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Submission to the Human Rights Committee concerning Australia’s third AND fourth periodic reports under the International Covenant on Civil and Political Rights

c/o OHCHR-UNOG
1211 Geneva 10
Switzerland
July 2000

by:

Louis Schetzer, Director & Principal Solicitor
National Children’s and Youth Law Centre
C/- University of NSW, Sydney 2052 Australia
Ph.: + 61 (0)2 9398 7488
Fax.: + 61 (0) 2 9398 7416
Email: ncylc@unsw.edu.au or l.schetzer@unsw.edu.au

Danny Sandor, President
The Australian Section - Defence for Children International
GPO Box 3131
Canberra City 2601 Australia
 

THE NATIONAL CHILDREN’S AND YOUTH LAW CENTRE

The National Children's and Youth Law Centre (NCYLC) is the only Australian national community legal centre working exclusively for and with children and young people. It is a joint project of the University of New South Wales, the University of Sydney and the Public Interest Advocacy Centre, initially funded by the Australian Youth Foundation.

Since its inception, the NCYLC has operated under the credo of rights, advocacy and action for Australia’s children and young people. The touchstone of NCYLC’s efforts is the UN Convention on the Rights of the Child, and its mandate is to promote understanding of and adherence to children’s rights as fundamental human rights, and to hold governments accountable to meeting both the spirit and the letter of Australia’s commitment to the Convention.

NCYLC promotes the rights and interests of all Australian children and young people by advocacy, lobbying, test case litigation, information collection and dissemination and research. Since it inception in 1993, NCYLC has made over 100 submissions on laws and policies which affect children and young people and has handled over 8 000 inquiries.

The NCYLC seeks to empower children and young people and to give them the information and support necessary to assist them in making decisions for themselves. We advocate for governments, business and the community to take children and young people into account and include them in decision making. We advocate for all levels of society to realise that the views of children and young people are important.

As Australia’s only national community legal centre dedicated to children and young people, the NCYLC is on the frontline of children’s issues. The NCYLC undertakes community legal education, policy work, casework and test case litigation aimed at increasing young people’s access to legal assistance and improving the legal status of children and young people in Australia.

DEFENCE FOR CHILDREN INTERNATIONAL – AUSTRALIA

The Australian Section of Defence for Children International (DCI-Australia) is a nation-wide organisation independent of government. DCI-Australia is the local link in a global chain of children’s rights agencies recognised by the United Nations. The Convention on the Rights of the Child sets out the principles which guide DCI’s actions and campaigns: children’s rights to protection, provision, promotion and participation.

Apart from some specifically funded projects, DCI-Australia’s activities are undertaken by volunteers from within its ranks. Our efforts concentrate upon raising community understanding about the Convention, lobbying for the reform of laws that infringe children's rights and highlighting issues affecting children around the globe

In 1996, DCI-Australia prepared Australia’s Alternative Report to the United Nations Committee on the Rights of the Child in which we highlighted gaps between the rhetoric and reality of children’s rights in Australia. We promoted the findings through leading a delegation of non-government organisations to meetings with the Committee and will actively promote similar input into Australia’s Second Report (due 2002) through the preparation of a second Alternative Report. 

DCI-Australia has documented an analysis of overseas initiatives and concluded that Australia needs a specialist human rights commissioner for Children and Young People.  We have drafted a comprehensive and realistic model for the Australian environment that has been endorsed by more than 50 other influential children’s service and advocacy organisations.

INTRODUCTION

1. The Australian Section of Defence for Children International and The National Children’s and Youth Law Centre (“the authors”) make this submission to the Human Rights Committee (“the Committee”) to inform its consideration in July 2000 of Australia’s Report under the International Covenant on Civil and Political Rights (“ICCPR”). Australia ratified the ICCPR on 13 August 1980. 

2. The authors urge the Committee to pay special attention to the issue of what are termed “mandatory sentencing” laws that are in force in two Australian jurisdictions: the State of Western Australia and the Territory known as the Northern Territory. In effect, these “mandatory sentencing” laws are “mandatory detention” laws. The laws compel Judges and Magistrates to incarcerate children and adults who are found to have committed specified offences without regard to the gravity of the offence in fact or the circumstances of the offender. The only discretion which is retained by the courts is to sentence for a lengthier period or to impose additional penalties. In this submission, the laws will be termed “mandatory detention laws” to reflect their true impact.1

3. The authors submit that the mandatory detention laws of Western Australia and the Northern Territory specifically violate Articles 7, 9, 14, 24, 26, 27 and 50 of the ICCPR in addition to other treaties which Australia has ratified such as the Convention on the Rights of the Child (“CROC”).

4. The Senate Legal and Constitutional References Committee [of the Federal Parliament] Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (“the Senate Inquiry”) came to a similar conclusion at paragraph 5.91 when it reported on 13 March 2000:

    “In general, the Committee believes that many of the provisions of the two major conventions, ICCPR and CROC, have been breached by the legislation, particularly that of the Northern Territory.”2

5. The Senate Inquiry was convened in response to a Private Member’s Bill introduced on 25 August 1999 into the Senate of the Federal Parliament by Greens Party Senator, Mr. Bob Brown - the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (“the Bill”). 

6. The purpose of the Bill was to trigger federal legislation to nullify the current mandatory detention laws and create a legal barrier to other internal jurisdictions enacting similar laws. Although the mandatory detention laws are products of the Parliaments of Western Australia and the Northern Territory, the Federal Parliament does, however, have power under the Constitution of Australia to override these laws. The Australian federal government has not publicly produced any advice to the contrary on which it relies. 

7. The Bill was introduced by Senator Brown with the support of Senator Nick Bolkus of the major opposition party, the Australian Labour Party, and Senator Brian Greig of the Australian Democrats, the party holding the balance of power in the Senate. Mr. Peter Andren, an Independent Member of the House of Representatives (the lower Chamber of the Federal Parliament) also endorsed the Bill. The Bill sought to ban the mandatory sentencing of under-18-year-olds to incarceration throughout Australia

8. On 15 March 2000, two days after the Senate Inquiry Report was released, the Bill passed through the Senate to the House of Representatives where the coalition of parties led by the Prime Minister, The Honourable John Howard, holds a majority of seats. The Prime Minister instructed his Coalition government members so as to block debate on the Bill and would not permit a conscience vote. It was his position that mandatory detention laws are “not really the sort of thing that you intervene in” because “[c]riminal law is one of those fundamentally State issues.”;3 (and by “State”, the Prime Minister was referring to the internal jurisdictions of Australia rather than “State” as a term used within international treaties).

9. At no stage has the Australian federal government produced any advice to indicate that the mandatory detention laws do not violate the ICCPR or other ratified treaties. As noted above, the Senate Inquiry reported that it considered that the laws did breach the ICCPR.

10. Due to the position taken by the Australian federal government, the Bill was doomed not to pass the House of Representatives. As a consequence, the Western Australian and Northern Territory laws persist in force. This is so notwithstanding that Article 50 of the ICCPR provides that the provisions of the Covenant shall extend to all parts of Federal States without any limitations or exceptions and there is a clear obligation upon the Australian federal government to implement the terms of treaties to which it is a party. Article 27 of the Vienna Convention on the Law of Treaties provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

11. The Senate Inquiry Report acknowledged at paragraph 5.3 that

    “The Committee was advised by the Commonwealth [Federal] Attorney-General’s Department that if a part of Australia was breaching any of the terms of an international instrument which Australia had ratified (such as the ICCPR and the CROC), Australia would be in breach of its international obligations under that instrument.”4

12. The authors urge the Committee to specifically find that the mandatory detention laws of the Northern Territory and Western Australia violate the ICCPR and to recommend that the Australian federal government which is solemnly responsible for adherence to the ICCPR take immediate action to legislate to override and nullify the mandatory detention laws currently in place and to prevent other States or Territories enacting similarly offensive statutes.

STRUCTURE OF THE SUBMISSION

13. The authors first seek to provide further information to the Committee as to the nature of the mandatory detention laws, and their impact particularly their racial effect. The submission then presents arguments as to the manner in which the ICCPR is violated and the Australian federal government’s domestic response to such allegations. The final section of the submission provides a recent update and calls upon the Committee to make specific recommendations to the Australian federal government.

MANDATORY DETENTION LAWS

14. The racial dimension to mandatory detention laws must be highlighted at the outset.  While the bare words of the laws do not target a specific segment of the population, the introduction of mandatory detention sentencing regimes has had the drastically disproportionate impact of increasing the already higher rates of incarceration found for Inidgenous Australians.

15. The Western Australian and Northern Territory laws were specifically criticised for their racial effects by the Committee on the Rights of the Child in its 1997 comments on Australia’s First Report Under Article 44(1)(a) Of The United Nations Convention On The Rights Of The Child:5

    “The Committee is particularly concerned by the enactment of new legislation in two States, where a high percentage of Aboriginal people live, which provides for mandatory detention and punitive measures of juveniles, thus resulting in a high representation of Aboriginal juveniles in detention.”

16. In addition, the mandatory sentencing laws of the Northern Territory and Western Australia were specifically criticised by the Committee on the Elimination of Racial Discrimination in its 2000 concluding observations on Australia’s Tenth, Eleventh and Twelfth Periodic Reports Under the United Nations Convention on the Elimination of All Forms of Racial Discrimination:

    “The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially in the case of juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party’s obligation under the Convention and recommends the State party to review all laws and practices in this field.”6

Mandatory detention laws in Western Australia

17. On 14 November 1996, amendments to the Criminal Code (WA) introducing a system of mandatory sentencing came into effect. The amendments provide that if a person is convicted of a home burglary, and is a ‘repeat offender’, than that person shall be sentenced to at least 12 months imprisonment. If the offender is a young person as defined in the Young Offenders Act 1994 (WA) - under the age of 18 - then that young person will be sentenced either to at least 12 months imprisonment, or to a term of at least 12 months detention. A ‘repeat offender’ is defined as having two previous convictions for the same offence - thus it is ‘three strikes and you're in’ legislation. The statute prohibits a court from suspending a term of imprisonment imposed under the mandatory sentencing provisions. 

18. Magistrates are able to order, in very limited circumstances, a Conditional Release Order (‘CRO’) alongside the period of detention, for young offenders, with the effect that the young person will not serve the sentence during the duration of the CRO. Whilst the availability of a CRO revives some element of judicial discretion, it is only available in extremely limited circumstances, and in no way alters the arbitrary nature of mandatory sentencing. Indeed, the sentence imposed under the mandatory sentencing provisions remains, and is reactivated if the CRO is breached.

19. According to data reported in 1999, Western Australia had the highest rate of Indigenous imprisonment out of all jurisdictions (3,050 Indigenous persons per 100,000 adult population) and the highest ratio of Indigenous to non-Indigenous rates of imprisonment (the Indigenous rate of imprisonment was 22 times the non-Indigenous rate). In terms of young people, Western Australia also had the highest rate of Indigenous youth detention of all jurisdictions (549.5 Indigenous young people per 100,000 relevant population - 53% higher than the national average, and 28% higher than the state with the next highest, New South Wales (430.6)).7 Indigenous people made up over 55% of young people in juvenile detention in WA, yet are only 4% of the population of 10 to 17 year olds. From February 1997 until May 1998, Aboriginal children and young people constituted 80 % of the mandatory sentencing cases in the Children’s Court of Western Australia.

Mandatory detention laws in the Northern Territory

20. Mandatory Sentencing became part of sentencing landscape in the Northern Territory on 8 March 1997 when amendments to the Sentencing Act 1995 (NT) and the Juvenile Justice Act 1983 (NT) came into effect. For certain property offences it created ‘one strike and you’re in’ for adults and ‘two strikes and you’re in’ for young people.

21. Under the amendments to the Sentencing Act 1995 (NT), adults found guilty of specified property offences shall be sentenced to a mandatory minimum term of imprisonment of 14 days for a first offence, a mandatory minimum sentence of 90 days for the second offence of such type, and for a third or subsequent offence in the specified category, a mandatory minimum term of imprisonment is one year. No such term of imprisonment may be served concurrently with any other term of imprisonment.

22. In June 1999, the legislation was amended to provide courts with a limited discretion not to impose a term of imprisonment under the mandatory sentencing provisions, in ‘exceptional circumstances’. These are defined to include where the offender has committed a trivial offence, co-operated with police, is of good character, and has attempted to make restitution. The limited nature of the discretion is such that it is only available in very few cases, and fails to address the inflexibility and arbitrariness of the mandatory sentencing laws.

23. For example, on 16 February 2000 a Magistrate was forced to sentence a 22-year-old Aboriginal man to a year’s imprisonment for his third offence. He had stolen biscuits and cordial worth AUD $23.8

24. If a young person is convicted of a relevant property offence (e.g. theft, criminal damage, unlawful entry to buildings),9 and has at least one prior conviction for such an offence, then that person must be sentenced to a period of detention for at least 28 days. Under the June 1999 amendments, where the young person’s second offence would invoke the mandatory detention provisions, magistrates now have a discretion to refer the young person to attend a diversionary program rather than face 28 days in detention. When the program has been completed by the young person, the matter is referred back to court for final decision, at which time magistrates still have a discretion to sentence the young person to a period of detention. Importantly, once a young person has been referred to a diversionary program, they can never be referred to such a program again, thus reviving the mandatory detention provisions for future convictions.

25. On 10 February 2000 a boy known as ‘Johnno’, aged 15, died in Darwin Hospital after hanging himself at a detention centre while undergoing a mandatory 28-day term of detention for theft.10 He had served 24 days of his sentence. The editorial of a major Australian newspaper said:

    “NO DEGREE of persecution complex on the part of the Northern Territory Chief Minister, Mr Denis Burke, can change the fact that the death of a 15-year old Aboriginal, Johnno..., is a result of the territory's draconian sentencing laws. "People will rub their hands with glee and say Burke's got blood on his hands because of mandatory sentencing," Mr Burke said last week. It was "the lowest of the low" to suggest that [the boy] had died because of mandatory sentencing, he complained. Mr Burke is wrong on both counts. No one is rubbing their hands over the death of the youth, who did not have enough command of the English language to understand the system that jailed him, whose parents were dead and whose guardian, his grandmother, was ill in hospital; and the tragedy has everything to do with laws that put people in jail for trivial offences - in this case the theft of $90 worth of pens, pencils and paint. If it were not for mandatory sentencing, which allows magistrates and judges no discretion, it is most unlikely that this boy would have been in prison.”11

26. Since mandatory detention sentencing was introduced in the smaller populated Northern Territory, the growth and rate of growth in juvenile detention has been higher than in any other jurisdiction. Seventy-three per cent of all juveniles in juvenile corrective institutions were Indigenous according to the Northern Territory Correctional Services Annual Report (1997-1998) and their most common offence was ‘break and enter’, a mandatory detention offence. A review conducted by the Northern Australian Aboriginal Legal Aid Service of all of its clients charged under mandatory sentencing since the legislation came into effect in March 1997 found that 70% of offences for which Aboriginal people were jailed were committed on Aboriginal communities. According to the same review, 79% of Aboriginal people jailed under mandatory sentencing were under the age of 25. Only 21% had completed secondary school and 68% spoke English as a second language. According to police crime clean up rate statistics, close to 100% of offences committed on Aboriginal communities are solved, compared to only 16% in metropolitan Darwin - a consequence of policing practices on Aboriginal communities resulting in more offenders being apprehended.

27. In addition, in spite of making up only 25% of the overall population of the Northern Territory and 32% of the population aged between 12-25, Indigenous people make up 76% of the adult prison population in the Northern Territory, and 73% of the juvenile detention centre population in the Northern Territory.

ICCPR ANALYSIS OF MANDATORY DETENTION LAWS IN AUSTRALIA

Article 7

    Article 7

    No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

28. The authors note that the drafters intentionally omitted the word 'unusual' from ICCPR Article 7.

29. The authors adopt the following statement made by over 30 scholars in correspondence to the Director of the Northern Australian Aboriginal Legal Service dated 27 February 2000 (“the NAALAS advice”):12

    “The Human Rights Committee's General Comment on Article 7 of the ICCPR notes that whether or not the Article is violated depends on the nature, purpose and severity of the treatment applied. Imprisonment per se does not result in cruel, inhuman or degrading treatment or punishment. However, a sentence of imprisonment which is grossly disproportionate to the gravity of the offence is likely to amount to a clear violation of Article 37(a) of CROC and Article 7 of the ICCPR.  Jacobs and White, writing about the equivalent provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms, state:

      But treatment which may be perfectly justifiable in some circumstances may, in different circumstances, be unlawful. The clearest case is of criminal punishment. A penalty which might be justified for a serious crime could constitute inhuman treatment or punishment if imposed for a petty offence. To this extent at least inhuman treatment is a relative notion.

      Jacobs F and White R The European Convention on Human Rights (Clarendon Press, Oxford 1996) p 51.”

30. We also note the Committee’s observations that the prohibition of torture and other cruel, inhuman and degrading punishments aims “to protect both the dignity and the physical and mental integrity of the individual” and that the protection extends “not only to acts that cause physical pain but also to acts that cause mental suffering to the individual”.13

31. The authors submit that the key sentencing principle of proportionate response which underpins Article 7 and therefore Article 7 itself is violated by the requirement of incarceration imposed upon courts by mandatory detention laws and that the mandatory detention or imprisonment of a child or adult amounts to cruel, inhuman or degrading punishment where, as is the case under mandatory detention laws, incarceration must be imposed even if:

  • an insignificant amount of property is involved;
  • the objective seriousness of the crime is minor; or
  • the culpability for the offence is low. 

32. The following case descriptions contained in the report of to the Parliamentary inquiry concerning the mandatory detention laws conducted by the Senate Legal and Constitutional References Committee illustrate this point:14

Facts

Result

Man stole biscuits, cordial worth $3.00

12 months imprisonment

Second man stole the same $3.00 worth

90 days imprisonment

Homeless Darwin man stole beach towel

12 months imprisonment

17 yr old stole $4.00 petrol for sniffing

90 days imprisonment

Man broke car aerial after an argument

14 days imprisonment

18yr old stole drink can at school, $1.50

14 days imprisonment

16yr old borrowed stolen bike to ride

Turned 17 served 28 days in adult’s gaol (until June 2000, a person was treated as an adult from the date of the 17th birthday in the Northern Territory).

Man requested food from commercial fishing boat on his traditional land as compensation. Request denied and he stole 2 cartons of eggs

14 days imprisonment

19 yr old stole lollies, iced coffee

14 days imprisonment

Article 9

    Article 9

    1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

    2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

    3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

    4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

    5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

33. The authors repeat in respect of Article 9, the arguments presented above in respect of Article 7 and present the following further arguments in support of the claim that the Committee should expressly find that mandatory detention laws constitute arbitrary detention within the meaning of Article 9.

34. The authors concede that the ICCP does not represent domestic law per se for the purposes of Article 9.1. The ICCPR does not have direct and justiciable domestic force in Australia:

    “Unlike the United States and continental legal systems, where the entry into treaties or conventions creates self executing law, the English and Australian position is that such treaties do not enter into domestic force unless and until there is a legislative act. In Koowarta v Bjelke Petersen (1982) 153 CLR 168 at 224 Mason J (as he then was) said:-

        “It is a well settled principle of the common law that a treaty not terminating a state of war has no legal effect upon the rights and duties of Australian citizens and is not incorporated into Australian law on its ratification by Australia (Chow Hung Ching v The King (1948) 77 C.L.R 449, at p. 478; Bradley v The Commonwealth (1973) 128 C .L.R 557, at p. 582). In this respect Australian law differs from that of the United States where treaties are self-executing and create rights and liabilities without the need for legislation by Congress (Foster v Neilson (1829) 2 Pet.253 at p.314”.

    See also Teoh’s case (1995) 183 CLR 273 per Mason CJ and Deane J at 286-7.” 15

35. That concession does not affect the requirement in Article 9.1 that “No one shall be subjected to arbitrary arrest or detention.” which the authors submit is breached by mandatory detention laws.

36. The authors submit that the mandatory detention laws of Western Australia and the Northern Territory constitute “arbitrary detention”. In this regard, the Australian Human Rights and Equal Opportunity Commission (“HREOC”) has observed, and the authors agree, that:

    “Arbitrary detention is detention 'incompatible with principles of justice or with the dignity of the human person'.

    …

    Principles of justice include the principle of proportionality, the principle of consistency and the principle of non-discrimination.”16

37. In discussing the principle of proportionality, HREOC further said that:

    “The sentencer must make the decision in the individual case. A sentence which is proportionate to the circumstances of the offender must be an individualised sentence. 

    …

    This principle of individualised sentencing further means that mandatory sentencing further means that mandatory sentences of any kind, and particularly of detention contravene CROC.”17

38. The authors adopt the following view expressed by the HREOC in its submission to the Senate Inquiry:

    “The jurisprudence of the Human Rights Committee indicates that, to avoid the taint of arbitrariness, detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights.”18

39. The authors would refer in this regard to the case of Alphen v The Netherlands, Communication No. 305/1988, Human Rights Committee Report 1990, Volume II, UN Doc . A/45/40, paragraph 5.8 in which the Committee stated:

    “The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.”

40. The authors submit that the NAALAS advice is correct to state that there is no validity to the claim that violation is avoided by the fact that the criteria for detention are contained in legislation that is consistently administered by the courts. The NAALAS advice states:

    “This argument fails to appreciate that lawful detention can nevertheless be arbitrary and contrary to international human rights law. The Human Rights Committee has made the following observation on Article 9 of the ICCPR:

      The Committee recalls that the notion of "arbitrariness" must not be equated with "against the law" but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.
       A (name deleted) v. Australia Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30 April 1997).”

41. The authors also adopt the conclusion in the NAALAS advice that mandatory detention laws do not allow the courts to consider all circumstances of a case in committing a person to detention and will therefore always be arbitrary in that they fail to meet the criteria of appropriateness and justice.

42. The authors further refer to the finding at paragraph 5.16 by the Senate Inquiry that:

    “The Committee can see that a minimum sentence where the circumstances of the offence and the offender may vary widely is not proportionate or appropriate.”19

Article 14

    Article 14

    1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

    2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

    3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

      (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

      (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

      (c) To be tried without undue delay;

      (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

      (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

      (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

      (g) Not to be compelled to testify against himself or to confess guilt.

    4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

    5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

    6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

    7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

43. In respect of Article 14.1, the authors urge the Committee to expressly adopt a definition of the “determination” of a criminal charge as extending to the process of sentencing. It is submitted that a criminal charge is either determined at the point of acquittal or, where found proven, following the handing-down of sentence. Sentencing requires the exercise of judicial power.

44. The matter is significant because the Senate Inquiry took the view that the specification of a minimum term of incarceration only “restricts the discretion of the court as to sentence” and thus did not offend the guarantee in Article 14.1. The authors submit this cannot be correct as a matter of Committee jurisprudence for it would mean that a tribunal compelled to administer arbitrary detention is to be regarded as “fair” and “independent”.

45. It is also submitted that the Northern Territory Government has admitted through its representation to the Senate Inquiry that Article 14.3 is infringed in respect of a “minimum guarantee” “in full equality” “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him (or her)”. The Senate Inquiry reported at paragraphs 5.27 – 5.29 (footnotes omitted):

    “5.27 Mr David Anderson from the Northern Territory Attorney-General’s Department assured the Committee that an interpreter service was being developed although he was unaware how effective it was. He said that the service could be contacted by telephone. He also said:

      In relation to interpreters, I can inform the committee that, apart from in the Northern Territory, there are not any such programs. I think there is a minor program in South Australia, but that is all. The Territory leads the field in this respect.

    5.28 He agreed that there are special problems associated with indigenous people accessing and understanding the justice system. He was aware of the assertion that people ‘in the bush’ do not know about mandatory sentencing, but explained that the cost of interpreters and education awareness programs is very expensive.  The population of the Northern Territory is thinly spread over an enormous land area and there is the vast diversity of Aboriginal languages to take into account.  Requests for financial assistance had been made to the Commonwealth Government but those requests had been rejected. Mr Anderson described some of the problems associated with providing adequate interpreter facilities:

      The problems include the logistics of transporting people. Obviously if you have someone in Darwin who is from a remote community, you are going to have to get someone from his or her community to come in. If that person is female, you may have to bring the family in. You cannot just ring up. If you require an Italian interpreter, you just ring up and someone is there on the spot. Here you might have to charter a plane. You might take three days of a person’s time as against half an hour.

      There are also cultural problems – who can speak to whom. There is the system of poison aunties – people in East Arnhem cannot talk to their aunties, for example, young men. Certain age groups cannot speak to others, certain genders cannot speak in certain situations, there are skin affiliations and all kinds of things like that. So it makes it more difficult to find the person.

    5.29 The Committee notes that this criticism does not relate to mandatory sentencing as such but to the criminal justice system as a whole. It also notes the assertion by Mr Anderson that the Northern Territory leads the field in relation to the provision of interpreters.” (footnotes omitted)

46. It is submitted that the evidence of the Northern Territory representative admits lack of full equality. The authors acknowledge that interpreter services were said to be part of an agreement by the Australian federal government to provide funds to the Northern Territory over what is termed “diversion” programs (see also paragraphs 57 – 60 of this submission).  However, the Committee should be aware and deeply concerned that the agreement has not been put into effect.

47. The retreat from the agreement (which the authors stress did not overcome many of the violations argued in this submission) is pertinent to the Committee’s evaluation of Articles 14.3, 14.5 and 24.

48. On 16 June 2000 it was reported that in respect of the agreement:

    “Commonwealth [Federal] officers told a Senate estimates committee they did not know how the Territory was going to spend the money.” 20

49. On 8 July 2000 it was further reported that:

    “A core condition of the Federal Government's $5 million deal on mandatory sentencing - establishing diversionary programs for juvenile offenders - has not and will not be met, according to the Northern Territory Government.

    Almost three months after the deal was done, the office of the Territory's Chief Minister, Mr Burke, has said there is no need for any of the money to be spent on new schemes aimed at keeping young offenders out of the courts.

    The stand is a direct contradiction of the joint statement issued by Mr Howard and Mr Burke on April 10, which pledged: "The Commonwealth will make $5 million per annum available for a number of measures including diversionary programs for juveniles in the Northern Territory.

    The two leaders specifically promised "more community-based diversionary programs for urban, rural and remote communities"

    But the Territory Government now says the money will go to local police to help them cope with their increased workload.

    "We don't suffer from a lack of places in diversionary programs ... and I think, by and large, the diversionary programs are already being funded," said a spokesman for Mr Burke, who is touring London with the Prime Minister's centenary of Federation troupe.

    "A good deal of the $5 million will equip police to be able to deal with the increasing workload and increasing resources that they will need to be able to divert people," he said.” 21

50. On this basis, even if the monies promised by the agreement are provided, violation of Article 14.3 will persist in a jurisdiction which lacks essential interpreter services and where diversion programs are too few and inadequately funded.

51. In respect of Article 14.5, the authors also submit that the requirement of a guarantee of review of a criminal justice sentence is breached by mandatory detention laws where the Legislature of a jurisdiction has ousted the scope for judicial discretion to impose a non-custodial sentence at first instance or appellate court level by legislating that a penalty of a minimum period of detention shall be imposed for certain offences.

Article 24

    Article 24

    1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

    2. Every child shall be registered immediately after birth and shall have a name.

    3. Every child has the right to acquire a nationality.

52. The authors submit that Article 24.1 is breached by Australia because the mandatory detention laws do not accord children under the age of 18 years the required protection that is due to a minor. We urge the Committee to expressly find such laws contravene Article 40 of CROC, and to therefore find that Article 24 is breached in respect of minors.

53. The introduction of mandatory detention legislation affecting minors, especially in the Northern Territory, did not concern rehabilitation or reintegration of young offenders as required by CROC but rather, retribution. We submit that conformity to Article 40 of CROC which Australia has ratified and which addresses these matters sets, out a minimum standard for Article 24 of the ICCPR. We further submit that children’s rights to protection in respect of the penal law under Article 24 are breached where the requirements of Article 40 of the ICCPR are not met.

54. Mandatory detention laws are not directed to rehabilitative and reintegrative purposes and unable to be reviewed such as to result in a non-custodial sentence. Diversion options in furtherance of the principle that incarceration shall be a last resort are so limited as to be immaterial. To the extent that the agreement between the Australian federal government and the Northern Territory Government may be argued to ameliorate violation of Article 24, the authors disagree generally. Specifically, we draw attention to paragraphs 46 – 49 of this submission and contend that the Committee should not accept the fact of an unspecified agreement as an adequate answer by the Australian federal government, particularly in circumstances where the Northern Territory Government is now taking the public stance that further diversion programs are not required.

Article 26

    Article 26

    All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

55. In respect of the argument that this Article 26 is violated, the authors refer to the data concerning the racial impact of the laws provided above. The authors submit that outcome inequality on racial grounds is manifest by the application of the laws and that as a result Article 26 should be expressly found by the Committee to be breached. In respect of minors, the authors draw attention to the comments of the Committee on the Rights of the Child and the Committee on the Elimination of Racial Discrimination which are reproduced above in paragraphs 15 and 16 of this submission.

Article 27

    Article 27

    In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

56. In support of the submission that the Committee should expressly find that Article 27 is breached by the mandatory detention laws, the authors adopt the following remarks from the NAALAS advice:

    “Finally, reference should be made to the recommendations in Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) and in the Report of the Royal Commission into Aboriginal Deaths in Custody (1991). Both recognise the multitude of underlying reasons which result in Aboriginal people becoming involved in the criminal justice system. Both conclude that without a policy of imprisonment as a sanction of last resort in relation to Aboriginal offenders, a significant proportion of young Aboriginal people in Australia will face a life of detention. Mandatory sentencing laws are the antithesis of the recommendations of those bodies contained in those reports.

    ....

    Article 30 of CROC requires States to take steps to ensure that an indigenous child is able to enjoy their own culture with other members of the child's community. Article 27 of the ICCPR also recognises the right to the enjoyment of culture. An imprisoned indigenous individual will experience difficulties in enjoying access to his or her culture in community with other members of his or her indigenous group. An imprisoned generation of Aboriginal people will have no real possibility to attend to the revitalisation and promotion of Aboriginal culture. In our opinion, the devastating extent of imprisonment of Aboriginal people in Australia places an obligation on all governments to consider modes of punishment that minimise very real threats to the survival and well-being of indigenous cultures in Australia.”

RECENT DEVELOPMENTS

57. Following significant public outrage against the laws, as a result of the death of the 15 year old boy serving a mandatory detention sentence in Darwin, NT, in February 2000 (see paragraph 25 of this submission), the Australian federal government in consultation with the Chief Minister of the Northern Territory sought to broker an arrangement to deal with the worst aspects of the mandatory sentencing laws in the Northern Territory. Specifically , the arrangement endeavoured to allow the Australian federal government to avoid its obligations to enact overriding legislation to repeal the laws. The arrangement involved the following:

  • The Northern Territory Government agreed to amend mandatory sentencing laws to ensure that first time property offenders would only face a mandatory minimum term of imprisonment if they were aged 18 or over;
  • Northern Territory police would be directed to divert all juvenile offenders (those aged under 18) arrested for a “minor offence” to a pre-court diversionary program, rather than formally charge the young offender;
  • Northern Territory police were granted the discretion to divert all juvenile offenders charged with “non-minor” offences to pre-court diversionary programs;
  • The Australian federal government would provide the Northern Territory Government with an additional $A5 million per year over four years, to assist the Northern Territory Government to establish pre-court diversionary programs for juvenile offenders, and an Indigenous Interpreting Service.

58. On 1 June 2000, legislation passed by the Northern Territory Parliament came into force which provided that the adult regime of mandatory sentencing laws applied to everyone over the age of 18. The age of majority had previously been 17 years.

59. However, since the arrangement was brokered, there has been no additional diversionary programs to receive funding to be properly established and the Northern Territory Government is reneging on the agreement to apply monies to such purposes (see paragraphs 46 – 49 of this submission). In addition, and critical in respect of arguments as to arbitrariness and proportionality, there has been no clarification of what might in the future constitute a “minor offence”.

60. The authors submit that the arrangement between the Northern Territory and Australian federal governments does not, in any event, address the fundamental breaches of the ICCPR, by virtue of the following facts:

  • Mandatory sentencing laws for over 18 year olds in the Northern Territory have not been altered in any way;
  • Mandatory sentencing laws for juvenile offenders (those under the age of 18) is still in existence under the legislation in operation in the Northern Territory. The provision for diversion to pre-court diversionary programs will only have minimal impact, given the lack of resources to be made available to actually establish such programs, particularly on remote Aboriginal communities in the Northern Territory;
  • Mandatory sentencing laws in Western Australia have not been affected in any way as a result of this arrangement. The arrangement was only relevant to the Northern Territory mandatory sentencing laws;
  • As at the date of this submission, there has been no formal, accredited Indigenous legal interpreting service established in the Northern Territory. No additional funding has been made available to Aboriginal Legal Services in the Northern Territory to access qualified, accredited Indigenous legal interpreters for people facing criminal charges;
  • As at the date of this submission, no additional, funded pre-court diversionary programs have been established since the brokering of the funding arrangement in April and (as highlighted in paragraphs 46-49 of this submission) the Northern Territory Government is said to refuse to agree to the funds being applied to diversionary programs.

CONLCUSION

61. In Australia, the compliance with international human rights conventions has, in recent months, been superceded by the political debate governing the constitutional relationship between the Australian federal government and the various regional State and Territory governments. Advocates for non-intervention by the Australian federal government have argued that the power to enact laws in relation to criminal law and sentencing is one which has been traditionally held by individual State and Territory legislatures. This is to be contrasted with the position of those advocating federal intervention, who point to the constitutional power of the Australian federal government to enact laws which apply to the States and Territories, thereby ensuring Australia’s compliance with international treaties including, the responsibility of the central Australian federal government to ensure compliance throughout Australia with the ICCPR .

62. The authors are strongly of the opinion that the Australian federal government has both an obligation and a duty under international law to ensure that all laws of the individual Australian States and Territories comply with Australia’s international treaty obligations.  The governments of both the Northern Territory and Western Australia have indicated complete recalcitrance in addressing the human rights concerns arising from their respective mandatory sentencing laws.

63. Accordingly, the authors urge the Committee to:

  • specifically find that the mandatory detention laws of the Northern Territory and Western Australia violate the ICCPR; and
  • make a strong recommendation to the Australian federal government to take immediate steps consistent with its responsibilities pursuant to Article 50 of the ICCPR and Article 27 of the Vienna Convention on the Law of Treaties, and legislate overriding legislation in order to nullify the mandatory detention laws currently in place and to prevent other States or Territories enacting similarly offensive statutes.

FOOTNOTES

1. A fuller discussion of the inter-relationship between mandatory detention laws and the Australian movement for reconciliation with Indigenous peoples may be found in D. Sandor (2000) ‘The Sorry and Shameful Saga of Mandatory Detention Laws in Australia’, Vol 13. No. 3 International Children’s Rights Monitor (September, forthcoming).

2. At http://www.aph.gov.au/senate/committee/legcon_ctte/mandatory/contents.htm – see Chapter 5.

3. ‘Is the PM blind or merely a hypocrite?’, The Sydney Morning Herald (Newspaper) 25 February 2000.

4. Op. cit note 2.

5. At http://law.gov.au/publications/croc/crocaa.html#RTFToC2; the Committee’s observations are at http://www.unhchr.ch/tbs/doc .nsf/MasterFrameView/3d744477ea59fdaf8025653200508bb8?Opendocument

6. Paragraph 16, Concluding Observations by the Committee on the Elimination of Racial Discrimination, Australia, 56th Session24 March, 2000 (CERD/C/56/CRPS, CERD/C/56/Misc.42/rev.3).

7. Western Australia is second only to the Northern Territory in terms of the percentage of adults imprisoned being of Indigenous origin.

8. ‘Sorry day for Justice’, The Sydney Morning Herald (Newspaper) 18 February 2000.

9. For a full list see note 2 above. Also note the comment of Dr William Jonas AM, the Aboriginal and Torres Strait Islander Social Justice Commissioner appointed by the current Howard Government: "By way of comparison, mandatory sentencing does not apply to the crime of fraud, and 100% of fraud cases involving juveniles in the NT are by white children." (emphasis in the original) Human Rights and Equal Opportunity Commission (2000) Statement on Mandatory Sentencing [17 February 2000] at http://www.hreoc.gov.au/news_info/speeches/social_justice/sp_16.html.

10. ‘Johnno: a life and death of misery’, The Age (Newspaper) 12 February 2000.

11. ‘A day of shame for Australia’, The Age (Newspaper) 14 February 2000. The boy’s full name has been edited as a matter of respect and in the interests of privacy.

12. Copy available on request from the authors – email to .

13. Human Rights Committee General Comment 20: Human Rights Committee, General Comment on Article 7 of the International Covenant on Civil and Political Rights, 1992 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/Rev.3 (1997). Electronic version at www1.umn.edu/humanrts/gencomm/hrcom20.htm.

14. At http://www.aph.gov.au/senate/committee/legcon_ctte/mandatory/contents.htm – see Chapter 5 at para 5.13.

15. The Full Court of the Family Court of Australia in B and B: Family Law Reform Act (1997) FLC 92-755 at para 10.2.

16. Human Rights Brief No. 2 at www.hreoc.gov.au/human_rights/brief/h_9_2.html, footnotes omitted.

17. Ibid.

18. Submission to the Inquiry by the Senate Legal and Constitutional References Committee into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, November 1999.

19. At http://www.aph.gov.au/senate/committee/legcon_ctte/mandatory/contents.htm – see Chapter 5.

20. At http://www.abc.net.au/4corners/mandatoryupdates.htm.

21. ‘NT fails to deliver on juvenile justice’, The Sydney Morning Herald (Newspaper) 8 July 2000 at http://www.smh.com.au/news/0007/08/text/national01.html.

 

 

 

 

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