Human rights agency criticises proposed law that would allow removal of migrants without considering potential persecution

This article is more than 5 years old

This article is more than 5 years old

The UN’s human rights agency has made sweeping criticisms of Australia’s policies towards asylum seekers, saying a proposed law that would allow the government to remove people without considering whether they might face persecution elsewhere could contravene international treaties against torture.

Considering Australia as part of its universal periodic review – a four-yearly rolling process – the Office of the High Commissioner for Human Rights (OHCHR) also expressed concerns about new counter-terrorism legislation, saying it could define terrorism too broadly.

On migrants, the OHCHR’s committee against torture, a 10-strong panel of independent experts, said it was concerned about the policy of intercepting and turning back boats off the Australian coast without a view on what treatment those on board might face, as well as policies of indefinite detention for unauthorised arrivals, including children, and the use of overseas processing centres on Manus Island and Nauru.

The OHCHR has previously voiced its concerns about the migration and maritime powers legislation amendment, currently going through Australia’s parliament, which would greatly strengthen the government’s ability to forcibly remove new arrivals.

The committee said Australia should “refrain from adopting any legislative or other measures that may lower the existing safeguards and standards of protection”.

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill is scheduled to go before the Senate this week.



It would allow Australia to deport asylum seekers without making any assessment whether they would be tortured if they were returned.



“The State Party [Australia] should guarantee that all asylum claims are thoroughly examined and that the persons concerned have a real opportunity to effectively challenge any adverse decisions.”

The immigration minister, Scott Morrison, is trying to wrangle crossbench support for the bill but he faces a difficult task without making substantial concessions.



This is parliament’s last sitting week before Christmas. If the bill is not passed by Thursday, the government will have to wait until the New Year.

In its own eight-page report, the torture committee said it was also concerned about the bill. More widely, it criticised the policy of turning back migrant boats without considering the consequences for those on board, saying this could contravene article three of the UN’s convention against torture, signed by Australia in 1985. The article says countries should not expel or return people to another state when there are “substantial grounds for believing that he would be in danger of being subjected to torture”.

The committee’s report said it remained concerned about the policy of detaining unauthorised arrivals, including children, until those held were given a visa or expelled, with no maximum time limit, “reportedly resulting in protracted periods of deprivation of liberty”.

It expressed worry about the transfer of asylum seekers to processing centres on Manus, in Papua New Guinea, and Nauru, “despite reports on the harsh conditions prevailing in these centres, including mandatory detention, including for children; overcrowding, inadequate healthcare; and even allegations of sexual abuse and ill-treatment”.

The UN refugee agency had, the committee said, found that overseas centres did not provide humane detention conditions.

“The combination of these harsh conditions, the protracted periods of closed detention and the uncertainty about the future reportedly creates serious physical and mental pain and suffering,” it said.

The committee also said Australia should repeal its mandatory detention laws for asylum seekers – a policy that has been in place since the Keating government - and said that Australia could not arbitrarily detain people indefinitely.

“Detention should be applied only as a last resort … and for as short a period as possible.”

The average length of detention in Australia’s immigration system is now at at 426. In July 2013, it was 72 days.

In other countries, the average time in detention is much lower. In the US, that figure is 30 days, in Canada 25, and in France 10.

But the number of people in detention in Australia continues to fall steadily. There are now 3084 people in immigration detention.

Australia, the report noted, still had responsibility to asylum seekers under articles two, three and 16 of the torture convention. Article two notes that signatories must prevent acts of torture under their jurisdiction, while article 16 relates to preventing other acts of cruel, inhuman or degrading treatment or punishment not defined as torture.

Daniel Webb from the Human Rights Law Centre said the committee against torture had found that “on asylum seekers, Australia is acting in absolute defiance of international law and is being condemned on the world stage for doing so”.

“The prohibition on torture is absolute. Australia can’t torture people, nor can we send them back to a place where they’re in danger of being tortured by others. The UN committee’s findings make it clear that intercepting and returning asylum seekers without fairly and thoroughly assessing their refugee claims is fundamentally incompatible with this vitally important obligation.”



Australia’s Senate estimates heard last month that eight Sri Lankan asylum seekers have reported being tortured upon being returned to their country.

The Australian government has found four of these allegations were unsubstantiated, and are investigating the other four.

Torture by state authorities in Sri Lanka has been widely reported by human rights groups, the UN, and international media.

Australia has previously told Sri Lanka it needed to “take action to reduce and eliminate all cases of abductions and disappearances; [and] take action to reduce and eliminate, all cases of abuse torture or mistreatment by police and security forces”.

Separately in the report, the UN committee noted new powers just granted to Australia’s spy agencies, what it termed the broad definition of the term “terrorist act”, and powers allowing the Australian Security Intelligence Organisation to question people with restricted access to a lawyer of choice, while noting assurances that this latter power had never been used.

It said some progress had been made over the treatment of Indigenous Australians, but that they were still “disproportionately affected by incarceration”, representing about 27% of all prisoners but only 2% to 3% of the population.

The committee expressed concerns about prison overcrowding, singling out for criticism Roebourne regional prison in Western Australia. Earlier this year an inspection report condemned conditions there as “intolerable and inhumane”, with prisoners stuck in overcrowded cells with no air conditioning despite summer temperatures above 40C.