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Inquiries and Reports - Australia
Amnesty International
London
October 1999
In its Concluding Observations on Australia in March 2000, the UN Committee on the Elimination of Racial Discrimination expressed concern that domestic law not be invoked by Australia as a justification for not complying with the Convention’s provisions. At paragraph 7:
The Committee expresses concern and reiterates its recommendation that the Commonwealth Government undertake appropriate measures to ensure the consistent application of the provisions of the Convention, in accordance with Article 27 of the Vienna Convention on the Law of Treaties, at all levels of government, including states and territories, and if necessary by calling on its power to override territory laws and using its external affairs power with regard to state laws.[1]
Article 27 of the Vienna Convention states that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.
The Australian Parliament considered this issue as early as August 1998, at which time the Joint Standing Committee on Treaties considered that mandatory sentencing laws as they applied to juveniles breached international standards. The Committee recommended ‘that the Government request the Standing Committee of Attorneys-General to investigate the alternative options to mandatory sentencing.’[2] The Committee also recommended ‘that the Government request the Standing Committee of Attorneys-General review existing juvenile justice legislation to ensure that children and young people cannot receive longer sentences than adults for any particular offence’.[3]
Almost two years later there has been no Government response to the Parliament Committee’s report and recommendations.
Amnesty International’s submission to the Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 by the Australian Senate Legal and Constitutional References Committee is outlined below. This submission focused primarily on the international standards concerning the sentencing and detention of children and did not focus on other international standards, including arguments about arbitrary detention of children.
Amnesty International welcomes this opportunity to lodge a submission with the Senate Legal and Constitutional References Committee on the issue of mandatory sentencing, its relation to Australia’s international human rights obligations and on the legal, social and other impacts of mandatory sentencing on particular groups such as indigenous people and people with disabilities.
Since the establishment and interpretation of relevant international human rights standards is most advanced on the adjudication of offenders under the age of 18, this submission will focus on children.[4] For the purpose of the inquiry, however, some of the comments made may be equally relevant to mandatory sentencing of adults.
Under Amnesty International’s principle statute to ‘promote awareness of and adherence to the Universal Declaration of Human Rights and other internationally recognized human rights standards’, the organization wishes to draw the Committee’s attention to a number of provisions in international human rights instruments, detailed below, which it considers as particularly relevant to this inquiry. Amnesty International’s focus, in this submission, will be on international human rights standards for the protection of the rights of children.
In summary, international human rights instruments require any detention or imprisonment of children under 18 years of age to be:
Amnesty International notes with concern the findings of the Joint Standing Committee on Treaties’ August 1998 report on the Convention on the Rights of the Child, in particular:
Mandatory sentencing does not take into account the child’s age, the facts of the current offence, the individual circumstances of the person, consideration of an appropriate period of time [of detention] or the application of judicial discretion. Mandatory sentences restrict the court’s capacity to ensure that the punishment is proportional to the seriousness of the offence and in relation to the rehabilitative options. These minimum sentences are in contravention of Article 37(b) of the Convention [on the Rights of the Child] which requires that deprivation of liberty not be arbitrary and is a measure of last resort. (Paragraph 8.26)
Amnesty International also recalls comments made in October 1997 by the United Nations Committee on the Rights of the Child in relation to Australia which were reportedly rejected by the Northern Territory Government:
The Committee is particularly concerned by the enactment of new legislation in two States, where a high proportion 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.
It appears that none of these concerns, nor the recommendations aimed at bringing relevant legislation into line with Australia’s international human rights obligations have had any effect on mandatory sentencing of juveniles.
In the light of these findings and of the standards cited in this submission, Amnesty International considers that mandatory sentencing regimes, as applied in Australia on juveniles under 18 years of age, are inconsistent with the country’s international human rights obligations.
The organization believes that the most desirable solution to this situation would be amendments of relevant legislation by the parliaments of Western Australia and the Northern Territory. Such amendments should be based on an assessment of existing mandatory sentencing legislation in the light of all relevant international human rights standards.
Contrary to various media reports published in Australia on domestic campaigns against mandatory sentencing in the Northern Territory, Amnesty International’s campaigning on juvenile justice has not previously included calls for the repeal of mandatory sentencing laws in Australia. Amnesty International’s campaigning on juvenile justice issues has been based on a much broader range of concerns, including the disparity of custody conditions for children held either in a juvenile detention centre or in facilities designed and staffed to hold adults, including police watch house cells.
It is Amnesty International’s understanding that for the purposes of this inquiry, all human rights instruments cited below are equally applicable to domestic Australian law, whether they have the status of treaties, declarations, rules or principles.[5]
Article 14(4) requires that the determination of criminal charges against juveniles ‘will take account of their age and the desirability of promoting their rehabilitation’.
Article 14(5) enshrines the right for everyone to have any sentence ‘reviewed by a higher tribunal according to law’.
Article 40 expands on these ICCPR provisions:
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
Article 40(2)(b)(v) of CRC requires domestic law to allow a review of ‘any measures imposed in consequence’ of a conviction for a criminal offence by a higher judicial body according to law.
Article 40(4) also requires the availability to the courts of a:
variety of dispositions [...] and other alternatives to institutional care [...] to ensure that children are dealt with in a manner appropriate to their wellbeing and proportionate both to their circumstances and the offence. (Emphasis added).
In addition, any imprisonment of children must not be arbitrary (Article 37(b)).
The wording of [Article 37] paragraph (b), strongly supported by the relevant United Nations rules and guidelines, emphasizes that restriction of liberty for under 18-year-olds should be exceptional — a last resort and always ‘for the shortest appropriate period of time’.[6]
The meaning of ‘shortest appropriate period of time’ has been interpreted by a member of the United Nations Committee on the Rights of the Child as implying ‘that other measures than prison sentences should be sought’[7].
The Committee on the Rights of the Child has frequently stressed the need to regard relevant international instruments on juvenile justice in conjunction with the CRC and as providing detailed standards for the implementation, in particular, of articles 37 and 40 of the CRC. For example, the Committee
[...] wishes to emphasize that any new legislative measures [...] must be guided by the principles of the Convention on the Rights of the Child and other relevant international instruments, in particular, the ‘Beijing Rules’, the ‘Riyadh Guidelines’ and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.[8]
Rule 5 of the General Principles emphasizes ‘that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence’.
The individual circumstances of the offender (for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reactions (for example by having regard to the offender’s endeavour to indemnify the victim or to her or his willingness to turn to wholesome and useful life).[9]
Rule 6(1) takes account of the ‘varying special needs of juveniles’. In order to allow for the most appropriate action to be taken in each individual case, it requires that ‘appropriate scope for discretion shall be allowed at all stages of proceedings and at the different levels of juvenile justice administration, including investigation, prosecution, adjudication and the follow-up of dispositions.’
The formulation of specific guidelines on the exercise of discretion and the provision of systems of review, appeal and the like in order to permit scrutiny of decisions and accountability are emphasized in this context.[10]
The Beijing Rules’ ‘Guiding principles’ on sentencing (Rule 17.1) are partly based on the following principles, discussed in the respective commentary also quoted below:
(a) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society;
(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;
(d) The wellbeing of the juvenile shall be the guiding factor in the consideration of her or his case.
The Commentary provided by the Rules discusses unresolved difficulties in formulating guidelines for adjudication of young persons, and then continues:
It is not the function of the Standard Minimum Rules for the Administration of Juvenile Justice to prescribe which approach is to be followed but rather to identify one that is most closely in consonance with internationally accepted principles. Therefore the essential elements as laid down in rule 17.1, in particular in subparagraphs (a) and (c), are mainly to be understood as practical guidelines that should ensure a common starting point; if heeded by the concerned authorities (see also rule 5), they could contribute considerably to ensuring that the fundamental rights of juvenile offenders are protected, especially the fundamental rights of personal development and education.
Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the wellbeing and the future of the young person. (emphasis added)
In line with resolution 8 of the Sixth United Nations Congress, rule 17.1(b) encourages the use of alternatives to institutionalization to the maximum extent possible, bearing in mind the need to respond to the specific requirements of the young. Thus, full use should be made of the range of existing alternative sanctions and new alternative sanctions should be developed, bearing the public safety in mind. Probation should be granted to the greatest possible extent via suspended sentences, conditional sentences, board orders and other dispositions.
Rule 17.1(c) corresponds to one of the guiding principles in resolution 4 of the Sixth Congress which aims at avoiding incarceration in the case of juveniles unless there is no other appropriate response that will protect the public safety. (emphasis added)?
[1] Concluding Observations by the Committee on the Elimination of Racial Discrimination, 56th session, 6-24 March 2000, para 7, p 2.
[2] Inquiry into the United Nations Convention on the Rights of the Child, 17th Report, August 1998, by the Joint Standing Committee on Treaties, p 424.
[3] As above.
[4] Regarding the issue of age, Amnesty International notes with particular concern that an Australian child’s place of residency determines whether or not any contact with the justice system may result in a criminal record, lead to detention or imprisonment and whether such incarceration will be in an adult prison, police cell or juvenile detention centre — violating the principles of equality before the law, the prohibition of arbitrary detention, and the requirement to separate children from adults in custody (see paragraphs 8.42-49, Joint Standing Committee on Treaties Report on the Convention on the Rights of the Child, August 1998; also 18.12-18.21, Seen and heard: priority for children in the legal process, Australian Law Reform Commission and Human Rights and Equal Opportunity Commission Report No 84, 1997).
Due to varying ages of majority and criminal justice laws in different Australian jurisdictions, juveniles of equal age, accused of an identical offence, may experience very different punishment. The United Nations Committee on the Rights of the Child has indicated that the age of criminal responsibility must be consistent throughout a State’s jurisdiction, including in federal states (UNICEF Handbook on the implementation of the Convention on the Rights of the Child, pp 12, 26-27).
[5] This conclusion is supported, for example, by the Fraser Government’s attribution of equal status to both human rights covenants and declarations in the initial Human Rights Commission Act 1981, retained in all subsequent amendments (section 3 and schedules). The Act’s schedules incorporated the International Covenant on Civil and Political Rights, as well as several human rights declarations adopted by the United Nations. The Act stated that:
‘human rights’ means the rights and freedoms recognized in the Covenant, declared by the Declarations or recognized or declared by any relevant international instrument;
‘international instrument’ includes a declaration made by an international organization;
(Section 3 (1))
While such instruments do not have any direct legal effect unless implemented by specific legislation, they can assist in the interpretation of statutes and in the ‘determination of community values and standards relevant to the development of the common law’ (Mr H Burmester, Attorney-General’s Submission No 75, Vol 4, p 703 to the Senate Legal and Constitutional References Committee into the Commonwealth’s treaty making powers, cited in paragraph 6.5 of Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Senate Legal and Constitutional References Committee 1995).
[6] Implementation Handbook for the Convention on the Rights of the Child, UNICEF, New York 1998, p 496.
[7] As above
[8] Above note 6, p 543.
[9] ‘The Beijing Rules’, Rule 5, Commentary.
[10] ‘The Beijing Rules’, Rule 6, Commentary.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/19.html