Cruel, inhuman or degrading treatment or punishment in Australia’s criminal justice system: does human rights legislation provide accountability?

Abstract

ABSTRACT Detention conditions in Australia’s criminal justice system have been a longstanding concern for human rights advocates, with several separate incidents of concern against detainees attracting renewed attention. The presence of human rights legislation protecting the right to not be subject to cruel, inhuman or degrading treatment or punishment (CIDTP) in certain Australian jurisdictions has done little to ensure accountability for violations of the right. Critical analysis of the case law and legislation in Australia demonstrates that courts have adopted an arguably flawed approach with respect to the scope and interpretation of CIDTP, undermining its legislated purpose. This approach has led to a dearth of successful cases claiming a violation of the right to not be subject to CIDTP, thereby providing limited protection to those within the criminal justice system. Legislative reform to alter the unsatisfactory positions adopted by courts, as well as greater transparency of detention conditions in Australia’s criminal justice system, is imperative to ensure the human rights of detainees are upheld and protected.