The Hon. Tony Abbott, MP
CANBERRA ACT 2600
Re: Human Rights in Foreign and Domestic Policy
Dear Prime Minister Abbott,
Congratulations on your recent election as Prime Minister of Australia.
Human Rights Watch is a nongovernment organization that monitors and reports on international human rights, refugee, and humanitarian law issues in more than 90 countries around the world. In August, Human Rights Watch launched its first ever Australia office in Sydney. We look forward to working with you over the next three years to strengthen Australia’s protection of human rights.
In the memo that follows, we outline a wide range of human rights concerns from countries where we work and where we believe the right mix of pressure and engagement from Australia may make a significant difference in promoting respect for human rights. These countries are Afghanistan, Bangladesh, Burma, Cambodia, China, Fiji, India, Indonesia, Malaysia, Nepal, Papua New Guinea, the Philippines, Sri Lanka, Thailand, and Vietnam. We also make several recommendations in the areas of domestic policy in which Human Rights Watch has expertise – asylum seekers and refugees, disability rights, same-sex marriage, and multilateral institutions.
Foreign policy – freedom of expression, religious freedom, accountability for abuses by security forces, death penalty, multilateral institutions
We welcome your Foreign Minister Julie Bishop’s comment that “Australia’s standing in the world is at its highest when our influence in our region is at its strongest.” We hope the recommendations in this letter regarding this region will assist you in exercising that influence for the benefit of not only Australian citizens, but citizens across Asia and the Pacific. Pre-election you have stated that your party’s foreign policy will be “designed to protect and project our reputation as a strong and prosperous nation and our values as an open liberal democracy.” Promotion of these values should include publicly raising human rights concerns with foreign leaders. We are concerned that in recent bilateral meetings in Indonesia and on the sidelines of the Asia-Pacific Economic Cooperation (APEC) forum and Association of Southeast Asian Nations (ASEAN) last week, you failed to raise human rights concerns with Indonesian, Chinese, and Vietnamese leaders. We encourage Australia to play a leading role in the region, calling for and supporting transitions to open liberal democracy. You and your Attorney-General George Brandis have claimed a strong public stance in defence of free speech.
Freedom of expression, essential for a proper functioning democracy, is under attack in many countries throughout the Asia-Pacific. Human rights activists, political opposition figures, journalists, and critics of the government are subject to intimidation, harassment, arrest, and imprisonment in Bangladesh, Burma, Cambodia, China, Fiji, India, Indonesia, Malaysia, the Philippines, Sri Lanka and Vietnam for seeking to exercise their rights to freedom of expression, assembly, and association. Extrajudicial killings of journalists in Cambodia and the Philippines have not been adequately investigated or punished. Censorship of the press is a common problem, for instance, in China, Fiji, Malaysia, and Vietnam. It is essential that you stand up for the importance of freedom of expression, not just for Australians, but for all people.
Religious freedom is also under attack in China, Indonesia, Pakistan, and Vietnam, where religious minorities face intimidation, violence, and onerous restrictions on their rights to freedom of belief, worship, and association.Freedom of expression, assembly, and association, a free press, and a vibrant civil society are particularly important to ensuring genuinely free and fair elections. Australia should take care to monitor and protect these rights in light of scheduled elections in the coming year in Nepal, Bangladesh, and Fiji. When these rights are not protected, people’s rights to choose their own representatives in a democratic system are denied, as was the case in the recent elections in Cambodia. In such cases, it is entirely appropriate for Australia to call for a thorough and impartial investigation into allegations of election fraud.
Abuses and torture by police and security forces is of particular concern in Afghanistan, India, Indonesia, Malaysia, Papua New Guinea, and Vietnam. In many cases, these abuses are met with inadequate investigations or complete impunity. The support and training provided by Australia to the police and security forces in many of these countries gives Australia an opportunity and responsibility to speak out against such brutality and ensure cases are properly investigated and prosecuted.
Impunity for war crimes and grave abuses of human rights is a serious issue in Burma, Fiji, Nepal, and Sri Lanka. In Bangladesh and Cambodia, where judicial processes are in place with respect to war crimes, improper government interference and fair trial concerns limit the reach of meaningful justice and accountability.
Australia has long taken a principled stance against the death penalty on the grounds that it is inhumane and irreversible. Several countries in the region continue to use the death penalty, including Bangladesh, China, India, and Papua New Guinea. We urge you to press these countries to institute a moratorium on the death penalty and work towards its eventual abolishment.
Australia has an important role to play in multilateral institutions like the Security Council, the G20, and through its representation in various international financial institutions (IFIs). We urge Australia to show leadership in advocating for protection and monitoring of human rights through each of these forums.
Asylum seekers and refugees
Working towards genuine regional solutions to protect asylum seekers and refugees and to ensure respect for the human rights of all migrants is a matter of both foreign and domestic policy. Due to the number of refugees it resettles from countries in the region, Australia has leverage to push for stronger refugee protection in countries such as Indonesia, Thailand, and Malaysia, all of which host significant asylum seeker and refugee populations and none of which has ratified the 1951 Refugee Convention, established domestic refugee law and asylum procedures, or committed itself to integrating refugees on a permanent basis. Refoulement – the forced return of refugees and asylum seekers to countries where they will face threats to their life and freedom – is a violation of customary international law and a risk in each of these countries, as demonstrated by Bangladesh’s policy of pushing back boats carrying stateless ethnic Rohingya from Burma, where they have been persecuted and victimized by communal violence.
Your own policy announcements in the lead-up to the Australia election of turning around boats at sea, denying rights of review to refugee status determinations, and denying government-funded legal assistance to asylum seekers raise serious concerns that your government might embark on a path that would create serious risks that vulnerable refugees will be returned to their countries of origin, in breach of the non-refoulement obligation.
The risk of refoulement also rises when refugee status determination procedures are deficient, as they appear to be with respect to the countries to which Australia is diverting asylum seekers – Papua New Guinea and Nauru. Instead, we respectfully urge you to reverse course by ending Australia’s shameful decade-long practice of treating asylum seekers and refugees as political scapegoats, and instead demonstrating leadership in working towards genuine regional solutions to asylum seekers and migrants that emphasise protection rather than punishment. Ultimately, the most effective solution will address the push factors for migration, which means addressing the human rights abuses in countries of origin that force people from their homes and providing effective protection in transit countries like Indonesia, Malaysia, and Thailand by building their capacity to receive asylum seekers, assess their claims for protection, and integrate those found to be refugees who have no prospects for return.
Other domestic issues: same-sex marriage, disability rights
Australia’s foreign policy on human rights will only be effective if the government is also seen to be addressing its own human rights record. Alongside the serious and wide-reaching concerns regarding refugees, we urge your government to reconsider its policy on same-sex marriage. Australia should also capitalise on its recent leadership on disability rights, evident in the National Disability Strategy and disability-inclusive foreign aid program, by addressing outstanding human rights concerns including involuntary sterilisation of women and girls with disabilities, the guardianship regime, and restrictive practices in the mental health system.
We thank you for your attention to these issues. Through our presence on the ground in Australia, we look forward to building a constructive relationship with your government in addressing these issues of foreign and domestic policy.
Kenneth Roth Elaine Pearson
Executive Director Australia Director
Julie Bishop, Minister for Foreign Affairs
Scott Morrison, Minister for Immigration and Border Protection
George Brandis, Attorney-General
Kevin Andrews, Minister for Social Services
Memo to Australian Prime Minister Tony Abbott on Foreign and Domestic Human Rights Concerns
Afghanistan and Pakistan
Deteriorating security in Afghanistan affects all Afghans and makes it increasingly untenable for Afghan refugees to return home. The drawdown of international troops, including Australian troops, is creating growing insecurity in Afghanistan; there is every reason to think that conditions will worsen, especially for ethnic minorities and women. The number of Afghans fleeing the country has steadily increased in recent years and is likely to continue in the years ahead.
In August 2013, the United Nations High Commissioner for Refugees (UNHCR) issued “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan.” According to UNHCR, Afghans continue to face “widespread human rights abuses” and “may be at risk of persecution for reasons that are related to the on-going armed conflict ... or on the basis of serious human rights violations that are not directly related to the conflict, or a combination of the two.”
Australia, as a country that has played a major role in Afghanistan since the fall of the Taliban government in 2001, has a special responsibility to ensure the protection of the human rights of Afghan citizens. The most tangible way Australia affects the lives of Afghans is in its handling of the large and increasing numbers of Afghan asylum seekers. Many Afghans seeking asylum in Australia are of Hazara ethnicity, the ethnic group that has faced persecution in Afghanistan for many decades. Hazaras have traditionally been the poorest and most disadvantaged ethnic group and at times have faced violent attacks and massacres. This persecution over many years has led Hazara families to flee to Pakistan and Iran in search of safety.
Tragically, however, in recent years, Hazaras living in Pakistan have been the target of attacks based on their religion (they are predominantly Shia Muslims) and ethnicity. Since 2012, more than 650 Shia Muslims have been killed in targeted attacks across Pakistan, the majority from the Hazara community in Baluchistan province. Sunni militant groups, such as the ostensibly banned Lashkar-e Jhangvi, operate with widespread impunity across Pakistan. These attacks have extinguished any hope of Pakistan being a safe haven for the Hazara community.
Australia’s punitive approach to dealing with asylum seekers disproportionately affects some of the most vulnerable people from one of the world’s most unstable countries. We urge Australia to reconsider how its asylum seeker policy reflects the reality of life on the ground in Afghanistan and Australia’s obligations under international law.
Torture is systematic and widespread in Afghanistan. It is often committed by Afghan security forces, forces that are funded and mentored by Australia. Knowing that Australia plays a vital role in supporting Afghan security forces, we urge your administration to send a clear message to the Afghan government that the use of torture needs to end, and that those complicit in torture need to be held accountable.
In part due to the support of countries such as Australia, the last 12 years have been a period of important progress for the rights of Afghan women. However, there are signs that this progress is already beginning to disintegrate. As Foreign Minister Julie Bishop has noted, there is a “strong link between levels of gender equality and national development.” It is of critical importance to the future development and stability of Afghanistan that Australia continues to support the protection and promotion of women’s rights by funding essential services but most importantly, by offering political support to the struggle for women’s rights in Afghanistan.
We recommend that your government:
· Review your asylum seeker policy to ensure it best protects the due process and human rights of asylum seekers, accords with the reality on the ground in Afghanistan and Pakistan, and upholds Australia’s obligations under international law;
· Press the Pakistan government to investigate and prosecute violence against religious minorities in Pakistan including the targeted killings against Hazara, enforced disappearances in Baluchistan, as well as to end impunity for abusive militant groups;
· Press the Afghan government to take responsibility for ending torture by the Afghan security forces and hold perpetrators to account;
· Press the Afghan government to continue to promote women’s rights by announcing that Australia’s continued support to the government and its security needs will reflect continued progress toward equality for women in Afghanistan;
· Fund essential services for Afghan women and girls, including schools, clinics, hospitals, shelters, and legal services.
Bangladesh has been clamping down on civil society, media, and opposition members for several years. Despite government claims to the contrary, there is evidence that the situation is deteriorating as the country heads towards elections, due by January 2014. In August, the government arrested prominent rights activist and former deputy attorney-general Adilur Rahman Khan, who has long campaigned against extrajudicial killings, enforced disappearances, torture, and violations of the rights to freedom of expression, assembly, and association. Khan’s arrest and detention appears to be aimed at intimidating and silencing critics of the government. The recent move by the government to amend the law under which he is detained, the Information and Communication Technology Act of 2006, to increase sentences, to make certain offences non-bailable, and to authorize the police to conduct arrests without prior warrants increases concerns that Khan’s arrest is designed to silence him, the human rights organization Odhikar, and critics more generally.
Credible allegations of improper collusion between the prosecution and the judiciary, as well as other fair trial concerns, taint the trials against those accused of war crimes during the country’s 1971 war of independence. The accused face the death penalty, which Australia has consistently opposed as an inhumane and irreversible punishment. This is of particular concern in these trials where the accused have not had recourse to due process.
Bangladesh has seen tragic and preventable workplace accidents as a result of the country’s increasing economic reliance on the garment and other industries. In spite of government and retailer promises to improve standards of safety and compensation for workers, to date very little has been accomplished towards improving labour and workplace protections.
Except for about 30,000 long-term Rohingya refugees living in two camps who are officially recognized refugees, the Bangladeshi government refuses to register more than 150,000 other Rohingya from Burma or to allow them to lodge claims for asylum. The conditions for the Rohingya include overcrowding, shortages of food leading to widespread malnourishment among children, a lack of clean water and sanitation resulting in disease, and restrictions on movement coupled with extortion and human rights abuses.
We recommend that your government:
· Publicly call for the immediate release of Adilur Rahman Khan, for charges against him to be dropped, and for an end to the harassment human rights defenders and critics of the government who attempt to exercise their right to freedom of expression;
· Closely monitor the treatment of Khan, to ensure that he is safe from torture and any other cruel, inhumane, and degrading treatment while detained;
· Publicly call for independent investigations and oversight of the war crimes trials, and offer Bangladesh technical assistance in that effort;
· Publicly call for the abolishment of, or at a minimum a moratorium on, the death penalty in Bangladesh;
· Press the government of Bangladesh to introduce stronger and more transparent regulations on factory safety and compensation standards, and support the government agencies responsible for introducing these standards;
· Call on Bangladesh to either recognize stateless Rohingya from Burma as refugees on a prima facie basis, or offer to assist the Bangladeshi government to build its capacity to assess and process individual asylum claims fairly, quickly, and transparently. Offer to provide support to meet the humanitarian needs of refugees, asylum seekers, and stateless people in Bangladesh.
The long-standing bipartisan approach of targeted sanctions, principled engagement, and humanitarian aid has made Australia a key political player, respected aid donor, and a prominent voice on the still grave human rights situation in Burma. We welcome Foreign Minister Bishop’s statement, as Deputy Leader of the Opposition in 2010, calling on the government to “maintain a strong stance against the Burma military in the interest of freedom and democracy for the long suffering Burmese people.” We urge your government to continue to stand firmly in support of important political change in the country and against on-going abuses.
Despite promising reforms in Burma, serious human rights abuses against ethnic minority populations continue and communal violence spread in 2012, as the government fails to protect minorities, especially Rohingya Muslims. The Rohingya population are not recognized by Burmese officials, face systematic discrimination as a result of the draconian 1982 Citizenship Law, and were particularly victimized by communal violence, which reached its peak in mid-2012.
Over the past three years, Australia has generously provided A$141 million in aid assistance and will spend A$64 million in 2013. Australia’s long-standing support of human rights defenders in Burma should continue for a new generation of activists working to improve respect for the rule of law and basic freedoms of association, assembly, and freedom of the media. Australia also provides vital support to 140,000 Burmese refugees in Thailand, many of whom have been living in camps on the Thai-Burmese border for decades. Australia should maintain its support for these refugees, and ensure that any repatriation process is voluntary and safe. As Australia dispatches its first defence attaché to Burma in over two decades, we support Australia’s decision to maintain its ban on defence exports to Burma. Australia’s technical capacity building for Burma’s mining sector is welcome so long as appropriate human rights safeguards are in place to prevent land grabs and displacement.
We recommend that your government:
· Continue to press the Burmese government to pursue accountability for serious crimes including war crimes and crimes against humanity;
· Press the government to end discrimination and violence against Rohingya and other vulnerable minorities. If Australian funding is to be provided to the 2014 census, ensure that the census is inclusive of the Rohingya population;
· Maintain current levels of Australian development assistance in the areas of health and education;
· Maintain support to Burmese refugees in Thailand and play a crucial role in human rights monitoring to ensure any eventual returns are voluntary and safe;
· Provide modest and carefully calibrated assistance to the Burmese military, concentrating on appropriate training and accountability in international humanitarian law, in cooperation with the United States and the United Kingdom;
· Ensure that Australia’s assistance to Burma’s mining sector does not inadvertently facilitate land grabs and community displacement.
Australia was a leading architect of the 1991 Paris Agreements on Cambodia and the creation of the United Nations Transitional Authority in Cambodia. These instruments aimed to democratize Cambodia and protect human rights following the Khmer Rouge genocide and Vietnamese occupation of Cambodia. The reality in Cambodia has been quite different; ever since the troubled 1993 elections, Prime Minister Hun Sen and his Cambodian People’s Party (CPP) have sought to return Cambodia to de facto one-party rule and have seriously violated human rights in doing so. Australia has the opportunity, as a long-standing supporter of democracy in Cambodia and a major aid donor, to lead by example in reasserting and working towards the realization of the objectives of the Paris Agreements.
The 2013 elections for Cambodia’s national assembly were not free and fair, and the results announced by the National Election Committee (NEC) giving a majority to the ruling CPP are not credible. The CPP controlled every aspect of the electoral process and there is prima facie evidence of large-scale electoral fraud. The government-controlled electoral commission has failed to address credible allegations of voter fraud and other irregularities or systematic unfairness in the election process. In efforts to deter and suppress protests against this, the security forces have repeated used excessive force, killing at least one person and injuring dozens of others, including human rights activists monitoring demonstrations.
The CPP-led government has abused its control of the state, including the security forces and judiciary, to pervert the election process. Cambodians are imprisoned for the non-violent exercise of their rights to freedom of expression, assembly, and association. National and local authorities continue to favour land-grabbing investors and ignore the land rights of citizens. Those who protest the illegal land-grabs are threatened with arrest or worse. Government authorities implicated in the murder or attempted murder of journalists and striking workers are implausibly acquitted or even when convicted, not apprehended.
Australia has contributed A$23 million in funding since the establishment of the United Nations-assisted Khmer Rouge Tribunal in 2006. The tribunal has thus far convicted only one person. Two of the four “senior leaders” prosecuted for genocide, crimes against humanity, and war crimes in Case 002 have died and or been declared unfit to stand trial. The CPP has repeatedly interfered with the proper functioning of the tribunal. In 2012, two international co-investigating judges resigned from Cases 003 and 004, citing political interference from the Cambodian government. The investigations of five additional Khmer Rouge suspects in Cases 003 and 004 have been publicly and repeatedly opposed by Hun Sen, and one has now died. The government’s refusal to pay local staff is the latest attempt to undermine efforts to bring former Khmer Rouge leaders to justice. As the second largest donor to the tribunal, Australia has a leadership role to play in ensuring those accountable for the Khmer Rouge crimes are held accountable.
We recommend that your government:
· Support the creation of an independent commission to investigate and remedy irregularities in the July 28 elections;
· Support freedom of expression and peaceful assembly by publicly calling on the government to respect these rights, without use of intimidation or excessive violence; to release all persons imprisoned for peacefully expressing their views and involved in peaceful protests; and to press for reforms to increase media freedom;
· Press for an end to land grabs and call for the respect and restoration of the constitutionally defined land rights of Cambodians;
· Play a leadership role in pressing the United Nations to protect the integrity of the Khmer Rouge Tribunal by defending the legal authority and independence of international co-investigating judges to investigate persons suspected of being most responsible for the Khmer Rouge crimes;
· Publicly call for the need for impartial, independent, and effective investigations into Khmer Rouge Tribunal cases 003 and 004;
· Condemn the on-going political interference by the Cambodian government, which undermines the judicial independence of the Khmer Rouge Tribunal.
Australia's relationship with China has deepened considerably in the past decade, primarily as its trade relationship has grown exponentially. However, to have a truly meaningful bilateral relationship with China, Australia should put human rights issues on par with and as an essential foundation for economic, strategic, and diplomatic concerns at senior levels of engagement. We welcomed your comments last year when visiting China that “as Prime Minister, I would hope for political reform to match China’s economic liberalisation… We already have a strong relationship with China based on shared interests. Over time, I hope it will be based more on shared values.” We hope this statement indicates your intention to commit to being more vocal about the protection of human rights in China.
Acknowledgement of the scale and scope of human rights abuses perpetrated or tolerated by the Chinese government has been noticeably absent from Australian diplomacy – whether it be public diplomacy by senior Australian officials, key documents including the 2013 “China Country Strategy,” or public statements following diplomatic visits to regions such as Tibet. Australia’s official human rights dialogue with China lack benchmarks and transparency. It is ineffective and insufficient in addressing human rights issues or demonstrating support for human rights defenders in China. The dialogue merely serves as a tool in demonstrating to a domestic Australian audience that the government is “doing something.”
Human Rights Watch has long documented widespread and uncorrected human rights abuses in China, including: use of the death penalty; violations of the rights to freedom of religion, association, and expression; arbitrary detention; torture and ill-treatment; restrictions on labour rights; repression in Tibet and Xinjiang; and endemic forced evictions.
Pressing the Chinese government on common issues and seeking shared values, from respect for the rule of law to greater government transparency and accountability, advances a range of Australian interests with China, from environmental protection and product safety to a level economic playing field. To that end, Australia should increase the human rights reporting capacity of its embassy and consulates in China, and articulate a clear strategy to promote human rights and the rule of law, including support to human rights defenders, as part of its diplomatic engagement. We welcome the Coalition’s pre-election statements of concern regarding the human rights situation in Tibet and your statements that you will continue to push for “Chinese respect for Tibetan human rights.”
Specifically, we recommend that your government:
· Raise individual cases of arbitrary detention and ill-treatment with Chinese government officials at all levels, starting with the imprisoned Nobel Peace Prize laureate Liu Xiaobo and his wife Liu Xia;
· Urge the Chinese government to ratify the International Covenant on Civil and Political Rights and to abolish re-education through labour;
· Hold China accountable to its international obligations at the upcoming session of the Universal Periodic Review of China at the UN Human Rights Council;
· 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.
The human rights situation in Fiji remains tenuous, where the military dictatorship denies the citizens of Fiji access to many basic rights. The Australian government strongly condemned the military’s removal of the elected government in 2006, but should consistently press Fiji to respect human rights. Since Commodore Frank Bainimarama took power, his government has consistently attacked critics, including arbitrarily detaining them and instituting heavy censorship. This has extended to arbitrary arrests and the detention of human rights defenders, journalists, and labour leaders. The military government promulgated a new constitution on 6 September 2013. The previous foreign minister, Bob Carr, welcomed the constitution as “an important step forward,” overlooking its significant problems, including broad immunity clauses for those responsible for past human rights abuses and onerous restrictions on rights to freedom of expression, assembly, and association in the “interests of national security, public safety, public order, public morality, public health, or the orderly conduct of elections.” The elections’ exemption is particularly concerning in light of the upcoming elections to be held under the new constitution before September 2014.
We note Foreign Minister Bishop’s comments that “Australia is keen to re-engage with Fiji as long as Fiji is a free and open society with civilian rule, with an independent judiciary and with a democratic process that all people will prosper under.” We welcome support for democratization in Fiji, while underscoring the importance of the conditions Bishop has set out for Australian support. Your government should closely monitor the rights situation in the lead up to the 2014 elections.
We recommend that your government:
· Closely monitor the rights situation in Fiji in the lead up to elections;
· Consistently press the Fiji government, both publicly and privately, to protect human rights and address individual incidents of alleged human rights violations as they arise;
· Set public benchmarks for the phased removal of sanctions against Fiji’s government if the government takes specific steps to respect and protect human rights;
· Play an active role in ensuring credible elections by undertaking close monitoring, providing technical assistance, and pressing for full and unfettered participation of civil society in election monitoring.
Australia has deepened its relations with India in recent years, and you have pledged to build an “even stronger friendship” between the two countries. Human rights should form an important part of this relationship.
Widespread protests over the fatal gang-rape of a student in New Delhi in December 2012 drew attention, yet again, to the need for institutional reforms in India. The Indian government has responded by enacting strong legislation. Nonetheless, continuing reports of gender-based violence against women and girls, including women and girls with disabilities, expose the wide gap between good policies and poor implementation. A key area of concern is the lack of police accountability. Police often do not investigate rape cases. Victims who approach police for help may be re-traumatized by the hostile or inadequate police response, leading to under-registration of complaints. Investigating officers should undergo mandatory training regarding gender-based crimes, including investigative methods applicable to sexual violence, working with traumatized victims and vulnerable groups such as women and girls with disabilities, protecting victims from harassment, and collecting and preserving evidence. Australia has a role to play here by ensuring that any future police training exercises between the two countries includes these elements.
Australia should also address the need for police reforms in India more broadly. Indian police routinely commit rights violations, including arbitrary detention and torture. Women, Dalits, the poor, and religious and sexual minorities are particularly vulnerable to police abuses.
Disappointingly, India ended its eight-year unofficial moratorium on executions in 2012. Since this time, two people have been hanged in India, and Indian President Pranab Mukherjee has rejected 11 clemency pleas, confirming the death penalty for 17 people. Indian courts can only impose the death penalty in the “rarest of rare” cases, but in November 2012 the Supreme Court ruled that this standard had not been applied uniformly over the years and that the norms on the death penalty needed “a fresh look.”
There have been increased restrictions on free speech, especially over the Internet. In recent years, authorities have repeatedly used the Information Technology Actto arrest people for posting comments on social media sites that are critical of the government, to put pressure on websites such as Facebook and Google to filter or block content, and to induce private intermediaries to filter and remove content from users. The government’s decision to establish a Central Monitoring System, a surveillance system to monitor all phone and Internet communications in the country, has raised further free speech concerns among Indian activists.
We recommend that your government:
· Raise concerns with the Indian government at the highest levels over human rights violations by police. Call on the Indian government to ensure that police behaviour towards all individuals conforms to international human rights standards;
· Include gender and disability sensitization in all on-going and future police training and assistance programs;
· Call on the Indian government, both publicly and privately, to reinstate its moratorium on the death penalty and work towards abolishing it altogether;
· Urge the Indian government to protect free speech and expression and be fully transparent about any surveillance system that might impeach upon people’s freedom of expression to share opinions and information without fear of reproach.
Australia has significantly deepened its bilateral relationship with Indonesia since signing the "comprehensive strategic partnership" in March 2010. We urge your government to maintain human rights as an explicit component of this partnership. A strong human rights protection focus will be beneficial for both countries, particularly in security cooperation, education, and efforts to curb irregular migration.
Australia is pursuing a number of efforts to enlist Indonesia's support in curbing irregular migration to Australia. There are serious concerns that these efforts will undermine the right of individuals to seek asylum and to be free from arbitrary detention as provided by international law. Indonesia has not ratified the 1951 Refugee Convention or its 1967 Protocol and has no asylum law or procedure. The government detains migrants and asylum seekers, including very young children with their families, as well as unaccompanied migrant children and those attempting to reach Australia to seek asylum. Our research has documented mistreatment and substandard care in Australian-funded Indonesian migrant detention facilities.
Australia provides extensive support and training to Indonesia’s security forces, including Detachment 88, the counterterrorism component of the Indonesian police, and to the Indonesian military’s special forces, Kopassus (Komando Pasukan Khusus). Both Detachment 88 and Kopassus have been implicated in serious abuses, including torture, and Indonesia has largely failed to hold members of either force accountable. The recent conviction of 12 soldiers, including members of Kopassus, for the brazen killing of four detainees in a Yogyakarta prison in March 2013, marked an important departure from the usual impunity given to Indonesian soldiers implicated in serious crimes. But the sentences (ranging from 6 to 11 years’ imprisonment) imposed on the three most culpable soldiers found guilty of premeditated murder did not match the gravity of their crimes. The case renews concerns about Indonesia’s opaque military tribunals. Counsel for the defence outranked the prosecution and even the judges. The trial was characterized by an atmosphere of intimidation, and Kopassus commanding officers were not called to testify. Such tactics undermined the possibility of a fair trial.
Incidents of violence against religious minorities in Indonesia are becoming increasingly deadly and frequent, up from 216 in 2010 to 264 in 2012. The light prison terms sought against perpetrators send a message of official tolerance for such mob violence. The Indonesian government refuses to overturn dozens of problematic regulations, including restrictions on the building of houses of worship and a 2008 anti-Ahmadiyah decree.
AusAID’s financial support to secular education in madrassas is a positive contribution to Indonesia. However, your government should be wary of engagement with Indonesia’s Ministry of Religious Affairs, whose current minister often speaks in sectarian terms.
Despite Indonesia’s progress as an emerging democracy, the Indonesian government continues to criminalize peaceful expression of political views, particularly political activists from the Moluccas and Papua. As of August 2013, Indonesia has at least 58 political prisoners behind bars in Papua and 46 in the Moluccas Islands. In November 2011, the UN Working Group on Arbitrary Detention issued its opinion that the Indonesian government’s detention of Papuan activist Filep Karma since December 2004 is in violation of international law.
We recommend that your government:
· Urge the Indonesian government to ratify the 1951 Refugee Convention and its 1967 Protocol;
· In pursuing bilateral arrangements to combat people smuggling, ensure that the rights of individuals to seek asylum and be free from arbitrary detention are respected, and that children’s rights are protected. 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 and that migrants are treated fairly with due regard to their human dignity;
· Cease funding migrant detention centres in Indonesia and ensure that all detention facilities in Indonesia, including those previously funded or supported by Australia are subject to independent monitoring and oversight, and that all allegations of abuses are investigated;
· Publicly raise cases of abuses by security forces 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 crimes;
· Urge Indonesia to amend or repeal discriminatory regulations on religious affairs, including the 1965 blasphemy law, the 2006 decree on building houses of worship, and the 2008 anti-Ahmadiyah decree;
· Urge Indonesia to amend or repeal laws that criminalize peaceful political expression, including the government regulation No. 77 on the use of separatist symbols in Aceh, Papuan, and the Moluccas Islands.
· Publicly call for the release of all political prisoners in Indonesia.
Malaysia and Australia have long had extensive and wide-ranging relations. Malaysia is Australia’s third largest trading partner in ASEAN, and in 2012 the two countries signed a Free Trade Agreement. Despite Prime Minister Najib Razak’s pledges to build a “functional and inclusive democracy,” the government continues to curtail rights to freedom of expression, peaceful assembly, and association. Media companies with close ties to the ruling coalition dominate the print and broadcast media. Meanwhile, the Printing Presses and Publication Act is used to block printing of publications considered hostile to the government and to limit distribution of newspapers aligned with opposition parties.
The Peaceful Assembly Act is used to severely restrict rights, forbidding “moving” assemblies and allowing the police to impose broad and arbitrary conditions on proposed events. After the national elections in May 2013, the government used the act to single out and prosecute organizers of peaceful opposition rallies protesting alleged electoral fraud. Freedom of association is compromised by regulations requiring that any society comprising seven or more people be registered. The home affairs minister has “absolute discretion” to declare a society unlawful if he believes it would prejudice the “security of Malaysia” or “public order or morality.” The leading human rights NGO, Suaram, has come under repeated attack, including police investigations under the Sedition Act in relation to statements about corruption in Malaysia.
In 2011, Australia attempted to enter into an “arrangement” with Malaysia whereby Malaysia would have processed asylum claimants transferred from Australia in return for Australia permanently resettling recognized refugees from Malaysia. The scheme, which would not have been legally binding, was stopped by Australia’s High Court, in part because Malaysia has not signed the Refugee Convention and has no refugee law or asylum procedure. Even though the UNHCR conducts refugee status determinations in Malaysia, there is no guarantee that those recognized as refugees by the UNHCR or asylum seekers with refugee claims pending will not be forcibly returned to their countries. As Foreign Affairs Minister Bishop has noted, there are “genuine concerns” about refugees and asylum seekers in Malaysia in light of Malaysia’s human rights record. Refugees and asylum seekers face extortion and abuse from law enforcement officers. They often wait years for resettlement, during which time they cannot work, children have little or no access to education, basic medical care is often beyond financial reach, and they are often detained. Malaysia has failed to effectively combat human trafficking, preferring to focus on the criminal aspect of cases rather than protection for victims of trafficking.
We recommend that your government:
· Press the Malaysian government to repeal the Printing Presses and Publications Act, which requires government licensing of publications and interference with content;
· Press the Malaysian government to revise the Peaceful Assembly Act so that it preserves freedom of peaceful assembly in line with international law;
· Press for freedom of association to be respected by applying impartial and non-partisan standards when considering applications for registration of societies;
· Urge the Malaysian government to sign and ratify the 1951 Refugee Convention and its 1967 Protocol and to enact domestic refugee law in line with international standards;
· Ensure that the financial or technical assistance your government provides to other countries in the region for the purpose of combating people-smuggling complies with international standards on refugee protection.
Seven years after Nepal’s decade-long civil war ended, there has been no accountability for the widespread human rights abuses committed by both the Communist Party of Nepal (Maoist) and the Nepalese government, despite repeated calls from victims, rights groups, and the international community.
The flawed Truth, Reconciliation and Disappearance Ordinance signed into law by the president in March 2013 calls for the formation of a high-level commission to investigate serious human rights violations committed between 1996 and 2006. It grants discretionary powers to the commission to recommend amnesty for perpetrators except for “serious crimes” including rape, without defining what other “serious crimes” are excluded from amnesty. Human Rights Watch and other NGOs have previously documented the systematic failures of the Nepali justice system to investigate and prosecute serious human rights abuses.
Nepal has also been plagued by political deadlock. In May 2012, the Constituent Assembly, tasked with drafting a new constitution, was dissolved. Nepal has remained without a legislature for over a year, putting the brakes on several initiatives to protect human rights. The government has announced that fresh elections for the Constituent Assembly will be held in November 2013. A decline in the total number of registered voters of over five million since the last Constituent Assembly elections in 2008 raises concerns about millions of disenfranchised citizens who will be unable to vote in the upcoming elections.
We recommend that your government:
· Press the government of Nepal to take action to end impunity for serious abuses and provide meaningful justice for wartime abuses;
· Urge the government to investigate and prosecute those responsible for wartime abuses;
· Press the government to consult with victims and civil society representatives with a view to reviewing and amending the law establishing the Truth and Reconciliation Commission;
· Urge the government to conduct free and fair elections as foreshadowed for November 2013, ensuring that all citizens are enabled and registered to vote.
Papua New Guinea
Australia's close engagement as Papua New Guinea's largest international donor and most important bilateral partner should reflect a clear understanding of Papua New Guinea’s human rights challenges. 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. Human Rights Watch has documented police violence, including torture, rape, and the use of excessive force, particularly against vulnerable populations such as children and sex workers.
Particularly concerning are allegations that the abusive paramilitary police unit known as the “Mobile Squad” is providing security at an Australian-funded immigration detention centre on Manus Island to which Australia sends asylum seekers who reach Australia by boat. Mobile Squad officers have been implicated in crimes including killings, rapes, beatings, and forced evictions. In July 2013 they beat a local man to death on Manus Island.
In September, there were 680 male asylum seekers detained on Manus Island, all transferred from Australia in an offshore processing arrangement between the two countries. The UN High Commissioner for Refugees has raised concerns about the mandatory and arbitrary detention of asylum seekers in poor physical conditions, as well as the government’s lack of capacity and expertise to determine refugee status and likely resettlement difficulties in integrating non-Melanesians. Considering that homosexuality is a criminal offence, sending LGBT asylum seekers to Papua New Guinea places them at significant risk.
We recommend that your government:
· Ensure the Mobile Squad paramilitary police unit that has been deployed to Manus Island to assist with security issues at the Australian-funded detention centre is subject to independent monitoring;
· Raise concerns with the Papua New Guinea government over police violence and press the government to take stronger action to end impunity for serious abuses within the police;
· Suspend transfer of asylum seekers to Papua New Guinea at least until detention conditions and refugee determination processes meet international standards.
Although the number of extrajudicial killings in the Philippines has significantly decreased since President Benigno Aquino III came to office in 2010, cases continue to be reported. The victims are often leftist activists, journalists, and environmentalists. According to local monitors, 18 members of the media were murdered in the three years since Aquino became president. Cases of enforced disappearances and torture implicating security forces have also been reported.
The Aquino administration has promised to reform the criminal justice system in order to address the longstanding impunity enjoyed by the state security forces. It created a “superbody” to prioritize the investigation and prosecution of extrajudicial killings but this initiative, started in November 2012, remains in the planning stage. Since 2001, only 13 members or agents of the security forces implicated in human rights violations have been convicted across nine cases. In the two cases decided during Aquino’s administration, only the gunmen were convicted; the masterminds remain at large.
Serious fighting in the southern city of Zamboanga between a faction of the Moro National Liberation Front (MNLF) and the Philippines military and police erupted in September 2013. Over the course of three weeks in Zamboanga and neighbouring Basilan, the fighting resulted in the deaths of nearly 200 MNLF fighters, security force personnel and civilians. The crisis also displaced more than 110,000 people from their homes, creating a serious humanitarian crisis. Human Rights Watch found serious rights abuses by both sides. The rebels used civilians as hostages and human shields and made use of children. State security forces ill-treated and in some cases tortured suspected rebels in custody, including children.
We recommend that your government:
· Press the government of the Philippines to investigate and prosecute members of the military, police, and local militias and “death squads,” including those liable as a matter of command responsibility, for killings, torture, and other abuses;
· Press the government to expedite the operationalization of the so-called “superbody” to reform the criminal justice system;
· Offer law enforcement assistance with investigations into serious human rights violations, particularly in forensic analysis, witness protection, case preparation, and the tracing of fugitives, but ensure that such assistance is tied to concrete benchmarks in terms of progress in cases of human rights violations;
· Instruct the embassy to routinely request an update on the status of investigations into specific cases of alleged extrajudicial killings by the security forces.
· Urge the government to investigate and appropriately prosecute members of the security forces implicated in abuses of suspected rebels and civilians, including children.
Australia and Thailand maintain close political, economic, and military ties that provide Australia significant leverage for raising human rights issues with the Thai government. We urge your government to make use of this leverage through strong public statements and private diplomacy.
A particular mutual concern is the treatment of refugees and asylum seekers in Thailand. Thailand has not adopted the 1951 Refugee Convention and has no law that recognizes refugee status, despite the country’s decades of experience as host to millions of refugees and asylum seekers. Thai authorities often intercept and push back boats carrying ethnic Rohingya from Burma and Bangladesh, despite allegations that such practices led to hundreds of deaths in 2008 and 2009. Even if Thailand has not ratified the Refugee Convention, it is still subject to the ‘non-refoulement’ obligation under customary international law not to return anyone to places where their life or freedom would be threatened.
Since January 2013, Thai authorities have detained 2,055 ethnic Rohingya on the grounds that they are “illegal migrants.” Ethnic Rohingya families are separated, with the men being sent to overcrowded and under-resourced immigration detention centres, while the women and children are held in government shelters that amount to indefinite detention. In the detention centres, men are restricted to extremely cramped conditions in small cells resembling large cages, where they barely have room to sit. As documented by Human Rights Watch, human traffickers gain access to the government shelters and seek to lure out Rohingya women and children with false promises. These vulnerable women and children are subject to horrific sexual abuse and exploitation by the traffickers.
Thailand also detains non-Rohingya refugees and asylum-seekers indefinitely, primarily at the Suan Phlu Immigration Detention Center in Bangkok. Children are among those detained. Many detainees are required to pay their own transport home, effectively extending their period of detention.
Australia has tried to lift regional standards and cooperation on countering people-smuggling through the Bali Process. Human Rights Watch is concerned that punitive crackdowns on people-smuggling, without a corresponding regional framework in place to protect refugees and asylum seekers, could exacerbate the harm to people who are fleeing persecution.
We recommend that your government:
· Urge Thailand to ratify and effectively implement the 1951 Refugee Convention and its 1967 Protocol;
· Urge the Thai government to work closely with UNHCR, which has the technical expertise to screen for refugee status and the mandate to protect refugees and stateless people, and to stop preventing UNHCR from exercising its mandate on behalf of refugees and stateless people from Burma, Laos, and North Korea;
· Encourage Thailand to follow the UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, which state that as a general rule, asylum seekers, including children, should not be detained but allowed to remain in the community, work, and live under temporary protection;
· Ensure that the financial or technical assistance your government provides to Thailand for the purpose of combating people-smuggling complies with international standards on refugee protection.
Although Sri Lanka’s civil war ended in May 2009, the human rights record under President Mahinda Rajapaksa’s administration remains poor. The government has become increasingly authoritarian, attacking the independence of the judiciary and severely limiting the space for public criticism by the media and human rights groups. Despite credible allegations by both the UN Secretary General’s Panel of Experts and the government’s own Lessons Learnt and Reconciliation Commission of numerous wartime abuses by both sides, the government has undertaken no serious investigations or prosecutions. The UN Panel of Experts estimated that as many as 40,000 civilians died in the final months of the war.
The UN High Commissioner for Human Rights, Navi Pillay, delivered a damning report on the state of human rights in Sri Lanka at the end of her week-long mission there in August 2013 and noted that activists and journalists she met with were subjected to threats and harassment even before she left the country. Over the years, many civil society activists and journalists have fled Sri Lanka and received asylum abroad. Though the war has ended, many people continue to face persecution, particularly those critical of the government or Tamils alleged to be linked to the Liberation Tigers of Tamil Eelam (LTTE). In recognition of this situation, both UNHCR and the UK have expanded their definitions of ‘persons at risk’ in their country guidance policy on asylum. We are concerned that senior members of your government such as Foreign Minister Bishop and Immigration Minister Scott Morrison have been dismissive of on-going serious human rights violations occurring in Sri Lanka.
Sri Lanka is the designated host of the Commonwealth Heads of Government Meeting (CHOGM) in November 2013. We, and others, have long called for a change of venue for the summit; Sri Lanka’s rights record does not meet Commonwealth values. At a minimum, the government should not be rewarded with a high-level delegation.
We recommend that your government:
· Support an independent international investigation into violations of the laws of war by both sides during the final months of Sri Lanka’s conflict;
· Urge the government of Sri Lanka to credibly, meaningfully, and measurably implement the many recommendations in the LLRC report, particularly those related to accountability and enforced disappearances;
· Not attend CHOGM, or at a minimum send a low-level delegation;
· Continue to assess Sri Lankan asylum claims without delay and on their individual merits;
· Expand the definition of persons deemed at risk on return, and bring it in line with the 2012 definition issued by UNHCR.
Australia’s bilateral relationship with Vietnam has deepened significantly over the past four years since the signing of the Comprehensive Partnership Agreement in 2009. Australia provides extensive development aid to Vietnam and is a significant trading and investment partner. With development aid budgeted at A$159 million for 2013-2014, Vietnam is the fifth largest recipient of Australian funding. Australia is Vietnam’s fifth largest export market and eighth largest trading partner. Vietnam and Australia are presently negotiating the Trans-Pacific Strategic Economic Partnership Agreement. The two countries hold annual human rights dialogues. These ties give Australia an opportunity and responsibility to speak out on Vietnam’s abysmal human rights record, and in particular, the systematic suppression of freedom of expression, association, and peaceful assembly in Vietnam.
All political parties, unions, and human rights organizations independent of the government or the Vietnamese Communist Party are banned in Vietnam.Independent writers, bloggers, and rights activists who question government policies, expose corruption, or call for democratic alternatives to one-party rule are routinely placed under intrusive police surveillance. They face police intimidation and harassment, arbitrary arrest, detention for long periods of time without access to legal counsel or family visits, and harsh prison sentences simply for exercising their rights, which are enshrined and protected in the Vietnamese Constitution.
Decree 72 on the management, provision, and use of the Internet and online information became effective on 1 September 2013. It increases the already severe restrictions on freedom of access to information, including prohibiting individuals from re-publishing news on their blogs or personal websites.
Human Rights Watch’s 2011 report into abuses in Vietnamese drug detention centres found that suspected drug users – some as young as 12 – were held without due process, beaten, abused, and forced to work.It also found that international aid donors, including Australia, and their implementing agencies do not have systems in place to report the human rights abuses that project staff would likely witness.
Prior to the release of the report, AusAID told Human Rights Watch that it regularly advocates with the Vietnamese government for the closure of these centres. However the director general also stated to Human Rights Watch: “We are not aware of any reporting by AusAID staff or those implementing our programs of suspected human rights violations (such as torture and other forms of ill treatment, arbitrary detention, forced labour).”
We do not find it credible that detainees in those centres in which AusAID funds services are accorded proper due process protections and are not forced to work. Uncovering these abuses would only have required that AusAID examine official documents from the centres to which it provides assistance.
According to Vietnamese law, court orders are not required to apprehend people who use drugs and detain them at the centres, and normal legal safeguards relating to imprisonment do not apply. According to Vietnamese law, “labour therapy” is one of the official five steps of drug rehabilitation.Work in the centres is not optional, and centre directors are authorized to punish detainees for refusing to obey centre regulations, including the obligation to work.
AusAID’s director general also stated to Human Rights Watch: “We will continue to provide services and support to detainees to help improve their circumstances and the spread of the disease [i.e. HIV]. We see this as an important and practical manifestation of harm reduction and human rights in Vietnam.”
However, under Vietnamese law, ill detainees may be released to receive treatment when the centre is unable to provide adequate healthcare services. Thus, in practice, external provision of such services has the perverse impact of facilitating the continued detention of individuals who would otherwise be eligible for release and transferred to a government hospital or returned home for treatment and care.
We recommend that your government:
· Call upon the government of Vietnam to immediately release all persons who have been detained for exercising their rights to free expression, assembly, movement, or peaceful political or religious activity;
· Urge the government to amend or repeal provisions in the penal code and other domestic laws that criminalize peaceful dissent and certain religious activities on the basis of imprecisely defined "national security" crimes and bring them into compliance with the International Covenant on Civil and Political Rights, which Vietnam has ratified;
· Urge Vietnam to amend or repeal provisions in Decree 72 and other domestic laws that curb freedom on the Internet, remove filtering, surveillance, and other restrictions on Internet usage, and release people imprisoned for peaceful dissemination of their views over the Internet;
· Review AusAID’s funding, programming, and activities directed to assisting Vietnam’s drug detention centres to ensure no funding is going to support policies or programs that violate international human rights law.
Multilateral Institutions (Security Council, International Finance Institutions, G20)
Since Australia assumed a seat on the Security Council in 2013, the government has played a positive leadership role, and we hope that this would continue in the future. In particular, Australia pressed the council on humanitarian access in Syria in the face of continued stonewalling from Russia and China.
Other opportunities exist for Australia to exercise leadership on matters of humanitarian concern. For instance, in some countries affected by armed conflict, armed groups threaten and kill students and teachers, and bomb and burn schools. Government security forces use schools as bases for military operations, putting students at risk and further undermining education. An effective response to attacks on education will require more focused policies and action by concerned governments and a much stronger international effort. Making students, teachers, and schools genuinely off limits to non-state armed groups and regular armies will require governments, opposition groups, and other organizations to implement strong measures that are enforced by rigorous monitoring, preventive interventions, rapid response to violations, and accountability for violators of domestic and international law.
We hope that during Australia’s chairmanship of the G20 in 2014, the country will play a leading role in advocating for development programs that are cognisant of the need to protect and monitor human rights and to combat corruption. Australia should also use its position on the boards of international financial institutions, particularly the World Bank and the Asian Development Bank (ADB) where it holds a seat on the board of executive directors, to advance human rights protections.
The World Bank and the ADB are falling out of step with other international financial institutions, governments, and even businesses which are increasingly undertaking due diligence to ensure they respect human rights through their policies and projects. This runs contrary to their legal obligations to respect and protect human rights and fails to minimize avoidable suffering, especially among marginalized, excluded, and vulnerable groups. The World Bank’s on-going review and update of its environmental and social safeguard policies is the ideal opportunity for the Bank to introduce measures to enable it to analyse the human rights impacts of its projects and programs. Australia should take the opportunity to emphasise the need for complementarity between development and human rights in its roles with the G20, the World Bank, and the ADB.
We recommend that your government:
· Use its role on the Security Council to support action on Syria that has been blocked by Russia and China. In particular, Australia should push for the situation in Syria to be referred to the International Criminal Court, the imposition of an arms embargo on the Syrian government and abusive opposition armed groups, and financial and travel sanctions against those responsible for grave abuses;
· During Security Council debates on children and armed conflict, continue to urge parties to armed conflict to refrain from actions that impede children’s access to education, such as the military use of schools. Australia can show leadership in this regard by endorsing and incorporating the “Draft Lucens Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict”into its military doctrine and manuals;
· Use its voice and vote at the G20 and international financial institutions to advance protection of international human rights within the context of individual projects and programs, country strategies, and policy reviews;
· Work with other governments to introduce into the World Bank’s safeguard policies a requirement that the Bank:
(a) Respect and protect human rights in all of its development funding;
(b) Systematically identify and assess human rights risks in its projects, programs, and technical assistance and avoid or mitigate those risks in accordance with international law.
Asylum seekers and refugees
The number of asylum seekers coming to Australia by boat has risen dramatically in recent years, and with it, sadly, the number of lives lost at sea. The tragedy of asylum seekers risking their lives at sea is not due to a lack of tough Australian deterrence-based policies but an absence of realistic alternative protection options in the region. We call upon you to end the shameful practice of outsourcing Australia’s responsibilities to the world’s most vulnerable people and show leadership in finding sustainable and fair regional solutions for refugees. Statistics from the Australian Department of Immigration confirm that people who arrive unlawfully by boat are overwhelmingly found to be refugees – 94 percent in 2010-11, 91 percent in 2011-12, and again more than 90 percent in the March quarter for 2013. These figures confirm that the boat arrivals to Australia are a refugee rather than criminal issue - people in genuine need of protection who risk their lives fleeing persecution with little long-term prospects in transit countries such as Malaysia, Thailand, or Indonesia that have not ratified the Refugee Convention and do not offer refugees durable solutions or work rights.
Transferring asylum seekers to Papua New Guinea and Nauru outsources Australia’s obligations to neighbouring countries with far less capacity to process claims and protect and integrate refugees. UNHCR has raised serious concerns regarding these offshore processing arrangements. In particular, the UN refugee agency has noted the lack of adequate legal frameworks for processing and protection, isolated and harsh physical conditions, poor availability of adequate services, limited access to education, and conditions which amount to arbitrary and indefinite detention. Extended periods of detention in isolated locations with limited access to information about the length or outcome of refugee determination processes pose significant risks to the mental health of asylum seekers, as evidenced by the high rates of depression, anxiety, self-harm, and suicidal behaviour amongst refugees in detention in Australia and offshore locations.
Current agreements with Nauru and Papua New Guinea require only “assurances” of non-refoulement. Without the capacity to conduct impartial and effective refugee status determinations, processes conducted in Papua New Guinea and Nauru may result in persons being wrongly denied refugee status and returned to countries where they face threats to their life or freedom. If found to be refugees, asylum seekers processed offshore will now be settled permanently in PNG, Nauru, or wait to be settled in a third country, with no option to settle in Australia. Plagued by poverty and struggling with their own human rights issues, Papua New Guinea and Nauru have virtually no capacity to provide durable protection to refugees from outside Melanesia.
Operation Sovereign Borders
Under Operation Sovereign Borders, giving the Australian navy authority to tow boatloads of asylum seekers back out to sea and deny them any access to refugee screening is completely at odds with Australia’s protection obligations. Claiming that boats will only be towed “where it is safe to do so,” is disingenuous, as towing the dilapidated vessels commonly used by irregular migrants into international waters would presumptively expose them to unsafe conditions.
The proposed Indonesian boat buy-back scheme – under which you proposed to purchase fishing boats from Indonesian fishermen to discourage them from offering the vessels to people-smugglers – has already been rejected by senior Indonesian officials. It is also likely to simply generate a new trade in leaky boats and increase the costs and risks that asylum seekers take in seeking protection from persecution.
Rights to review
In your pre-election campaign, you said you would work to deny asylum seekers arriving by boat legal review of refugee status determinations through the Australian courts and tribunals, as well as to government-funded legal assistance. Transparency, access to legal counsel, and independent review processes would help ensure that fair decisions are made and would uphold Australia’s obligation of non-refoulement, ensuring that persons are not returned to countries where they will face persecution and threats to their life and freedom. Given the low rates of English language abilities amongst asylum seekers and the complexity of Australia’s migration system, denying asylum seekers access to legal counsel in making their applications for refugee status denies them a fair opportunity to provide the information necessary for Immigration Department officials to make accurate determinations of refugee status.
In October 2012, “enhanced screening” was introduced for Sri Lankan asylum seekers arriving by boat, whereby immigration officials simply conduct a cursory interview with no access to legal representation, which is effectively an abbreviated refugee status determination process. If the finding is unfavourable, the asylum seeker is immediately deported to Sri Lanka. This policy poses serious risk of refoulement, returning genuine refugees to face persecution and threats to their life and liberty. As of 28 August 2013, the government had returned almost 1,300 Sri Lankans under the enhanced screening procedure.
We recommend that your government:
· Suspend offshore processing arrangements with Nauru and Papua New Guinea at least until detention conditions meet international standards and adequate and fair adjudication processes are in place;
· Make Australian funding of detention centres contingent on Nauru and Papua New Guinea meeting international standards and on allowing journalists and human rights monitors unfettered access to them;
· Not end legal review of refugee status determinations, and continue government-funded legal assistance to asylum seekers;
· End the policy of “enhanced screening” in lieu of proper refugee status determination. Conduct investigations in any cases of persons returned to Sri Lanka under this policy to ensure they do not face further persecution, and seek to protect any persons who have been threatened or experienced serious harm since their return, including by arranging their travel to Australia. Ensure all asylum seekers in Australia have access to full refugee status determination processes with the aid of legal representation;
· Show leadership in working for genuine regional solutions to the global refugee crisis based on protection rather than deterrence and taking into account Australia’s greater capacity to accept and protect refugees relative to its neighbours;
· Encourage countries in the region to ratify and implement the 1951 Refugee Convention and its 1967 Protocol, and provide technical and financial assistance to strengthen their capacities to protect and integrate refugees.
Since Australia ratified the Convention on the Rights of Persons with Disabilities in 2008, the government has taken a number of significant steps to ensure the rights of individuals with disabilities. Some steps in particular include the adoption of a National Disability Strategy to implement the convention across all jurisdictions in Australia and the development and implementation of Australia’s Development for All, a disability-inclusive foreign aid program which provides significant support to people with disabilities around the world and sets an example for other countries in mainstreaming disability issues in development cooperation.
While acknowledging such advancements, we wish to bring three key areas of concern to your attention. First, we are alarmed that Australian law allows the Family Court of Australia or a state or territory guardianship tribunal to authorise the involuntary sterilisation of a child or adult with disability if the procedure is determined to be in the best interests of the person with disability. The United Nations Special Rapporteur on Torture has emphasized that forced sterilisation of women with disabilities may constitute torture or cruel or inhumane treatment, is a method of medical control of a woman’s fertility, and violates a woman’s physical integrity and security, constituting violence against women. The recent Australian Senate Committee Review merely recommended that the practice of involuntary sterilisation be “regulated,” rather than banned.
Second, Australian laws and policies continue to allow for guardianship, a form of substituted decision making, rather than making the internationally recognised move to supported decision making that empowers people with disabilities to take greater control over their lives. The guardianship regime effectively denies or diminishes the recognition of people with disabilities as persons before the law, and limits their ability to exercise legal capacity on an equal basis with others.
Third, 30 percent of admissions to mental health institutions are made on an involuntary basis. Evidence of restrictive practices, including shackles and restraints, continue to be used on patients with psychosocial disabilities at disturbingly high rates, sometimes due to a lack of beds in psychiatric wards in public hospitals.
We recommend that your government:
· Introduce legislation prohibiting involuntary sterilization of women and girls with disabilities, or any sterilisation of girls with disabilities, except in cases of a serious threat to a person's health or life;
· Reform domestic legislation to move from substituted decision making to supported decision making, and establish adequate resources and support mechanisms to assist people with disabilities in making decisions about their person, circumstances, and estate;
· Withdraw the interpretative declarations to the Convention on the Rights of Persons with Disabilities, particularly related to the right to legal capacity and the right to physical and mental integrity;
· Replace involuntary hospitalization with community-based health services that treats people with psychosocial disabilities on a voluntary basis;
· Prohibit restrictive practices, such as the use of restraints, shackles, and seclusion on people with psychosocial disabilities in hospitals.
Domestic marriage equality has been hotly debated in Australia, but these discussions have not led to the adoption of legislation. In April 2013, the New Zealand parliament adopted a marriage equality law, followed by the United Kingdom in July 2013. In both of these countries, the prime minister put political weight behind the bill. Equality and non-discrimination were the main arguments to adopt such legislation. We call on your government to allow all citizens equal marriage rights, irrespective of their sexual orientation.