Abstract
This chapter explores how a network of human rights advocates used the Australian Charter of Human Rights and Responsibilities (2008) to protect children and young people’s human rights. The chapter documents the response of community and legal activist groups which began by rejecting the use by media and politicians of a vocabulary of ‘emergency’ and ‘exceptionality’ before challenging the government in a landmark legal case in Victoria’s Supreme Court heard in May 2017. We explore how the state sovereignty continually constrains or threatens popular sovereignty. Against the liberal self-portrait of a civic culture informed by the rule of law principle, this case highlights the way the political apparatus elevates politics above the law and any regard for human rights.
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Notes
- 1.
The smaller territory which is the capital of Australia called the Australian Capital Territory had earlier passed a Human Rights Act 2004.
- 2.
Anyone familiar with youth justice in Australia and internationally will see in this a distressingly familiar story. In July 2016 ABC-TV’s Four Corners, Australia’s leading current affairs show, used official video footage to highlight the abuse of six, mostly indigenous teenage boys serving a sentence in the Northern Territory’s Don Dale youth detention center. A Royal Commission set up to investigate Don Dale subsequently confirmed that conditions in solitary confinement were appalling and inhumane. Inmates were routinely locked in cells for nearly 24 hours a day with no running water, little natural light, as well as being denied access to schooling and educational material. They were also regularly stripped, beaten, locked down, hooded, and shackled. Similar patterns of violence targeting young people are found internationally. Juvenile justice facilities in England and Wales, for example, have been the focus of concern about the increased use of force against inmates and evidence that many children in these facilities feel unsafe (Redmond 2015). This led Taylor (2016) in a major review of English juvenile justice to call for a radical shift in policy. American juvenile justice facilities have also been the object of complaints about systemic abuse since the late 1970s (McCarthy et al. 2016). Likewise in 2009, the US Department of Justice concluded that too many staff at facilities across America:
routinely used uncontrolled, unsafe applications of force, departing both from generally accepted standards and [departmental] policy … This one-size-fits-all control approach has, not surprisingly, led to an alarming number of serious injuries to youth, including concussions, broken or knocked-out teeth, and spinal fractures.
More recently Mendel revealed evidence of systemic or recurring maltreatment in all but five American states’ youth prisons between 1970 and 2015 (Mendel 2015).
- 3.
- 4.
In Norway the parliament decided to incorporate the CRC in full into domestic legislation in 2003, four years after the enactment of the Human Rights Act of 1999 which incorporated the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and the European Convention of Human Rights (ECHR) into Norwegian law.
- 5.
Victoria’s courts especially the Supreme Court only recently began to use the Charter to reshape the terrain of human rights in Victoria (McQuigg 2012). Between 2008 and 2015 the Charter was cited in at least 70 published decisions by courts.
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Bessant, J., Watts, R. (2019). Child Prisoners, Human Rights, and Human Rights Activism: Beyond ‘Emergency’ and ‘Exceptionality’—An Australian Case Study. In: Blouin-Genest, G., Doran, MC., Paquerot, S. (eds) Human Rights as Battlefields. Human Rights Interventions. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-91770-2_6
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