COMMITTEE MONITORING COMPLIANCE WITH INTERNATIONAL CIVIL, POLITICAL RIGHTS
COVENANT BEGINS CONSIDERATION OF FIFTH PERIODIC REPORT OF AUSTRALIA
UNITED NATIONS PRESS RELEASE
23 MARCH 2009
Australian Ambassador Andrew Goledzinowski today assured a panel of United Nations human rights experts that his country’s Government was firmly committed to adherence with its obligations under core human rights treaties at both national and global levels, and was also committed to a “renewed engagement of Australia as a nation with its indigenous peoples, based on reconciliation, mutual respect and understanding”.
Providing the 18-member Human Right Committee with an overview of Australia’s fifth periodic report on compliance with the International Covenant on Civil and Political Rights, he said that, at the global level, Australia had been working towards becoming a party to a number of human rights instruments, and inviting greater scrutiny by, and engagement with, international human rights mechanisms. Yet, he acknowledged that there were areas of disadvantage in the country, particularly in relation to its indigenous peoples.
“However, we are firmly committed to redressing that disadvantage,” he continued, noting that, early last year, the Australian Parliament had offered an apology to indigenous Australians -- in particular the “Stolen Generations” -- in relation to the thousands of Aboriginal and Torres Straight Islander children who had been removed from their families and communities as a result of past practices. “The apology was an important and symbolic first step to build trust and good faith,” Mr. Goledzinowski said.
Going forward, the Government planned to focus on closing the gap on indigenous disadvantage across urban, regional and remote areas. A vital element of that strategy was the agreement of the Australian and state and territory governments to key targets to that end, focused on increasing life expectancy, improving the health of children and increasing participation in education and employment. He also said that, in 2008, some $A4.6 billion had been agreed on by the Council of Australian Governments for initiatives for indigenous Australians in areas such as early childhood development, health, housing, economic development and remote service delivery.
Highlighting a range of important domestic initiatives, including recent changes to Australia’s immigration laws and amendments ending discrimination against same-sex couples and their children, he also said the national human rights consultation process was an essential step towards the introduction of further measures to better protect such rights -- including those under the Covenant. That exercise. launched last year by the Attorney-General, was designed to seek the views of the wider Australian community on how human rights and responsibilities should best be protected in the future, and would undertake a range of awareness-raising activities to enhance participation by a wide cross section of Australia’s diverse population.
Following the Australian delegation’s response to some of the Committee’s written questions, several of the experts took the floor, including Michael O’Flaherty, expert from Ireland, who asked about the national consultative process. He noted that the exercise tended to frame questions rather broadly. How would the process ensure that all of Australia’s international obligations were taken into account, and that the process paid due respect to the indivisibility and universality of all human rights? To what extent was there an education and public information process occurring in parallel with the consultation, so that people could make informed responses, he asked?
Krister Thelin, expert from Sweden, said he was encouraged by upcoming improvements to the country’s anti-terrorism regime, including enhanced monitoring and oversight. At the same time, he was among the Committee members concerned, based on the reports from other experts, if such changes might be “too little and too late”. Those reports pointed out certain weaknesses in the system that might erode some individual protections. He wondered if the Australian Government had made any moves to tighten its definition of terrorism, or its listing procedures? The Government was to be complimented for its efforts to fight the global scourge, but it must also make sure it kept measures in place to safeguard fundamental rights.
The Human Rights Committee met this afternoon to begin 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. In accordance with the 2006 harmonized guidelines on an expanded core document (HRI/MC/2006/3/Corr.1), Australia has included topics in the core document which are congruent between some or all of the major human rights treaties.
To that end, Table 1 of the current report outlines where the Covenant provisions are addressed in the core document. Where particular issues are not addressed in the expanded core document, the Australian Government refers the Committee to its previous reports. Table 2 sets out the issues raised by the Human Rights Committee in its concluding observations on Australia’s third and fourth periodic reports under the Covenant, and where these are addressed in the core document or in the present report. The current report also details communications arising under the First Optional Protocol to the Covenant during the reporting period.
Introduction of Report
The Australian delegation, headed by Ambassador Andrew Goledzinowski, also included Bill Campbell QO, 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.
Providing an overview of the report, Mr. GOLEDZINOWSKI said his country’s Government was firmly committed to achieving adherence to the tenets of the Covenant and other international human rights instruments. It believed that the best way to improve human rights was through its own domestic measures, as well as through strengthening Australia’s engagement with the United Nations relevant treaty framework.
Continuing, he said that, on the domestic side, one important initiative was the national human rights consultation process, as an essential step towards the introduction of further measures to better protect such rights -- including those under the Covenant. At the global level, Australia had been working towards becoming a party to a number of human rights instruments, and inviting greater scrutiny by, and engagement with, international human rights mechanisms.
He went on to say that, this past December, Australia’s Attorney-General had launched the National Human Rights Consultation, recognizing that the protection and promotion of human rights was a question of national importance for all the people of the country. The exercise was designed to seek the views of the Australian community on how human rights and responsibilities should be best protected in the future, and would undertake a range of awareness-raising activities to enhance participation by a wide cross section of Australia’s diverse community.
The Consultation was being conducted by an independent committee of four eminent persons, he said, adding that the National Human Rights Consultation Committee would provide a comprehensive report to the Government of the views of the wider citizenry on options for protecting human rights in August this year. That report would be a key consideration in subsequent decisions by the Government on further developing human rights protections in the country.
Turning to indigenous issues, he acknowledged that there were areas of disadvantage in Australia in relation to its indigenous peoples. However, the Government was firmly committed to redressing that disadvantage and the current Administration was committed to a renewed engagement of Australia as a nation with its indigenous peoples, based on reconciliation, mutual respect and understanding. In February 2008, the Australian Parliament had offered an apology to indigenous Australians -- in particular the “Stolen Generations” -- in relation to the thousands of Aboriginal and Torres Straight Islander children who had been removed from their families and communities as a result of past practices. “The apology was an important and symbolic first step to build trust and good faith,” he said.
Continuing, he said the Government’s focus would be on closing the gap on indigenous disadvantage across urban, regional and remote areas. A key element of that strategy was the agreement of the Australian and all State and Territory Governments, through the Council of Governments, on key targets to that end, focused on increasing life expectancy, improving the health of children, and increasing participation in education and employment. He also said that, in 2008, some $A4.6 billion had been agreed by the Council of Australian Governments for initiatives for indigenous Australians in areas such as early childhood development, health, housing, economic development and remote service delivery.
On the country’s immigration system, he said that system aimed to ensure that, throughout the process, all persons seeking protection were treated fairly, cared for and assisted appropriately, and treated with dignity and respect, in compliance with Australia’s obligations under core human rights treaties. He acknowledged that, in the past, there had been challenges in balancing the treatment of those seeking asylum with efforts to ensure Australia’s borders were adequately protected. Since the report had been completed, significant reforms had been initiated within the immigration system to “reinforce humanity, fairness, integrity and public confidence in our policies”, including, among others, abolishing the so-called “Pacific Solution”, improving services to asylum seekers, and enhancing the quality of protection decision-making.
After noting Australia’s new approach to detention, and its enhancements to its refugee status assessment process, he went on to note such issues as same sex reforms in the country, including Parliament’s passage of legislation last year to amend 84 federal laws to remove discrimination against same-sex couples and their children. He also detailed his Government’s commitment to ensuring the country had in place a strong counter-terrorism strategy that protected its citizens, and which also complied with human rights obligations. To that end, in December 2008, the Government released a comprehensive response to a number of reviews of national security legislation announcing measures deigned to ensure such balance, including through the creation of a National Security Legislation Monitor, and the establishment of parliamentary oversight of the Australian federal police.
Finally, he noted his country’s formal accessions to the Optional Protocol of the Committee on the Elimination of Discrimination against Women on 4 December 2008, and its ratification in July 2008 of the Convention on the Rights of Persons with Disabilities. He also announced that the Government was working towards becoming a party to the Covenant’s Optional Protocol. He noted that, on 7 August 2008, the Government had issued a standing invitation to United Nations human rights experts to visit the country. He reiterated his Government’s deep commitment to upholding its obligations and engaging constructively with the Committee over the next two days.
Replies to Experts’ Questions
The first question dealt with laws in place to implement the provisions of the Covenant, fielded by Mr. CAMPBELL. He said that the Federal Government, States and self-governing territories of Australia shared the responsibility of giving effect to Covenant rights. The Government believed that domestic laws already complied with the treaty, even prior to its ratification. Australia had a human rights commission that could inquire and conciliate complaints on the breach of human rights. Where there was a breach, the commission must report its findings to the Commonwealth Attorney General, who then tabled those reports in Parliament.
He listed various laws through which the Covenant was implemented, including a racial discrimination act, sexual discrimination act, discrimination against disabilities act, workplace relations act and others, which were complemented by anti-discrimination laws at State and territory level. It was possible that a legislative charter of rights might emerge from the human rights consultation process, mentioned earlier.
Turning to question 2, on Australia’s reservations under the Covenant, he said there was no intention to withdraw from them, as they were still considered necessary. With regard to reservations against the provision dealing with separate remand of detainees, it was necessary, at times, to house accused and convicted individuals together. In some cases, convicted inmates might be returned to the centre where they were housed prior to sentencing, while awaiting a transfer. In the case of separation of children and adults, it was not always desirable to separate juveniles from others in all circumstances. That was true in cases when it might entail solitary confinement, or might lead to the placement of juveniles in conditions less amenable than that of other convicts.
Concerning Australia’s reservations on a provision requiring statutory compensation in the miscarriage of justice, he said the granting of compensation did not necessarily have a statutory basis.
He said Australia’s continued reservation on the provision against incitement to religious hatred reflected the country’s strong tradition of freedom of expression. Racial or religious hatred, while a problem, was not believed to fall under a criminal jurisdiction.
Moving to question 3, on compliance with the Committee’s views under the First Optional Protocol, he noted that, of the seven cases referred to by the Committee, five raised issues relating to Australia’s immigration laws, policies and practices. The Government had instituted measures to reduce the likelihood of future communications on those subjects, for example, by ensuring that detention was only used as a last resort. Further, the Department of Immigration would have to justify any decision to detain individuals. He referred the Committee to the answers provided in Australia’s written response on cases relating to immigration issues.
On question 4, whether Australia considered its agents abroad to be bound by the Covenant and its Second Optional Protocol, he said the Government accepted the fact that there might be certain exceptional circumstances in which rights and freedoms might be relevant beyond the territory of a State party. Australia’s view on the exact jurisdictional scope of the Covenant was not settled. The Government believed that the extent to which Australia’s obligations were applicable depended on the degree of effective control exercised by Australia, as linked to its legal basis for its operations overseas, whether that be a United Nations mandate or agreements made with the host country. In all cases, it would respect the fundamental rights and freedoms provided under the Covenant. To the extent Australia could extend them to military operations occurring outside Australia, it would endeavour to implement the Covenant’s provisions as appropriate to the circumstances.
He stressed that Australian officials were obliged to comply with Australian criminal law that had extraterritorial application, such as the prohibition of torture.
In response to question 5, on how Australia would ensure that anti-terror laws were compatible with the Covenant, he said anti-terror laws had strict safeguards. Australia also had a monitoring body within the Prime Minister’s portfolio to review counter-terrorism legislation. Law enforcement and security authorities were subject to oversight by an ombudsman and Inspector General of intelligence and security. The Council of Australian Governments would study the outcome of a review of the anti-terrorism bill of 2005, and that would encompass State and territorial legislation.
He said the security and intelligence organization act provided that the subject of a warrant be treated with humanity, and be protected from cruel and inhuman treatment. There was a strict time limit on the period of questioning, and they had a right to a lawyer. The law did not apply to those under 16 years of age, while those aged 16 to 18 years were subject to special provisions. The federal police could also apply to court for a control order, if it was thought that such an order would prevent a terrorist act, while observing the appropriate safeguards. He also discussed safeguards relating to Australia’s “stop, search and question” policy. A police officer would not use force more than reasonably necessary or longer than needed, he added.
Turning next to strategies undertaken to reduce what the Committee saw as the disproportionate number of indigenous Australians in conflict with the criminal justice system, Ms. NOLAN said the Government was actively exploring innovative strategies to divert indigenous Australians from the criminal justice system. It had funded a number of plans and programmes to address that matter, including the Aboriginal and Torres Straight Prevention, Diversion and Restorative Justice Programme, Legal Aid for Indigenous Australians, and the National Law and Indigenous Advisory body. As an example, she said the legal aid programme funded a network of providers throughout the country to deliver such services in rural and remote areas in all States and territories.
On making Australia’s native title system more equitable, she said the Government was trying to enhance that system by taking a more flexible approach. It was not “overhauling” that system. Among other things, the new approach treated native title as a means to address broader socio-economic issues. It also aimed to address indigenous peoples’ goals and aspirations. She said that the “Native Title Amendment Bill 2009” took a less adversarial and more negotiation-oriented approach aimed to introduce targeted reforms to that system. The contents of the bill had been transmitted to parties throughout the country and had been published on the Internet. Ministers were working proactively to resolve native title claims, she added.
Mr. SMITH, addressing questions on a 2007 report by the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse in the Northern Territory, acknowledged that the survey had found such abuse to be widespread and seriously underreported in aboriginal communities. The report had highlighted strong connections between alcohol abuse, violence and the sexual abuse of children, and had stressed that, in some communities in the Northern Territory, such abuse and neglect was at “crisis levels” and required immediate attention.
Following the issuance of the report, the previous Australian Government had set up the Northern Territory Emergency Response (NTER), which had produced three emergency response bills that had been passed by Parliament in 2007. That legislation had aimed to protect children and make communities safe, in the first instance, and lay the foundation for a sustainable future for indigenous people in the Northern Territory. Immediate measures had included provision of additional policing, child health checks, repairs to infrastructure and alcohol and pornography restrictions. The current Australian Administration had placed stronger emphasis on engagement with aboriginal people affected by NTER. The Northern Territory Emergency Response Review Board had been set up to monitor implementation of the response measures.
The Board found, among other things, that some aboriginal communities had felt hurt and betrayed that they had not been consulted on the initial process, and that feeling had undercut some NTER initiatives. The Government had agreed that it would continue NTER within the framework of genuine consultation, respect for human rights obligations and in conformity with the 1975 Racial Discrimination Act. Indigenous people would be consulted in the process, he stressed.
On violence against men and women, he provided relevant statistics broken down by age groups, including information indicating women were more likely to be physically or sexually assaulted by men they knew. The Government had implemented a “zero-tolerance” policy on the issue and the relevant council was working on a national plan aimed at reducing such violence. Further, the Government had already invested heavily in analyzing domestic issues and attitudes on the issue. Other measures included the setting up of a specialized family violence programme, as well as a plan to address homelessness, especially since a major cause of homelessness among women was family violence. The Indigenous Family Violence Programme was among those targeting Australia’s native communities, he added.
Next, Ms. NOLAN said Australia provided support for victims of trafficking, and those who cooperated with authorities in investigations and prosecutions of their traffickers were provided with a range of social services. Such services included assistance with income, social support, counselling and training. Additional support was provided for those who no longer lived in Australia, but had returned to the country to give testimony in trafficking cases. Where victims did not choose to assist, the person was helped to return to their home country, unless they were eligible to remain in Australia.
Experts’ Comments and Questions
MICHAEL O’FLAHERTY, expert from Ireland, said he would have liked to have heard from a representative from States, since much of the implementation of the Covenant’s provisions fell to them. He commended the contribution of non-governmental organizations to the official response, and praised the Government for its quick submission of replies, but expressed concern over scanty responses on issue of high importance. For example, responses to article 27, on indigenous persons, received only four paragraphs. In addition, the report was dated 2008, but referenced much older material. Although Australia ought to be commended for pioneering the “expanded core document process” in human rights reporting, it had resulted in too little detail on issues of relevance to the Covenant. He suggested that it might be advisable for the Government to return to a more traditional approach.
He asked about the consultative process to better implement human rights in Australia, noting the process tended to frame questions rather broadly. How would the process ensure that all of Australia’s international obligations were taken into account, and that the process paid due respect to the indivisibility and universality of all human rights? To what extent was there an education and public information process occurring in parallel with the consultations, so that people could make informed responses? To what extent was the Government going beyond scientifically established methods to gather empirical information? Finally, what was the budget and timeline?
He then asked to what extent the Covenant and international human rights law were invoked in federal courts, remarking that non-governmental organizations were reporting a low level of citation at that level. Was the Government providing training for court professionals on matters of international law?
He said the panel did not adequately answer the Committee’s questions regarding measures and mechanisms to ensure compliance with the Committee’s views on communications. Some of the responses referred to certain websites, but he cautioned the delegation from assuming that Committee members had access to the Web or, if they did, that the websites were offered in all the Committee’s working languages.
He acknowledged the delegation’s assurances of prospective changes in the law to be more compliant to the Covenant, but nevertheless reminded them that it was the Committee’s duty to invite them to reconsider their reaction to its views. In terms of the so-called immigration cases, he said that the delegation’s opening statement today had given him the impression that detention would occur on the basis of some subjective determination. Was that true? What remedy would be given to the plaintiffs involved in those? The same was true in non-immigration cases, such as Young v. Australia and others. He also asked for information on two communications that were not dealt with in the written responses.
He said the response to question 6 was “somewhat anecdotal”. Why was there not more use of quantitative data in the response? For example, why was it difficult to gather statistics and figures on the outcome of an independent review of the Murray Court?
He then asked for more information on several new initiatives, including the new national indigenous law and justice advisory body, asking to whom it delivered its advice, and what was the timeline for its work? He posed similar questions regarding the Standing Committee of Attorneys General effort to draft an indigenous law and justice framework. What status would the framework ultimately have? If the Government was undertaking an overhaul, why was the word “overhaul” then not used? “Overhauling” something did not indicate failure.
On the new role of the Federal Court of Australia and amendments to native title, he asked whether the new bill of March 2009 included those changes. He noted also that the Government was interested in examining proposals to encourage “agreement-making”. How was the Government propelling work on such proposals?
On follow-up to issues relating to family violence and child abuse within indigenous communities, he noted that a child protection framework would be finalized in early March 2009. When would that be in place? How would the framework address issues of abuse within the indigenous community specifically? The Council of Governments had agreed to establish a clearinghouse on indigenous “outcomes” in April 2007. How did the clearinghouse target issues of violence and abuse specifically?
Regarding question 11, on extradition and mutual assistance around cases that might lead to the death penalty, he said the Second Optional Protocol prohibited extradition where persons were subject to the death penalty. He asked for information on safeguards that Australia was elaborating in that regard. He understood that assistance to a State in which the death penalty might be imposed could be waived in special circumstances, but that the term “special circumstances” had not been defined. When might they arise? The Act did not apply in the “Bali Nine” case. How did Australia ensure compliance with the Optional Protocol in that case?
HELEN KELLER, expert from Switzerland, asked for more clarification on Australia’s remaining reservations to the Covenant, saying the time might be ripe to reconsider reservations concerning article 10, paragraph 2(a) and (b), and 3. Like Mr. O’Flaherty, she also asked what Australia was doing to address extradition and mutual assistance in death penalty situations. She also asked what the Government proposed to do in light of a 2008 report on preventing crime and promoting the rights of indigenous youth with mental health issues. Similarly, a report of October 2006 precluded courts from considering background or customary laws for those convicted of federal crimes. What impact might that act have on indigenous children being overrepresented in the juvenile justice system? On violence against women, she noted a report of August 2008, and asked what the Government would do to implement its recommendations.
Next, KRISTER THELIN, expert from Sweden, praised Australia’s human rights record and urged the country to work in that spirit to remove the remaining flaws in its human rights system. He echoed Mr. O’Flaherty’s belief that the report was “scanty” and wondered if the delegation would reconsider its compilation procedures in the future. On the substance of the opening presentation, he was encouraged by upcoming improvements to the country’s anti-terrorism regime, including enhanced monitoring and oversight.
At the same time, he was concerned, based on the reports from other experts, if such changes might be “too little and too late.” Those reports pointed out certain weaknesses in the system that might erode some individual protections. He wondered if the Australian Government had made any moves to tighten its definition of terrorism, or its listing procedures? The Government was to be complimented for its efforts to fight the global scourge, but it must also make sure to keep measures in place to safeguard fundamental rights.
PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, asked for further clarification on the Australian Government’s programmes for assistance to persons who had been “trafficked” into the country. What were the statistics? What type of assistance had they received? If they had remained in the country, what were they doing now? He also asked under what circumstances a “criminal justice stay” was issued, and what were the results or conclusions of the ongoing review of existing visa provisions. Were discussions underway to revise that procedure?
ABDELFATTAH AMOR, expert from Tunisia, said that given the democratic nature of Australia and its commitment to democracy and human rights, why had it entered a reservation to Covenant article 20, on “prohibition of propaganda for war and advocacy for national, racial or religious hatred.” While a country must be attuned to freedom of expression, it must also guard against incitement to hatred, he said, adding that the Government’s reservation gave rise to serious concerns. He went on to express concern that the Government seemed to be routinely rejecting the Committee’s recommendations and general comments on specific issues.
Next, CHRISTINE CHANET, expert from France, agreed with others that it had been difficult to extract detailed information from the report as drafted. The Member States had established monitoring bodies for the core human rights treaties and it was up to those States to abide by the agreed rules. Australia’s report was a “very meagre” one, which referred to recommendations from an earlier report. Moreover, the documents had been provided only in English, creating “even more problems”. She was also concerned that the Committee’s findings were not being properly addressed, especially with regard to Covenant article 9, on the “right to liberty and security of persons”.
JOSÉ LUIS PEREZ SANCHEZ-CERRO, expert from Peru, asked, were there any cases of persons in Australia being held for upwards of two years without being charged with a crime? The country’s laws on detention dated back to 1958 and there didn’t seem to be any movement to change or update them. He was also among the experts concerned that Australia seemed reluctant to address recommendations and observations of the Committee. He noted that, dating back as far as 1993, the Australian Government had stated that the Committee’s observations were “non-binding”. However, all States parties to the Covenant were bound to take seriously the Committee’s decisions.
Taking the floor next, Sir NIGEL RODLEY, expert from the United Kingdom, welcomed that the “Pacific Solution” had been abolished and that the National Human Rights Consultation was under way. At the same time, he was concerned about some individual protections. For instance, if an individual seeking asylum was not a protected person under international law, such as the Fourth Geneva Convention, could he or she be treated “any way the State party wanted too”? He was also concerned by findings of the Red Cross that a high Australian military official had “ignored and contradicted” evidence of the “notorious” activities going on at Abu Ghraib prison in Iraq. Moreover, that official had said that such practices were consistent with international law.
He also asked for clarification about Australia’s position on the principle of non-refoulement. He cited “troubling” cases in which a person sent back to China had been tortured and had subsequently committed suicide, and another, sent back to Gaza, who had been killed there for allegedly cooperating with Israel. It was unclear what protection and follow-up measures Australia had in place, and he asked for clarification to that end.
AHMED AMIN FATHALLAH, expert from Egypt, noted that each State legislature had the power to create their own laws. How would the Federal Government ensure that those laws were compatible with Australia’s obligations under the Covenant?
FABIAN OMAR SALVIOLI, expert from Argentina, observed that the Federal Government was primarily responsible for making sure the Covenant was being upheld, and asked what measures were being taken to implement its provisions within each State and territory. How did the Government deal with State legislation perceived as incompatible? Also, was there a process to debate the possible withdrawal of Australia’s reservations to the Covenant, and was the Government seeking to hold dialogues with law schools to raise awareness about the Covenant among professionals within the judiciary?
He congratulated the Government on its zero-tolerance policy on violence against women, but noted that non-governmental organizations were reporting that instances of domestic violence were on the rise. What steps were being taken to train the judiciary with respect to rules and laws for eliminating violence against women? The same went for discrimination against indigenous persons. He also asked whether the Government had any policies for dealing with extradition involving possible cases of torture, such as in the case of women facing the possibility of female genital mutilation.
Invited to respond to some of these questions in the limited time available, Mr. CAMPBELL chose to comment on mutual assistance and police assistance in cases involving the death penalty. He explained that mutual assistance was used to provide Government-to-Government assistance in criminal investigations and prosecutions to seek admissible forms of evidence. Police assistance referred to direct cooperation between police of different countries and tended to occur before entering into the mutual assistance process. When a person was charged or convicted of an offence that [attracted] the death penalty, the Attorney-General was required to refuse the request for assistance unless there was reasonable cause to do otherwise. An explanatory document accompanying the relevant act states that assistance would not be granted unless the other country agreed not to carry out the death sentence. However, the assurance was not necessary in cases where the evidence was exculpatory. Also, the Attorney-General had the discretion to refuse to provide assistance. It was not possible to provide a list of circumstances under which the Australian Government would consider special assistance, because it was decided upon on a case-by-case basis.
Similarly, he said police-to-police assistance could not be provided in cases [attracting] the death penalty unless the Home Affairs Minister approved it. The Attorney-General had already put forward a request to the Attorney-General’s Department and Australian federal police to review the procedure. The review was ongoing. On the Bali Nine, Mr. Campbell said the information from the Australian federal police provided to the Indonesian police had been reviewed by the federal court in January 2006. The court found that there had been a “rational purpose” for making the request and that the federal police had acted lawfully in communicating with their Indonesian counterparts. Nevertheless, the Australian Government would support vigorously any clemency pleas, should any Australian citizens pursue it. It was up to those convicted to determine the next steps with their legal teams.
Mr. ILLINGWORTH responded to queries regarding a statement by the Minister of Immigration on the mandatory detention within Australia’s immigration policies, a copy of which would be provided to the Committee tomorrow. The Government had affirmed that mandatory detention was part and parcel of border control for specific groups of people: unauthorized arrivals; unlawful non-citizens posing danger to the community; and unlawful non-citizens who refused to comply with visa conditions. However, indefinite or arbitrary detention was not acceptable. Length of detention and conditions of condition were subject to regular review. There were mechanisms to ensure that unauthorized arrivals were removed from detention at the earliest opportunity. Those decisions were made on a case-by-case basis.
Mr. Illingworth responded to questions raised by Sir Nigel regarding the al-Masri and Zhang cases, saying it was not Australia’s policy to remove persons in breach of international obligations. In relation to Mr. al-Masri, he told the Committee that material provided by various sources had revealed that his death occurred six years after his departure from Australia and, thus, the factors surrounding his death were not related to issues he faced while residing in Australia. In relation to the second case, he said the Government was similarly satisfied that the claimant was assessed appropriately, and that his departure from Australia was not in breach of the country’s international obligations.
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