Australia has agreed to be bound by and comply in good faith with international human rights law. It has done this by ratifying international human rights treaties
- International Covenant on Civil and Political Rights (ICCPR).
- Convention on the Rights of Persons with Disabilities (CRPD)
- Convention on the Elimination of Racial Discrimination (CERD), Convention on the Rights of the Child (CRC)
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- International Covenant on Economic, Social and Cultural Rights (ICESCR),
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
Australia also formally supports the Declaration on the Rights of Indigenous Persons (the Declaration). Throughout this report, the treaties and the Declaration are referenced to indicate that the recommended strategies and actions conform to what Australia has agreed to do. More detailed explanations of the human rights treaty system can be found at http://www.humanrights.gov.au/education/human-rights-explained-index
The CRPD is a primary instrument for Equal before the law as it focusses on rights of persons with disability. Article 4(5) of the CRPD states “The provisions of the present Convention shall extend to all parts of federal states without any limitations and exceptions.” This is significant because the administration of justice is shared by the Australian government and the governments of all states and territories. The full text of CRPD is at http://www.un.org/disabilities/convention/conventionfull.shtml
The key human rights principles in CRPD have guided the report.
Article 3 - General principles
The principles of the present Convention shall be:
- Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
- Full and effective participation and inclusion in society;
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- Equality of opportunity;
- Equality between men and women;
- Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Especially relevant provisions of CRPD for equal access in the criminal justice system include:
Article 4 - General obligations
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.
To develop new laws and policies relating to the criminal justice system, governments should seek advice from people with disabilities, including women, children and Aboriginal Torres Strait Islander people with disabilities.
Article 5 - Equality and non-discrimination
1. States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.
Everybody has the right to be protected by the law at all stages of the criminal justice system. A person with a disability who engages the justice system must not experience discrimination because of their disability. We must ensure that we remove discriminatory barriers and implement positive measures that foster equality.
Article 13 - Access to justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
Article 13 was adopted in response to a long history of denial of access to justice to people with disabilities. People with disabilities have the right to be treated fairly when engaging the criminal justice system. This right extends to “all legal proceedings, including at investigative...stages” from police interviews to courts and custodial situations. People with disabilities must be treated with respect regardless of being a “direct” participant such as a victim, suspect or offender or an “indirect” participant, such as a witness.
Article 14 - Liberty and security of the person
1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
- Enjoy the right to liberty and security of person;
- Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.
People with disabilities cannot be held in custody just because they have a disability, there must be a compelling and lawful reason.
Article 16 - Freedom from exploitation, violence and abuse
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.
2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.
3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs.
5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
People with disabilities have the right to live free from exploitation, violence and abuse. People with disabilities should be protected from violence and abuse regardless of whether it takes place in a residential setting, psychiatric facility, police station or in prison. People with disabilities have the right to receive help and appropriate supports to stop the violence and recover.
Other important aspects of international human rights law considered in the report, as they relate to access to justice in the criminal justice system, include the right to:
- Adequate standard of living and social protection (art. 28 CRPD, art. 23 CERD, art. 9 CESCR, art. 11 CEDAW, art. 26 CRC)
- Habilitation and rehabilitation (art. 26 CRPD)
- Health (art. 25 CRPD, art. 25 CESCR, art. 12 CEDAW, art. 24 CRC)
- Education (art. 24 CRPD, art. 5(e)(v) CERD, art. 13(1) CESCR, art. 10 CEDAW, art. 28 (1) CRC)
- Work (art. 27 CRPD, art. 6 CESCR, art. 11 CEDAW, art. 5 CERD).