In his research paper from this month’s Human Rights Law Review, Andrew Dyer, a Lecturer in the Faculty of Law at the University of Sydney, argues that not having a statutory charter of rights means Australia has been left without protection when it comes to criminal justice issues like life sentences without the possibility of parole. He says these issues are particularly sensitive to irrational and ill-considered laws that infringe on our human rights.
Mr Dyer points to the UK example, where the Human Rights Act 1998 (UK) and membership of the European Convention on Human Rights has protected people against being denied any prospect of being released from prison in the distant future.
He believes Australian laws have been shaped by political considerations rather than basic human rights considerations.
Life Imprisonment Without the Possibility of Parole
As Justice Brennan discussed in Furman v Georgia, certain punishments are condemned not because they are too severe, but because “they treat members of the human race as nonhumans, as objects to be toyed with and discarded”. A life sentence without the possibility of parole assumes that the person is incapable of change, even over long periods of time, and that there is no way to atone for some crimes.
In the 2013 case of Vinter and Others v the United Kingdom, the Grand Chamber of the European Court of Human Rights held that an irreducible sentence of life imprisonment breaches article 3 of the European Convention on Human Rights, which prohibits torture, and “inhuman or degrading treatment or punishment”.
Yet, legislation in every state and territory in Australia permits, and sometimes requires, courts to impose a sentence of life imprisonment without parole.
Mr Dyer argues that ‘life meaning life’ sentences have come about in Australia due to media campaigns which have fueled public demands to get tough on crime, which have in turn influenced politicians to pass legislation which breaches international norms.
We live in a climate where Australia’s major political parties are increasingly keen to assert themselves as tough on crime. Social media affords everybody a platform to express outrage and judgment about those who commit, or have been accused of committing, the crimes that horrify us.
However, this concept of penal populism is not new. It has caused criminal justice legislation to be created hastily and frequently to demonstrate to the community that our government is protecting us from crime. These laws often heed the public reaction without acknowledging that an initial reaction to media stories does not necessarily represent properly considered views on any given issue.
Particularly violent crimes like murders, sexual assaults, and terrorist acts, have given rise to laws that infringe basic rights; most often the rights of those who have been convicted of crimes, suspected of committing crimes, or even considered likely to commit crimes sometime in the future.
In particularly heinous crimes, the sentencing judge may consider the only appropriate sentence would be that of life imprisonment without any possibility of parole. William Berry argues that this is understandable but problematic:
“All too often the fury of the response to the offender’s transgression pushes the sentencer to choose the most severe punishment. At the initial time of sentence, it is difficult to determine what sentence is sufficient for such an offender. The court’s attempt to envisage whether the offender will be capable of rejoining society seems to be conjectural at best.”
Failed Appeals in Australia
Mr Dyer discusses the appeals of murderer and rapist, Kevin Crump, who has been in prison for over 40 years—one of the longest serving inmates in NSW.
We have previously written about Mr Crump who appealed to the NSW Court of Criminal Appeal for the opportunity to be given a date for release on parole. His situation was complicated by changes to sentencing laws in 1999, which say that ‘life means life’ – meaning that those given life sentences should serve the terms of their natural life in prison.
When Crump and his co-accused were sentenced to life imprisonment, Justice Robert Taylor recommended that neither of them ever be released. That was in 1974, when it was not uncommon for those sentenced to life imprisonment to be eligible for parole after 10 to 15 years.
In 1997, Crump’s ‘non-parole period’ (ie the minimum time he is required to spend behind bars) was set at 30 years, which meant that he would have been eligible to apply for release from prison ‘on parole’ in 2003.
But in response to public outcry, NSW Premier Bob Carr introduced a range of laws including the Crimes (Sentencing Procedure) Act 1999 (NSW); colloquially known as “truth in sentencing”.
Carr promised these new laws would ensure that those responsible for heinous crimes would be “cemented to their cells”.
Carr also introduced the Crimes (Administration of Sentences) Act 1999 (NSW), which deals with “non-release” recommendations, such as that given by the judge in Crump’s case.
Section 154A of that Act says that serious offenders who are the subject of non-release recommendations can only be granted parole if the Parole Authority is satisfied that they:
- Are in imminent danger of dying, or are incapacitated to the extent that they no longer have the physical ability to harm to any person, and
- Have demonstrated that they do not pose a risk to the community.
Crump was ruled to be ineligible for parole under the new laws.
He challenged his sentence in the High Court in 2012; arguing that section 154A contravened section 73 of the Commonwealth Constitution, and was therefore invalid. But the High Court disagreed with Crump, confirming that he should remain in prison.
Bronson Blessington and Matthew Elliot, who were aged 14 and 16 when they committed terrible crimes for which they were sentenced to life imprisonment, were also prevented from having their sentences re-determined because of the controversial truth in sentencing laws.
The United Nations Human Rights Committee has informed the Australian government that the life sentences that Mr Blessington and Mr Elliott are serving constitute breaches of Australia’s obligations under the International Covenant on Civil and Political Rights.
The UNHRC found the sentences could be compatible with international human rights obligations only if they, as juvenile offenders, had a prospect of release that was more than a theoretical possibility and a thorough review procedure which allowed for an evaluation of progress toward rehabilitation and justification for continued detention.
Concerns About Future Court Decisions
Mr Dyer’s article expresses concerns about what the High Court of Australia describes as a “striking and unusual” amount of legislative activity in NSW during the fifteen years since ‘truth in sentencing’ legislation was enacted. He says:
“These Acts were passed amidst ‘law and order’ hysteria, and were aimed at keeping imprisoned for life a group of high-profile prisoners – including two men, Matthew Elliott and Bronson Blessington, who were not yet 18 at the time of the relevant offences – whose sentencing judge recommended that they never be released.
Importantly, the Australian courts upheld none of the challenges that were made to this legislation…Even though in many or all of these cases there was no legal reason preventing the courts from intervening, the judiciary appears to have been influenced by a desire to maintain its own legitimacy: without a human rights charter clearly providing judges with the power to protect rights, their Honours adopted a modest conception of their role.”
But with a community that assumes guilt about suspected persons – calling for summary denial of liberty, removal of fair process, swift conviction and heavy punishment – it appears unlikely that governments will heed to minority calls for the reinstatement of basic human rights.