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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PARLIAMENTARY CHARTER OF RIGHTS AND
FREEDOMS BILL 2001
EXPLANATORY MEMORANDUM
Outline
The purpose of the Bill is to implement the International Covenant on Civil and
Political Rights ("the Covenant"). It is intended to provide protection for all persons
in Australia against violations of their fundamental civil and political rights by
governments. This protection is sought by three principal means:
· The Parliamentary Charter of Rights and Freedoms ("the Charter") is to
operate as a guide to the judicial interpretation of Commonwealth, State and
Territory laws, so that as far as possible laws are construed in such a way as
not to conflict with the Charter.
· The Charter will have the force of law and will prevail over any inconsistent
Commonwealth, State or Territory laws. The Charter will have a delayed
operation of three years with respect to existing legislation. Commonwealth,
State and Territory Parliaments will retain the power to override the Charter,
but only by express legislative declarations to that effect.
· The Human Rights and Equal Opportunity Commission will be empowered to
investigate complaints about governmental acts or practices which may
infringe the Charter. The Commission will also be empowered to report on
Commonwealth, State or Territory laws (or proposed laws) which may
infringe the Charter.
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NOTES ON CLAUSES
Clause 2 - Commencement
All clauses except clause 8 will come into operation on Royal Assent. Clause 8 will
come into operation three years after Royal Assent. Clause 8 renders laws
inconsistent with the Charter inoperative. The delayed commencement of this Clause
will allow governments time to examine their laws for compliance with the Charter.
Clause 5 - Interpretation of Charter
Clause 5 requires each Article of the Charter (set out in the Schedule to the Bill) to be
treated as a section of the Parliamentary Charter of Rights and Freedoms Act.
Clause 6 - Extent to which Act binds the Crown
Subclause 6(1) provides that the Act binds the Crown in right of the Commonwealth,
each of the States and the Territories. Subclause 6(2) provides that nothing in the Act
renders the Crown liable to be prosecuted for an offence.
Clause 7 - Extension to external Territories
Clause 7 extends the Act to every external Territory.
Clause 8 - Application of Charter
Clause 8 provides that a law enacted before, on or after this Act that is inconsistent
with the Charter, does not have any force or effect to the extent of the inconsistency.
Clause 8 is intended to prevent any violation of human rights by Commonwealth,
State and Territory laws. In order to override the Charter, a law will have to state
expressly that it is intended to do so. Thus, while a future Parliament may derogate
from the Charter, it will have to do so openly and deliberately. Any such derogation
would have to be exposed to full parliamentary and public scrutiny.
The fundamental idea underlying subclauses 8(2) and (3) is that two inconsistent
enactments can both be valid but, to the extent of the inconsistency, only one can be
operative; and that Parliament may therefore give a direction as to which of the two
inconsistent provisions shall be operative in a particular case. This is what the
subclauses are intended to do.
Subclause 8(2) provides for the case where a later law does expressly declare that its
provisions, insofar as they are inconsistent with the Charter, shall prevail. In such a
case, the intention is that both the Charter and the later law will be valid laws, but that
the later law shall be operative and the Charter inoperative only to the extent of the
inconsistency and only for so long as the inconsistency persists.
Subclause 8(3) provides that a declaration will cease after 2 years or such earlier date
that is specified in the declaration. However, Parliaments can choose to re-enact such
a declaration at this time under subsection 8(4).
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Subclause 8(5) has the effect that this further declaration will also cease to have effect
after 2 years or earlier if specified in the declaration. This means then that if the
inconsistency has not been remedied before this time, then the Charter Act will
prevail to the extent of the inconsistency.
Subclause 8(6) provides that the rights and freedoms set out in this Act are in addition
to other existing rights. They do not derogate from or replace existing rights.
Clause 9 -- Interpretation of legislation
Clause 9 provides, in effect, that the Charter is to operate in the first instance as a
"rule of construction". This means that, in construing any Commonwealth, State or
Territory law, the courts are to seek an interpretation that does not result in
inconsistency with a right or freedom in the Charter.
Clause 10 -- No rights of action or criminal liability under Charter
The Charter is intended as a shield, not a sword. Clause 10 makes it clear that no
individual may be sued or prosecuted on the basis of an infringement of the Charter.
However, while an infringement of the Charter cannot itself give rise to an action,
existing remedies (for example, actions for false imprisonment) will continue to be
available.
Clause 11 - Powers of courts in criminal proceedings
Subclause 11(1) provides that where, in criminal proceedings, the court is satisfied
that evidence was obtained in a manner which infringed Charter rights, the party
tendering that evidence must satisfy the court that the admission of the evidence
would substantially benefit the public interest in the administration of criminal justice,
and that that benefit would outweigh any prejudice to the rights and freedoms of any
person, including the defendant, that would flow from the infringement or the
admission of the evidence.
Subclause 11(2), in circumstances where those rights have been infringed, confers a
broad judicial discretion to make such order as the court considers "appropriate and
just in all the circumstances" for the purpose of ensuring "that the administration of
justice is not brought into disrepute".
This approach is considered preferable to the approach under the United States Bill of
Rights where there is blanket inadmissibility in relation to evidence obtained in
contravention of the Bill of Rights.
Clause 13 -- Functions of Human Rights and Equal Opportunity Commission
This clause is to be read together with the Human Rights and Equal Opportunity
Commission Act 1986. The purpose is to add to the functions of the Commission by
conferring on it functions relating to the Charter.
Paragraph 13(1)(a) empowers the Commission to inquire into any act or practice of
any governmental agency or authority (Commonwealth, State or Territory) which
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may infringe the Charter. In the course of such an inquiry the Commission may
endeavour, by conciliation, to effect a settlement if it considers such a procedure
appropriate. If not, or if an unsuccessful attempt at settlement has been made, then in
any case where the Commission concludes that the Charter has been infringed, it must
report to the Minister for the time being administering this Act.
Paragraphs 13(1)(b) and (c) are concerned with promotional, research and educational
functions.
Paragraph 13(1)(d) empowers the Commission to examine enactments and, when
requested, proposed enactments with a view to identifying possible inconsistencies
with the Charter, and to report to the Minister the results of any such examination.
Paragraph 13(1)(e) empowers the Commission to report to the Minister on
Commonwealth laws that should be passed, or Commonwealth action that should be
taken, on matters pertaining to the Charter. Such reports may be made at the request
of the Minister or on the Commission's initiative.
Paragraph 13(1)(f) permits the Commission to seek leave of the court to intervene in
proceedings relating to a matter arising under this Act.
Paragraph 13(1)(g) confers the usual incidental powers.
Clause 14 - Performance of the Commission in relation to Charter
Subclause 14(1) extends the powers and duties of the Commission under Part II,
Division 3 of the Human Rights and Equal Opportunity Act 1986 to apply to the
rights and freedoms under the Charter. This in effect, brings in the powers to obtain
information and documents, to examine witnesses and other procedural matters to the
Charter Bill, without replicating such functions in the Bill. Subclause 14(2) requires
the Commission to tell the relevant Minister of any proposed inquiry. This does not
give the Minister any ability to prevent such an inquiry occurring.
SCHEDULE 1 - PARLIAMENTARY CHARTER OF RIGHTS
AND FREEDOMS
The Parliamentary Charter of Rights and Freedoms is set out in Schedule 1. In
addition to its legal effects, it is intended to operate as an inspirational charter for the
Australian community. It is therefore drafted, so far as is possible, in clear and simple
language. It consists of 32 Articles arranged in six Divisions, which are the major
substantive provisions of the Bill.
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DIVISION 1--GENERAL
Article 1--Entitlement to rights and freedoms without distinction
Article 1 of the Charter expresses the basic principle that no one is above or outside
the law, that everyone is entitled to its impartial application, and that, in particular, the
fundamental rights and freedoms laid down in the Charter are to be equally enjoyed
by everyone.
The substance of the right of equality before the law is the important, but limited,
principle that there should be no class of persons which is above or outside the
framework of the law, or denied access to the law, whatever the law may be. This
right does not of itself guarantee that access to the courts might not in fact be
qualified on financial or other grounds.
Article 1:1 is based upon the terms of Article 2:1 of the Covenant, and on the
reference to "equality before the law" in Covenant Article 26. To implement
Covenant Article 3, and without in any way limiting Article 1:1, Article 1:2 makes
explicit the equal right of men and women to the enjoyment of human rights and
fundamental freedoms in the Charter.
Article 2--Effect of Bill of Rights on existing rights and freedoms
Article 2 (by ensuring that existing rights and freedoms continue) implements the
requirement in Covenant Article 5:2 that a country is not permitted, on the pretext of
implementing the Covenant, to restrict existing rights and freedoms.
Preserving rights or freedoms under, or recognised by, any other law includes
common law as well as statutory rights. The Article is also intended to introduce an
element of flexibility which will permit adjustment to future social developments.
Article 3--Permissible limitations
Article 3 is a limitation or "derogation" clause of general application. Some of the
most important rights set out in the Covenant are qualified by detailed limitation
provisions permitting a number of exceptions and restrictions: see, for example,
Covenant Articles 12 (freedom of movement), 14 (public hearings), 18 (free exercise
of religion), 19 (freedom of speech), 21 (freedom of assembly), and 22 (freedom of
association). The various justifications for limiting rights or freedoms set out in the
Covenant include such important matters as the protection of national security, public
safety, public order (ordre public) and public health. Carrying some or all of the
Covenant qualifications into the relevant Charter Articles is clearly necessary.
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However, in order to produce an inspirational charter of rights in a simple declaratory
style, the drafting technique of consolidating the qualifications into one Article has
been used in preference to attaching detailed qualifications to individual Articles.
Many other rights in the Covenant are stated in apparently unqualified terms. Indeed,
Covenant Article 4 provides that there should be "no derogation" from certain
specified rights and freedoms even "in time of public emergency which threatens the
life of the nation".
Whether or not all the rights which the Covenant states in unqualified terms are
regarded as morally or philosophically absolute, their legal enforcement cannot, in the
nature of legal processes, be absolute. The Bill will provide for legislative protection
of human rights through the Charter itself; for judicial enforcement through
interpretation and application of the Charter; and for administrative measures of
investigation and conciliation by the Human Rights and Equal Opportunity
Commission. In all these processes a flexible and practical approach is required.
A third group of provisions in the Covenant contains inbuilt qualifications: for
example, Covenant Article 17 says "no one shall be subjected to arbitrary or unlawful
interference". Such qualifications are usually reproduced in the Charter; but because
of their generality some further guide to the kind of restrictions that are acceptable is
deemed necessary.
For all three types of provision in the Covenant, Article 3 of the Charter adopts a
similar solution to that adopted in the 1982 Canadian Charter of Rights and Freedoms.
All the rights and freedoms of the Charter are declared to be "subject only to such
reasonable limitations prescribed by law as can be demonstrably justified in a free and
democratic society".
Article 3 thus allows many of the particular rights in the Charter (which are not
themselves absolute in the Covenant) to be limited in the interests of the community
and other individuals.
It should be noted that this wording imposes a number of restrictions on the
permissible limitations of "rights"--
· they must be "reasonable";
· they may limit, but cannot wholly deny, the specifically guaranteed rights
(Attorney-General of Quebec v Quebec Association of Protestant School
Boards (1984) 10 D.L.R. (4th) 321 (S.C.C.));
· they must be "prescribed by law" : a specific law is required;
· the justification must be "demonstrable": a court must be satisfied that the
limits are justified; and
· the justification must be compatible with the basic values of "a free and
democratic society".
Article 3:2 ensures that no limitation may restrict a right or freedom set out in the Bill
of Rights to a greater extent than is permitted by the relevant Covenant provision. On
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the basis of the test provided in Article 3:1, however, it is clear that any permissible
limitation on an Charter right need not necessarily restrict that right to the full extent
permitted by the Covenant.
DIVISION 2: NON-DISCRIMINATION
Article 4--Equal Protection of the Law
Article 4 implements the guarantee of "equal protection of the law" contained in
Article 26 of the Covenant. The travaux preparatoires to the International Covenant
indicate that the guarantee of "equal protection of the law" deals with the content of
the law, that is, that the substance of the law should not be discriminatory. This
contrasts with the requirement that the application of the law should not be
discriminatory, which is the right to "equality before the law" guaranteed by Article
1. By separating the two freedoms into different Articles, it is intended to avoid the
restrictive approach taken in respect of paragraph l(b) of the Canadian Bill of Rights
and to adopt instead the broader approach favoured in respect of the Fourteenth
Amendment to the United States Constitution.
The guarantee of equality enshrined in the phrase "equal protection of the law" has
never, however, been regarded as absolute. The usual interpretation is that everyone
should be treated alike except where discrimination can be justified on proper
grounds. The intention of the Charter is that Article 4, when read jointly with Article
3:1, will provide some guidance in the difficult task of determining which
discriminations are legitimate. In the United States, the courts have adopted different
degrees of scrutiny depending upon the characteristic which forms the basis of the
discrimination. For example, discrimination on the basis of race will only be
permissible in the most compelling of circumstances; whereas, discrimination on the
basis of economic status may only have to be rationally related to a legitimate
governmental purpose to be permissible. The United States jurisprudence, it is
expected, would be a guide to the courts in their consideration of cases involving
discrimination.
The effective protection against discrimination required by Covenant Article 26
implicitly permits a measure of "affirmative action" or "benign discrimination", that
is, measures that are unequal in their current application but which are designed to
redress past inequalities or ensure future equality. Article 4:2 of the Charter makes
this explicit and also ensures that nothing else in the Charter will affect "benign
discrimination" provisions.
Article 5--Rights of minority groups
Article 5 implements the protection of cultural, religious and linguistic rights of
minorities contained in Covenant Article 27. The particular rights guaranteed by
Article 5 are guaranteed to a person belonging to a minority group only in community
with other members of the minority group to which that person belongs.
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DIVISION 3: FUNDAMENTAL POLITICAL RIGHTS
Article 6--Right of participation in public life
Article 6 implements Covenant Article 25, which establishes certain basic rights of
citizenship--to participate in public affairs "directly or through freely chosen
representatives"; to vote and to be elected at "genuine periodic elections", by
"universal and equal suffrage" and by secret ballot; and to have access "on general
terms of equality" to "public service". The words "public service" may be ambiguous
in Australia. Article 6, therefore, substitutes "public employment" to ensure that
employment at all three levels of government, and in government authorities, is
covered. Otherwise the operative words of the Covenant Article are transcribed
without change.
The Covenant provision is to operate "without unreasonable restrictions". In the
Charter these words are omitted, since reasonable restrictions are permitted by Article
3. Subject to such restrictions and the Constitution, it is intended that the words
"universal and equal suffrage" would not normally limit the choice of electoral
methods (for example, proportional representation, preferential voting, or "first past
the post"), but would require compliance with the formulae "one person, one vote"
and "one vote, one value".
Article 7--Freedom of Expression
Article 7 implements Covenant Article 19:2, a broad guarantee of freedom of
expression and information. The Covenant Article clearly covers freedom of the press
and the media and this has been made explicit in Article 7. Certain limitations are
permitted by the Covenant Article; limitations are permitted in the Charter by Article
3.
A provision not included in the Charter is Covenant Article 20. It states that
propaganda for war and incitement of national, racial or religious hatred shall be
prohibited by law. As the Charter is designed to prevent government infringement of
individuals' rights, rather than to stop certain behaviour of individuals, these
prohibitions are more appropriately implemented by separate and specific legislative
measures. Such legislation would then be measured against Article 3 if challenged as
contrary to the freedom of expression guaranteed by Article 7.
Article 8--Freedom of thought and conscience
Article 8 implements those parts of Covenant Articles 18 and 19 concerned with
freedom of thought, conscience and opinion.
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Article 9--Freedom of religion or belief
Article 9 guarantees the right to have or to adopt a religion or belief without coercion
and to manifest that religion or belief, implementing those parts of Covenant Articles
18:1 and 18:2 which are concerned with freedom of religion. Covenant Article 18:3
permits a range of restrictions on the freedom to manifest one's religion; limitations
are permitted in the Charter by Article 3. Covenant Article 18:4 is dealt with in
Article 14(d)--see below.
Article 9:2 confers on every person the right not to adopt a religion or belief and,
subject to Article 14(d) below, prohibits compelling any person to participate in
religious worship or ceremony.
Article 10--Right of peaceful assembly
Article 10 implements the guarantee in Covenant Articles 21 and 22 of freedom of
assembly. Certain limitations are permitted by the Covenant provision; limitations are
permitted in the Charter by Article 3.
Article 11--Freedom of association
Article 11 implements the guarantee in Covenant Article 22 of freedom of
association, including the right to form and join trade unions for the protection of
one's own interests. Covenant Article 22 permits restrictions of trade union rights, but
limits the permissible restrictions by reference to ILO Convention No. 87. Article 11
of the Charter makes no express provision for restrictions. Restrictions are permitted,
however, by Article 3:1 and the effect of Article 3:2 is to restrict the ability to limit
Article 11 in the same way as does the Covenant. Following the Covenant, trade
union rights are guaranteed by the Charter only to a "person" and "for the protection
of that person's interests". In other jurisdictions these words have been broadly
construed. On the one hand, they ensure that workers have a right to join unions of
their choice; on the other hand, they do not invalidate registration and deregistration
provisions.
DIVISION 4: PRIVACY AND FAMILY RIGHTS
Article 12--Right to protection from arbitrary interference
Article 12 implements the protection from arbitrary interference in Covenant Article
17. It provides that a search, entry or seizure is unlawful unless certain minimum
conditions are met.
Article 13--Right to marry and found a family
Article 13 recognises the importance of the family in its many forms and provides that
every person of marriageable age has the right to marry and to found a family. It
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further provides that no marriage shall be entered into without the free and full
consent of the intending spouses.
Article 14--Rights of the child
Covenant Article 24:1 appears to have two concerns--
· the protection of children from the various forms of prohibited discrimination
(race, colour, sex etc.); and
· the recognition that children require special measures of protection.
Accordingly, Article 14 seeks to ensure that children are not precluded from enjoying
the rights and freedoms embodied in the Bill of Rights simply because they are
minors, and at the same time recognises that they require special measures of
protection because they are minors. Covenant Articles 24:2 and 24:3 create children's
rights to a name, nationality and registration of birth. Articles 14(b) and (c)
implement these requirements.
Article 14(d) (affirming respect for the liberty of parents and guardians to ensure the
religious and moral education of their children according to their own convictions)
repeats the provisions of Covenant Article 18:4. This liberty of parents and guardians
is to be balanced, having regard to the child's age, with the child's own fundamental
rights.
The word "child" is not defined, as it is expected that courts will regard the prevailing
age of majority and the flexibility given by the introductory recital in Article 14 as
sufficient to determine the precise rights of young persons in particular circumstances.
DIVISION 5: FREEDOM OF MOVEMENT
Article 15--Rights of persons in Australia
Article 16--Right to enter Australia
Article 17--Right to leave Australia
Articles 15, 16 and 17 recognise rights of freedom of movement and choice of
residence; a right of any Australian citizen to enter Australia; and a right of any
person to leave Australia. These provisions implement Covenant Article 12.
The citizen's right to enter Australia is unqualified in the Covenant. Certain
limitations of the other rights are permitted by the Covenant provision; in the Charter
limitations are permitted by Article 3.
Covenant Article 13 requires that aliens lawfully in Australia may not be expelled
except "in accordance with law". Article 15:2 of the Charter implements this
requirement. The Covenant provision also provides procedural requirements
including an opportunity for review, but these requirements do not apply to national
security cases. These procedural requirements are required by the phrase in Charter
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Article 15:2 "on such grounds and in accordance with such procedures as are
established by law". It is not appropriate to the drafting style of the Charter to spell
out in detail the procedural requirements.
DIVISION 6: LIFE, LIBERTY AND CRIMINAL PROCESS
Article 18--Right to Life
Article 18 implements Covenant Article 6:1 on the deprivation of life.
Paragraphs 2, 4 and 5 of Covenant Article 6 set out detailed regulation of the
permissible use of the death penalty. However, paragraph 6 then provides: "Nothing
in this article shall be invoked to delay or ... prevent the abolition of capital
punishment". In the present state of the law in Australia, to regulate capital
punishment in the Charter might appear to condone it: hence, consistently with
paragraphs 6, the Charter does not implement paragraphs 2, 4 and 5.
Article 18 follows as closely as practicable, consistent with the drafting style adopted
in the Charter, the wording of Covenant Article 6:1 and is not intended to modify the
existing laws on abortion in Australia.
Article 19--Liberty and security of person
Article 19--the right to liberty and security of person--derives from Covenant
Article 9:1. The Covenant Article also prohibits arbitrary arrest or detention, and this
prohibition is implemented in Article 19:2.
Article 19:4 implements Covenant Article 11, that no one shall be imprisoned merely
on the ground of inability to fulfil a contractual obligation.
Article 20--Slavery and servitude
Article 20 implements the prohibitions in Covenant Article 8 of slavery and servitude,
and of forced or compulsory labour. As to the prohibition of forced or compulsory
labour, certain limitations are permitted by the Covenant provision. In the Charter,
limitations are permitted by Article 3.
Article 21--Right to be informed of reasons for arrest and of charges
Article 21 (the right to be informed of the reasons for arrest, and to be informed
promptly of any charges) implements Covenant Articles 9:2 and 14:3(a).
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Article 22--Right to remain silent and to have access to lawyer
Article 22 protects the rights to remain silent and to have access to a lawyer before
and during questioning. In order to ensure the effective protection of these important
rights, it picks them up at an earlier stage of the criminal process than the Covenant.
Generally, throughout this part of the Charter, an effort is made to state the rights in
the chronological order in which they would become relevant to an arrested person.
Article 23--Hearings, release and trial
Article 23 implements Covenant Article 9:3, but attempts to separate the three distinct
rights that appear to be involved: a prompt initial hearing after arrest; a right to bail on
reasonable terms (except for good reasons); and a right to be tried within a reasonable
time.
Article 24--Right to test lawfulness of detention
Article 24 implements the right under Covenant Article 9:4 to test the lawfulness of
any detention (for example, by habeas corpus) and, where appropriate, to be released.
Article 25--Presumption of innocence
Article 25 implements Covenant Article 14:2: a person charged with a criminal
offence is to be presumed innocent until proved guilty according to law. The phrase
"according to law" does not permit the Parliament to take away the ultimate burden of
the prosecutor to prove guilt beyond a reasonable doubt.
Article 26--Right to fair hearing
Article 26 creates, for both civil and criminal cases, a right "to a fair and public
hearing by a competent, independent and impartial tribunal". This implements a
guarantee in Covenant Article 14:1. The Covenant provision also declares that all
persons "shall be equal before the courts and tribunals". This requirement is
sufficiently implemented by the general provisions for equality before the law in
Article 1 of the Charter. Certain limitations are permitted by the Covenant provision.
In the Charter limitations are permitted by Article 3.
Article 27--Rights of accused relating to trial
Article 27 should be read with Articles 21 to 23 above. Together these Articles
implement a series of "due process" rights relating to the conduct of investigations
into and trial of criminal offences required by Covenant Article 14:3. An effort is
made in this Article not only to create specific enforceable rights but also, so far as
possible, to group within the Article the rights in the chronological order in which
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they would become relevant. For example, Article 27(b) states the right to
communicate with a lawyer; but Article 27(a) first ensures that a person charged will
be informed of the right to legal assistance.
Article 27(c) provides for free legal aid "if the interests of justice so require and the
person lacks sufficient means to pay for the assistance". This implements the
similarly qualified right in Covenant Article 14:3(d). The reference to "the interests of
justice" is understood as permitting reasonable discretions in the granting of legal aid,
based on the merits of the case and on the seriousness of the offence.
Other rights set out in Article 27 (all based on Covenant Article 14:3) are the rights to
adequate time and facilities to prepare a defence; to be present at any trial and to
conduct a defence; to examine prosecution witnesses and have defence witnesses
called and examined; to receive the free assistance of an interpreter when needed; and
to be protected against self-incrimination. In Article 27(i), the words "against
himself" used in Covenant Article 14:3(g) have been omitted because, as the right
only applies to a person in relation to the offence with which that person is charged,
they are unnecessary. Further, in relation to self-incrimination, see also Article 22.
Covenant Article 14:4 requires a procedure for juveniles which takes account of their
age. This requirement is implemented in Article 27(j).
Article 28--No retrospective criminal offences or penalties
Article 28 prohibits the creation of retrospective criminal offences, or a retrospective
increase in penalties (Covenant Article 15:1). It should be noted that in both the
Covenant and the Charter the ban on retrospectivity applies only to criminal offences
and penalties.
Article 29--Right of review of conviction and sentence
Article 29 recognises a right to review of conviction and sentence (Covenant Article
14:5).
Article 30--No trial or punishment for same offence
Article 30 prevents "double jeopardy" (Covenant Article 14:7).
Article 31--Rights when deprived of liberty
Article 31 implements rights in relation to deprivation of liberty contained in
Covenant Article 10. Article 31:1 (all persons deprived of liberty to be treated with
humanity and respect to human dignity) implements Covenant Article 10:1.
Other paragraphs of Covenant Article 10 require segregation of prisoners: accused
persons from those already convicted, and juvenile offenders from adults (with
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appropriate treatment for juveniles). In the Covenant the first of these requirements is
to operate "save in exceptional circumstances"; the second is absolute. Both
requirements are implemented by Article 31:2, but in both cases only "so far as is
practicable".
This limitation is a recognition that in the short term, strict compliance with the
Covenant may be difficult for state administrations. Some leeway is allowed to take
into account what is practicable. However, in the long term strict compliance should
not normally be impracticable.
Article 32--No torture or inhuman treatment and no experimentation without
consent
Article 32 prohibits torture and inhuman treatment, and medical experimentation
without consent, and implements Covenant Article 7. The implementation of this
prohibition is essential because it is fundamental to a general statement of human
dignity.
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