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Editors --- "Conclusions and Recommendations of the Committee against Torture: Australia - Digest" [2001] AUIndigLawRpr 10; (2001) 6(1) Australian Indigenous Law Reporter 103

Inquiries and Reports - United Nations

Conclusions and Recommendations of the Committee against Torture:
Australia

Twenty-fifth session

21/1/2000

CAT/C/XXV/Concl.3

The adverse comments on Australia from the Committee against Torture represent the fourth United Nations Committee since 1997 to raise concerns about the impact of mandatory sentencing on Australia’s Indigenous people. In October 1997 the Committee on the Rights of the Child noted in its Concluding Observations that:

The Committee is also concerned about the unjustified, disproportionately high percentage of Aboriginal children in the juvenile justice system, and that there is a tendency normally to refuse applications for bail for them. The Committee is particularly concerned at the enactment of new legislation in two states, where a high percentage of Aboriginal people live, which provides for mandatory detention and punitive measures of juveniles, thus resulting in a high percentage of Aboriginal juveniles in detention.^[1]

In March 2000 the Committee on the Elimination of Racial Discrimination made the following comments in its Concluding Observations:

The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern Territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by Indigenous peoples within Australia, especially in the case of juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party’s obligations under the Convention and recommends the State party to review all laws and practices in this field.^[2]

In July 2000 the Human Rights Committee noted in its Concluding Observations that:

Legislation regarding mandatory imprisonment in Western Australia and the Northern Territory, which leads in many cases to imposition of punishments that are disproportionate to the seriousness of the crimes committed and would seem to be inconsistent with the strategies adopted by the State party to reduce the over-representation of indigenous persons in the criminal justice system, raises serious issues of compliance with various articles in the Covenant.

The State party is urged to reassess the legislation regarding mandatory imprisonment so as to ensure that all Covenant rights are respected.^[3]

As evident in the Concluding Observations below, the Committee Against Torture expressed its concerns about the ‘allegedly’ discriminatory effect of mandatory sentencing on Indigenous people. The Committee made its remarks after considering a number of extensive NGO submissions including those from ATSIC and the Western Australian Deaths in Custody Watch Committee.

ATSIC identified a number of areas where it appeared that Australia was not meeting its international obligations under the Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These included:

(1) mandatory sentencing of imprisonment in the Northern Territory and Western Australia;
(2) ongoing high levels of incarceration and inadequate implementation of key recommendations from reports including the Royal Commission into Aboriginal Deaths in Custody;
(3) inadequate access to complaints processes and remedies for Aboriginal and Torres Strait Islander people where torture or cruel, degrading and inhuman treatment or punishment may have occurred; and
(4) ongoing deaths in custody and a failure to ensure a satisfactory standard of duty of care.

The complete ATSIC submission to the Committee can be found on the ATSIC website at http://www. atsic.gov.au.

The Western Australian Deaths In Custody Watch Committee report can be found at http://www. deathsincustody.com/UN.html.

Australia

1. The Committee considered the second report of Australia (CAT/C/25/Add.11) at its 444th, 447th, and 451st meetings, on 16, 17 and 21 November (CAT/C/SR.444, 447 and 451), and adopted the following conclusions and recommendations.

I. Introduction

2. The Committee notes that the report was submitted with a delay of six years and was said to be the combined second and third periodic reports, the latter of which was due in 1998. The Committee welcomes the constructive dialogue with the delegation of Australia and greatly appreciates the lengthy and detailed information submitted both orally and in writing, that not only updated the report, which included information only until 1997, but also contained specific reference to each component part of the Australian federation, referred to factors and difficulties affecting the federation and gave answers to nearly all specific cases referred to them.

3. The Committee wishes to express its appreciation for the additional information submitted in 1992 (CAT/C/9/Add.11) in response to questions asked during the examination of the initial report of Australia.

4. The Committee expresses also its appreciation for the contribution of non-governmental organisations and statutory agencies to its work in considering the State party’s report.

II. Positive aspects

5. The Committee particularly welcomes the following:

(a) The declarations made by Australia on 28 January 1993, under Articles 21 and 22 of the Convention, and its ratification of the Optional Protocol to the International Covenant on Civil and Political Rights.
(b) The many investigations and enquiries that have been undertaken inter alia by Royal Commissions of inquiry, parliamentary committees, the Human Rights and Equal Opportunity Commission, ombudspersons, and other ad hoc bodies, at both the federal and state levels, on matters of relevance to the implementation of the Convention.
(c) The consultations with national non-governmental organizations that took place during the preparation of the report.
(d) The information contained in the report about the expansion of the rehabilitation services available for victims of torture, and the contributions of the State party to the United Nations Voluntary Fund for the Victims of Torture.
(e) The measures taken to address the historical social and economic underpinnings of the disadvantage experienced by the indigenous population.
(f) The establishment of the independent statutory office of the Inspector of Custodial Services.

III. Subjects of concern

6. The Committee expresses its concern about the following:

(a) The apparent lack of appropriate review mechanisms for ministerial decisions in respect of cases coming under article 3 of the Convention.
(b) Use of instruments of physical restraint that may cause unnecessary pain and humiliation by prison authorities.
(c) Allegations of excessive use of force or degrading treatment by police forces or prison guards.
(d) Allegations of intimidation and adverse consequences faced by inmates who complain about their treatment in prisons.
(e) Legislation imposing mandatory minimum sentences, which has allegedly had a discriminatory effect regarding the indigenous population (including women and juveniles), who are over-represented in statistics for the criminal justice system.

IV. Recommendations

7. The Committee recommends that:

(a) The State party ensure that all states and territories are at all times in compliance with its obligations under the Convention.
(b) The State party consider the desirability of providing a mechanism for independent review of ministerial decisions in respect of cases coming under article 3 of the Convention.
(c) The State party continue its education and information efforts for law enforcement personnel regarding the prohibition against torture, and improve further its efforts in training, especially of police, prison officers and prison medical personnel.
(d) The State party keep under constant review the use of instruments of restraint that may cause unnecessary pain and humiliation, and ensure that their use is appropriately recorded.
(e) The State party ensure that complainants are protected against intimidation and adverse consequences as a result of their complaint.
(f) The State party continue its efforts to reduce overcrowding in prisons.
(g) The State party continue its efforts to address the socio-economic disadvantage that inter alia leads indigenous Australians to come disproportionately into contact with the criminal justice system.
(h) The State party keep under careful review legislation imposing mandatory minimum sentences, to ensure that it does not raise questions of compliance with its international obligations under the Convention and other relevant international instruments, particularly with regard to the possible adverse effect upon disadvantaged groups.
(i) The State party is invited to submit its next periodic report by November 2004, and to ensure that it contains information on the implementation of the present recommendations and disaggregated statistics.

^[1] UN, Concluding Observations by the Committee on the Rights of Child: Australia, CRC/C/15/Add 79, 10/10/1997, para 22.

[2] UN, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, CERD/C/56/Misc.42/rev.3, 24/03/2000, para 16.

[3] UN, Concluding Observations of the Human Rights Committee: Australia, CCPR/CO/69/Australia, 28/07/2000, para 17.