Most of the 4,000 asylum-seekers received each year were processed in the community locally and were never detained.  Within four hours of being detained a person was interviewed.  A series of reviews was then conducted to consider the grounds for continued detention and whether it was appropriate to do so.


He said that under the Government policy, unauthorized arrivals seeking asylum on Christmas Island were processed there.  It took the same amount of time to process an asylum application ‑‑ two to three months on average ‑‑ on the island as on the mainland.   Individuals could seek redress in the High Court.  Most, if not all, people arriving by boat to Christmas Island sought protection and took advantage of the Australian Government’s free professional and legal advice.  Detention processes applied more to people without visas and their potential identity, health and security risks, than to people seeking asylum.  The Christmas Island detention facility was opened for operational and logistical reasons and to house people arriving by boat.  People put in the detention centres were allowed freedom of movement.


Concerning the degree to which the Government’s new immigration and detention policies were implemented in practice, he said the Government announced them last July and it was moving quickly to implement them within existing legislative frameworks.  Once the decision was made that a person was not cleared through immigration, that person would then be subjected to mandatory detention to assess his risk for identity, health and security concerns.


Concerning the need to bring justice to Australia’s indigenous people, Mr. SMITH said the Prime Minister’s apology last year acknowledged past transgressions.  The Prime Minister had also committed to providing an annual progress report to Parliament on indigenous issues’ reform.  The first annual report was issued last month.  To address the appalling gap in life opportunities between indigenous and non-indigenous Australians, the Government had set six targets.  They included, among others, closing the 17-year life expectancy gap between indigenous and non-indigenous Australians within one generation; halving the gap of infant mortality rates of indigenous children, which were double that of non-indigenous children, within a decade; and ensuring all indigenous children access to early childhood education within five years.


Turning to the treatment of prisoners in solitary confinement, Ms. NOLAN said such confinement was generally used as a last resort and only for a period of time in which the safety of prisoners or others in the prison was at risk.  A prisoner separated from others for medical supervision was seen by a doctor within 24 hours.  Those deemed at risk for self-inflicted harm were placed in a cell for observation.  Under the 1999 Crimes Administration Sentences Act, prisoners were only segregated if considered a threat to others.  Segregated inmates were given adequate food, lighting and living conditions.  Juveniles could only be segregated for more than 24 hours with the approval of the deputy director and under the supervision of medical and psychiatric staff.  Comprehensive outreach procedures were in place to treat those with mental illness.  In Tasmania, solitary confinement was seldom used, and people were not confined because of mental illness.


Concerning the issue of taser guns, Mr. CAMPBELL said Australia’s Federal police had approved their use.  Police using taser guns must undergo advanced training and be re-certified annually.  On the issue of mandatory sentencing laws, he said a bill was introduced into Western Australian Parliament in 2008 to amend the Criminal Code so that a person who assaulted a police officer and caused him bodily harm was sentenced.


Experts’ Comments and Questions


Taking the floor again, Mr. RODLEY asked about the logic of Australia’s policy in which a person who arrived at Christmas Island on a temporary visa and then applied for asylum was turned away for apparently not getting the correct visa in the first place.  He also asked the delegation to elaborate on the use of taser guns in South Wales in 2008, referring to page 18 of the joint submission by the non-governmental organizations.


Delegation’s Response


Mr. CAMPBELL said he would look into the South Wales issues and respond at a later date.  In terms of the need to ensure the rights of indigenous Australians, he said the Government was the first to acknowledge that there were areas of disadvantage and inequity and that in the past two days the delegation had conveyed Australia’s commitment to redress that.


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For information media • not an official record
For information media. Not an official record.