Human Rights and Criminal Law In New South Wales: The International Context

© 2001 New South Wales Council For Civil Liberties Inc

A report funded by the NSW Government from the Casino Community Benefit Fund

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Introduction

This is a report on the extent to which New South Wales (and relevant Australian federal) criminal justice laws meet internationally accepted human rights standards. We note that, as we were preparing this report, the New South Wales Legislative Council set up a parliamentary inquiry into a State Bill of Rights. We welcome this inquiry.

Human rights have become of increasing relevance, nationally and internationally, in recent years. Despite substantial counter trends in many aspects of the globalisation of corporate power, human rights conventions agreed to in the latter half of the twentieth century are carrying increasing weight, and increasingly affect systems of governance.

International war crimes tribunals and national prosecutions for crimes against humanity have battered the old notion of state or parliamentary ‘sovereignty’. It is certainly not true now, if it ever has been in the modern era, that states or their representative bodies have either (i) absolute power, or (ii) the moral authority to negate accepted human rights standards.

The Pinochet case, where the former Chilean dictator was held in Britain pending extradition to Spain on charges of torture, demonstrates the recent rise of human rights in common law jurisdictions, and the corresponding decline in the old notions of state sovereignty. As one Australian newspaper editorial noted:

General Augusto Pinochet may have escaped justice but future Pinochet’s will not. The barrier that state sovereignty had posed to international human rights law has fallen. (The Sunday Age 2000)

Similarly, the respected human rights lawyer Geoffrey Robertson commented:

The Pinochet precedent marked an astonishing advance for global justice. It identified the Achilles heel in the armour of state sovereignty, the legal fiction which had always protected political criminals…[The duty of all countries] is either to try them, or to extradite them to a country which is willing to put them on trial. (Robertson 2000)

International convergence on this issue has become a refreshing and independently powerful force of globalisation.

In domestic law, human rights have also played an increasing role. The most recent and prominent example has been the national debate over ‘mandatory sentencing’ laws in the Northern Territory and Western Australia, a debate brought on by Greens Senator Bob Brown’s private members’ bill to override these laws, using the Commonwealth’s external affairs power. In the course of this national debate, and in the face of Prime Minister John Howard’s reluctance to support the initiative, important questions about the nature of democracy have been raised. Several Supreme Court judges from New South Wales spoke out, questioning:

the simplistic notion that democracy is merely the majority will… It is racist and cowardly to enact and implement laws which apply most harshly to a disempowered minority… it is not leadership to pander to ignorance and prejudice. (Wood, Fitzgerald, Beazley and Stein 2000)

The Liberal-National federal government – reluctant to use its clear constitutional power to overrule State government laws in breach of national human rights commitments, yet anxious to preserve its reputation as a supporter of human rights – apparently pressured the United Nations to alter its advice as to whether the mandatory sentencing laws breached convention obligations. Several adverse judgements were made in draft form which did not appear in the final report of the United Nations Human Rights Commission (Riley 2000).

While the 1970s and 1980s saw some legislative recognition of Australia’s human rights commitments (the federal Race Discrimination Act 1975, the federal Sex Discrimination Act 1984, the Human Rights and Equal Opportunity Act 1986, and various State Anti-Discrimination Acts), throughout the 1990s there was a long battle to make successive federal governments properly recognise, accommodate and fully accept their human rights obligations. The difficulties of this struggle illustrate the structural weaknesses of the system.

The Australian system is one in which there is no federal or State constitutional or legislative bill of rights. Nor is the attention of parliamentarians drawn to human rights commitments when laws are framed which are likely to breach those commitments. The Australian system, while on the one hand relying on common law rights, on the other hand allows State and federal legislatures to overrule these rights, and to overrule them without serious reference to or respect for national human rights commitments.

Federal government responses to human rights decisions have been mixed. Where favourable, the response has been minimalist and incremental. For example, after Aboriginal land rights campaigners persuaded the High Court to recognise their claims in the Mabo case (1992), a federal Labor government instituted a minimalist act in ways which appear to breach the Convention on the Elimination of Racial Discrimination (United Nations 1999). The federal Labor government responded slowly, and in a similar minimal fashion, to the United Nations Human Rights Committee’s finding that the Tasmanian Criminal Code discriminated against homosexual men (Toonen v Australia 1994). This law (Sections 122 & 123 of the Tasmanian Criminal Code Act 1924) was eventually repealed by the Tasmanian Parliament, after passage of the federal Human Rights (Sexual Conduct) Act (1994), which prohibits arbitrary interference with the right to sexual privacy. These, two moves, the Native Title Act (1993) and the Human Rights (Sexual Conduct) Act (1994) represented the high points of federal recognition of human rights in the 1990s. However they were both slow and minimalist responses to many long years of campaigning, including international lobbying, by Aboriginal and gay activists.

On the other hand, the response of Labor and Liberal-National federal governments to the High Court decision in Teoh’s case (High Court of Australia 1995) has been to attempt to negate the common law recognition of a treaty right. In this case the High Court read into administrative law the requirement of the Convention on the Rights of the Child (1989), at Article 3, that “in all actions concerning the children…the best interest of the child shall be a primary consideration”. The High Court found that:

Australia’s ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the convention. (Teoh v R 1995, Mason C.J. & Deane J,183 CLR 273)

However it has now become a matter of bipartisan policy to legislate against this principle, both major parties expressing hostility to the idea that the High Court should infer human rights principles from Australia’s treaty commitments, before the Parliament has decided to legislate. A Senate Inquiry into the Administrative Decisions (Effect of International Instruments) Bill 1997 produced both conservative and Labor support for the Bill (Senate Legal and Constitutional Committee 1997). This Bill would have the effect of blocking all common law recognition of Australia’s human rights obligations, unless there were express parliamentary authorisation by legislation.

At the State level, a strongly condemned New South Wales law, the Children (Parental Responsibility) Act 1994 – allowing police to remove young people under 16 from public places – was substantially replicated three years later by the Children (Protection and Parental Responsibility) Act 1997. These Acts clearly contravene Australia’s international human rights obligations as they deny children freedom of association and freedom of peaceful assembly (Convention on the Rights of the Child, Article 15). Both a State Government commissioned report (Evaluation Committee 1997:22) and a UN committee said so (Committee on the Rights of the Child 1997). However the NSW Labor Government ignored these warnings.

As a recent report on youth rights noted, there is a weak culture of human rights in Australia, and a deep structural weakness in the systemic response to human rights matters:

Toonen has not forged an immediate path for protecting children’s rights under CROC, nor the rights of refugees in detention under the ICCPR, nor the rights of NSW citizens who are now subject to arbitrary police stop and search powers through the NSW Labor Government’s Police and Public Safety Act 1998 (Anderson, Campbell and Turner 1999:42).

This systemic weakness is one of the issues we will address in this report.

The purpose of this report is to consider and report on the problems faced in recognising human rights within the New South Wales criminal justice system, especially insofar as criminal justice laws may breach the ICCPR and CROC. We have chosen to audit criminal justice laws for three reasons. Firstly, the criminal law is a force which can dramatically alter the face of society, by redefining rights and responsibilities, either in support or in defiance of accepted human rights standards. Secondly, the breach of human rights standards by State laws often has far more serious consequences than breaches by individuals, or breaches through the actions of State servants. Thirdly, in New South Wales in recent years, there has been much evidence that the criminal law has been altered so as to degrade the human rights of all citizens of this State, and without reference to human rights commitments. It is these matters we plan to investigate.

We begin in chapter two by setting out our method of investigation. Chapter three then explains the international system of human rights, its origins and structure. Chapter four sets out the relevant articles of the International Covenant of Civil and Political Rights ICCPR), thus establishing the benchmarks for our study. In chapter five we consider how human rights have been accommodated within the Australian system. Chapters six and seven take up a series of criminal justice laws, mainly State laws but also federal law applicable in New South Wales, seeking to explain their origins and applying international jurisprudence to these laws, to determine whether or not they breach human rights commitments. Finally, we draw some conclusions about the protection of human rights within the State and national system.