Hon Julia Gillard MP
Prime Minister
PO Box 6022

House of Representatives
Parliament House
Canberra ACT 2600
Australia

Re: Australia's Human Rights Obligations at Home and Abroad

Dear Prime Minister,

Human Rights Watch looks forward to working with your government in the coming months to help Australia realize its commitments to protecting and promoting human rights at home and abroad.

We welcome the launching of Australia's Human Rights Framework in April 2010, which states that the government will seek to "improve the protection and promotion of human rights at home, within our region and around the world." We acknowledge Australia's role in the Asia-Pacific region and believe Australia can be a regional leader in promoting human rights.

In advance of International Human Rights Day on December 10, we write to you outlining human rights concerns in several countries where we work and where we believe the right mix of pressure and engagement from Australia may make all the difference to protecting human rights. These countries include Burma, China, Fiji, Indonesia, Papua New Guinea, the Philippines and Sri Lanka.

A common issue in many countries where we work is a lack of accountability for crimes committed by security forces, including extrajudicial killings, enforced disappearances, and torture. We believe impunity will be addressed only by raising the stakes for committing such crimes, which requires concerted international pressure for abusive personnel to be brought to justice. Knowing that Australia plays a vital role in training security forces and helping to promote human rights in many of these countries, we also call on your administration to establish and make publicly available a procedure by which appropriate Australian officials are to systematically vet the human rights records of security forces that Australia seeks to train.

This procedure should:

  • Conduct vetting at the individual, unit, and force levels.
  • Require that countries provide complete deployment histories of the individuals and units that Australia seeks to train.
  • Consult with civil society groups about the human rights performance of individuals, units, and forces that Australia seeks to train before agreeing to provide such training.
  • Require that countries provide information about police investigations and military tribunal proceedings involving members of the security forces affiliated with the units that Australia seeks to train.
  • State the consequences that will result if the vetting procedure outlined above reveals that members or units of the security forces that Australia seeks to train have been credibly accused of past human rights violations and have not been effectively investigated and prosecuted by local authorities.
  • Make this protocol publicly available, and it in turn should provide that until credible investigations and appropriate prosecutions are conducted and the results made public, the individual or unit implicated will be ineligible for Australian support.

Domestically, we call on your government to better protect refugees, take steps to sign and ratify the Convention against Enforced Disappearance, and ratify the Cluster Munitions Convention.

Foreign Policy

Burma

The Australian government has long taken a calibrated approach of targeted sanctions, principled engagement, and humanitarian aid to press for human rights and genuine democratic reform in Burma. In the lead up to Burma's November 7 elections, Australia rightly expressed grave reservations about the elections, which in fact have served to cement military rule behind a civilian façade. Although democracy leader Aung San Suu Kyi was released on November 13 in accordance with Burmese law, her latest release should not lead to complacency. Now more than ever, countries like Australia should support democratic forces inside the country to push for real change and the release of all political prisoners.

We strongly support your government's decision to keep in place targeted sanctions, travel bans and the ban on defense exports to maintain pressure on the Burmese authorities to address human rights concerns and pursue genuine reforms. We also support Australia's significant increase in humanitarian aid to assist the Burmese people, up to $AUD48.6 million this year.

Burma has the world's longest running civil war, with the Burmese army engaged in armed conflicts with armed groups of various ethnic nationalities around the country. For decades, violations of international humanitarian law have been committed by all parties to the conflict. In March 2010, Australia showed principled leadership by being the first country to support the recommendation of the United Nations Special Rapporteur on the human rights situation in Burma, Tomás Ojea Quintana, for the UN to consider establishing a commission of inquiry into violations of international humanitarian law in the country. More than a dozen countries now support that call.

We call on your government to:

  • Lead an international campaign for an international commission of inquiry by taking steps to make such an inquiry a reality, including coordinating closely with like-minded countries and persuading Asian countries of the need for an international investigation.
  • Continue to avoid statements that would appear to give legitimacy to Burma's fraudulent elections.
  • Continue to publicly press for the release of all 2,200 political prisoners in Burma, an inclusive political process and national reconciliation.
  • Maintain and strengthen targeted financial sanctions against members of the military government and those who directly benefit from military rule.

China

Human rights abuses in China that Human Rights Watch has long documented include violations of the rights to freedom of religion, association and expression; arbitrary detention; torture and ill-treatment; restrictions on labor rights; and unlawful forced evictions. Several high-profile incidents, including the Chinese government's efforts to prevent the Melbourne Film Festival from screening a documentary about Uighur activist Rebiya Kadeer in 2009 and the July 2009 arrest of Australian Rio Tinto executive Stern Hu on charges of violating China's dangerously ambiguous state secrets law, have heightened awareness in Australia of the deteriorating human rights climate in China. We note with appreciation your interventions and public statements on behalf of imprisoned dissident Liu Xiaobo, the winner of the 2010 Nobel Peace Prize.

Australia's relationship with China has deepened considerably in the past decade, but for Australia to accomplish its goals in that country it should raise at senior levels-with equal prominence and confidence-human rights issues alongside economic, strategic and diplomatic concerns. These dialogues, which lack benchmarks and transparency, have become a diplomatic end to themselves, and often become the only forum in which human rights issues are raised. Pressing the Chinese government on such issues, ranging from respect for the rule of law to greater government transparency and accountability, advances a range of other Australian interests with China, from environmental protection and product safety to a level economic playing field.    

We call on your government to:

  • Continue to raise individual cases of arbitrary detention and ill-treatment with Chinese government officials at all levels.
  • Urge the Chinese government to ratify the International Covenant on Civil and Political Rights.
  • Make a specific and public effort to meet in Beijing and Canberra with Chinese civil society activists, including Uighurs and Tibetans.
  • Undertake an open review of the efficacy of the Australia-China human rights dialogue.

Fiji

Fiji remains a military dictatorship that denies its citizens the right to take part in self-government through free and fair elections, as well as the freedoms of expression, press, assembly, and religion. Torture and ill-treatment in detention are common. Since the December 2006 coup, the military and police have arbitrarily arrested and detained human rights defenders, journalists and others perceived as critical of the administration.

The Australian government has strongly condemned the military's unconstitutional removal of Fiji's elected government in 2006, the abrogation of Fiji's Constitution in April 2009, and abuses by the military government. Australia has imposed travel sanctions on the military government.

Fiji's Public Emergency Regulations 2009, decreed on April 10, 2009 and extended every month thereafter, purport to empower security forces to prohibit processions and meetings, to use such force-including lethal force-as considered necessary, to enter and remain in any building where there is reason to believe three or more people are meeting, and to regulate the use of any public place. The regulations provide absolute immunity for members of the armed forces, police officers, and people assisting them should they cause harm or death to any person in exerting such force. On October 1, the military arrested Fiji's former prime minister and Labour Party leader, Mahendra Chaudhry, and five others for allegedly breaching the regulations by reportedly meeting with sugar cane farmers.

Fiji's interim administration continues to fail to uphold the rule of law and has seriously compromised the independence of the judiciary.

We call on your government to:

  • Continue to call, publicly and through diplomatic dialogue, for Fiji's military government to uphold and protect human rights.
  • Urge Fiji's government to cease extending the Public Emergency Regulations, as it undertook to do during the Universal Periodic Review before the UN Human Rights Council in February 2010.
  • Publicly describe benchmarks for the staggered removal of sanctions against Fiji's government should the government take specific steps to enhance human rights protection and return to democratic rule.

Indonesia

Australia has significantly deepened its bilateral relationship with Indonesia in the past year, elevating it to the status of a "comprehensive strategic partnership" in March 2010. We urge your government to make human rights an explicit component of this partnership, particularly in its provision of support to Indonesia's security forces and in cooperation with Indonesia on efforts to curb irregular migration.

Australia provides extensive support and training to Detachment 88, the counterterrorism component of the Indonesian police, and to the Indonesian military's special forces, Kopassus (Komando Pasukan Khusus), including its counterterrorism component, Unit 81. Both forces have been implicated in serious human rights abuses, and Indonesia has largely failed to hold members of either force accountable. Human Rights Watch has outlined its concerns to you about the Indonesian military in a letter sent on October 26, 2010 (https://www.hrw.org/node/93944.

Two recent incidents of torture by Indonesian security forces show that serious problems persist. One case involved the torture of two individuals in Papua, one of whom was jabbed in the genitals with a burning stick by Indonesian soldiers. You publicly stated in December that, "he [President Yudhoyono] personally wants to see the appropriate action taken about this matter. He wants to see any wrongdoers brought to justice." But to date, it is unclear what steps, if any, are being taken to investigate and prosecute the case. A spokesman from the Indonesian armed forces told journalists that the matter is closed. The second incident involves Detachment 88 officers torturing peaceful activists deemed "separatists" in the Moluccas in August 2010.  The Indonesian police do not appear to be investigating these allegations in good faith.  We strongly believe that without concerted international pressure this case, like many others, will simply fade once media attention wanes.

Though not widely appreciated and counter to the narrative of Indonesia's emerging democracy, Indonesia now has a significant and growing number of political prisoners, primarily individuals put behind bars for holding demonstrations and raising flags or displaying symbols that the Indonesian authorities interpreted as calls for independence for part of the country. Indonesian officials continue to enforce a number of laws that criminalize the peaceful expression of political, religious, and other views. These laws include offenses in Indonesia's criminal code such as treason or rebellion (makar) and "inciting hatred" (haatzai artikelen), which have been used repeatedly against political activists, including those from the Moluccas and Papua.

Australia has pursued a number of efforts to enlist Indonesia's support in curbing irregular migration to Australia, including signing an implementation framework on people-smuggling and trafficking in persons with Indonesia in March 2010 and welcoming Indonesia's plan to enact a law criminalizing people-smuggling in the near future. There are serious concerns that these efforts will undermine the right of individuals to seek and enjoy asylum and to be free from arbitrary detention as provided by international law. Indonesia has not ratified the 1951 Refugee Convention and has no asylum procedure. It detains migrants attempting to reach Australia to seek asylum, including recognized refugees, and some organizations have reported mistreatment and substandard care in Australian-funded Indonesian migration detention facilities.

We call on your government to:

  • Publicly raise the above two torture incidents with President Susilo Bambang Yudhoyono and make clear that future military and police cooperation is dependent upon adequate investigations and prosecutions of credible accusations of serious human rights abuse.
  • Call for Indonesia to amend or repeal laws that criminalize peaceful political expression.
  • Encourage Indonesia to ratify the 1951 Refugee Convention and its 1967 Protocol.
  • Ensure that financial or technical assistance to Indonesia for the purpose of strengthening border control and combating people-smuggling includes assistance and training in refugee law and refugee protection. Urge Indonesia to ensure that any proposed people-smuggling legislation does not criminalize those acting with humanitarian, rather than financial, intentions, in accordance with international standards.
  • Cease funding migrant detention centers in Indonesia and ensure that all detention facilities in Indonesia previously funded or supported by Australia are subject to independent monitoring and oversight, and that all allegations of abuses are investigated.

Papua New Guinea

Papua New Guinea is at an important crossroads. On the verge of receiving a massive economic boost from its ExxonMobil-led liquefied natural gas project, the country remains hobbled by human rights and governance problems that have consistently derailed progress in the past. Official corruption, an abusive police force and rampant sexual violence are among many entrenched obstacles to development and respect for human rights in Papua New Guinea.

Australia's close engagement as Papua New Guinea's largest international donor and most important bilateral partner reflects a clear understanding of the importance of these challenges-not just for Papua New Guinea, but for the entire region.

We call on your government to:

  • Raise concerns with the Papua New Guinea government over police violence, including torture, rape and the use of excessive force, including against vulnerable populations such as children, sex workers and men who have sex with men. Press the government to take stronger action to end impunity for serious abuses within the police.
  • Press the Papua New Guinea government to withdraw its support for proposed amendments that would curtail the power of the country's Ombudsman Commission-the only institution that has had some success in fighting official corruption and abuse.
  • Urge the Papua New Guinea government to scrap plans to amend the country's Environment Act to prevent local community members from challenging the legality of government-sanctioned extractive industry projects in a court of law.
  • Offer to support the Papua New Guinea government in designing a regulatory framework to oversee the conduct of private security actors in the country-likely to become increasingly important with the growth of liquefied natural gas-related infrastructure.

The Philippines

Extrajudicial killings by the security forces and government-backed militias are a longstanding problem in the Philippines, but it continues to this day with more than 20 killings since President Benigno Aquino III took office in June 2010. Out of hundreds of extrajudicial killings and enforced disappearances of leftist activists and politicians and journalists since 2001, there have been only six successfully prosecuted cases resulting in the conviction of 11 defendants, none of whom were active duty military personnel or senior military officers.

In addition, in southern Mindanao island and other areas, ruling families use official paramilitary forces, police and soldiers as their "private armies." By recruiting, arming, and paying members of these private armies, often with national government support, local officials ensure their continued rule, eliminate political opponents, and underwrite corruption. These paramilitary forces have a history of perpetrating rights abuses with impunity. The November 2009 Maguindanao massacre, in which 58 political opponents and press workers were gunned down in cold blood, was only the worst of many abuses by private armies in the country.

President Aquino has spoken about abolishing private armies and enhancing accountability of the security forces. However, to date little has been done to turn such statements into effective action.

Australia is one of the largest bilateral donors to the Philippines, providing aid and supporting the security forces. Australia's defense links with the Armed Forces of the Philippines and the Philippine National Police give it significant leverage and a responsibility to push the Philippine government to address impunity by security forces.

We call on your government to:

  • Press the Aquino administration to investigate and prosecute members of the military for extrajudicial killings, including those liable for command responsibility. Ensure that prosecutions for extrajudicial killings are a benchmark in continued cooperation with the Philippine military.
  • Press President Aquino to realize commitments he has made to abolish private armies by investigating private armies throughout the country and abolishing the paramilitary forces that so often are used as private armies, and by undertaking reforms to enhance accountability in the national security framework, which is currently being drafted.
  • Offer law enforcement assistance with investigations into serious human rights violations, particularly in forensic analysis, witness protection, case preparation and the tracing of fugitives.
  • Instruct the embassy in Manila to routinely request an update on the status of investigations into specific cases of enforced disappearance and extrajudicial killing in meetings with government officials.

Sri Lanka

Despite repeated calls for accountability for serious violations of international human rights and humanitarian law during the quarter-century-long armed conflict with the rebel Liberation Tigers of Tamil Eelam (LTTE), the government of Sri Lanka has yet to take any serious and meaningful steps in this regard. The government continues to maintain that no civilians were killed by its forces in the final months of intense combat in 2009, despite credible documentation to the contrary, and has never investigated the credible allegations of widespread war crimes by the Sri Lankan armed forces and the LTTE.

President Mahinda Rajapaksa established a Lessons Learnt and Reconciliation Commission (LLRC) in May 2010. The commission suffers from a number of limitations, including lack of independence, limited mandate, limited resources, and no victim and witness protection scheme. Sri Lanka also has a history of commissions of inquiry that accomplish little: several previous commissions appointed by President Rajapaksa have produced no useful public reports or led to any prosecutions. Despite the end of the war in May 2009, Sri Lanka continues to enforce emergency regulations that restrict fundamental rights, particularly against the Tamil population.

In July, your government lifted its three-month suspension of processing of Sri Lankan asylum requests, which was a positive move. Since the January presidential elections, Sri Lankan authorities have arrested, harassed and intimidated journalists and media workers, civil society activists, and opposition party members and supporters, and  there have been several new enforced disappearances. Members of these groups, among others in Sri Lanka, remain extremely vulnerable to persecution and might have valid claims for refugee status.

Another vulnerable group is people suspected of having been involved with the LTTE.  An estimated 7,000 persons, whom the government detained from among the internally displaced, are still being held without charge in so-called rehabilitation centers on suspicion of involvement with the LTTE. The International Committee of the Red Cross has been denied access to these centers. With security forces granted sweeping powers under the emergency regulations and Prevention of Terrorism Act, there continues to be a high risk of torture and enforced disappearances in Sri Lanka.

We call on your government to:

  • Urge the government of Sri Lanka to support an independent international investigation into war crimes by both sides during the final months of the conflict with the LTTE. Given Sri Lanka's poor record for accountability and the limitations of the LLRC, do not suggest that the LLRC is a substitute for an international investigation.
  • Pursue measures that would promote meaningful and lasting reconciliation in the country.
  • Press the Sri Lankan government to cooperate with the UN secretary-general's panel of experts on accountability issues. 
  • Continue to assess Sri Lankan asylum claims without delay and on their merits.

Domestic Policy

Refugees and People Smuggling

Australia, which is a party to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol, has an obligation to protect asylum seekers who arrive in its waters or on its shores and not to return refugees to places where their lives or freedom would be threatened. Yet several Australian policies towards irregular migrants have undermined their right to seek asylum and call into question Australia's commitment to international human rights and refugee standards.

In July, you proposed an offshore regional processing center in Timor-Leste where asylum seekers arriving on Australian shores without authorization would be sent. Whatever Australia's compliance with the Refugee Convention within its territory, we note that Timor-Leste, at present, does not have a functioning asylum processing system and cannot guarantee refugees' effective protection. 

There is a significant risk that asylum seekers, including children, held in isolated facilities with inadequate legal representation could face long delays in the determination of their refugee claims, and that recognized refugees could be forced to wait for additional long periods to find countries willing to resettle them. Such a scheme, we believe, would likely result in extended periods of detention, potentially violating the right to be free from arbitrary detention. We remain concerned that the proposed plan would involve involuntarily transferring asylum seekers to a country through which they did not first establish any presence and to which they have no other ties, rendering it highly questionable under international law. Australian officials have not suggested that Australia would provide oversight and monitoring of conditions in detention at such a new facility, despite the risk of abuse.  

This plan clearly aims to discourage people-smuggling. You stated during a speech in Sydney that, "The purpose would be to ensure that people smugglers have no product to sell.... A boat ride to Australia would just be a ticket back to the regional processing centre."

We are concerned that the Australian government's interpretation of smuggling fails to meet international standards. The recently enacted Anti-People Smuggling and Other Measures Act 2010 departs from existing international standards, including by failing to provide an exception to the definition of "migrant smuggling" for those who facilitate irregular movement of people for humanitarian purposes, rather than financial or other material benefit. It defines the provision of "material support" to human smugglers in an overly broad and vague way. This could criminalize those who give financial or humanitarian support to people who later use those resources to pay or compensate smugglers to bring them to Australia, even if the person providing such material support did so without knowing it would be used for this purpose or out of entirely humanitarian motives. 

Australia continues to attempt to prevent undocumented migrants from reaching its shores, in part by working with authorities from transit countries, such as Indonesia and Malaysia, to counter smuggling and detain undocumented migrants. However, both Indonesia and Malaysia lack legal channels for processing asylum claims, and Malaysia in particular has a poor human rights record with respect to its treatment of refugees and asylum seekers. Revisions to Malaysia's anti-trafficking laws, welcomed and supported by Australia, in fact conflate human trafficking and people smuggling and reduce vital protections for victims of trafficking in Malaysia.

As of October 15, 2010, more than 5,000 people were in immigration detention in Australia, more than half on Christmas Island. On September 21, Minister Chris Bowen announced that, to accommodate an increase in detained migrants, Australia would significantly expand its onshore immigration detention facilities. In late October, some detainees from Christmas Island were transferred onshore.

Current Australian policy states that all asylum seekers who arrive by boat without permission will be subjected to mandatory detention. UNHCR guidelines on detention of asylum seekers hold that as a general principle "asylum seekers should not be detained," and that "for detention of asylum seekers to be lawful and not arbitrary...[i]t must be exercised in a non-discriminatory manner." Australia's mandatory detention of irregular maritime asylum seekers in effect penalizes them for their method of arrival, which is inconsistent with article 31 of the Refugee Convention. A recent suicide and a brawl among Afghan youth in the Villawood detention facility have drawn attention to the impact of long processing times on detainees.

Current refugee status determination procedures in Australia discriminate against those who arrive in the country irregularly and affect their ability to apply for a protection visa or to have their case reviewed by a court. A landmark ruling by the High Court on November 11 upheld the right of two asylum seekers who arrived in Australia illegally to appeal their asylum claims. 

We recommend that you:

  • Withdraw the proposal to establish an offshore regional processing center in Timor-Leste or elsewhere and permit all asylum seekers who reach Australian waters or shores or who come under the control of Australian flagged vessels to apply for asylum on Australian territory under Australian law. 
  • Ensure that any offshore detention facilities funded or supported by Australia are subject to independent monitoring and oversight, and that all allegations of abuses in detention are properly investigated. 
  • Amend the Anti-People Smuggling and Other Measures Act by limiting the definition of human smuggling only to actions taken for a financial or other material benefit and excluding actions taken for humanitarian purposes.  Remove or clarify the act's vague prohibition on Australian residents providing material support to human smugglers so as not to deter people living in Australia from sending remittances to help family members abroad.
  • Ensure that financial or technical assistance to other countries for the purpose of strengthening border control and combating people-smuggling comply with international standards on smuggling and refugee protection.
  • Detain asylum seekers or refugees who represent no danger to the community for no longer than administratively necessary for identity, health, and security checks, regardless of their means of arrival.
  • Dismantle the hierarchy of status determination processes by which some asylum seekers are denied on account of their irregular entry the ability to apply for a protection visa or to have their case reviewed by a court.
  • Exercise Australia's leadership as co-chair of the Bali Process to ensure that the humane treatment of migrants, the ability of asylum seekers to access asylum processing systems, and the principle of nonrefoulement (non-return) are core objectives of the Bali Process, including any discussions or agreements on a regional offshore processing center for migrants. Make the Bali Process more transparent and accountable by ensuring that civil society groups are provided an opportunity to meaningfully participate in the process.

Treaties

Australia is not party to the International Convention for the Protection of All Persons from Enforced Disappearance, which will enter into force on December 23, 2010 after Iraq became the 20th country to ratify the treaty on November 23, 2010. Enforced disappearances continue in several countries in the Asia-Pacific region such as Burma, the Philippines and Thailand. Australia should sign and ratify this convention and encourage other Asia-Pacific states to do the same.

Australia signed the 2008 Convention on Cluster Munitions in December 2008, but has not yet ratified this international treaty, which represents the most significant advance in disarmament of the past decade. We urge Australia to give priority to ratification of the Convention on Cluster Munitions and to undertake national measures, including domestic legislation, to ensure its full implementation. 

We hope to work with your administration constructively to address these serious problems. We would welcome the opportunity to meet with you to discuss these issues in more detail.

Sincerely,

Kenneth Roth
Executive Director

CC:  Foreign Minister Kevin Rudd
     Immigration Minister Chris Bowen
     Defense Minister Stephen Smith