Draft Fifth Report by Australia on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Society has conducted consultations with its Social Justice Committee in developing this submission.

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SUMMARY

The Society has identified a number of concerns in summary:

• Usage of the relevant findings of the Briscoe inquest as a supplementary reference (paragraph 10)
• Establishment of a Remote Tenancy Legal Advice Service in the NT (paragraph 14)
• Recognition of Aboriginal Customary Law in bail and sentencing (paragraph 28)
• Implementation of two new community orders, the Community Custody Order (CCO) and Community Based Order (CBO) in the NT (paragraph 29)
• Secure care facilities for offenders with mental health issues in the NT (paragraph 31)
• Extension of time limits for complaints against the police in the NT (paragraph 35)
• Reinstatement of Indigenous Courts for adults in the NT (paragraph 37)
• Reinstatement of the Expensive Indigenous Cases Fund (paragraph 37)
• Establishment of a Legal Advice Service for asylum seekers in the NT (paragraph 40)
• Recognition of the legal needs created by the inhuman treatment of asylum seekers in immigration detention and adequate funding to ensure those needs are met (paragraph 41)
• Independent guardianship and legal representation of minors (accompanied and unaccompanied) (paragraph 43)

The Society has no comments in relation to the following paragraphs: 1-8, 11-13, 15-27, 30, 32-34, 36, 38-39, 42, 44, 46-49.

Paragraph 9 of the list of issues: Custody and pre-trial detention

There appears to be an error at footnote 9 (page 9): ?Northern Territory legislation provides an obligation to video record interrogations or interviews of suspects for all offences that carry a penalty of 6 months imprisonment of more.?

Section 139(c) of the Police Administration Act (NT) provides that the relevant period is 2 years, not 6 months.

Paragraph 10 of the list of issues: Health service in prison

The last paragraph on page 10 reads: ?Under the Northern Territory Police Custody Manual, if a person in custody at a police station wants to be examined or treated by their own doctor, the Watchhouse Keeper is to inform the nominated doctor as soon as practicable. The prisoner meets any cost involved.?

The Society would like to advise LCA about the relevant findings of the Briscoe inquest http://www.nt.gov.au/justice/courtsupp/coroner/documents/2012_findings/A00052012_Briscoe.pdf at paragraphs [212] - [220] as a supplementary reference.

Paragraph 14 of the list of issues: Poverty and homelessness

At page 25 of the draft report, the following passage appears:

?Significant in-roads are also being made through the Government?s $5.6 billion Social Housing Initiative. This Initiative will see more than 19,300 new social housing dwellings built with the assistance of the not-for-profit sector. Governments have agreed that at least half of these will go to people who are homeless or at risk of homelessness. In addition, around 80,000 existing dwellings are benefiting from repairs and maintenance, of which 12,000 would have been uninhabitable. This investment in housing is a keystone in the Government?s commitment to the progressive realisation of the right of all Australians to access adequate housing.?

Remote Tenancy Legal Advice Service in the NT

The Society has been involved in working with legal services and representatives of the Department of Housing and the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) in the NT to develop a proposal for a Remote Tenancy Legal Advice Service in the NT following the announcement of the Remote Housing Framework. The Society?s submission was forwarded to government agencies as early as 2009 and included a draft funding proposal. Each agency is supportive of the need for a Remote Tenancy Legal Advice Service to remote NT tenants. The most recent revised funding proposal was submitted in September 2012. While the Society and other agencies have been involved in numerous meetings with representatives of each agency and sought a formal response to this proposal, no commitment has been forthcoming.

There are major insufficiencies in regards to housing in the NT. Some of the issues were highlighted by the Commonwealth Ombudsman?s in its June 2012 report titled Remote Housing Reforms in the NT[1], the Desert Knowledge Australia report Fixing the hole in Australia?s heartland: How Government needs to work in remote Australia[2] of September 2012 as well as the fifth report of the Northern Territory Coordinator-General for Remote Services[3] of October 2012 which outlines current progress and recommends pathways forward for improving service delivery and raising standards of living for Territorians living in remote areas. The most significant issue identified was the lack of accountability between FaHCSIA and Northern Territory Government agency, Territory Housing. Further problems outlined in the reports were poor communication, inadequate IT systems and issues with the housing complaints model.

Paragraph 28 of the list of issues: high incarceration rate of Indigenous people

At page 25 of the draft report, the following passage appears:

?Customary law

The Australian Government's position in relation to the recognition of Indigenous customary law has been guided by the Australian Law Reform Commission's 1986 report, 'The Recognition of Aboriginal Customary Laws'. The arguments outlined in that report lead to the conclusion that any recognition of Aboriginal customary laws must occur against the background and within the framework of the general law in Australia. The Australian Government's position is consistent with this conclusion.?

?Customary law in bail and sentencing

Following a July 2006 COAG decision, the Australian Government made legislative amendments to provide that customary law and cultural practice cannot be taken into account to lessen or aggravate the seriousness of a Commonwealth or Northern Territory offence in bail and sentencing decisions. The Government reviewed the provisions in 2009 and decided to monitor the laws for a further 12 months before deciding whether legislative reform was required. In January 2011, the case of Aboriginal Areas Protection Authority v S & R Building and Construction Pty Ltd [2011] NTSC 3 demonstrated how the amended provisions might undermine legislation established to protect cultural heritage. In a case relating to the sentence of a construction company that carried out work on an Aboriginal sacred site, the appeal judge accepted an argument that the amended provisions prevented him from taking into account the impact on the traditional owners of the site as a reason for aggravating the seriousness of the criminal behaviour.

In June 2012, the Government passed legislation that will allow customary law and cultural practice to be considered in Commonwealth and Northern Territory bail and sentencing decisions for offences involving access, remaining on or damage to cultural heritage sites (including sacred sites), and removal or damage to cultural heritage objects.?

It is disingenuous and misleading to characterise s16AA of the Crimes Act (the provision referred to above under the heading ?Customary law in bail and sentencing') as 'consistent with [the] conclusion' of the 1986 Australian Law Reform Commission (ALRC) Report. These provisions, which are clearly directed at Indigenous people, create an exceptional exclusion to 'the framework of the general law in Australia', in that they categorically prevent Northern Territory courts from having regard to specified circumstances of offenders which would be and are taken into account by courts in other Australian jurisdictions. The provisions run counter to the thrust of the 1986 ALRC Report, which supported recognition (albeit limited) of Aboriginal customary laws. They have been judicially criticised: R v Wunungmurra [2009] NTSC 24, in which Southwood J observed at paragraph [25] that this legislation: ?might be considered unreasonable or undesirable because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence and the moral culpability of the offender, precludes an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or case considered individually on the basis of all relevant facts which may be applicable to an important aspect of the sentencing process, distorts well established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences?.

Paragraph 29 of the list of issues: New Era sentencing options

At page 25 of the draft report, the following passage appears:

?Australian States and Territories have taken a range of measures aimed at reducing overcrowding in prisons and expanding non-custodial options, including greater use of diversionary measures, expanded community detention, and increased focus on reducing recidivism.?

There is no mention in the draft report of the NT and the measures it has taken to address the situation of overcrowding in prisons and expanding non-custodial options.

The NT has two new community orders, the Community Custody Order (CCO) and Community Based Order (CBO) since the commencement of the legislation introducing them, the Justice (Corrections) and Other Legislation Amendment Act 2011 (NT), on 27 February 2012.

However, the Society would like to advise that it has been notified of cases where clients are missing out on new community orders because the orders are not available in their home community, or some technical factor precluding them from eligibility, and assessment delay. The Society raised its concerns in regards to the insufficiencies with the Department of Justice and asked for relevant modifications of the implementation of CBOs and CCOs in order to allow eligible candidates to access the new sentencing options.

Paragraph 31 of the list of issues: Offenders with mental health issues

There is no mention in the draft report of the NT and the measures it has taken to address the situation of overrepresentation of individuals suffering from mental illness in prisons. Currently, all persons subject to custodial supervision orders (which are all of indefinite length) on the ground of either mental impairment or unfitness to stand trial, are incarcerated in a prison, because there are no secure care facilities for such persons in the NT. Facilities with a total of 16 adult beds have been built, but are not yet operational.

Paragraph 35 of the list of issues: Complaints against police

Time limits

The Society is concerned about the time limits and limitations of action under section 162(1) of the Police Administration Act (NT): ?subject to section 148F(4)(c), and action against the Territory under Part VIIA or a prosecution against a member for an offence against this Act must be commenced within 2 months after the act or omission complained of was committed, and not otherwise.?

The Society is concerned that 2 months is not enough time to make a claim, particularly due to the special circumstances in the Northern Territory, such as language barriers and remoteness.

Capacity issues

At page 30 of the draft report, the following passage appears:

?Complaints against police can also be made to the Police Integrity Commission in New South Wales, the Office of Police Integrity in Victoria, the Crime and Misconduct Commission in Queensland, the Corruption and Crime Commission in Western Australia, and the Police Complaints Authority in South Australia. In Tasmania, the Australian Capital Territory and the Northern Territory, complaints against police can be made to the State or Territory?s Ombudsman.?

The Society would like to advise that most of the complaints are referred to Ethical & Professional Standards Command (EPSC) within NT Police to resolve since the Ombudsman does not have the capacity: ?Many people believe that I investigate all complaints against Police (commonly referred to as CAPS). This is not the case. Resources available to my Office do not allow me to undertake this function. CAPS are referred to Ethical & Professional Standards Command (EPSC) within NT Police to resolve? (Ombudsman Annual Report 2010-2011, p60[4]).

Paragraph 37 of the list of issues: Aboriginal legal aid

Indigenous Courts

At page 33 of the draft report, the following passage appears:

?Most states and territories have established specialist Indigenous Courts which aim to make court processes more culturally appropriate and to engender greater trust between Indigenous communities and judicial officers.?

Section 104 of the amended Sentencing Act (NT) only allows Indigenous Courts for juveniles. The Society is concerned that Indigenous Courts for adults have been abolished and seeks its reinstatement in order to provide access to justice for Indigenous people.

Expensive Indigenous Cases Fund (EICF)

The Society would like to advise that the North Australian Aboriginal Justice Agency (NAAJA) was forced to start referring serious criminal cases to the NT Legal Aid Commission due to the abolishment of the EICF in accordance with the commencement of the Stronger Futures legislation on 30 June 2012.

The situation is undesirable from the perspective of effective provision of legal service.

Paragraph 40 of the list of issues: Funding legal assistance for asylum seekers

At page 36 of the draft report, the following passage appears:

?Under enhanced refugee status assessment arrangements for irregular arrivals, asylum seekers receive publicly funded independent advice and assistance, access to independent merits review of unfavourable assessments, and external scrutiny by the Commonwealth and Immigration Ombudsman. These measures build on strengthened procedural guidance for Departmental officers conducting refugee status assessments. Appropriate services are available to people whose claims are processed offshore. Interpreters are provided wherever possible and practicable.?

The Society urgently calls for the establishment of a Legal Advice Service for asylum seekers in the NT. There is no immigration legal service in Darwin or elsewhere in the NT similar to those operating interstate. Existing legal service providers offer limited legal and advocacy assistance taking into account a range of service delivery requirements to the region and their existing budgetary constraints.

The backdrop against which this assistance is provided is also of note. Larger jurisdictions have a significant profession which includes a large pool of pro bono practitioners. Importantly the private profession is made of approximately 35 firms the bulk of whom are sole practitioners, many elect not to absorb this work for commercial reasons. The Society?s Pro Bono Clearing House faces challenges specific to the region to meet the calls for assistance as the small pool of practitioners is already stretched.

The level of legal need is higher in the Northern Territory than in other parts of the country. Legal assistance providers including those providing legal information and help in relation to refugee and immigration matters are under-resourced and advocacy assistance to asylum seekers in the NT is limited. To achieve improvements in access to justice in the Northern Territory, a significant increase in funding for legal assistance services is required. Conversely any shortage of funding and services in the Northern Territory has a disproportional impact on disenfranchised people?s access to justice.

There is abundance of evidence that unrepresented litigants are costly to the legal system and place a burden on already stretched resources.

Paragraph 41 of the list of issues: Detention conditions, mental health

At page 37 the draft report refers to health care, mental health and detention conditions.

It is well documented that detention has a dramatic impact on mental health ? current research indicates that excluding pre-existing experiences of torture and/or trauma, 3% of people in detention at three months experience a mental illness. At two years this increases to nearly 50%.

The Mental Health Council of Australia reports high rates of self-harm in detention with 1100 self-harm incidents reported in 2010/2011 or up to three or four a day being reported. These rates place suicidal behaviour by people in detention at more than 26% higher than in the general community[5].

NTCOSS reports that the Royal Darwin Hospital has seen a child as young as nine years old admitted for self-harming.

Because the majority of asylum seekers (up to 90%) go on to receive permanent visas, a long-term settlement problem associated with poor mental health outcomes was being created.

The Society is concerned about the long-term issues created by the detention system. Issues of particular concern identified are: levels of mental illness; levels of self-harm; the impact on relationships and parenting capacity; the reported levels of use of medication to cope and the long term impact of this; and the impact of people?s capacity to contribute to Australian society in terms of work after release. In addition the capacity to provide any therapeutic or recovery services while people were still being subject to the same factors upon is questioned.

DASSAN stated in a press release of 20 March 2012[6]: ?NIDC and immigration detention centres generally are not fit places to house human beings for long periods of time. The levels of self-harm inside the NIDC are now out of control. In the past few weeks there have been four people attempt suicide by hanging themselves, a large number of self-harm incidents and a number of hunger strikes?.

The number of people attempting suicide as a result of detention is increasing. Earlier this year, a self-harm epidemic occurred in Darwin detention centres with reports of up to five asylum seekers a day attending the Emergency Department (ED) of Royal Darwin Hospital (RDH) after self-harming. These people are usually discharged the same day and returned to detention (source: Australian Medical Association and ABC News 20 March 2012[7]).

The Society investigated and spoke with Dr Paul Bauert, former President of AMA NT, who confirmed that doctors are treating up to five asylum seekers each day at Royal Darwin Hospital, on some days the number is even higher. Dr Bauert said that the hospital?s resources are overstretched and RDH is not able to cope with the pressure.

The NT News reports on 2 November 2012 that Nauru detainees are on hunger strike ?because they are outraged by recent attempted suicides and self-harm incidents?. See article attached.

Paragraph 43 of the list of issues: children in detention

At page 39 the of the draft report, the following passage appears:

?The Immigration (Guardianship of Children) Act 1946 (IGOC Act) provides that the Minister for Immigration and Citizenship is the guardian of certain unaccompanied non-citizen minors who arrive in Australia without a parent or relative over 21 and with the intention of becoming a permanent resident?.

The Immigration (Guardianship of Children) Act 1946 (IGOC Act) provides that the Minister for Immigration and Citizenship is the guardian of unaccompanied non-citizen children who arrive in Australia with the intention of becoming permanent residents. This causes a conflict of interest between the Minister's role as guardian under the IGOC Act and as the decision-maker under the Migration Act 1958.

This conflict of interest has been identified by the Commonwealth Ombudsman, Senate Inquiry and Australian Human Rights Commission. The Australian government recognises that the IGOC Act is outdated and not designed for the purpose for which it is now used.

Paragraph 45 of the list of issues: Youth justice

In relation to youth justice, the draft Report states: "Further information on mandatory sentencing in Western Australia and the Northern Territory is outlined in the reply to paragraph 30 of the list of issues" (p42+43). This incorrectly implies that the NT's mandatory sentencing laws apply to youths. The reference to the NT here should be omitted.

Annexure A

Annexure A refers only to the Ombudsman and the ?Official Visitor Scheme? as the two oversight mechanisms in the NT.

The Society suggests to add the following two bodies:

The Community Visitor Program (CVP)

The CVP visits mental health facilities as described and now has extended jurisdiction to cover secure care facilities under the Disability Services Act.

The NT Health and Community Services Complaints Commission (HCSCC)

The HCSCC is an independent statutory body that can take complaints about health, disability or aged services in the NT, including those services provided in closed environments. The HCSCC does not have the power to initiate an investigation or inspection of its own initiative, but instead relies on complaint. It is possible that, with legislative amendment, bodies such as the HCSCC could also play a role as a protective mechanism in closed environments as required under the Optional Protocol.