Australian Journal of Human Rights
This paper tackles the debate on Northern Territory mandatory sentencing legislation, by making a survey of the regional institutional structures that have emerged in other parts of the world to bind governments to international human rights laws. This will help isolate some useful comparators against which to measure Northern Territory mandatory sentencing principles. It will assist in working out whether their legality would be queried if introduced in other parts of the world.
But the first question to ask is why is this important? Why does it matter that in other jurisdictions the compliance with human rights of mandatory sentencing laws could be questioned? Why should we be concerned with developments in democratic standards and human rights unfolding outside of our own shores?
Firstly, the genesis of the Northern Territory legislation lay, at least in part, in the conviction of Northern Territory Chief Minister Dennis Burke, and his predecessor Shane Stone, that New York was a useful model for the development of Northern Territory criminal law, and more particularly the introduction in the Northern Territory of a policy of zero tolerance for crime. If resort to comparators is good enough for the pro-mandatory sentencing camp, then it is good enough for anyone concerned to make a contribution to the debate. Except that there are, I would argue, some much more useful and relevant comparators available for the Northern Territory, than the somewhat surreal choice of New York City law enforcement rules (Gibson, 2000: 105). The comparators I will be examining relate to developments in international humanitarian law, and the regional systems and instruments that could be called in aid to rein in draconian sentencing legislation. The regional systems are one of the most effective means of calling countries to account for violation of fundamental human rights and principles of democracy. As these systems develop, they increasingly supply real, effective remedies, and are securing more rigorous enforcement of humanitarian law, thereby thwarting its violation.
The second reason, however, is much more important. We need to keep pace here in Australia with developments in international humanitarian law in order to remain a respected, and as far as possible influential, member of the international community. If Australia develops its own conceptions of human rights and democracy, independently of what goes on in other parts of the world, then it would inevitably suffer a loss of influence in international fora of all kinds, including trade fora. The need for our constitution to keep pace with developments in international human rights law, and to protect Australians whose human rights have been infringed, has been supported at various times by individual members of the High Court. For example, most recently Justice Kirby has held that the Australian Constitution is the fundamental law of government in this country, and accommodates itself to international law, including fundamental rights protected by international law. The Constitution, he has observed, speaks not only to the Australian people, but also speaks to the international community as the basic law of the Australian nation, which itself is part of the community of nations (Newcrest Mining (WA) Ltd v The Commonwealth; see also Simpson and Williams, 2000).
So what has been happening in other parts of the world from which Australia might draw lessons?
All 35 sovereign states of the Americas, including Canada and the United States, are members of the Organisation of American States (OAS), which has a highly developed institutional structure. Within this structure there are special organs to secure the enforcement of fundamental rights elaborated in the American Declaration on the Rights and Duties of Man, and the American Convention on Human Rights (Harris and Livingstone, 1998).
The American Commission of Human Right has two types of jurisdiction. It hears petitions by individual victims alleging breach of human rights, in much the same way as the Human Rights Committee, which oversees the International Covenant on Civil and Political Rights (see Ghandi, 1998). It also conducts comprehensive studies and on-site investigations, leading to the promulgation of country reports on particular issues. A very large number of investigations and reports have been conducted by the Commission, including, to take only two examples, a study of the conditions of Cuban prisoners detained in United States jails (see Harris, 1998), and broader reports on the state of more general human rights concerns, such as the independence of the judiciary (see Inter-American Court of Human Rights, 1992-3).
The American Court of Human Rights hears cases referred to it by the Commission or OAS members that have accepted its jurisdiction. In essence, it decides cases that have been impossible to resolve by friendly settlement before the Commission. The Court has the power to issue interim orders with respect to cases pending before it, and it also has the authority to award compensation to victims. In addition to this, the Court can supply advisory opinions to the Commission and OAS Member States on the interpretation of the American Convention and any other treaties concerning the protection of human rights that are operative in the Americas.
Of particular interest, for present purposes, is that the inter-American system has been seized of questions concerning the rights of indigenous people (Hannum, 1998). Both in the context of reports on the human rights situation in particular countries, and individual cases brought before it, the Commission has been called on to assess whether the rights of native Americans to life, liberty, security, health, fair remuneration for work, and cultural integrity, had been violated by American governments. This has resulted, on several occasions, in the introduction of measures by the offending government to secure the future protection of these rights (Hannum, 1998).
The inter-African system has been established by the 53 member states of the Organization of African Unity (OAU), and like the OAS, the OAU has special institutions to secure the enforcement of its principal human rights instrument, the African Charter on Human and Peoples' Rights (Murray, 2000). At present the African Commission on Human and People's Rights hears individual petitions, in a similar fashion to the American Commission on Human Rights, but it has an additional jurisdiction to hear inter-state complaints between OAU Member States. The Commission has also appointed a Special Rapporteur on Extra-Judicial, Summary, or Arbitrary Executions, a Special Rapporteur on Women's Rights, and a Special Rapporteur on Prison Conditions and Detention, all of which study situations within their remit and assist in the implementation in the OAS Charter. Traditionally the OAU regime has differed from the OAS regime, in that the former has lacked a judicial body to support enforcement of the African Charter. However, the African Court of Human Rights was established by Protocol in 1998, and, like the American court, it will have the power to award interim relief and damages.
A subsisting distinguishing characteristic of the inter-African system lies in the fact that the African Charter is the only human rights instrument which also confers "group rights", such as the right to self determination and the right to existence. In this respect the African Charter proves that it is possible for a regional human rights instrument to be adapted to reflect and respect local cultural conditions.
The OSCE is made of 54 members, ranging from the United States and Canada and encompassing a geographical continuum to the most Eastern of the former states of the Soviet Union. As the name suggests, the OSCE is mostly concerned with maintaining security, yet as time has passed the organisation has become increasingly occupied with humanitarian concerns, inextricably linked as they are to the protection and promotion of security.
While the institutions of the OSCE provide only "soft-law" enforcement of international humanitarian law, there being neither a Commission or a Court to hear complaints, its humanitarian institutions are increasing in number and in the range of activities that they pursue. For example, there is an Office for Democratic Institutions and Human Rights, a Representative on Freedom of the Media, and a High Commissioner of National Minorities all of which report on, monitor, and actively promote matters falling within their respective ambits of authority. In addition, the OSCE has run numerous field activities and missions to monitor and promote democracy and human rights in central and east European countries.
Most interesting perhaps for present purposes, is the so-called Vienna process, which allows any OSCE Member State to ask questions, and require answers from, another Member State with respect to alleged human rights abuses (Wright, 1996: 198-199; Lennox, 2000). These issues are then discussed at regular meetings. For example, the former Soviet Union questioned the compliance of United Kingdom immigration law with international humanitarian law in the early days of the process, and in the same period it was invoked by the former Czechoslovakia with respect to the treatment of anti-apartheid demonstrators by the Netherlands (McGoldrick, 1990: 926).
The most well-established and rigorously enforced regional human rights instrument is the European Convention on Human Rights (ECHR). Struck by the 41 members of the Council of Europe, and implemented via both individual petition to the European Court of Human Rights in Strasbourg, and surveillance by the Council itself, the broad range of civil and political rights protected by the ECHR have passed into the corpus of fundamental principles of law recognised by all Member States, a process that has been aided by incorporation of convention rights into domestic law (Palmer, 1998). Further, the rich body of case law elaborated by the Court in Strasbourg is an entrenched and internationally respected source for delimiting the content of civil and political rights both within Europe and beyond. The Convention is supplemented by two further instruments, the European Social Charter and a specialised Convention on Torture, both of which are enforced through separate soft-law mechanisms.
The European Union has its own distinct mechanisms for protecting human rights, and one from which Australia might draw important lessons. Despite the entire absence of a catalogue of fundamental rights in the EC Treaty, or any other express mandate for the European Court of Justice in Luxembourg to promulgate rulings in this field, the Court has nonetheless implied an expansive bundle of rights into the EC legal system. These can be invoked by individual litigants against all 15 EU national governments and against EU institutions themselves (see Ward, 2000; Tridimas, 1999). In some respects, therefore, the Court of Justice in Luxembourg has been confronted with the same difficulty, which is increasingly engaging the High Court of Australia, namely, requests from private citizens for the enforcement of fundamental rights despite the entire absence of reference to such rights in a primary constitutional document (Simpson and Williams, 2000).
The source of inspiration for fundamental rights, as the Luxembourg court terms them, are the ECHR (even though the EU is not a signatory to that convention), other international instruments in which EU Member States have participated and constitutional traditions common to the Member States. In this way the court has elaborated a "case based" system for protection, for example, of the right to property, the right to family life, the right to free speech, freedom of religion, and the prohibition on discrimination on grounds of gender and nationality. Of perhaps more significance is the fact that political actors have, subsequent to the development of the court's case law, supported its initiatives by amending the EC Treaty, expressly recognising that fundamental rights form a judicially enforceable aspect of the community legal order. Indeed a proposal is presently being considered to codify and expand the Court's case law through the promulgation of a European Charter of Fundamental Rights. Further, adherence to human rights norms as reflected in the ECHR are now a prerequisite for membership to the EU and the EU Treaty provides for suspension of EU members in the event of serious breaches of human rights and democratic standards. Finally, the European Union has "exported" its insistence on adherence to these rules by obliging non-EU states with whom it signs agreements to sign up to a clause in which both the EU and the non-EU state concerned recognise the protection of human rights and democracy as "fundamental" to the agreement, breach of which by either side allows it to be suspended (Ward, 1998). This has had ramifications in all aspects of the EU's external relations policy, including trade policy.
Academic commentaries have alleged three principal breaches of international humanitarian law when critiquing Northern Territory mandatory sentencing legislation. They concern;
In addition to these, other concerns have been raised such as the impact of the legislation in the light of the fact that indigenous Australians continue to have difficulties in obtaining interpreters in the course of both criminal investigation and court proceedings (Blundell, 2000), and the fact that policing practices may result in discrimination against indigenous Australians.
How then, might these arguments be received if they were put to some of the regional human rights bodies described above?
The imposition of statutory minimum sentences and independence of the judiciary has been expressly considered by the European Court of Human Rights in Strasbourg. In T v The UK the Court concluded that the fixing of a sentence by the British Home Secretary, in the entire absence of a review facility in the hands of a court, breached the right to a fair trial (Art 6 ECHR), and Art 5, which requires that the lawfulness of a person’s sentence is to be determined by a court (see Hubble, 2000). In the Northern Territory the Sentencing Act 1997 (NT), as amended, similarly divests the judiciary of any role in reviewing sentences and places plenary authority in the hands of the legislature. Such a measure, if introduced in a member state of the Council of Europe, might therefore be challenged for breach of Arts 5 and 6.
Articles 8 and 25 of the American Convention on Human Rights protect the independence of the judiciary. The American Commission, particularly in the context of country reports, has emphasised the importance of the doctrine of the separation of powers. It has described separation of powers as the “logical consequence of the very concept of human rights". In order to protect the rights of individuals against arbitrary actions of the state, the Commission has expressed the view that it is "essential” that one of the branches has the independence that permits it to judge both the actions of the executive branch and the constitutionality of laws passed (see Inter-American Court of Human Rights, 1983 and Inter-American Court of Human Rights, 1994). Given that the Northern Territory legislation removes this authority form Northern Territory courts, at least in the context of sentencing, then the American Commission might, if such law were introduced within its jurisdiction, question its compliance with Arts 8 and 25. In addition, the Commission has produced a report entitled "Measures Necessary for Rendering the Autonomy, Independence and Integrity of Members of the Judicial Branch More Effective" (Inter-American Court of Human Rights, 1992-3) in which it states that one such essential measure is a guarantee of freedom of interference with the judiciary by the executive and legislative branches.
The Sentencing Act, as amended, imposes a two week sentence for a "first strike" offence, a six month sentence for a "second strike", and twelve months for a "third strike”. Since the most petty offences constitute a “strike”, the legislation has imposed sentences that are wildly disproportionate to the seriousness of the offence committed (see Ah Kit, 2000). Further, it has been argued that such sentences are entirely arbitrary (Hardy, 2000).
Article 7 of the American Convention precludes arbitrary and unjust detention. In the Gangaram Pan case the Inter-American Court held that a lawful deprivation of liberty would be arbitrary if the reasons for it or procedures followed are "unreasonable, unforeseeable, or lacking in proportionality". Further, Art 7(2) of the African Charter on Human and People's Rights prevents arbitrary sentences by providing that punishment is to be "personal and can be imposed only on the offender".
The European Court of Justice in Luxembourg has repeatedly ruled that the principle of proportionality is one of the general principles of law recognised by the Community legal order (see Tridimas, 1999), and more specifically that any penalty imposed by an EU institution must be proportionate to the alleged wrongdoing (see Garaze Molenheide v Belgium). The EU Member States will codify this law, in all likelihood, if the Draft Charter of Fundamental Rights of the European Union passes into law. This is so because Art 47 (3) thereof provides that the "severity of penalties shall be proportional to the gravity of the criminal offence".
Highly persuasive statistics have been compiled, which indicate that the Northern Territory legislation is having a disproportionate impact on indigenous Australians and dramatically affecting their incarceration rates (House, 1999; Hardy, 2000). Further, the United Nations Committee on all Forms of Race Discrimination (CERD) concluded in March 2000 that Northern Territory mandatory sentencing schemes "appear to target offences that are committed disproportionately by indigenous Australians"(CERD, 2000). This allegation is further supported by the bizarre drafting of the Sentencing Amendment Act (1996) NT which introduced the "three-strikes" rules for certain property offences. The Act provides that the regime shall apply to “property offences" then attaches a schedule listing certain property offences that shall not attract mandatory sentencing. These include shoplifting, all forms of white collar crime, and credit card fraud. All these offences are better known as a socio-legal problem among the non-indigenous community, as opposed to the indigenous community.
The ECHR, the American Convention on Human Rights, and the African Declaration on the Rights and Duties of People protect equality before the law which includes, in this context, a prohibition on race discrimination. Any breach of this rule would be taken very seriously by the institutions that have been established to enforce these conventions. Race discrimination in the form of unequal treatment before the law might be viewed particularly severely by the European Court of Human Rights and could precipitate breach of the Art 7 ECHR prohibition on cruel, unusual and degrading treatment. This is so because it has been held in Abdulalaziz Cabales and Balkandi v The United Kingdom that "publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity". Further, I would argue that, if the Northern Territory legislation were in fact racially discriminatory, the result would be distortion of the parameters of the debate that should have gone on in Australia. It would mean that rather than discussing the pros and cons of mandatory sentencing, we should have been addressing the problems generated by a racially discriminatory criminal justice system.
As mentioned above, the advent of mandatory sentencing has served to highlight subsisting difficulties in the treatment of Indigenous people in the criminal justice system. First, the legislation has brought into sharp relief the unavailability of interpreter facilities for Indigenous Australians, which contrasts markedly with the provision of interpreters for 150 European and Asian languages in Australian courts (Blundell, 2000). While the Federal Government is currently taking initiatives to correct this state of affairs, the failure to secure the most basic tenets of the right to a fair trial might itself warrant investigation via a Royal Commission, either addressing this subject alone, or in the context of a broader Royal Commission of Inquiry into the treatment of indigenous Australians within the criminal justice system.
In addition to this, mandatory sentencing has also underscored differential treatment of Indigenous Australians with respect to policing practices. Indeed, on 3 April 2000, during, the ABC Four Corners Programme "Go to Jail”, one police officer said that "[p]art of the reason mandatory sentencing hits these small remote communities so hard is that, while the clear up rate for burglary in Darwin is around 15 %, everyone here gets caught”. The reasons why "everyone" gets caught in Indigenous communities are doubtless manifold. However, evidence that Indigenous people are over-represented at the point of charging (i.e., they are likely to be charged in circumstances in which a non-indigenous Australian might be cautioned), and the fact that there are substantially more police per head of population in remote communities than in the city of Darwin (see Australian Bureau of Statistics, 1999), might contribute to this phenomenon.
Further, if race discrimination has seeped into policing practices, this would make for a stark contrast with developments in Europe. There a large number of initiatives have been taken, and continue to be taken, to ensure that policing in multi-ethnic societies complies with human rights law. To the same end the International Committee of the Red Cross has been particularly active in Africa, and elsewhere, in providing police forces with training in international humanitarian law (de Rover, 1998). Given these developments, it might be timely for a review of police training programmes in the Northern Territory (and perhaps other parts of Australia), to determine whether they equip police with adequate knowledge of international humanitarian rules and how they might be observed in daily police work.
It can be seen that regional systems for the enforcement of human rights are becoming increasingly prevalent and influential. From Africa in the west to the Americas in the east, regional bodies are taking more and more responsibility for securing adherence of states to human rights and fundamental freedoms. Therefore it appears that all of the systems reviewed here would closely scrutinise mandatory sentencing legislation of the type currently in force in the Northern Territory (if it were introduced in their respective jurisdictions) and that doubts would almost certainly be raised about its legality.
Australia is, of course, not party to any regional system for the protection of human rights. A reason most commonly cited for this is distrust by its neighbours to the north in the essentially "euro-centric" nature of the contemporary human rights discourse. Yet, as has been pointed out by one prominent South East Asian leader, Asian critics of regional human rights bodies give too much credit to the Europeans, and overlook the fact that for thousands of years concepts of human rights and justice have been articulated in the teachings of major eastern philosophies and religions (Ramos Horta, 1996). Given Australia's long tradition in promoting the development of international humanitarian law (Pritchard, 2000), might not the time have come for Australia to adopt the cause of the establishment of a regional human rights body, and pursue it rigorously? Would not such an initiative be particularly warranted in light of the fact that Australia is now the only western nation that has neither a bill of rights in its constitution, and nor is it a member of a regional human rights instrument?
The current Federal Government is presently pursuing an inverse agenda. On 29 August of 2000 the Minister of Foreign Affairs Alexander Downer, Attorney General Daryl Williams, and the Minister for Immigration and Multicultural Affairs, Philip Ruddock, issued a press release in which they unveiled their plans for paring back the human rights powers of United Nations Committees; the only international institution for human rights protection in which Australia participates. Of particular concern is their assertion that "Australia will only agree to visits to Australia by treaty committees and requests from the Committee on Human Rights 'mechanisms' for visits and the provision of information where there is a compelling reason to do so". Such an initiative is entirely at odds with the practice of the 35 Member States of the Organisation of American States, the 53 members of the Organisation for African Unity, and the 54 members of the Organisation for Security and Cooperation in Europe (encapsulating members of the Council of Europe). It might be questioned, therefore, whether any of these 142 states would support an Australian-sponsored curtailment of the UN's inspection powers. If the Australian Government's proposals either fail, or are supported only by states with a poor record for protecting and enforcing human rights, what might the costs be, in terms of loss of good will, in other international fora in which Australia participates? Given that there is no sign that the current agenda will be abandoned, or even refined, the answers to these questions are, at present, unknown.
Council of Europe: http://www.coe.int
Council of Europe Police Programme: http://www.humanrights.coe.int/police
European Union: http://www.europa.eu.int/index-en.htm
Organisation for Security and Cooperation in Europe: http://www.osze.at
Organisation of African Unity: http://www.oau-oua.org/
Organisation of American States: http://www.oas.org
Draft Charter of Fundamental Rights of the European Union: firstname.lastname@example.org
Home Page for the Home Office for the UK: www.homeoffice.gov.uk
Ten Basic Human Rights Standards for Law Enforcement Officials: http://erc.hrea.org/Library/law/enforcement/HR/Standards.html
The Rotterdam Charter: Policing for a Multi-ethnic Society (drawn up at the Rotterdam Conference, 30 May - 1 June 1996): http://www.humanrig:hts.coe.int/police/standards/rotterdam.html
[∗] Dr Angela Ward was junior counsel to Cherie Booth QC and Margaret McCabe in the mandatory sentencing complaint to the UN Human Rights Committee. Angela Ward can be contacted at email@example.com, and at the Department of Law, University of Essex, Wivenhoe Park, Colchester, C04 3SQ United Kingdom.
 See Macpherson Sir W The Stephen Lawrence Inquiry The Stationery Office, London 1999 (An inquiry into the death of Stephen Lawrence, a young black British man); The Rotterdam Charter: Policing for a Multi-Ethnic Society (drawn up at the Rotterdam Conference, 30 May-1 June 1996), Ten Basic Human Rights Standards for Law Enforcement Officials, Council of Europe Police Programme Home Page. For documents on police training, human rights, and multi-ethnic policing in the United Kingdom see the Home Page for the Home Office for the UK.
 The United Kingdom integrated the ECHR into its constitution in October 2000. See Palmer, 1998.