Submission to the Joint Standing Committee on Treaties
Legal
Submission to the Joint Standing
Committee on Treaties' Inquiry into the Optional Protocol to the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Introduction
1. This submission is made
by the Human Rights and Equal Opportunity Commission (the "Commission") in response
to the terms of reference issued by the Joint Standing Committee on Treaties
inquiry into the Optional Protocol to the Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment ("Optional Protocol").[1]
2. The Commission views
the Optional Protocol as a positive development and in this submission the Commission
has sought to:
- provide the Committee
with an overview of the Optional Protocol and its objectives, including the
role and functions of the independent national and international bodies proposed
under the Optional Protocol; - bring to the Committee's
attention the manner in which the Optional Protocol assists Australia in meeting
its existing international human rights obligations, in particular its obligations
under the Convention against Torture, and other Cruel, Inhuman or Degrading
Treatment or Punishment ("Convention");[2]
and - bring to the Committee's
attention the ways in which the monitoring regime proposed by the Optional
Protocol addresses some of the limitations of existing international and domestic
mechanisms for the protection of persons in detention against torture and
other cruel, inhuman or degrading treatment or punishment.
Functions of the Commission
3. The Commission administers the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) (the "Act"). Under the Act, the Commission is responsible
for, protecting and promoting human rights, including through, inter alia, promoting
an understanding and acceptance of human rights in Australia. The definition of
'human rights' for the purposes of the Act is discussed in Appendix A.
Overview of the Optional Protocol and its objectives
Introduction
4. Australia is
a party to the Convention. Amongst other things, the Convention requires each
State Party to:
- take effective legislative,
administrative, judicial or other measures to prevent acts of torture[3]
in any territory under its jurisdiction;[4] and - undertake to prevent
in any territory under its jurisdiction other acts of cruel, inhuman or degrading
treatment or punishment.[5]
5. The Convention makes
particular reference to the position of persons deprived of their liberty. Each
party to the Convention is obliged to:
- ensure that education
and information regarding the prohibition against torture and other cruel,
inhuman or degrading treatment or punishment are fully included in the training
of law enforcement personnel, civil or military, medical personnel, public
officials and other persons who may be involved in the custody, interrogation
or treatment of any individual subjected to any form of arrest, detention
or imprisonment;[6] - include the prohibition
against torture and other cruel, inhuman or degrading treatment or punishment
in the rules or instructions issued in regard to the duties and functions
of any such person involved in the custody, interrogation or treatment of
detained persons;[7] - keep under systematic
review interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of persons subjected to any form
of arrest, detention or imprisonment in any territory under its jurisdiction,
with a view to preventing any cases of torture.[8]
6. The Optional Protocol
seeks to build upon those obligations, by developing preventative measures which
are designed to reinforce the protections the Convention confers upon persons
deprived of their liberty. This is made clear in the preamble to the Optional
Protocol, which states that:
- further measures are
considered necessary to achieve the purposes of the Convention and to strengthen
the protection of persons deprived of their liberty against torture and other
cruel, inhuman or degrading treatment or punishment; and - the protection of persons
deprived of their liberty against torture and other cruel, inhuman or degrading
treatment or punishment can be strengthened by non-judicial means of a preventive
nature, based on regular visits to places of detention.
7. The latter observation
is in fact the central objective of the Optional Protocol, which is set out
in article 1 in the following terms:
The objective of the
present Protocol is to establish a system of regular visits undertaken by
independent international and national bodies to places where people are deprived
of their liberty, in order to prevent torture and other cruel, inhuman or
degrading treatment or punishment.
8. That focus on prevention
is consistent with the proposal for the Optional Protocol put forward at the
World Conference on Human Rights held in 1997. At that conference states agreed
that, "efforts to eradicate torture should, first and foremost, be concentrated
on prevention" and called for the "early adoption of an optional protocol to
the Convention which is intended to establish a preventative system of regular
visits to places of detention".[9]
9. In the remainder of
this section, we have set out a brief overview of the roles and functions of
those independent national and international bodies.
Part IV of the Optional Protocol - National Preventative Mechanism
10. Part IV of the Optional
Protocol requires that States Parties set up, designate or maintain at least
one domestic body ("National Body") empowered to, at a minimum:
(a) regularly examine
the treatment of persons deprived of their liberty in places of detention
with the view to strengthening (if necessary), their protection against torture
and other cruel, inhuman or degrading treatment or punishment;[10](b) make recommendations
to the relevant authorities regarding the improvement of the treatment and/
or conditions of persons deprived of their liberty and prevention of torture
and other cruel, inhuman or degrading treatment or punishment;[11]
and(c) submit proposals
and observations concerning existing or draft legislation.[12]
11. In order to enable
the National Body to exercise its functions, States Parties must ensure that
the National Body has:
(a) access to all information
concerning the number and treatment of persons deprived of their liberty in
places of detention under the jurisdiction and control of the State;[13](b) access to all places
of detention under the jurisdiction and control of the State;[14](c) the opportunity to
have private interviews with the persons deprived of their liberty without
witnesses as well as with any other person the National Body believes may
have relevant information;[15](d) the liberty to choose
the places they want to visit and the persons they interview;[16]
and(e) the right to have
contacts with the independent international subcommittee created by Part III
of the Optional Protocol ("International Body" - see discussion below) and
to send information to the International Body and meet with it.[17]
12. The National Body is
required to comply with the Principles Relating to the Status of National Institutions
for the Promotion and Protection of Human Rights (the "Paris Principles")[18]
which provide minimum standards for the establishment, competence, responsibilities
and composition, including independence, of national human rights institutions.
Part III of the Optional Protocol - International subcommittee on Prevention
13. Part III of the Optional
Protocol provides for the establishment of the International Body, the functions
of which complement those of the National Body.[19]
The International Body will, inter alia:
- conduct regular visits
of the places of detention of States Parties (on a rotational basis),[20]
making recommendations to States Parties concerning the protection of persons
detained therein;[21] - where necessary, advise
and assist the States Parties as to the establishment of the National Body
and its ongoing ability to prevent torture and other cruel, inhuman or degrading
treatment or punishment;[22] and - maintain direct (and
if necessary, confidential) contact with the National Body, providing it with
training or other technical assistance and advising and assisting it in the
evaluation of the needs and means necessary to strengthen the protection of
persons in detention against torture and other cruel, inhuman or degrading
treatment or punishment.[23]
14. As with the National
Body, States Parties are required to provide the International Body with information
about and access to all places of detention within its jurisdiction and control,[24]
as well as an opportunity to have private interviews with detainees (or other
persons).[25]
The Optional Protocol would assist Australia in fulfilling a number of its
international human rights law obligations
15. As a preliminary point, the Commission
notes that the effects of the Optional Protocol are likely to extend beyond
Australia's compliance with the Convention. It is also likely to assist in Australia's
compliance with the International Convention on Civil and Political Rights
("ICCPR")[26] and the Convention on the Rights
of the Child ("CRC").[27] Like the Convention,
those instruments impose positive duties on States Parties to implement procedures
to prevent torture and other cruel, inhuman or degrading treatment or punishment
and to investigate allegations of torture and other cruel, inhuman or degrading
treatment or punishment.
16. The ICCPR requires Australia
to ensure that no person within its territory or jurisdiction is subjected to
torture or other cruel, inhuman or degrading treatment (article 7),[28]
that all persons deprived of their liberty are treated with humanity and respect
for the inherent dignity of the human person (article 10)[29]
and to take all legislative, administrative and other measures to protect all
persons from torture or cruel, inhuman or degrading treatment (article 2). The
Standard Minimum Rules and Basic Principles elaborate the scope and content
of Australia's obligations under, inter alia, article 10 of the ICCPR.[30]
The Human Rights Committee has noted that, under article 10 of the ICCPR, States
Parties are obliged to take 'concrete measures to monitor the effective application
of the [Standard Minimum Rules] and establish an impartial system of supervision
of penitentiary establishments'.
17. Under the CRC, Australia is required
to protect children from torture and other cruel, inhuman and degrading treatment
and punishment (article 37(a)), ensure that children deprived of their liberty
be treated with humanity and respect for the inherent dignity of the human person
(article 37(c)) and take all appropriate legislative, administrative and other
measures to implement those rights guaranteed by the CRC (article 4).
The Optional Protocol would overcome some of the limitations of the existing
protection regime
Introduction
18. The Commission's primary rationale for supporting the Optional
Protocol is that it will address certain limitations that exist in the current
international and domestic regimes for the protection of persons deprived of their
liberty against torture and other cruel, inhuman or degrading treatment or punishment.
In developing this point, the Commission has briefly outlined below the features
of those international and domestic regimes.
Individual complaint-based mechanisms
19. The Convention provides
that complaints of its breach can be made to the United Nations Committee against
Torture ("Committee").[31] However, as has been
noted by the Australian Government, this is an often protracted process.[32]
In addition, like all individual complaint mechanisms, that process focuses
upon specific violations which have already occurred. Of course, the Committee's
findings in relation to individual complaints may assist in:
- identifying any broader
systemic issues underlying those complaints; and - preventing future violations
of the Convention.
However, the primary focus
of the process remains upon determining whether a particular individual(s) have
had their Convention rights violated.
20. At a domestic level,
the Commission has power to inquire into acts or practices which may be inconsistent
with or contrary to the rights contained in certain international instruments.[33]
However, those powers are subject to a number of presently relevant limitations.
21. First, the Convention
has not been included in the Commission's complaint handling jurisdiction. As
such the Commission cannot directly investigate allegations that the provisions
of the Convention have been breached. Nevertheless, the Commission is empowered
to investigate complaints which arise under the ICCPR or CRC, which (as noted
above) include provisions proscribing torture and cruel and inhuman treatment.[34]
22. Second, as with the
Committee's individual complaint mechanism, the Commission's individual complaint
handling powers are focussed upon violations of human rights which have already
occurred. Note, however, that in its report of such an inquiry, the Commission
may include recommendations for the prevention of the repetition of the relevant
act or continuation of the practice.[35]
23. Third, the Commission's
human rights complaint handling function is limited to acts or practices done
or engaged in:
- by or on behalf of the
Commonwealth; - wholly or partly within
a "Territory" (note, however, that Territory is defined so as to exclude the
Australian Capital Territory (ACT) and the Northern Territory(NT)); or - under a Commonwealth
or Territory enactment (again, the enactments of the ACT and the NT are specifically
excluded).[36]
That limitation largely
excludes people detained in institutions run by the States, the ACT and the
NT (unless a person is detained in such an institution on behalf of the Commonwealth
or under a Commonwealth enactment - for example, people detained in State prisons
under the Migration Act 1958 (Cth)).[37]
Of course, people detained in State and Territory jurisdictions may be entitled
to make complaints in relation to their treatment and conditions of detention
to bodies such as the Ombudsman, the Inspector General of Corrective Services
or an Official Prison Visitor.[38] However, those
bodies are not specifically empowered to investigate whether the provisions
of the Convention or other human rights instruments have been breached.
24. Fourth, the Commission
has no power to compel entry into places of detention.[39]
Power of the Committee to address broader matters
25. States Parties to the Convention
are required to report to the Committee every four years, (unless otherwise
requested by the Committee), on the measures taken by them to implement their
obligations under the Convention.[40] The Committee
reviews states' reports,[41] making general comments,
conclusions and recommendations to the state concerned in relation to its implementation
of the Convention.[42] In so doing, the Committee
may indicate to the state concerned whether, on the basis of their report, it
appears that they have not discharged some (or all) of their obligations under
the Convention and may, if appropriate, appoint one or more rapporteurs to follow
up with a state's compliance with the Committees conclusions and recommendations.[43]
If a state's report discloses information which contains well-founded allegations
that a state party systematically practices torture, the Committee has the power
to invite that State Party to examine the allegation and provide explanations
of the allegation.[44] The Committee uses the reporting
process to not only address past allegations of human rights violations but
also as an opportunity make recommendations with a view to preventing future
violations of the Convention.[45]
26. The powers and functions of the
Committee to review and make recommendations in relation to states' reports
enables the Committee to identify and directly raise with States Parties (and
its representatives) broader systemic issues which may give rise to human rights
violations.
27. However the powers and functions
of the Committee in this regard are limited. First, States Parties are only
required to report to the Committee every four years. The irregularity of reporting
is compounded by the fact that states are generally late in providing their
reports to the Committee.[46] Second, the Committee
usually only holds two regular sessions per year in which it can consider states'
reports.[47] Hence there is often a considerable
backlog and delay in the Committee's consideration of states' reports.[48]
Finally, the Committee has no power to compel States Parties to report or cooperate
with it in its consideration of any report.[49]
These limitations curtail the effectiveness of the mechanism.
Power of the Commission to address broader matters
28. Like the Committee, the Commission's
statutory powers and functions extend beyond consideration of individual complaints
of human rights violations.[50] Those powers enable
the Commission to conduct broader ranging inquiries into systemic issues which
do or which may give rise to human rights violations. For example, the Commission
conducted an inquiry into the human rights issues associated with mandatory
immigration detention provisions of the Migration Act 1958 (Cth) (reported
in Those who've come across the seas[51])
and is currently conducting an inquiry into the immigration detention of children.
29. However a number of significant
limitations exist in relation to an inquiry conducted using those functions
and powers. For example, the Commission will have no power to compel the production
of information or documents for the purposes of such an inquiry unless the inquiry
relates to the acts or practices of the Commonwealth or a "Territory" (again,
the term Territory is defined so as to exclude the ACT and the NT).[52]
Hence, even though some of the Commission's broader functions and powers extend
to matters within the jurisdiction of the States, the ACT and the NT,[53]
the Commission will rely wholly on the material which is voluntarily provided
to it when inquiring into such matters. Moreover, as with the Commission's complaint
handling power, the Commission has no power to compel entry into places of detention
(be they State or Federal).[54] Of course, the
Commission works to achieve a cooperative relationship with Government at all
levels and generally receives such cooperation. Nevertheless, the absence of
such compulsory powers does potentially stand to frustrate such an inquiry.
30. Moreover, as with the Commission's
individual complaint handling function, such inquiries will not directly focus
upon the obligations imposed by the Convention, which is not within the Commission's
statutory remit.
The Optional Protocol
31. Australia's ratification of the
Optional Protocol would complement and reinforce the domestic and international
mechanisms available to people in detention within Australian institutions and
address many of the limitations discussed above. In particular, such ratification
would:
- result in a greater focus upon
the prevention of violations of the Convention; - draw to the attention of states
(at an early stage before they become the subject of an individual complaint)
any broader systemic issues which may give rise to human rights violations; - require Australia to
create or designate a domestic body with powers that extend to all persons
detained in Australia;[55] and - provide mechanisms for the regular
and systematic review of the conditions and treatment of persons detained
in Australia.
32. In the Commission's view, that
approach is likely to result in less complaints being taken to the Commission
and United Nations Committees. Not only are such complaints potentially embarrassing,
they also result in government agencies using time and resources in preparing
submissions and other documents.
Non-binding nature of recommendations
33. The Commission observes that a further limitation of the existing
international and domestic mechanisms aimed at protecting persons against violations
of the Convention is the non-binding nature of those mechanisms. However the Commission
notes that the mechanisms proposed by the Optional Protocol will be similarly
limited, the recommendations of either the National or International Body also
being non-binding on the parties.
Implementation of the Optional Protocol
34. The Commission notes that, were Australia to ratify the Optional
Protocol, the obligations imposed by it would not automatically become part of
Australian domestic law. They would only become part of Australian law if implemented
by legislation.[56] That might be achieved through
various legislative schemes (involving Commonwealth and possibly State legislation).
The Commission also notes that, under the Optional Protocol, States Parties may
make a declaration postponing the implementation of Parts III (provisions relation
to the International Body) and IV (provisions relating to the National Body) of
the Optional Protocol for up to three years.[57]
Potential role of the Commission
35. In this submission the Commission does not propose to provide
the Committee with its view as to the nature or identity of the National Body
that should be established or designated were Australia to ratify the Optional
Protocol.[58] Although one obvious option would be
to designate the Commission as the National Body, further consideration and consultation
would be required as to whether the functions to be exercised by the National
Body are compatible with the Commission's existing functions. In addition, consideration
would need to be given to the additional resources that would be necessary for
the Commission to undertake those functions.
Conclusion
36. The Commission views the Optional
Protocol as a positive development and supports its ratification and implementation
by Australia. The Optional Protocol would enhance and strengthen current domestic
and international mechanisms aimed at preventing torture and other cruel, inhuman
or degrading treatment or punishment of persons deprived of their liberty. It
would also assist Australia in fulfilling its obligations under the Convention,
the ICCPR and the CRC. 37. Ratification and implementation of the Optional Protocol
by Australia would signal to the international community Australia's continued
commitment to the eradication of torture and other cruel, inhuman treatment
or degrading punishment and contribute to building international consensus about
the unacceptability of such actions.
Appendix A - 'Human Rights' under the Human Rights and Equal Opportunity Commission
Act 1986 (Cth)
For the purposes
of the Act, 'human rights' are defined in the international human rights instruments
which are scheduled or declared under the Act. These instruments are:
(a) International Covenant
on Civil and Political Rights ("ICCPR");(b) International Labour
Organisation Discrimination (Employment) Convention ILO 111;(c) Convention on the
Rights of the Child ("CRC");(d) Declaration of the
Rights of the Child;(e) Declaration on the
Rights of Disabled Persons;(f) Declaration on the
Rights of Mentally Retarded Persons; and(g) Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief.
The two instruments of
relevance to this submission are the ICCPR and the CRC.
Australia also has obligations
under the Convention against Torture and Other Cruel, Inhuman Treatment or Degrading
Punishment ("Convention") which is not scheduled to the Act but is of direct
relevance to this inquiry.
1. Opened
for signature on 4 February 2003, 42 ILM 26 (2003). There are currently 23 signatories
to the Optional Protocol, including the United Kingdom, New Zealand, Denmark,
Finland, Norway, Sweden, Italy, Malta and Austria.
2. Opened for signature 10 December 1984, [1989] ATS 1989 21,
(entered into force in Australia 7 September 1989).
3. Torture" is defined in article 1 of the Convention in the
following terms: "any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an
act he or a third person has committed or is suspected of having committed,
or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions".
4. See art 2 of the Convention.
5. See art 16(1) of the Convention. As with the definition of
torture, such acts must be committed by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.
6. See art 10(1) of the Convention.
7. See art 10(2) of the Convention.
8. See art 11 of the Convention.
9. See Question of a Draft optional protocol to the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
HRC Res, UN Doc E/CN.4/RES/1997/24.
10. See art 19(a) of the Optional Protocol.
11. See art 19(b) of the Optional Protocol.
12. See art 19(c) of the Optional Protocol.
13. See arts 20(a) and 20(b) of the Optional Protocol.
14. See art 20(c) of the Optional Protocol.
15. See art 20(d) of the Optional Protocol.
16. See art 20(e) of the Optional Protocol.
17. See art 20(f) of the Optional Protocol.
18. See art 18(4) of the Optional Protocol; The Paris Principles
were adopted by UN GA res UN Doc A/RES/48/134 of 20 December 1993.
19. See art 11 of the Optional Protocol.
20. See art 13 of the Optional Protocol.
21. See art 11(a) of the Optional Protocol.
22. See arts 11(b)(i) and 11(b)(iv) of the Optional Protocol.
23. See arts 11(b)(ii) and 11(b)(iii) of the Optional Protocol.
24. See art 12 of the Optional Protocol.
25. See art 14(d) of the Optional Protocol.
26. Opened for signature 16 December 1966, [1980] ATS 23, (entered
into force for Australia 13 November 1980).
27. Opened for signature 20 November 1989, [1991] ATS 4, (entered
into force for Australia 16 January 1991).
28. In commenting on States Parties duty under article 7 of
the ICCPR, the United Nations Human Rights Committee ("Human Rights Committee")
has noted that, 'keeping interrogation rules, instructions, methods and practices
as well as arrangements for the custody and treatment of persons subjected to
any form of arrest, detention or imprisonment under systematic review is an
effective means of preventing cases of torture and ill-treatment': Human Rights
Committee, General Comment 20, [11].
29. See Human Rights Committee, General Comment 21, [6].
30. See Joseph S, Schultz J and Castan M, The International
Covenant on Civil and Political Rights: Cases, Materials, and Commentary
(2000), [9.100] and [9.107].
31. See art 22 of the Convention.
32. See for instance, The Hon Alexander Downer MP, 'Making
a Real Difference to Human Rights' (Speech delivered at the Castan Centre for
Human Rights Law, 20 November 2000) at
33. See s11(1)(f) and 20(1)(b) of the Act.
34. See s11(1)(f) of the Act. As outlined in paragraphs 15
to 17 below, the ICCPR and CRC impose similar obligations on Australia imposed
on it by the Convention.
35. See s29 of the Act. Such a report must be tabled in Parliament
(see s46 of the Act). Note that, under s29, the Commission may only make recommendations,
not binding orders.
36. See the definitions of "act", "practice", "enactment" and
"territory" in s3 of the Act and the function conferred by s11(1)(f) of the
Act.
37. This is a significant limitation given that the majority
of prisoners in Australia for example are detained in States institutions or
pursuant to State law. In the September quarter 2003, on average, only 684 of
the 22,735 prisoners in Australia were Federal prisoners: See ABS 4512.0
Corrective Services, Australia.
38. For example, in NSW prisoners are entitled to make a complaint
to the goal Governor, NSW Minister for Corrective Services, an Official Prison
Visitor, the NSW or Commonwealth Ombudsman, the NSW Health Care Complaints Commission
(in relation to complaints about health treatment in prison) or the Inspector-General
of Corrective Services. A similar regime exists in the other States and Territories.
39. Though it is noted that the Commission has the power under
s21(1) of the Act to require a person it believes is capable of giving information
or producing documents relevant to a matter under inquiry, to give that information
to the Commission at such a place and time as specified by the Commission.
40. See article 19(1) of the Convention. Australia has provided
two reports to the Committee, its initial report on 27 August 1991 (UN Doc CAT/C/9/Add.8)
and second periodic report on 19 October 1999 (UN Doc CAT/C/25/Add.11). Australia's
third periodic report is due on 6 November 2004. See United Nations High Commissioner
for Human Rights, Reporting Status Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment: Australia at:
41. Representatives of the State Party are invited "to attend
the meeting when their reports are considered." Representatives are allowed
and expected to answer any additional questions which may be put to them by
the Committee and to "clarify, if needed, certain aspects of the reports already
submitted". Under art 19(2) the Committee may also designate a confidential
inquiry, with which representatives of the concerned state are invited to attend.
See United Nations High Commissioner for Human Rights, Fact Sheet No.17, The
Committee Against Torture at (2000).
42. See arts 19(3) and 19(4) of the Convention and r68(1) of
the Rules of Procedure of the Committee against Torture, r68(1), UN Doc CAT/C/3/Rev.4.
43. See r68(1) of the Rules of Procedure of the Committee against
Torture, UN Doc CAT/C/3/Rev.4.
44. See art 20 of the Convention and r69 of the Rules of Procedure
of the Committee against Torture, UN Doc CAT/C/3/Rev.4.
45. The Committee considers the report under the following
headings: positive aspects; factors and difficulties, subjects of concern and
recommendations. See United Nations High Commissioner for Human Rights, Fact
Sheet No.4, Methods of Combating Torture at (2000).
46. For example, Australia's second periodic report was approximately
5 years overdue. See United Nations High Commissioner for Human Rights, Reporting
Status Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment: Australia's reporting round 2 at
47. See United Nations High Commissioner for Human Rights,
Fact Sheet No.4, Methods of Combating Torture at (2000).
48. For instance, Australia's second periodic report (submitted
19 October 1999) was not considered by the Committee until November 2000. See
UN Docs CAT/C/SR.444, CAT/C/SR.447 and CAT/C/SR.451.
49. In the event that States Parties do not report to the Committee
as required by art 19 of the Convention, the UN Secretary-General notifies the
Committee who transmits a reminder to the state concerned. If after that reminder
the state concerned does not submit its report as required under art 19 the
Committee may communicate the non-submission to the General Assembly and, if
appropriate, notify the state concerned and the Secretary-General that it nonetheless
intends to examine the measures taken by it to protect or give effect to the
rights recognised in the Convention. See r65 of the Rules of Procedure of the
Committee against Torture, r68(1), UN Doc CAT/C/3/Rev.4.
50. See for example ss11(1)(f), 11(1)(g), 11(1)(h) and 11(1)(k)
of the Act. Note that the Act specifically provides that the Commission can
conduct an 11(1)(f) inquiry on its own motion - see s20(1)(c).
51. HREOC (1998).
52. See ss21 and 11(1)(f) of the Act and the definitions of
"act", "practice", "enactment" and "territory" in s3 of the Act.
53. See ss11(1)(g), 11(1)(h) and 11(1)(k) of the Act.
54. Though it is noted that the Commission has the power under
s21(1) of the Act to require a person it believes is capable of giving information
or producing documents relevant to a matter under inquiry, to give that information
to the Commission at such a place and time as specified by the Commission.
55. The Commission notes that Australia is internationally
responsible for acts of a component state within its federal structure under
the Convention. See Burgers J and Danelius H, The United Nations Convention
against Torture: A Handbook on the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1988), p131 and Concluding
observations of the Committee against Torture: Australia (21 November 2000),
A/56/44, [53].
56. Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 273 per Mason CJ and Deane J; Gaudron J concurring). For further
explanation of this point see, Charlesworth H, Chiam M, Hovell, D and Williams
G "Deep Anxieties: Australia and the International Order" (2003) 25 Sydney
Law Review 423 at pp447 - 450.
57. See art 24(1) of the Optional Protocol.
58. See arts 3 and 17 of the Optional Protocol.
Last
updated 15 April 2004.