Australia's Universal Periodic Review 2014 Progress Report

92.1Right to life, liberty and security of the person

93ACHRA has ongoing concerns about the criminal justice system in Australia.

94ACHRA notes a modest national decline in the average number and rate of children in detention over the past year, continuing a four year trend.⁸² ACHRA applauds the ACT, Victorian and Tasmanian governments for strengthening diversionary responses for youth. However, ACHRA notes that the decrease in overall rates of young people aged 10-17 in detention over the past four years is mainly due to a decrease in the sentenced detention rate. The rate of unsentenced detention has remained relatively stable over the past year, as it has over the past four years.⁸³ As at June 2014, 52 per cent of young people in detention were in unsentenced detention, awaiting a court appearance or sentencing.⁸⁴ ACHRA is seriously concerned that children are still being held in correctional centres with adults and that some legislatures are extending this practice.⁸⁵

95The need to improve systems of oversight over police use of force, misconduct and police related deaths was raised during Australia’s UPR appearance. ACHRA welcomes the creation of the Independent Broad-based Anti-corruption Commission (IBAC) in Victoria. Since it became operational in 2013 the IBAC has dealt with matters in relation to allegations of misconduct against Victoria Police, including 79 independent reviews of Victoria Police investigations.⁸⁶ The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) provides a statutory right to protection from cruel, inhuman or degrading treatment by public authorities, including Victoria Police. However, ACHRA notes that in 2013 the Supreme Court of Victoria held that the Charter does not imply a right to an effective and independent investigation of allegations of cruel, inhuman and degrading treatment under the Charter.⁸⁷ ACHRA urges the ratification of the OPCAT as a means of implementing a right to an effective and independent investigation.

96ACHRA holds concerns about overcrowding in prisons.⁸⁸ The Victorian Ombudsman has reported that Victorian prisons are overcrowded and that there is an increased likelihood of deaths and harm in custody.⁸⁹ ACHRA is concerned by the Victorian Government’s abolition of the use of suspended sentences for all offences as of 1 September 2014.⁹⁰ It is also noted that the Tasmanian Government intends to implement a similar policy.⁹¹ Research by the Victorian Auditor-General has shown that the abolition of suspended sentences has contributed to a growth in prisoner numbers in Victoria.⁹² ACHRA is further concerned about a lack of improvement in practices to review and investigate deaths in custody.⁹³ While all deaths in custody are currently investigated by state coroners, it does not appear that any significant improvements to the system have been made. The Victorian Ombudsman has recently identified shortcomings in the system of review for the prison system in Victoria, finding that the body tasked with review of custodial services in Victoria, the Office of Correctional Services Review, lacks independence and transparency.⁹⁴

97ACHRA is disappointed to note that several Australian jurisdictions have retained or recently introduced legislation that requires mandatory minimum sentences to apply to certain offences.⁹⁵ ACHRA notes that mandatory minimum sentencing laws disproportionately affect children and Aboriginal and Torres Strait Islander peoples.⁹⁶

98ACHRA welcomed the creation of the position of Independent National Security Legislation Monitor (INSLM) in 2012. The annual reports to parliament of the INSLM have highlighted concerns about control orders, preventative detention orders, questioning and detention orders, and the need for enhancements to terrorism laws to address involvement of Australians in armed conflict abroad. ACHRA is concerned that many key recommendations in the reports have not been implemented. ACHRA is pleased that the government has recently announced a new appointment to the position of INSLM, which had been vacant since 21 April 2014.

99ACHRA holds concerns about national security laws introduced to parliament in 2014, three of which have been enacted.⁹⁷ ACHRA is concerned that elements of these laws will infringe upon human rights in a manner that is disproportionate to the legitimate aim of protecting the public against terrorism. The Commission has further detailed these concerns in its submissions to parliamentary inquiries examining the bills.⁹⁸

100Key national priorities, initiatives and commitments

101The Commission is an ‘A status’ national human rights institution established and operating in full compliance with the Paris Principles. The sufficiency of funding and staffing for the Commission was called into question during Australia’s UPR. ACHRA encourages the Australian Government, through the regular federal budget process, to ensure the Commission continues to operate as an effective ‘A status’ national human rights institution. ACHRA reiterates its note that the Commission’s functions could be enhanced, through legislative amendment, to provide a clearer focus on individual liberties, fundamental freedoms and human rights reflected in the common law.

102As Australia approaches its second cycle review, ACHRA commends the Australian Government for conducting a consultation process with civil society through the NGO Forum. ACHRA encourages the government to continue consultation and engagement with civil society during the drafting of the Australian Government report to the Human Rights Council UPR.

Appendix 1:
Calendar of upcoming key UN treaty dates

Treaty	Key dates
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)	Australia appeared before the committee in November 2014 Next report due November 2018
Convention on the Rights of Persons with Disabilities (CRPD)	Next report due August 2018
Convention on the Elimination of Racial Discrimination (CERD)	The report was due October 2012. A combined 18–20th periodic report will be transmitted in 2015
International Covenant on Civil and Political Rights (ICCPR)	Next report was due December 2013
International Covenant on Economic Social and Cultural Rights (ICESCR)	Next report was due June 2014
Convention on the Elimination of Discrimination Against Women (CEDAW)	Next report was due July 2014
Convention on the Rights of the Child (CRC)	Next report due January 2018