21st Feb 2019
The case of Re Kelvin and its implications for minors with gender dysphoria.
7th Feb 2019
Anna Kerr discusses the outcomes of Australia's 2018 report to CEDAW.
The ALA believes that all areas of criminal justice should be guided by adherence to the basic principle of the rule of law, underpinned by fairness and certainty. The aim of the law should guide how it is enforced. All persons charged with a criminal offence are entitled to the presumption of innocence and a fair trial.
Our advocacy focuses on:
Children who come into contact with the justice system are among the most vulnerable in our community. It is essential that these children are shown compassion and support. Incarceration and detention of children should be avoided as much as possible. Where detention is necessary as a last resort, it must be the least restrictive form, focus on rehabilitation, and for the shortest appropriate period of time, in line with obligations under the UN Convention on the Rights of the Child.
- Protection of individual rights and adherence to the rule of law is essential in light of counter-terrorism law reform. There has been a significant increase in the amount of legislation relating to terrorism and efforts to prevent it in recent years. Australia now has the highest amount of legislation relating to counter-terrorism activities of any western nation.
- Citizenship is the foundational human right, from which all other human rights stem. We believe that citizenship should be inviolable. Removal of citizenship simply shifts problems elsewhere and does nothing to reduce the global threat of terrorism. It is a punishment that should not be available under any circumstance, and certainly not outside of judicial processes.
- Secrecy surrounding counter-terrorism operations has the potential to stifle legitimate debate. While secrecy for genuine national security is important, criminalisation of speech which sheds light on matters of legitimate public concern undermines our democracy and may infringe on the constitutional right to freedom of political communication.
- No one should ever be convicted on the basis of evidence that they have not seen. The rule of law requires that accused are able to see and challenge all of the evidence that is used against them.
- Crime is reduced by sentencing which addresses the offender’s core reasons for offending, whether it is drugs, alcohol, terrorism, or other reasons. We support rehabilitation, not punishment. The aim of sentencing should always be the reform and social rehabilitation of offenders, in line with the International Covenant on Civil and Political Rights.
- Mandatory sentencing is never the answer to criminal behaviour. It inhibits judicial discretion and can lead to miscarriages of justice.
- Mandatory minimum non parole periods prejudice the vulnerable in society, and hinder the opportunity for rehabilitation.
The right to silence
The right to silence is crucial for democracy and is a fundamental human right, reflected in the International Covenant on Civil and Political Rights. The onus of proof should always rest with the State, not with the accused.
Conditions in detention
- All deaths in custody should be examined independently.
- The Optional Protocol on Convention against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT) should be ratified to ensure people in detention are kept safe from mistreatment. The OPCAT requires independent monitoring of all places of detention by both local and international monitors and will ensure that all persons deprived of their liberty by an Australian government are treated with respect and dignity.
- Policing is a public service that should aim to keep our community safe by building trust. Granting police excessive powers, and fostering a culture in which police exhibit authority and control rather than building relationships with the community, undermine trust and safety.
- Weapons, particularly Tasers, should only be used as a last resort to protect human life or prevent serious injury. There is a need for nationally consistent guidelines into the use of Tasers, capsicum spray, and other potentially lethal police weapons.
- All instances where police have been involved in the injury or death of a member of the public must be independently investigated by investigators unrelated to the police involved. Where appropriate, prosecutions should ensue.
- Freedom of assembly is an essential right in any democracy. Policing protests must be done in compliance with domestic and international law.
Freedom of association
Anti-association laws undermine human rights and risk targeting people who are not engaging in criminal conduct. These laws have already been introduced in relation to bikies and suspected terrorists, and there is discussion that they could be extended further. Punishing people for who they associate with, rather than things that they do, is antithetical to the rule of law and will not make our communities safer.
Decriminalisation of drug possession
Australia’s ‘war on drugs’ is a fundamental failure. Drug misuse should be seen as a health issue, not a criminal justice issue. Decriminalising possession and use of most drugs will reduce the harm that they cause and take pressure off the criminal justice system. The experience of other countries has shown that this approach does not lead to an increase in drug use and often decreases the harm caused by it.