Australian Journal of Human Rights
This third symposium of the Australian Journal of Human Rights considers the relationship between human rights and the administration of justice in Australia. Not surprisingly, most of the articles in the symposium concern the criminal justice system, as this is the most prominent and public means by which the state may deprive any person falling under its jurisdiction of his or her liberty. This intimate connection between criminal justice and human rights is demonstrated by the fact that in this journal’s relatively short life it has already featured a number of articles and recent developments which incorporate some of these issues. Examples are the right to a prompt criminal trial; the right of accused persons to legal representation during criminal trials; sentencing issues and the treatment of prisoners.
However, it is the shortest of the previous articles that refers to the relationship between human rights and the criminal justice system that led directly to the first article of the symposium. In expressing his concerns with the then Community Protection Bill 1994 (NSW), Justice Michael Kirby warned that it is “a radical departure from our long established rule of law principles”.6 The Bill empowered a Judge of the NSW Supreme Court to order the imprisonment of a person for up to two years where that judge finds that person is “more likely than not” to commit a serious act of violence. This “preventative detention” legislation appeared to forsake a number of our basic common law criminal justice principles, such as the requirement of proof beyond reasonable doubt, the principle of proportionality8 and the need to prove the commission of a criminal offence before imprisoning someone as a convicted person.
Justice Kirby’s warning went unheeded; in fact, worse was to follow. The Bill was passed by the NSW parliament, but amended so that it was made applicable to only one person, Gregory Wayne Kable. The ad hominem nature of the Community Protection Act 1994 (NSW) (the “Act) in fact violated another important common law principle, namely, that all persons should be equal before the law.
In the first article, George Zdenkowski of the University of NSW traces the political and social background behind the enactment of the Act, its use against Kable, and the manner in which the courts dealt with Kable’s challenges to the legislation. Eventually the Act was declared invalid by the High Court in a 4 to 2 majority decision, but only upon narrow constitutional grounds, and not on the basis of broader human rights or due process considerations. The technical nature of the decision and its lack of a human rights basis led Zdenkowski to conclude that the judgment represents “[a] pyrrhic victory for justice [which] may have become a pragmatic challenge for an ingenious parliamentary draftsperson”. Clearly, the lack of human rights analysis by the High Court is related to the absence of a domestic Bill of Rights and the fact that the Australian legal system does not allow for the automatic incorporation of international treaties Australia has ratified. Had either of these been applicable, human rights principles and standards would have been at least discussed by the High Court as part of their assessment of the validity of the Act.
The danger of individuals losing their liberty without proper scrutiny and safeguards is a theme which is also relevant to the next two articles of the symposium. These relate to, inter alia, the issue of the detention of boat people for extended periods of time and the confinement of people with an intellectual disability “at the Governors pleasure” in situations where as accused persons they are found unfit to plead or are found not guilty on the ground of mental illness.
In his article concerning the issue of the incommunicado detention of boat people, Nick Poynder of the Human Rights and Equal Opportunity Commission critically analyses recent moves by the Federal government to limit the access of boat people to legal advice. An increasing number of boat people are being deported without the benefit of any information concerning their legal rights. This is shown by the startling statistic at the conclusion of the article which indicates that since the policy of incommunicado detention has been in place only 3.6 per cent of all boat people have been able to claim refugee status. Although this is the only article in the symposium which does not concern the criminal justice process, as Poynder says: “the human rights principles being dealt with here are universally applicable to all detainees, including those in the custody of the police and correctional institutions”. In fact, the article’s emphasis on the fundamental importance of knowledge of legal rights (mainly, but not necessarily exclusively through access to legal representation) is surely as applicable to the rights of accused persons during important stages of the criminal justice system.
The next article, by Leonie Armstrong of the NSW Law Reform Commission, concerns the particular needs of, and disadvantages faced by people with an intellectual disability in their relationship with the criminal justice system, both as accused persons, and as victims or witnesses. The article discusses the main final recommendations of the NSW Law Reform Commission’s recent Report, which includes issues relating to all levels and stages of the criminal justice system. In particular, recommendation 26 involves the removal of the possibility of indeterminate detention for suspects found not guilty on the grounds of mental illness, and requires the court to set a fixed term.
This article is the first of four in the symposium which examine the position of disadvantaged groups in our community (people with an intellectual disability, Indigenous Australians, migrants, and children respectively) and their treatment by the criminal justice system. Each article questions Australia’s commitment to one of the most important national and international human rights principles, that of equality before the law.
No Australian symposium on human rights and the criminal justice system would be complete without attention to probably Australia’s most serious human rights problem — the treatment of Indigenous people and in particular, the issue of Aboriginal Deaths in Custody. Despite the work of the Royal Commission into Aboriginal Deaths in Custody, considerable public and international concern, and significant government expenditure on the issue, the problems have shown little sign of improvement. In fact, the article by Chris Cunneen of the Institute of Criminology, Sydney University and David McDonald of the Australian Institute of Criminology suggests that they may be getting worse. This is shown by all the major indicators, such as the rates of police custody, juvenile detentions, adult imprisonment and Indigenous deaths in custody. The statistics refered to in the article represent a sad indictment on all Australian governments, showing a lack of will to seriously implement the recommendations of the Royal Commission, including the most important according to the authors, which is the recognition and implementation of the principle of self-determination.
The article by Greta Bird and Mark McDonell of Southern Cross University uses the application for bail, the trial, sentencing and incarceration of two Muslim women charged with shoplifting as a case study to challenge the rhetoric of equality before the law that underpins the public perception of our criminal justice system. The authors point specifically to the lack of fairness in the inadequate provision of interpreters for the womens’ application for bail, and the inappropriate and culturally insensitive conditions under which the women were held at Grafton prison. They argue that the case raises issues of ethnicity and gender which cannot be separated. This leads to a discussion of the way in which Islam is perceived in the West, and of how Western legal systems have perceived colonised peoples. Drawing upon the perspectives of postmodernism, critical race theory and feminisms, the article provides a powerful critique of our legal system, and the way in which non-English speaking peoples, women and Indigenous peoples are treated, and the failure of the law to listen to their voices. The authors suggest that the solutions to these problems do not simply lie in changing the law, but rather there also needs to be basic changes in the power structures of society, including, at a practical level, greater cross-cultural training of the decision makers within the justice system.
A more optimistic view of the role that law can play in ensuring fair treatment is presented in the article by Harry Blagg, a Research Fellow of the University of Western Australia, and Meridith Wilkie of Murdoch University. This article focuses on whether Australian laws and practices in the area of police/youth relations comply with the United Nations Convention on the Rights of the Child, particularly in light of children’s special vulnerability and their general ignorance of their rights. After a discussion of the problematic nature of police/youth relations in Australia, the authors provide a comprehensive review of the law in relation to many areas of police/youth relations. The article concludes by arguing that many of the problems can be minimised by, inter alia, incorporating the principles of the Convention on the Rights of the Child into all relevant State and Territory legislation; reducing police discretion; requiring that the onus should be on the police to prove that evidence was obtained in accordance with the law; and the removal of the trial court’s discretion to admit evidence obtained in violation of the law.
The next article of the symposium also emphasises the central role of the police in the criminal justice system. However, the focus here is on the modern trend towards private policing, and the human rights implications of this phenomena. Daniel Nina of the Community Peace Foundation in South Africa and Stuart Russell of Macquarie University examine the consequences of greater privatisation of public services in the “Western world”, driven by neo-liberal and economic rationalist policies. This tendency has of course not escaped the Australian criminal justice system, and although the article concentrates on the issue of policing, privatisation now effects other aspects of the system, most notably prisons. Related to this development is the trend towards the privatisation of what has been traditionally “public” space, as indicated by the prevalence of privately owned shopping malls and entertainment centres. The article critically analyses this trend from a Marxist theoretical perspective and assesses the implications of private policing in terms of inequality of access to (privatised) public space and civil liberties issues. It asks the question: “who will protect my rights in the new public space, where the state is no longer the primary player exercising sovereignty?” A related question for human rights lawyers is to what extent do traditional human rights norms apply to private police and security personnel? The article concludes by suggesting that while we need to recognise the transformation of the state, it cannot relinquish certain functions if we are to avoid a problematic future of unequal citizens and unequal consumers.
The last two articles of the symposium return to an earlier major human rights theme as evidenced in the first article: the question of what is the appropriate balance between the rights of individual accused persons and the rights of individual victims, the community and the state? Simon Bronitt of the Australian National University suggests in his article that this may be more complex than a “balancing of rights” process. He analyses the alarming trend towards the greater use of electronic surveillance by public law enforcement officials and agencies. After examining the reasons for this tendency and the regulatory framework for electronic surveillance in Australia, the author assesses the human rights implications of electronic surveillance, such as suspects’ rights to privacy, silence and disclosure. The conclusion suggests that it is not only effective disciplinary laws against law enforcement agencies and officials that are needed to meet the future challenges of greater electronic surveillance, but also human rights principles and practices need to operate as important ethical guidelines in the education of law enforcement officials.
The final article concerns the relationship between forensic science and criminal investigations, focusing on the specific issue of the admission of DNA evidence during criminal trials. Prior to examining how overseas and Australian courts have dealt with this issue (the most well known Australian case being Chamberlain), the article explains the recent debate amongst scientists in relation to the utility of DNA evidence. This uncertainty within the scientific community seems to be one important reason why courts in Canada and Australia have been cautious about admitting DNA evidence, especially in cases where conflicting scientific expert evidence is presented. This is despite the fact that many governments in Australia seem to encourage the use of DNA evidence in criminal trials. The authors also critically assess the many other civil liberties concerns in relation to DNA evidence but argue that the reluctance of the courts to admit DNA evidence “may reflect the inherent resistance of the judiciary to the encroachment of the scientific disciplines as much as a concern over civil liberties”.
It would naturally have been impossible for one symposium to tackle every important human rights issue in relation to Australia’s justice system. Even if we confined our discussion to the criminal justice process, because the system is complex, multi-layered and always changing, many significant issues have either been omitted completely, or mentioned only in passing. For example, issues relating to pre-trial detention rights; the various aspects of a “fair” criminal trial; the crisis in legal aid funding; the rights of prisoners; human rights considerations in relation to the new prosecutorial agencies; the demands for rights by victims of crime; and the relationship between human rights and the prosecution of “white-collar” type criminal offences. Nevertheless, this selection does cover an extensive variety of topics, and highlights many significant human rights concerns. A number of broad suggestions as to how these concerns could be met are provided throughout the symposium. These include greater restraint on law enforcement agencies via stricter laws which prescribe their powers, greater integration and acceptance of international human rights norms, less discretion to be granted to those who exercise power within the criminal justice system, greater education in human rights values and ethics by the various decision makers within the system, and at a broader level, changing the society wherein the criminal justice system is situated. Whichever one or more of these you would agree with, there is no doubt in my mind that so important and pervasive are human rights concerns during all stages and all facets of the criminal justice system it is impossible today to adequately comprehend most criminal justice issues without also having some understanding of domestic and international human rights law and thinking. It is the aim of this symposium to contribute to this understanding.
 Senior Lecturer, School of Law and Justice, Southern Cross University. I would like to thank all the authors and referees of this symposium for their contributions and co-operation.
 Hookey J “The prompt trial right: Australian isolationism and international law”  AUJlHRights 7; (1994) 1(1) AJHR 117.
 Garkawe S “Human rights in the administration of justice: Dietrich v The Queen”  AUJlHRights 22; (1994) 1(1) AJHR 371.
 Douglas R “Sentencing political offenders”  AUJlHRights 6; (1994) 1(1) AJHR 86.
 Hearn J “New legal breakthrough for death row prisoners: Pratt v Attorney-General for Jamaica”  AUJlHRights 24; (1994) 1(1) AJHR 392 and Lofgren N “Complaint procedures under Article 22 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”  AUJlHRights 26; (1994) 1(1) AJHR 401.
 Kirby M “Intellectual disability and community protection: Community Protection Bill 1994 (NSW)”  AUJlHRights 25; (1994) 1(1) AJHR 398 at 399.
 Woolmington v Director of Public Prosecutions  UKHL 1;  AC 462.
 Veen v R (No .2)  HCA 14; (1988) 164 CLR 465.
 In areas of the law such as bail, mental illness, quarantine and migration, people may be detained, but generally not in the same circumstances and status to that of a convicted prisoner. Contrast this with s 22(1) of the Community Protection Act 1994 (NSW) which makes it clear that any person detained pursuant to the Act “is taken to be a prisoner within the meaning of the Prisons Act 1952”.
  HCA 24; (1996) 138 ALR 577 per Toohey, Gaudron, McHugh and Gummow JJ, with Brennan CJ and Dawson J dissenting.
 On the grounds that Chapter III of the Federal Constitution applied to State Courts, and thus State parliaments could not confer on State courts powers which conflicted with the exercise of the judicial power of the Commonwealth.
 This does not mean that the incorporation of human rights norms would have necessarily been determinative of the result, which would have depended upon the balancing process between individual accused’s rights and the rights of the community and the victim. See below.
 This compares to 38% in the period from November 1989 to July 1994.
 NSW Law Reform Commission People with an Intellectual Disability and the Criminal Justice System, Report No. 80 (Sydney 1996). This Report was the culmination of five years of community consultation.
 See Royal Commission of Inquiry into Chamberlain Convictions (Report, Justice Morling, NT Government Printer, 1984).
 For example, see the Crimes (Blood Samples) Act 1989 (Vic).