CAT/C/AUS/CO/4-5
used exclusively in extreme and limited situations — where there is a real and
immediate threat to life or risk of serious injury — as a substitute for lethal weapons
and by trained law enforcement personnel only. In that respect, the State party should
consider adopting uniform national rules governing the use of such weapons, with a
view to ensuring that a high threshold for their use is established and expressly
prohibiting their use on children and pregnant women. The State party should also
ensure that all jurisdictions strengthen their efforts to effectively provide regular
adequate training to law enforcement personnel entitled to use conducted energy
weapons. In addition, the State party should ensure that all allegations of excessive or
inappropriate use of these weapons are promptly, impartially and thoroughly
investigated and that victims obtain redress and fair and adequate compensation.
Counter-terrorism legislation
14.
Bearing in mind its previous concluding observations (CAT/C/AUS/CO/3, para. 10)
and the latest concluding observations of the Human Rights Committee
(CCPR/C/AUS/CO/5, para. 11), the Committee remains concerned about aspects of the
State party’s counter-terrorism legislation, including the broad definition of terrorist act as
well as the reports concerning the need to further restrict the warrant powers provided to the
Australian Security Intelligence Organisation to detain a person for the purpose of
questioning with the possibility of restricting access to a lawyer of choice. In that respect,
the Committee appreciates the information provided by the State party that the Australian
Security Intelligence Organisation’s detention powers have never been utilized (art. 2).
The State party should take the necessary legislative or other measures to adopt a
more precise definition of terrorist act as well as to ensure that all counter-terrorism
and national security legislation, policies and practices are in full compliance with the
Convention and that adequate and effective legal safeguards are in place.
Non-refoulement
15.
The Committee is concerned at policies and practices currently applied in relation to
persons who, irregularly, attempt to arrive or arrive in the State party, in particular the
policy of intercepting and turning back boats, without due consideration of the State party’s
obligations under article 3 of the Convention. In addition, the Committee is concerned at
bills introduced into Parliament that would reduce some of the existing statutory standards
against refoulement, in particular the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which, inter alia,
establishes that “an officer’s duty to remove as soon as reasonably practicable an unlawful
non-citizen under section 198 [of the Migration Act 1958] arises irrespective of whether
there has been an assessment, according to law, of Australia’s non-refoulement obligations
in respect of the non-citizen” (arts. 2 and 3).
The State party should adopt all the necessary legislative and other measures with a
view to ensuring that it effectively meets its non-refoulement obligations under the
Convention, in particular with regard to all asylum seekers and other persons in need
of international protection who attempt to arrive or arrive in the State party,
regardless of the mode and date of arrival. The State party should guarantee that all
asylum claims are thoroughly examined and that the persons concerned have a real
opportunity to effectively challenge any adverse decisions adopted concerning their
claims. It should also guarantee that all asylum seekers have access to independent,
qualified and free-of-charge legal assistance during the entire asylum procedure. The
State party should also refrain from adopting any legislative or other measures that
may lower the existing safeguards and standards of protection, which could constitute
a violation of its obligations under the Convention.
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