Administration of Justice

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

Funding of legal aid commissions and community legal services

Funding for legal aid commissions, community legal services and specialist legal services for Aboriginal and Torres Strait Islander peoples is inadequate. In May 2010, the Australian Government announced an increase in funding to specialist community legal services, including Aboriginal and Torres Strait Islander legal services (ATSILS). While this has been welcomed by the sector, there are concerns that the increase does not go far enough to address the systemic crisis in the resourcing of, and access to, specialist services. Of particular concern:

  • between 1997 and 2007, there was an 18% reduction in real funding to community legal centres, who are the 205 not-for-profit community-based organisations that provide free legal advice and services to disadvantaged members of the Australian community and those with special needs;
  • a 2009 Australian Senate Inquiry found that there are areas of law not sufficiently funded for the provision of essential legal aid, namely family law and civil law services;
  • despite Aboriginal and Torres Strait Islander incarceration rates increasing at an alarming rate over the past decade and the subsequent increase in demand for the ATSILS services, the amount of real funding provided has been declining, compared to mainstream legal aid service providers and departments of public prosecutions; and
  • Family Violence Prevention Legal Services (FVPLS) (legal aid providers specialising in family violence, often existing in regional and remote areas) are not always funded to service urban areas where large proportions of Aboriginal and Torres Strait Islander peoples reside. The high incidence of family violence against Aboriginal and Torres Strait Islander women, means that often the FVPLS are the only culturally appropriate legal assistance option available to Aboriginal and Torres Strait Islander women.

Interpreter services for Aboriginal and Torres Strait Islander peoples

Despite the right to an interpreter in criminal proceedings and in some civil proceedings being enshrined in numerous international human rights instruments to which Australia is a party, Aboriginal and Torres Strait Islander peoples continue to be denied adequate access to interpreter services. This means that Aboriginal and Torres Strait Islander peoples can have great difficulty communicating with police, giving evidence, consulting with and giving instructions to their lawyer, and understanding court proceedings. As a result, Aboriginal and Torres Strait Islander peoples are often denied a fair trial.

Over-representation of young people and Aboriginal and Torres Strait Islander peoples

Mandatory sentencing laws, which require that offenders receive automatic terms of imprisonment for minimum prescribed periods for particular offences, continue to operate in Western Australia and the Northern Territory. This means that people who might have not otherwise been sentenced to a term of imprisonment are being incarcerated, with all the attendant destructive impacts (exposure to violence and abuse, dislocation from pro-social supports such as family and employment). Mandatory sentences are not reviewable by Australian courts. Mandatory sentencing laws have a disproportionate impact on Aboriginal and Torres Strait Islander peoples and young people. In the Northern Territory, incarceration rates of Aboriginal and Torres Strait Islander peoples is 3.5 times the national rate of imprisonment, and Aboriginal and Torres Strait Islander peoples constitute 83% of the prison population in the Northern Territory. In Western Australia, expansion of mandatory sentencing laws has seen the number of Aboriginal and Torres Strait Islander people in prison double since 2002. Aboriginal and Torres Strait Islander juveniles are 28 times as likely to be detained as other Australian juveniles, and Aboriginal women prisoners are the fastest growing demographic amongst the prison population, with an increase in incarceration rates of 420% in the decade to 2005.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states).  In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

In relation to access to justice issues, the Human Rights Council made a number of relevant recommendations.  Australia has responded to these recommendations as set out in the following table.

Recommendation

Stance

Explanation

Establish a mechanism to independently investigate all police use of force, police misconduct and deaths in custody (recommendation 86.89).

Accepted

A range of oversight mechanisms exists to ensure scrutiny of police use of force, misconduct or police-related deaths in Australia. This includes oversight by the federal Ombudsman. States and Territories have independent authorities that investigate claims made against police as well as any deaths in custody.

Increase the availability and provision of accessible legal advice, including translation services, to reach the most remote indigenous communities (recommendation 86.92).

Accepted

The Australian Government has increased funding by 14.5% for Indigenous-specific legal services over 2010-14. It will continue to work with States and Territories to build the capacity of Indigenous language interpreter services.

Provide cultural awareness education training to police officers in relation to indigenous communities (recommendation 86.95).

Accepted

The Australian Federal Police and State and Territory police have a range of cultural awareness and human rights training in place. Additional human rights training will be delivered throughout the federal public sector including the AFP from 2011.

Review its mandatory detention regime of asylum seekers, limiting detention to the shortest time reasonably necessary (recommendation 86.127).

Accepted

Mandatory detention is based on unauthorised arrival and not on individuals seeking asylum. Indefinite or otherwise arbitrary detention is not acceptable and the length and conditions of detention are subject to regular review.

Ensure all irregular migrants have equal access to and protection under Australian law (recommendation 86.133).

Rejected

There is some differentiation in the treatment of persons who arrive, or remain, in an irregular manner. Consistent with Australia’s international obligations, all refugee determinations are assessed against the Refugees Convention through a process that provides procedural fairness and access to independent merits and judicial review.