On 2 June 2015, Amnesty International published A brighter tomorrow: keeping Indigenous kids in the community and out of detention in Australia. A copy of the report can be accessed here and the summary is available here. As its name suggests, the report is a roadmap for the Australian government to improve its efforts to reduce the number of young Indigenous Australians incarnated in Australia.
This post focuses on the first four of the report’s 16 recommendations. These have been selected because they relate to Australia’s international treaty obligations. These recommendations also have relevance beyond the sphere of indigenous incarceration as they concern potential incompatibilities between criminal legislation in states and territories and Australia’s international obligations.
The report’s first four recommendations can be distilled into two categories. The first recommends that the Australian government legislate to override state and territory laws that do not conform with the Convention on the Rights of the Child (CRC). Amnesty International says that this would encompass laws which:
- do not allow courts to observe the principle that detention is a measure of last resort for any person up to and including the age of 17 (including, for example, section 9 of the Youth Justice and Other Legislation Amendment Act 2014 (Qld));
- impose a mandatory minimum sentence on a child or young person up to and including the age of 17 (for example, the Australian Criminal Code Act 1913 (WA));
- treat a child or young person up to and including the age of 17 as an adult for the purposes of criminal prosecution (such as the Youth Justice Act 1992 (Qld)); and
- treat a person below the age of 12 as criminally responsible, noting that the principle of doli incapax continues to apply up to the age of 14 (which Amnesty International says occurs Australia-wide).
The second category of recommendations concerns Australia’s status with respect to the CRC and the Convention Against Torture. Amnesty International recommends that Australia:
1. withdraw its reservation to article 37(c) of the CRC
Article 37(c) provides, inter alia, that, ‘every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so…’.
Australia accepts this part of article 37(c) ‘only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia’
Amnesty International says that Australia’s reservation results in the imprisonment of adults with children and refers to recommendations of the Committee on the Rights of the Child to have the reservation withdrawn (see CRC/C/15/Add.268 at [7] and CRC/C/AUS/CO/4 at [9])
2. ratify the Optional Protocol to the Convention Against Torture
The Optional Protocol provides for a system of regular visits by independent international and national bodies to participating states to prevent torture and other cruel, inhuman and or degrading treatment or punishment.
3. become a party to the Third Optional Protocol to the CRC, which establishes an individual complaints mechanism for children.
Whereas the second category of recommendations can be practically implemented by the Australian government, the suggestion that the Commonwealth override state laws raises controversial questions. The report provides little information as to how the Commonwealth should implement those first category recommendations by overriding state and territory legislation that is inconsistent with the CRC. The Commonwealth could pass legislation that relies on its powers under section 51 (xxix) of the Australian Constitution to make laws with respect to external affairs. However, such targeted assaults on state and territory jurisdictions would be unwelcome and likely resisted. A more consensus-driven approach whereby the states and territories themselves bring their laws into line with the CRC would likely be more successful, but would require effort from all levels of government. Certainly, Amnesty International’s report would have benefited from an increased focus on implementing solutions in this area.
Nonetheless, the report provides important food for thought about how Australia’s international obligations can be the impetus for domestic action that improves outcomes for indigenous young people.