UN countries challenge Australia's Indigenous incarceration record in human rights review

Daniel Hurst
·4 min read

The Australian government is to be challenged over the country’s lack of progress in reducing rates of Indigenous incarceration at a UN hearing this week.

Sweden and Uruguay have submitted questions in advance about the overrepresentation of Aboriginal and Torres Strait Islander people in Australian prisons, while Germany wants to know why Australia has delayed a push to raise the age of criminal responsibility from 10 to 14 years.

Countries will raise questions about Australia’s human rights performance on Wednesday, as part of the UN human rights council’s universal periodic review process that happens about every five years.

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The Australian government has said it has made “significant achievements in the realisation of human rights” since the previous review in 2015.

“These include significant investments addressing family and domestic violence, human trafficking and modern slavery and the legalisation of same-sex marriage,” the Australian government said in a submission to the review.

The government said Covid-19 was presenting new challenges in the protection of human rights across Australia.

“However, our strong democratic institutions have ensured that our response carefully balances the right of everyone to the enjoyment of the highest attainable standard of physical and mental health with other rights, such as liberty of movement, which may need to be temporarily curtailed.”

Andrew Walter, a senior official from the Attorney-General’s Department, will lead the Australian delegation at the review on Wednesday.

Countries have submitted 31 questions in advance, many of them focused on Aboriginal and Torres Strait Islander rights.

Sweden wants to know what measures are being taken “to reduce the overrepresentation of Aboriginal and Torres Strait Islanders people in Australian prisons and, on a federal level, abolish the status of fully unpaid fines as a basis for prison sentences”.

Uruguay is seeking an update on Australia’s efforts since the last universal periodic review “to reduce the imprisonment of indigenous citizens, and the results achieved to date”.

The UK has cited the Uluru Statement from the Heart in 2017 and asked how the Australian government planned “to work with, and listen to, Indigenous elders and leaders to provide a national voice to parliament for Indigenous people”.

Germany has submitted a question asking Australia to explain “the key factors that have prevented Australia from raising the age of criminal responsibility from 10 to at least 14 years”.

The nation’s attorney-generals last year deferred a decision on the matter, but the ACT became the first jurisdiction in Australia to support raising the age of criminal responsibility from 10 to 14.

Simon Henderson, head of policy at Save the Children Australia, said Germany’s question required “a direct answer given that Australia’s position contrasts with UN recommendations, medical evidence about children’s development and public pressure from the community”.

Henderson said one of the common threads running through the questions in advance was that many of the child rights issues that Australia was facing in 2015 remained the same in 2021.

“The federal government has failed to put in place laws to ensure immigration detention for children is a last resort,” Henderson said.

“They have failed to implement comprehensive measures to protect the rights of children under the convention on the rights of the child. They have also failed to combat the overrepresentation of Aboriginal and Torres Strait Islander youth in Australian prisons.”

The government acknowledged “the need to do better” on disparities between Indigenous and non-Indigenous Australians, noting the 2020 Closing the Gap report indicated Australia was on track to meet only two of the seven targets set in 2008.

Aboriginal and Torres Strait Islander peoples accounted for 28% of the prisoner population in Australia, but just 3.3% of the general population, the Australian government’s submission said.

It said state and territory government were responsible for justice systems and were “taking steps to reduce Indigenous incarceration”.

The government recommitted to a co-design process for an Indigenous “voice”. It said it was also “committed to recognising Indigenous Australians in the Constitution and will hold a referendum should consensus be reached and it have a strong chance of succeeding”.

In the advance questions, Poland has suggested that recent reports, including from Australian Human Rights Commission, “raise concerns about certain practices existing in the juvenile justice system, such as low age of criminal responsibility, excessive periods of isolation, combined detention places for children and adults, or inappropriate conditions of the detention places”.

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Poland has asked the government to explain what measures it has taken to improve the functioning of the juvenile justice system, including any preventive steps “to stop children from entering justice system in the first place”.

A number of countries, including Germany, have asked about Australia’s immigration detention practices, while Panama has asked about metadata laws and the protection of the right to privacy.

Iran, which has faced severe criticism over its own human rights record, asked the Australia government to explain “what lessons are learned on fighting impunity for war crimes after the long-delayed prosecution of Australian military forces for horrifying war crimes in Afghanistan”.