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Tuesday, 28 February 2012
Page: 1077


Senator WRIGHT (South Australia) (18:18): by leave—I move Greens amendments (1), (2), (3), (16) and (18) together:

(1) Schedule 2, item 24, page 16 (after line 33), after paragraph 15B(3)(a), insert:

   (aa) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(2) Schedule 2, item 29, page 18 (after line 6), after paragraph 25(2)(ba), insert:

   (bb) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(3) Schedule 2, item 30, page 18 (after line 16), after paragraph 25(3)(a), insert:

   (aa) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(16) Schedule 2, page 39 (after line 28), after item 104, insert:

   104A

After paragraph 22(3)(b)

   Insert: (ba) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(18) Schedule 3, item 6, page 45 (after line 24), after paragraph 8(1)(ca), insert:

   (cb) there are substantial grounds for believing that, if the request was granted, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; or

The effect of these amendments would be to expand the existing grounds for refusing an extradition or mutual assistance request to include cruel, inhuman or degrading treatment or punishment. The bill as it stands does extend existing safeguards relating to torture. In the case of extradition, the existing anti-torture provisions are being brought into line with Australia's non-refoulement obligations under the convention against torture and, in the case of mutual assistance, there will now be for the first time an express prohibition on providing such assistance where, as a result, a person may be subjected to torture. These amendments are welcomed by the Australian Greens.

Let us consider, though, that the full name of the convention against torture is in fact the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Similarly, article 7 of the International Covenant on Civil and Political Rights provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Australia has been a party to both of these treaties for over 20 years. In fact, Australia has been a party to the ICCPR for over 30 years. In submissions made to the House Standing Committee on Social Policy and Legal Affairs in relation to this bill, the Law Council of Australia, the Australian Human Rights Commission, the Australian Lawyers Alliance and the Human Rights Law Centre were in unanimous agreement that, in order for Australia to fully discharge its international human rights obligations, cruel, inhuman or degrading treatment or punishment should be added as a mandatory ground of refusal to both the Extradition Act and the Mutual Assistance in Criminal Matters Act.

The minister's office has assured us that concerns about such treatment can be addressed through the Attorney-General's general discretion to refuse extradition or assistance. However, as highlighted by the House committee report, if this ground of refusal is not legislated for, there is no statutory obligation on the Attorney-General to turn her mind to these matters. There will be no guarantee that the prospect of such treatment would receive active consideration in any particular extradition or mutual assistance case. The minister's office has also indicated that, in the government's opinion, the scope of the phrase 'cruel, inhuman or degrading treatment or punishment' is unclear under current international jurisprudence and would therefore introduce an unacceptable level of uncertainty into Australia's extradition and mutual assistance regimes. The Australian Greens do not accept that incorporating 'cruel, inhuman or degrading treatment or punishment' into the bill would present an impossible legal quagmire. Australia is obliged to give good-faith effect to the treaties it signs. I note that giving legal effect to the term was not proved an insurmountable obstacle to the great number of countries who have incorporated a prohibition on such treatment into their national or regional bills of rights. The New Zealand Bill of Rights Act includes such a prohibition, as does the European Convention on Human Rights. Further, the Australian government itself has legislatively used and defined the term as recently as last year in the Migration Amendment (Complementary Protection) Act 2011, the provisions of which are now incorporated into the Migration Act 1958. The purpose of this 2011 piece of migration legislation was to better meet Australia's human rights obligations with respect to non-refoulement under international law. Under the Migration Act, the phrase 'cruel, inhuman or degrading treatment' is already incorporated into the aggravated offence of people-smuggling. Identification tests must not be carried out in a 'cruel, inhuman or degrading' manner.

As of 14 February 2012, when the Migration Amendment (Complementary Protection) Act 2011 came into force, the Australian government was obliged to consider whether a non-citizen they are seeking to deport will be subject to cruel, inhuman or degrading treatment or punishment in the receiving country when deciding whether or not to grant that person a protection visa. These new migration laws seem to me to be directly relevant to Australia's non-refoulement obligations as embodied in the Extradition Act. And they also directly contradict the government's argument that the scope of the phrase 'cruel, inhuman or degrading treatment or punishment' is too uncertain to be given legal effect.

My last point on this group of amendments is this: in May 2009 the United Nations Human Rights Committee recommended that Australia should take urgent and adequate measures to ensure that nobody is returned to a country where there are substantial grounds to believe they are at risk of being arbitrarily deprived of their life, being tortured or being subjected to other cruel, inhuman or degrading treatment or punishment. This applies equally to those who are the subject of an extradition request and those who have sought but been denied refugee status in this country. I commend the amendments to the chamber.