Document - Australia: Up-date to briefing for the Committee against Torture

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Australia

Up-date to briefing for the Committee against Torture

TABLE OF CONTENTS

Australia

Up-date to briefing for the Committee against Torture

I.Introduction

In May 2008, the Committee against Torture (the Committee) is scheduled to examine Australia’s third periodic report on its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture or the Convention). The Committee’s consideration of Australia’s report was originally scheduled for November 2007, but was suspended at the request of the State Party, because it coincided with the care-taker period before the Federal Election on 24 November 2007. Amnesty International and two other non-government organisations were nevertheless permitted to present their reports to the Committee on 5 November 2007. This briefing represents an up-dating of Amnesty International’s October 2007 report (AI Index: ASA 12/001/2007 available on http://www.amnesty.org/en/library/info/ASA12/001/2007/en) to the Committee.

Amnesty International notes the following positive developments:

• The new Government has announced that it has commenced consultations with a view to signing the Optional Protocol to the Convention, and will consider incorporating a prohibition against torture into the Commonwealth Criminal Code;

• The election platform of the Australian Labor Party (ALP), the party of the new Government, includes conduct of a national consultation on a Bill of Rights, to which new Attorney General has made a public commitment¹;

• The election platform gives strong emphasis to the protection and promotion of internationally recognised human rights, including incorporation of all treaties ratified by Australia into domestic law, and Parliamentary scrutiny of all legislative instruments to ensure consistency with Australia’s human rights obligations²;

• The election platform also promises humane treatment of asylum seekers, including restriction of mandatory detention to the time necessary for health and security checking, management of detention facilities by the government rather than private security contractors³, and replacement of temporary protection visas with permanent protection for individuals who have been recognised as refugees;⁴

• The Government has ended the “Pacific Solution” whereby individuals seeking to enter Australia without documentation in order to claim asylum were moved to a processing facility on Nauru to have their claims assessed;⁵

• The Government has announced that it is considering complementary protection arrangements for failed asylum seekers who cannot be safely returned to their country of origin;⁶

• The election platform includes abolition of mandatory custodial sentencing for juveniles and adults convicted of minor crimes, without limiting the use of appropriate non-custodial programs;⁷

• The election platform also includes review of progress in implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody⁸; and

• The Victorian Government, in response to a recommendation of the Royal Commission into Aboriginal Deaths in Custody, has commenced construction of a culturally appropriate residential facility for Indigenous offenders undergoing community-based court orders.⁹ Such a facility would be expected to reduce Indigenous imprisonment and recidivism rates.

While noting these developments, Amnesty International would like to draw attention to the fact that since coming to power the Government has stated that its party platform constitutes a guide rather than a set of commitments.¹⁰The extent to which the election platform will be translated into active government policy, therefore, remains to be seen.

The present briefing focuses on the following concerns:

• Further reports of Indigenous deaths in police custody operations, and in prison custody, which highlight inadequacies in training and the standards of care respectively;

• A recent report from the Human Rights and Equal Opportunity Commission highlights on-going concerns with conditions in immigration detention; and

• The Government has announced that it will continue to process claims off-shore from asylum-seekers who arrive without documents, using the detention facility on Christmas Island, one of the many islands to the north of Australia which have been “excised from the Migration Zone”. Appeal to Australian Courts will not be available to these individuals;

II.Issues of concern

Indigenous deaths in police custody operations (articles 10 and 16)

In 2006, there were 22 deaths in police custody or police custody operations.¹¹

On 28 November 2007, the Western Australian Deputy Coroner released a report on the death of a 35 year old Indigenous man during police custody operations on 11 April 2006.¹²The Coroner’s report provided an account of the circumstances in which the deceased person had been arrested and placed in the back of a police van. The following details are taken from that report.

Many independent witnesses testified that the deceased had displayed symptoms of acute methamphetamine intoxication – subsequently confirmed by the pathologist’s report. His behaviour had been disturbed, aggressive and occasionally paranoid. He had been apprehended by police after he broke into a house, where a woman and her grandchild were present. Four police officers attended the arrest, which the deceased had resisted with abnormal strength. After a struggle which resulted in substantial injuries to the deceased ¹³and damage to the knee of one of the arresting officers, the deceased had been restrained and placed in the back of a police van with his hands cuffed behind his back. As he appeared to have lost a significant quality of blood, the officers had called an ambulance, but by the time it arrived he had stopped breathing. He was pronounced dead at hospital.

The Coroner found that the deceased, whose autopsy had revealed considerable evidence of atherosclerosis, had died:

“as the result of Cardiac Arrhythmia due to Ischaemic Heart Disease (Severe Coronary Atherosclerosis), Associated with Acute Methylamphetamine Toxicity, Following Recent Violent Exertion and Manual Restraint.”¹⁴

She concluded that the death “arose by way of Accident”¹⁵. However, given the position in which he had been placed in the back of the police van – on his stomach, with his hands cuffed behind his back - the pathologist had been unable to rule out “positional asphyxia” as a contributory cause of death.¹⁶

The Coroner noted that the arresting officers had been trained in the “use of force” and that the relevant training manual warned of the dangers of “positional asphyxia” which it defined as “Circumstances that induce an increased oxygen need that the body is unable to supply”, with the highest risk occurring in a person who is:

• Highly stressed

• Exhibiting wild, threatening or bizarre behaviour

• Exhibiting violent behaviour or resistance

• Restrained, especially handcuffed and lying in the face down position

• Affected by alcohol and/or other drugs

• Male

• Obese.¹⁷

However, the two officers who had known of the importance of ensuring that the deceased was kept on his side after being restrained, evidently did not communicate this to the others.¹⁸ The Coroner recommended that the “WA Police ‘Use of Force Manual’ be amended to more accurately define ‘Positional Asphyxia’ ”¹⁹and that police training be improved to make officers better aware that:

“When dealing with disturbances involving possibly drug affected or mentally disturbed persons there is a potential for sudden death, most critical once a situation is brought under control.”²⁰

It is clear that such situations test individual police officers to the limit, but they also expose potential weaknesses in training. The goals of such training would be to ensure that even under pressure to secure public safety and to protect themselves from an individual who has become dangerous because of alcohol, other drugs or mental illness, arresting officers have the skills to effect an arrest using the minimum force necessary and to call on any medical assistance that would be required, for example to administer sedatives, without delay.

Further, the nature of the injuries sustained by the deceased gives rise to concerns about training in accordance with Article 10 of the Convention, so as to ensure compliance with Articles 2(1) and 16(1) of the Convention. In relation to the severe injury to jaw and teeth of the deceased, the Coroner noted the extreme amount of force required to subdue to the deceased:

It appears during efforts to bring the deceased to the ground, front first, he was struck to the mouth by the knee of Constable Johnson. The blood staining, post mortem findings and injury to Constable Johnson’s knee are all consistent with the injury to the mouth having being caused by a significant impact with Constable Johnson’s knee, being brought upward as the deceased bent forward, then the deceased falling to the floor which caused the droplets to be projected from his mouth onto the floor at about floor level.

The injury was significant, and although it had no direct involvement in the cause of the deceased’s death, it probably had a further negative impact on the deceased’s mental state at that time. I accept it was an unfortunate accident on the part of Constable Johnson and was one for which he took responsibility. It did, however, result in an ambulance being called.²¹

The Coroner found that the arresting officers “were unaware of the fact paramedics could, and in the proper circumstances would, use chemical sedation as a way to calm people suffering extreme agitation”²²but made no further recommendation on this issue. Amnesty International is concerned that procedures consistent with the principles of necessity and proportionality in accordance with the provisions of the Convention are yet to be developed and promoted.

Indigenous deaths in custody²³(articles 10, 11 and 16)

Deaths in custody from apparent unnatural causes²⁴have declined nationally from 0.10 deaths per 100 prisoners in 2002-03 to 0.04 in 2006-07.²⁵ Amongst Indigenous prisoners, this death rate fell from 0.07 deaths per hundred to 0.05 per hundred over the period.²⁶ Only New South Wales and Western Australian recorded Indigenous deaths from apparent unnatural causes in 2006-07, with death rates per hundred prisoners of 0.10 and 0.07 respectively.²⁷

On 27 January 2008, an Indigenous elder from Warburton collapsed and died after being transported for over 4 hours in the back of a prison van. A witness is reported to have heard one of the guards tell a hospital doctor that it was “bloody hot” in the back of the van.²⁸On this basis it seems likely that the van’s air-conditioning system, which had broken down the previous week, was not operating. Outside temperatures would have exceeded 40 degrees during the journey, and without windows or air-conditioning the back of the van would have become dangerously hot. The vans are government owned, but operated by private contractors, Global Solutions.²⁹

The Inspector of Custodial Services said that the case “highlighted the failures of the prisoner transport system in Western Australia” and noted that he had filed reports on the “parlous” state of this system since 2001, when he had personally witnessed the arrival of 12 Indigenous people after a 12 hour journey in prisoner transport. He stated:

During the longest journeys – from the North and Northwest of the State down south and from the Eastern Goldfields and the Lands - as many as 95% of those transported are Aboriginal. Whilst it is not suggested that deliberate racism underlies the neglect of this longstanding problem, it is probable that it would not be tolerated if the passengers on these journeys were 95% non-Aboriginal.³⁰

The Inspector called for an immediate review and up-grading of the system to meet minimum standards under the Convention.³¹

A Coronial Inquiry will be held into the Indigenous elder’s death. At the time of writing the pathologist’s report had not been released.³²In the meantime, the West Australian Department of Corrective Services has tabled the results of an internal review of prison vans, and the responsible Minister has undertaken to act on all 18 recommendations, including checking temperature monitoring facilities in all vehicles.³³

Although the number of indigenous people dying in police custody has declined, the extremely high over-representation of Indigenous people in custody remains of serious concern³⁴as do, more generally, accounts of deaths in custody that appear to have been preventable, given adequate training and commitment to working within a rights based policy framework.

Mandatory detention (articles 10 and 16)

In January 2008 the Human Rights and Equal Opportunity Commission (HREOC) released a report on its 2007 inspection of immigration detention facilities. HREOC had requested the assistance of former Ministers of Immigration³⁵to facilitate visits to the immigration detention facility on Nauru, used as part of the “Pacific Solution”, but these requests were refused.³⁶ It is apparent that, because of the arrangements with Nauru, which issued detainees with visas, and with the International Organisation for Migration, which was responsible for supervising detainees at night (as detainees generally had liberty during the day), the Department of Immigration and Citizenship did not consider the facility on Nauru to be an immigration detention facility for which it had responsibility.³⁷

As noted above in November 2007 Australia saw a change in government, with the new government outlining its commitment to ending the processing and detaining of refugees and asylum seekers on Nauru. On 8 February 2008, the Australian Government announced that the last remaining recognised refugees on Nauru would be taken to Australia, where they would be granted permanent protection.

The new government also announced it would be looking at the current detention centres in Australia, particularly focusing on the situation facing those who have been detained for over two years.

Previously Amnesty International and other leading human rights organisations, as well as Australia’s Ombudsman’s office, have made recommendations outlining how Australia’s mandatory detention regime could be reformed to ensure that it is in compliance with human rights standards.³⁸The recent HREOC report includes a number of these recommendations.

First among HREOC’s recommendations was a reiteration of its call for an end to mandatory detention:

“While detention may be acceptable for a short period in order to conduct security, identity and health checks, currently mandatory detention laws require detention for more than these purposes, for unlimited periods of time and in the absence of independent review of the need to detain. HREOC believes that any decision to detain a person should be under the prompt scrutiny of the judicial system. Further, there should be outer limits on the periods for which immigration detention is permitted.”³⁹

Failing that, HREOC called for a strict 3 month limit on detention by:

a. resolving substantive visa decisions

b. releasing detainees on bridging or removal-pending visas

c. transferring detainees to residence determinations⁴⁰

d. transferring detainees to places of alternative detention (in the event that (a) – (c) cannot be achieved).⁴¹

Amongst other recommendations to improve conditions and services for detainees, HREOC recommended that Stage 1 of the Villawood detention centre be replaced as a matter of urgency.⁴²

The former Government is reported to have considered, and finally rejected, a proposal to replace Villawood. The new Minister for Immigration and Citizenship is said to have requested advice on options to improve the “unacceptable” centre.⁴³

Amnesty International shares the view of the United Nations High Commissioner for Refugees (UNHCR) that “As a general principle asylum-seekers should not be detained,”⁴⁴ and is therefore opposed to the mandatory detention of migrants or asylum seekers, including failed asylum seekers and those awaiting removal from the country. With this caveat in mind, the organization believes that the Government should generally respond positively to HREOC’s recommendations on this issue. It notes recent community calls for the closure of Villawood following the death in hospital of a Villawood detainee.⁴⁵ Although there is no publicly available report on the cause of death, it does not appear to have been from unnatural causes, although fellow detainees claim that the Department had been aware that the man needed medical attention long before he was taken to hospital, where he died of a heart attack.⁴⁶The 62 year old man had spent 3 months in Villawood awaiting return to Iran, following completion of a 5 year prison term for a drug-related offence. Whether this long period in detention was necessary in order to ensure that he was well enough to be returned,⁴⁷, as reportedly stated by the Departmental spokesman, or because there were difficulties in arranging his travel papers, it seems likely that his health and well-being could have been better protected by his release to the community – an option which is unnecessarily complicated under the current mandatory detention arrangements.⁴⁸

Amnesty International is also concerned about the new Government’s intention to pursue a policy of deterring asylum seekers who attempt to gain access to territory to claim asylum⁴⁹by what amounts to the “Indian Ocean Solution”. This consists of maintaining as “excised offshore places” ⁵⁰northerly off-shore islands and detaining all unauthorised arrivals in a large facility on Christmas Island pending assessment of their asylum claims. Amnesty International calls for an end to all mandatory detention, and limitation of detention to cases where detention is absolutely necessary, and then for short and defined periods. While the new government has not made it clear how people will be processed on Christmas Island, we remain concerned that detaining people in remote locations for potentially indefinite periods may cause unnecessary hardship, impact on both their physical and mental health and ultimately raise issues under the Convention.

Amnesty International reiterates that Australia must end its policy of mandatory detention, including as a punitive measure to deter the arrival of asylum seekers. All asylum seekers should be processed onshore in a fair and satisfactory asylum procedure which is non-discriminatory in purpose and effect.