United nations hri
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- (i) Investigation and complaints mechanisms
- (ii) Rehabilitation of victims of torture, or other cruel, inhuman or degrading treatment or punishment
- D. Procedural guarantees
- (i) Prohibition of reversal of a final decision on conviction or acquittal
- (ii) Mandatory sentencing regimes
C. Effective remedies
155. Australia’s main remedies for human rights breaches are described above, under the heading “D. General legal framework within which human rights are protected at the national level”. Australia also provides effective remedies required under the human rights treaties in other ways. Specific issues that have received particular attention in recent years are addressed below. (i) Investigation and complaints mechanismsComplaints relating to the conditions of immigration detention centres156. The Immigration Detention Standards establish a complaints mechanism for people in immigration detention. The Standards require that people in immigration detention be able to comment on or complain, without hindrance or fear of reprisal:
157. The Standards also require that people in immigration detention be informed of their rights and that material advising of the right to complain to HREOC and the Commonwealth Ombudsman be displayed prominently throughout the facilities at all times and be available to people in immigration detention on request. Adherence to these standards is monitored by DIAC staff managing immigration detention facilities. (ii) Rehabilitation of victims of torture, or other cruel, inhuman or degrading treatment or punishment158. Torture and trauma victims in Australia are predominantly refugees and people who have entered Australia on special humanitarian grounds following their experiences overseas. Specialist torture and trauma services exist in all Australian States and Territories to assist such people. For example, NSW has two specialised services that target survivors of torture and other human rights abuses:
159. Further information is available in paragraphs 137-138 of Australia’s Combined Second and Third Reports under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. D. Procedural guarantees
160. The general framework in which human rights are protected in Australia is described above, under the heading D. General legal framework within which human rights are protected at the national level. Australia provides a range of procedural guarantees as required under the above articles. Particular developments relevant to these obligations are addressed below. (i) Prohibition of reversal of a final decision on conviction or acquittal161. In November 2003, Australian governments released the Model Criminal Code Officers Committee’s Discussion Paper on Issue Estoppel, Double Jeopardy and Prosecution Appeals Against Acquittals for public consultation. The discussion paper recommended that the laws on double jeopardy be changed so that a person acquitted of an offence could be prosecuted for an administration of justice offence or the original or related offence in three circumstances:
162. Governments have settled model provisions and are committed to implementing nationally consistent provisions. In 2006, the Council of Australian Governments agreed that reform of the rule against double jeopardy is a priority criminal law policy reform that merits nationally consistent treatment. (ii) Mandatory sentencing regimes163. The NT Parliament repealed mandatory sentencing laws for property offences effective from 22 October 2001. The Juvenile Justice Amendment Act (No 2) 2001 repealed mandatory sentencing for juvenile offenders and the Sentencing Amendment Act (No 3) 2001 repealed mandatory sentencing for property offences for adults. 164. Mandatory sentencing laws are still in effect in WA. A review of the Western Australian mandatory sentencing provisions in The Criminal Code (WA) was tabled in the WA Parliament on 15 November 2001. The review concluded that the provisions have had little effect on the criminal justice system. It found that courts generally sentence adult offenders with the required offence history to periods of imprisonment greater than the minimum 12 months mandated by the legislation. The review also confirmed the existence of a judicial discretion to impose non custodial sentences instead of detention. 165. There are also mandatory sentencing provisions in the Migration Act 1958 (Cth). These impose mandatory minimum prison terms for persons convicted of people smuggling offences.
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