Court of Public Opinion Will Decide Australia's Global Reputation Following UN Report

Catholic Communications, Sydney Archdiocese,
11 Mar 2015

Asylum seekers held in detention face an uncertain future

The court of public opinion will decide if Australia has breached human rights conventions and damaged its global reputation following the release this week of a UN Report.

The UN Report on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment has already sparked heated debate amongst politicians and activists.

Professor Spencer Zifak, Professor of Law at the Australian Catholic University and expert on International Human Rights Law says despite the lack of penalties for Convention breaches Australia's reputation will be damaged.

However Report critics say it is based on submissions of lobby groups and human rights activists and further independent investigation was required.

The Report which was presented to the UN Human Rights Council on Monday 9 March, investigated 200 allegations of torture and abuse in 68 countries. Four of these involved Australia's asylum seeker policies and took issue with children being held in immigration detention, the holding of asylum seekers off shore and subject to dangerous and violent conditions, and the recent amendments to Australia's Maritime powers which allow the arbitrary detention and refugee determinations to be carried out at sea with no access to lawyers, and have tightening controls on the issuing of visas on the basis of character and risk assessments.

Each of these represent a breach of the UN Convention Against Torture but as Professor Zifak is quick to point out, the breaches cited by the UN's special rapporteur, Juan E. Mendez do not mean Australia is guilty of torture.

"Torture is a very emotive term and the Report findings in relation to Australia carefully avoid using the word torture and instead refers to cruel, inhuman or degrading treatment or punishment," Professor Zifak says.

Professor Spencer Zifcak, Professor of Law at ACU and expert on International Human Rights Law

However the Report says in part: "In the absence of information to the contrary, the rapporteur concludes that there is substance in the allegations....and thus, that the government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the regional processing centre, has violated the right of asylum-seekers, including children, to be free from torture or cruel, inhuman or degrading treatment.."

Professor Zifak says the findings detailed in the Report will have an adverse effect on the way Australia is regarded internationally and in particular by our global diplomatic and trading partners.

"Essentially the only penalty for breaching international law such as UN conventions is in the court of public opinion and when a detrimental report such as this is seen by governments across the world,  there is no doubt this will reflect adversely on Australia," he says.

For the past decade Australia has been criticised for its asylum seeker policies by the previous as well as the current Governments in reports issued by the UN Convention Against Torture.

When this latest Report was released  Prime Minister, Tony Abbott said "Australians are sick of being lectured by the United Nations," he also wanted to know why his Government hadn't been given credit for "stopping the boats," insisting that by "stopping the boats we have ended the deaths at sea."  He said the Report did not claim to get a proper response from the government prior to its publication.

In the absence of sufficient information to the contrary Mr Mendez concluded that "there is substance in the allegations presented."

UN Special Rapporteur Juan Mendez, international human rights lawyer and former torture victim in his homeland of Argentina

He said as the Government of Australia failed to provide additional information or details of the investigation relating to the violence on Manus Island in February last year, and the allegations of intimidation, threats and the ill treatment of two asylum seekers who gave statements about the riot, were upheld.

Mr Mendez said he applied a procedure set up by the UN Human Rights Council.  This does not include site visits or hearings but consists of an exchange of notes with government and submissions from other groups.

Mr  Mendez gave Australia credit for having a "very robust democratic system with guarantees of human rights for everybody" and explained that his remit from the Human Rights Council was not immigration and that it was his mission and duty to point out when any country including Australia, fell short of its obligations under international law.

Each year the UN monitors the observance of international human rights treaties across the world but only those of member countries who have ratified the Convention, Professor Zifak explains.

"If a country is not a signatory to UN human rights convention, they are not monitored," he says.

The (then) Australian Government ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 8 August 1989. In addition to being a signatory to this Convention, Australia is also a signatory to the UN's Convention on the Rights of the Child, the International Convention of Civil and Political Rights and the UNHCR's Refugee Convention which deals with the status, rights and the legal obligations of states, and which Australia helped to write.

Turning boats around and processing asylum seekers on the high seas and provided with no lawyers is a breach of internantional law

In 2013 when the UN special rapporteur published a similar report Australia was not mentioned although at the time there were nearly 7000 people and 110 children in detention on Christmas Island and the Australian mainland as well as more on Manus Island and Nauru. There are now 3732 people in immigration detention and 22 children including 1004 on Manus Island which is for males only. There are 117 children in detention on the mainland and 107 in detention on Nauru.

There are no children on Manus Island.

Legal academic from the University of Queensland, Professor James Allan was this week reported as saying the finding that Australia has engaged in torture did not deserve to be taken seriously. He said it had been made by a special rapporteur who reports to the UN Human Rights Council and had been based solely on allegations because it had no information to the contrary.

Professor Allan said it is difficult to pay attention to a report for the UN Human Rights Council that includes countries with poor records in human rights.

The current members of the UN Human Rights Council include the Ivory Coast, Ethiopia, Gabon, Kazakhstan, Pakistan, Sierra Leone and Venezuela. Next year China, Cuba and Russia are among the countries to take up seats on the Council, followed the year after by Bangladesh, Congo, Ghana, Nigeria and Qatar.

Far fewer children now held in detention but spend an average of 483 days detained

According to Professor Zifak the crux of the whole issue is not whether the UN is lecturing or why the Report doesn't mention "stopping the boats" or searching for blame or reasons to undermine the Report, but rather to have a close look at the findings.

"It is true that there are far fewer children in detention than was the case under the Rudd-Gillard governments. But what we also know is that although fewer children are being held, they are being held far longer. Each child held in detention is now held for an average of 484 days which we know leads to long term mental and emotional problems and psychological disturbance," he says.

Professor Zifak urges the Government and politicians on both sides of the House to read the UN Report, and then if the Report's findings are found to be valid, to look at constructive ways to counter the Human Rights Council's concern.

"In particular I would like the Government to address the deteriorating health of children held in detention, and to act to ensure significant amelioration of the situation," he says.