The Sydney Morning Herald Revealed: human rights whitewash Date: 17/03/00 By MARK RILEY, Herald Correspondent in New York Politically explosive findings that placed Australia in direct violation of international human rights conventions were dumped from a United Nations report on mandatory sentencing this week amid diplomatic pressure from the Howard Government. The discarded conclusions said the laws breached the UN Convention on the Rights of the Child and numerous human rights instruments on racial discrimination and independence of the judiciary. Their exclusion from the final report allowed the Minister for Foreign Affairs, Mr Downer, to announce on Monday that the potentially damaging inquiry had made "no judgments about Australia's conformity with international standards". UN officials, speaking on condition of anonymity, said this had saved the Federal Government from the politically dangerous prospect of a UN Human Rights Commission (UNHRC) request to override the Northern Territory and West Australian mandatory sentencing laws. That request would have had profound consequences for the Government, which on Wednesday used its numbers in the House of Representatives to gag any debate on a bill by Senator Bob Brown that would effectively overrule the laws. Documents obtained by the Herald show that UN human rights experts made several adverse judgments that did not appear in the final report. "The exercise of juvenile justice in Australia would appear to be in violation of human rights standards prohibiting discrimination," they wrote. In another section the experts found: "The practice of mandatory sentencing is, in reality, a violation of the right to a fair trial by an independent and impartial court." They also ruled that: "The possibility for a sentence to be reviewed is internationally accepted in all but the most serious of cases, such as those involving murder. From the information provided, it would seem that this right has not been respected." In another section expunged from the report, the UN human rights experts found that the Australian laws contravened the independence of judges by removing their discretion in sentencing. "Mandatory sentencing rules are typically imposed by political authorities on the judiciary and they thus violate the usual requirement that the executive be separate and distinct from the judiciary," they said. The findings were dropped after high-level diplomatic representations from Australia in recent weeks to the UNHRC in Geneva and to UNICEF in New York. The diplomats emphasised the political sensitivity of the issue and spelt out the potential consequences for the Government of any adverse findings. The advice on whether the Northern Territory and West Australian laws breached the conventions had been requested by the Leader of the Opposition, Mr Beazley, during a meeting in Canberra with the UN Secretary-General, Mr Kofi Annan, last month. Mr Annan had passed on the request to the UN Human Rights Commissioner, Mrs Mary Robinson, and the head of UNICEF, Ms Carol Bellamy. UN officials told the Herald that Mr Annan considered the mandatory sentencing issue to be a domestic matter and did not want the report to be used as political ammunition to drag the UN into the debate. He was also eager to maintain the good relations he had established with the Government through Australia's leading role in the East Timor peacekeeping mission. The UN officials revealed that the UNHRC had the power to make a formal request to Australia to amend laws that put it in breach of its international obligations. The Government would be seen as having sole responsibility for ensuring that those obligations were met because the conventions had been ratified by the Australian government of the day. That responsibility would require the Government to take whatever action was necessary to either amend or override State laws that breached the conventions, the officials said. This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. *********** The original UN report on mandatory sentencing Date: 17/03/00 The Convention on the Rights of the Child (article 37 (b)) states that the detention and imprisonment of juveniles should be a measure of "last resort". The Convention and the Committee on the Rights of the Child encourage States to make use of "alternatives to detention/imprisonment". This does not appear to be the case here. The objectives of juvenile justice: juvenile justice must focus on the rehabilitation of children in conflict with the law. Juvenile justice, like adult justice, must also focus on the protection of society from crime and must respond to the needs of victims of crime; however, the weight given to the protection of the child perpetrators of crime is very different from that given to adults and the emphasis to be placed on the rehabilitation of children is paramount. One can ask if the use of mandatory sentencing, and particularly in the case of minor theft described is in conformity with the objectives of juvenile justice, and thus with international instruments. Mandatory sentencing Independence of the judiciary: mandatory sentencing is a restriction of the freedom of a trial judge to impose a sentence according to his/her judgment on a particular case. Mandatory sentencing structures go far beyond the guidelines which judges may follow and which indicate the type of sentence that should be applied to a particular crime. Mandatory sentencing can thus be considered to infringe upon the independence of the judiciary. It can be seen as a violation of i) the independence of judges themselves and ii) the right of accused persons to a trial before an independent judiciary. In addition, mandatory sentencing rules are typically imposed by the political authorities on the judiciary, and they thus violate the usual requirement that the executive be separate and distinct from the judiciary. Right to appeal sentences: The possibility for a sentence to be reviewed is internationally accepted in all but the most serious of cases, such as those involving murder. From the information provided it would seem that this right has not been respected. Recent European case: The European Court of Human Rights ruled in December 1999 against the United Kingdom in a case involving the prosecution of two minors. The Court found, inter alia, that the independence of the trial judges had been violated by the imposition by the British Minister for the Interior of a mandatory minimum sentence on the two children. The best interests of the child: the Convention on the Rights of the Child provides (article 3 (1) that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Australia is a party to the Convention. One can ask whether the practice of mandatory sentencing, particularly in the example given, is the best interests of children. 3) Discrimination Numerous UN human rights instruments prohibit discrimination on the grounds of, inter alia, racial distinctions. According to the statistics provided, there is an overwhelming indication that either indigenous Australian children are in an environment (poverty, lack of employment for their parents, etc) which makes their participation in criminal acts very difficult to escape from, or they are treated in a discriminatory fashion by the Northern Territory and Western Australia State courts. The exercise of juvenile justice in Australia would appear to be in violation of human rights standards prohibiting discrimination. Attention should nevertheless be given to noting whether the proportion of indigenous Australian children incarcerated nationally (as quoted) is similar to the figures specific to these two States. 4) Overall assessment Detention and imprisonment can be very harmful to some children. It should be used as a last resort as required under applicable international law. When used it should be done in consideration of the rehabilitative objectives of juvenile justice and in respect of the obligation to take into consideration the best interests of the child. The practice of mandatory sentencing is, in reality, a violation of the right to a fair trial by an independent and impartial court. In addition, mandatory sentencing for juveniles goes against the objectives of juvenile justice and the spirit of the best interests principle of the Convention on the Rights of the Child. The use of mandatory sentencing in an environment where a very high proportion of one racial group, which is in addition both a minority population and economically marginalised, are likely to be incarcerated is, at a bare minimum, extremely inappropriate and probably in violation of numerous international human rights standards, as described above. One issue to explore further is that of the alternatives to sentences of detention/imprisonment which have been made available in these two States. If few alternatives exist then this should be raised and questioned. If the alternatives exist but are not used, this should also be questioned. 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