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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PARLIAMENTARY CHARTER OF RIGHTS AND FREEDOMS BILL 2001
EXPLANATORY MEMORANDUM
Outline
The purpose of the Bill is to implement the International Covenant on Civil
and Political Rights ("the Covenant"). It is intended to provide protection
for all persons in Australia against violations of their fundamental civil
and political rights by governments. This protection is sought by three
principal means:
. The Parliamentary Charter of Rights and Freedoms ("the Charter") is to
operate as a guide to the judicial interpretation of Commonwealth,
State and Territory laws, so that as far as possible laws are
construed in such a way as not to conflict with the Charter.
. The Charter will have the force of law and will prevail over any
inconsistent Commonwealth, State or Territory laws. The Charter will
have a delayed operation of three years with respect to existing
legislation. Commonwealth, State and Territory Parliaments will retain
the power to override the Charter, but only by express legislative
declarations to that effect.
. The Human Rights and Equal Opportunity Commission will be empowered to
investigate complaints about governmental acts or practices which may
infringe the Charter. The Commission will also be empowered to report
on Commonwealth, State or Territory laws (or proposed laws) which may
infringe the Charter.
NOTES ON CLAUSES
Clause 2 - Commencement
All clauses except clause 8 will come into operation on Royal Assent.
Clause 8 will come into operation three years after Royal Assent. Clause 8
renders laws inconsistent with the Charter inoperative. The delayed
commencement of this Clause will allow governments time to examine their
laws for compliance with the Charter.
Clause 5 - Interpretation of Charter
Clause 5 requires each Article of the Charter (set out in the Schedule to
the Bill) to be treated as a section of the Parliamentary Charter of Rights
and Freedoms Act.
Clause 6 - Extent to which Act binds the Crown
Subclause 6(1) provides that the Act binds the Crown in right of the
Commonwealth, each of the States and the Territories. Subclause 6(2)
provides that nothing in the Act renders the Crown liable to be prosecuted
for an offence.
Clause 7 - Extension to external Territories
Clause 7 extends the Act to every external Territory.
Clause 8 - Application of Charter
Clause 8 provides that a law enacted before, on or after this Act that is
inconsistent with the Charter, does not have any force or effect to the
extent of the inconsistency.
Clause 8 is intended to prevent any violation of human rights by
Commonwealth, State and Territory laws. In order to override the Charter, a
law will have to state expressly that it is intended to do so. Thus, while
a future Parliament may derogate from the Charter, it will have to do so
openly and deliberately. Any such derogation would have to be exposed to
full parliamentary and public scrutiny.
The fundamental idea underlying subclauses 8(2) and (3) is that two
inconsistent enactments can both be valid but, to the extent of the
inconsistency, only one can be operative; and that Parliament may therefore
give a direction as to which of the two inconsistent provisions shall be
operative in a particular case. This is what the subclauses are intended to
do.
Subclause 8(2) provides for the case where a later law does expressly
declare that its provisions, insofar as they are inconsistent with the
Charter, shall prevail. In such a case, the intention is that both the
Charter and the later law will be valid laws, but that the later law shall
be operative and the Charter inoperative only to the extent of the
inconsistency and only for so long as the inconsistency persists.
Subclause 8(3) provides that a declaration will cease after 2 years or such
earlier date that is specified in the declaration. However, Parliaments can
choose to re-enact such a declaration at this time under subsection 8(4).
Subclause 8(5) has the effect that this further declaration will also cease
to have effect after 2 years or earlier if specified in the declaration.
This means then that if the inconsistency has not been remedied before this
time, then the Charter Act will prevail to the extent of the inconsistency.
Subclause 8(6) provides that the rights and freedoms set out in this Act
are in addition to other existing rights. They do not derogate from or
replace existing rights.
Clause 9 - Interpretation of legislation
Clause 9 provides, in effect, that the Charter is to operate in the first
instance as a "rule of construction". This means that, in construing any
Commonwealth, State or Territory law, the courts are to seek an
interpretation that does not result in inconsistency with a right or
freedom in the Charter.
Clause 10 - No rights of action or criminal liability under Charter
The Charter is intended as a shield, not a sword. Clause 10 makes it clear
that no individual may be sued or prosecuted on the basis of an
infringement of the Charter. However, while an infringement of the Charter
cannot itself give rise to an action, existing remedies (for example,
actions for false imprisonment) will continue to be available.
Clause 11 - Powers of courts in criminal proceedings
Subclause 11(1) provides that where, in criminal proceedings, the court is
satisfied that evidence was obtained in a manner which infringed Charter
rights, the party tendering that evidence must satisfy the court that the
admission of the evidence would substantially benefit the public interest
in the administration of criminal justice, and that that benefit would
outweigh any prejudice to the rights and freedoms of any person, including
the defendant, that would flow from the infringement or the admission of
the evidence.
Subclause 11(2), in circumstances where those rights have been infringed,
confers a broad judicial discretion to make such order as the court
considers "appropriate and just in all the circumstances" for the purpose
of ensuring "that the administration of justice is not brought into
disrepute".
This approach is considered preferable to the approach under the United
States Bill of Rights where there is blanket inadmissibility in relation to
evidence obtained in contravention of the Bill of Rights.
Clause 13 - Functions of Human Rights and Equal Opportunity Commission
This clause is to be read together with the Human Rights and Equal
Opportunity Commission Act 1986. The purpose is to add to the functions of
the Commission by conferring on it functions relating to the Charter.
Paragraph 13(1)(a) empowers the Commission to inquire into any act or
practice of any governmental agency or authority (Commonwealth, State or
Territory) which may infringe the Charter. In the course of such an inquiry
the Commission may endeavour, by conciliation, to effect a settlement if it
considers such a procedure appropriate. If not, or if an unsuccessful
attempt at settlement has been made, then in any case where the Commission
concludes that the Charter has been infringed, it must report to the
Minister for the time being administering this Act.
Paragraphs 13(1)(b) and (c) are concerned with promotional, research and
educational functions.
Paragraph 13(1)(d) empowers the Commission to examine enactments and, when
requested, proposed enactments with a view to identifying possible
inconsistencies with the Charter, and to report to the Minister the results
of any such examination.
Paragraph 13(1)(e) empowers the Commission to report to the Minister on
Commonwealth laws that should be passed, or Commonwealth action that should
be taken, on matters pertaining to the Charter. Such reports may be made at
the request of the Minister or on the Commission's initiative.
Paragraph 13(1)(f) permits the Commission to seek leave of the court to
intervene in proceedings relating to a matter arising under this Act.
Paragraph 13(1)(g) confers the usual incidental powers.
Clause 14 - Performance of the Commission in relation to Charter
Subclause 14(1) extends the powers and duties of the Commission under Part
II, Division 3 of the Human Rights and Equal Opportunity Act 1986 to apply
to the rights and freedoms under the Charter. This in effect, brings in the
powers to obtain information and documents, to examine witnesses and other
procedural matters to the Charter Bill, without replicating such functions
in the Bill. Subclause 14(2) requires the Commission to tell the relevant
Minister of any proposed inquiry. This does not give the Minister any
ability to prevent such an inquiry occurring.
SCHEDULE 1 - PARLIAMENTARY CHARTER OF RIGHTS AND FREEDOMS
The Parliamentary Charter of Rights and Freedoms is set out in Schedule 1.
In addition to its legal effects, it is intended to operate as an
inspirational charter for the Australian community. It is therefore
drafted, so far as is possible, in clear and simple language. It consists
of 32 Articles arranged in six Divisions, which are the major substantive
provisions of the Bill.
DIVISION 1-GENERAL
Article 1-Entitlement to rights and freedoms without distinction
Article 1 of the Charter expresses the basic principle that no one is above
or outside the law, that everyone is entitled to its impartial application,
and that, in particular, the fundamental rights and freedoms laid down in
the Charter are to be equally enjoyed by everyone.
The substance of the right of equality before the law is the important, but
limited, principle that there should be no class of persons which is above
or outside the framework of the law, or denied access to the law, whatever
the law may be. This right does not of itself guarantee that access to the
courts might not in fact be qualified on financial or other grounds.
Article 1:1 is based upon the terms of Article 2:1 of the Covenant, and on
the reference to "equality before the law" in Covenant Article 26. To
implement Covenant Article 3, and without in any way limiting Article 1:1,
Article 1:2 makes explicit the equal right of men and women to the
enjoyment of human rights and fundamental freedoms in the Charter.
Article 2-Effect of Bill of Rights on existing rights and freedoms
Article 2 (by ensuring that existing rights and freedoms continue)
implements the requirement in Covenant Article 5:2 that a country is not
permitted, on the pretext of implementing the Covenant, to restrict
existing rights and freedoms.
Preserving rights or freedoms under, or recognised by, any other law
includes common law as well as statutory rights. The Article is also
intended to introduce an element of flexibility which will permit
adjustment to future social developments.
Article 3-Permissible limitations
Article 3 is a limitation or "derogation" clause of general application.
Some of the most important rights set out in the Covenant are qualified by
detailed limitation provisions permitting a number of exceptions and
restrictions: see, for example, Covenant Articles 12 (freedom of movement),
14 (public hearings), 18 (free exercise of religion), 19 (freedom of
speech), 21 (freedom of assembly), and 22 (freedom of association). The
various justifications for limiting rights or freedoms set out in the
Covenant include such important matters as the protection of national
security, public safety, public order (ordre public) and public health.
Carrying some or all of the Covenant qualifications into the relevant
Charter Articles is clearly necessary.
However, in order to produce an inspirational charter of rights in a simple
declaratory style, the drafting technique of consolidating the
qualifications into one Article has been used in preference to attaching
detailed qualifications to individual Articles.
Many other rights in the Covenant are stated in apparently unqualified
terms. Indeed, Covenant Article 4 provides that there should be "no
derogation" from certain specified rights and freedoms even "in time of
public emergency which threatens the life of the nation".
Whether or not all the rights which the Covenant states in unqualified
terms are regarded as morally or philosophically absolute, their legal
enforcement cannot, in the nature of legal processes, be absolute. The Bill
will provide for legislative protection of human rights through the Charter
itself; for judicial enforcement through interpretation and application of
the Charter; and for administrative measures of investigation and
conciliation by the Human Rights and Equal Opportunity Commission. In all
these processes a flexible and practical approach is required.
A third group of provisions in the Covenant contains inbuilt
qualifications: for example, Covenant Article 17 says "no one shall be
subjected to arbitrary or unlawful interference". Such qualifications are
usually reproduced in the Charter; but because of their generality some
further guide to the kind of restrictions that are acceptable is deemed
necessary.
For all three types of provision in the Covenant, Article 3 of the Charter
adopts a similar solution to that adopted in the 1982 Canadian Charter of
Rights and Freedoms. All the rights and freedoms of the Charter are
declared to be "subject only to such reasonable limitations prescribed by
law as can be demonstrably justified in a free and democratic society".
Article 3 thus allows many of the particular rights in the Charter (which
are not themselves absolute in the Covenant) to be limited in the interests
of the community and other individuals.
It should be noted that this wording imposes a number of restrictions on
the permissible limitations of "rights"-
. they must be "reasonable";
. they may limit, but cannot wholly deny, the specifically guaranteed
rights (Attorney-General of Quebec v Quebec Association of Protestant
School Boards (1984) 10 D.L.R. (4th) 321 (S.C.C.));
. they must be "prescribed by law" : a specific law is required;
. the justification must be "demonstrable": a court must be satisfied
that the limits are justified; and
. the justification must be compatible with the basic values of "a free
and democratic society".
Article 3:2 ensures that no limitation may restrict a right or freedom set
out in the Bill of Rights to a greater extent than is permitted by the
relevant Covenant provision. On the basis of the test provided in Article
3:1, however, it is clear that any permissible limitation on an Charter
right need not necessarily restrict that right to the full extent permitted
by the Covenant.
DIVISION 2: NON-DISCRIMINATION
Article 4-Equal Protection of the Law
Article 4 implements the guarantee of "equal protection of the law"
contained in Article 26 of the Covenant. The travaux preparatoires to the
International Covenant indicate that the guarantee of "equal protection of
the law" deals with the content of the law, that is, that the substance of
the law should not be discriminatory. This contrasts with the requirement
that the application of the law should not be discriminatory, which is the
right to "equality before the law" guaranteed by Article 1. By separating
the two freedoms into different Articles, it is intended to avoid the
restrictive approach taken in respect of paragraph l(b) of the Canadian
Bill of Rights and to adopt instead the broader approach favoured in
respect of the Fourteenth Amendment to the United States Constitution.
The guarantee of equality enshrined in the phrase "equal protection of the
law" has never, however, been regarded as absolute. The usual
interpretation is that everyone should be treated alike except where
discrimination can be justified on proper grounds. The intention of the
Charter is that Article 4, when read jointly with Article 3:1, will provide
some guidance in the difficult task of determining which discriminations
are legitimate. In the United States, the courts have adopted different
degrees of scrutiny depending upon the characteristic which forms the basis
of the discrimination. For example, discrimination on the basis of race
will only be permissible in the most compelling of circumstances; whereas,
discrimination on the basis of economic status may only have to be
rationally related to a legitimate governmental purpose to be permissible.
The United States jurisprudence, it is expected, would be a guide to the
courts in their consideration of cases involving discrimination.
The effective protection against discrimination required by Covenant
Article 26 implicitly permits a measure of "affirmative action" or "benign
discrimination", that is, measures that are unequal in their current
application but which are designed to redress past inequalities or ensure
future equality. Article 4:2 of the Charter makes this explicit and also
ensures that nothing else in the Charter will affect "benign
discrimination" provisions.
Article 5-Rights of minority groups
Article 5 implements the protection of cultural, religious and linguistic
rights of minorities contained in Covenant Article 27. The particular
rights guaranteed by Article 5 are guaranteed to a person belonging to a
minority group only in community with other members of the minority group
to which that person belongs.
DIVISION 3: FUNDAMENTAL POLITICAL RIGHTS
Article 6-Right of participation in public life
Article 6 implements Covenant Article 25, which establishes certain basic
rights of citizenship-to participate in public affairs "directly or through
freely chosen representatives"; to vote and to be elected at "genuine
periodic elections", by "universal and equal suffrage" and by secret
ballot; and to have access "on general terms of equality" to "public
service". The words "public service" may be ambiguous in Australia. Article
6, therefore, substitutes "public employment" to ensure that employment at
all three levels of government, and in government authorities, is covered.
Otherwise the operative words of the Covenant Article are transcribed
without change.
The Covenant provision is to operate "without unreasonable restrictions".
In the Charter these words are omitted, since reasonable restrictions are
permitted by Article 3. Subject to such restrictions and the Constitution,
it is intended that the words "universal and equal suffrage" would not
normally limit the choice of electoral methods (for example, proportional
representation, preferential voting, or "first past the post"), but would
require compliance with the formulae "one person, one vote" and "one vote,
one value".
Article 7-Freedom of Expression
Article 7 implements Covenant Article 19:2, a broad guarantee of freedom of
expression and information. The Covenant Article clearly covers freedom of
the press and the media and this has been made explicit in Article 7.
Certain limitations are permitted by the Covenant Article; limitations are
permitted in the Charter by Article 3.
A provision not included in the Charter is Covenant Article 20. It states
that propaganda for war and incitement of national, racial or religious
hatred shall be prohibited by law. As the Charter is designed to prevent
government infringement of individuals' rights, rather than to stop certain
behaviour of individuals, these prohibitions are more appropriately
implemented by separate and specific legislative measures. Such legislation
would then be measured against Article 3 if challenged as contrary to the
freedom of expression guaranteed by Article 7.
Article 8-Freedom of thought and conscience
Article 8 implements those parts of Covenant Articles 18 and 19 concerned
with freedom of thought, conscience and opinion.
Article 9-Freedom of religion or belief
Article 9 guarantees the right to have or to adopt a religion or belief
without coercion and to manifest that religion or belief, implementing
those parts of Covenant Articles 18:1 and 18:2 which are concerned with
freedom of religion. Covenant Article 18:3 permits a range of restrictions
on the freedom to manifest one's religion; limitations are permitted in the
Charter by Article 3. Covenant Article 18:4 is dealt with in Article 14(d)-
see below.
Article 9:2 confers on every person the right not to adopt a religion or
belief and, subject to Article 14(d) below, prohibits compelling any person
to participate in religious worship or ceremony.
Article 10-Right of peaceful assembly
Article 10 implements the guarantee in Covenant Articles 21 and 22 of
freedom of assembly. Certain limitations are permitted by the Covenant
provision; limitations are permitted in the Charter by Article 3.
Article 11-Freedom of association
Article 11 implements the guarantee in Covenant Article 22 of freedom of
association, including the right to form and join trade unions for the
protection of one's own interests. Covenant Article 22 permits restrictions
of trade union rights, but limits the permissible restrictions by reference
to ILO Convention No. 87. Article 11 of the Charter makes no express
provision for restrictions. Restrictions are permitted, however, by Article
3:1 and the effect of Article 3:2 is to restrict the ability to limit
Article 11 in the same way as does the Covenant. Following the Covenant,
trade union rights are guaranteed by the Charter only to a "person" and
"for the protection of that person's interests". In other jurisdictions
these words have been broadly construed. On the one hand, they ensure that
workers have a right to join unions of their choice; on the other hand,
they do not invalidate registration and deregistration provisions.
DIVISION 4: PRIVACY AND FAMILY RIGHTS
Article 12-Right to protection from arbitrary interference
Article 12 implements the protection from arbitrary interference in
Covenant Article 17. It provides that a search, entry or seizure is
unlawful unless certain minimum conditions are met.
Article 13-Right to marry and found a family
Article 13 recognises the importance of the family in its many forms and
provides that every person of marriageable age has the right to marry and
to found a family. It further provides that no marriage shall be entered
into without the free and full consent of the intending spouses.
Article 14-Rights of the child
Covenant Article 24:1 appears to have two concerns-
. the protection of children from the various forms of prohibited
discrimination (race, colour, sex etc.); and
the recognition that children require special measures of protection.
Accordingly, Article 14 seeks to ensure that children are not precluded
from enjoying the rights and freedoms embodied in the Bill of Rights simply
because they are minors, and at the same time recognises that they require
special measures of protection because they are minors. Covenant Articles
24:2 and 24:3 create children's rights to a name, nationality and
registration of birth. Articles 14(b) and (c) implement these requirements.
Article 14(d) (affirming respect for the liberty of parents and guardians
to ensure the religious and moral education of their children according to
their own convictions) repeats the provisions of Covenant Article 18:4.
This liberty of parents and guardians is to be balanced, having regard to
the child's age, with the child's own fundamental rights.
The word "child" is not defined, as it is expected that courts will regard
the prevailing age of majority and the flexibility given by the
introductory recital in Article 14 as sufficient to determine the precise
rights of young persons in particular circumstances.
DIVISION 5: FREEDOM OF MOVEMENT
Article 15-Rights of persons in Australia
Article 16-Right to enter Australia
Article 17-Right to leave Australia
Articles 15, 16 and 17 recognise rights of freedom of movement and choice
of residence; a right of any Australian citizen to enter Australia; and a
right of any person to leave Australia. These provisions implement Covenant
Article 12.
The citizen's right to enter Australia is unqualified in the Covenant.
Certain limitations of the other rights are permitted by the Covenant
provision; in the Charter limitations are permitted by Article 3.
Covenant Article 13 requires that aliens lawfully in Australia may not be
expelled except "in accordance with law". Article 15:2 of the Charter
implements this requirement. The Covenant provision also provides
procedural requirements including an opportunity for review, but these
requirements do not apply to national security cases. These procedural
requirements are required by the phrase in Charter Article 15:2 "on such
grounds and in accordance with such procedures as are established by law".
It is not appropriate to the drafting style of the Charter to spell out in
detail the procedural requirements.
DIVISION 6: LIFE, LIBERTY AND CRIMINAL PROCESS
Article 18-Right to Life
Article 18 implements Covenant Article 6:1 on the deprivation of life.
Paragraphs 2, 4 and 5 of Covenant Article 6 set out detailed regulation of
the permissible use of the death penalty. However, paragraph 6 then
provides: "Nothing in this article shall be invoked to delay or ... prevent
the abolition of capital punishment". In the present state of the law in
Australia, to regulate capital punishment in the Charter might appear to
condone it: hence, consistently with paragraphs 6, the Charter does not
implement paragraphs 2, 4 and 5.
Article 18 follows as closely as practicable, consistent with the drafting
style adopted in the Charter, the wording of Covenant Article 6:1 and is
not intended to modify the existing laws on abortion in Australia.
Article 19-Liberty and security of person
Article 19-the right to liberty and security of person-derives from
Covenant Article 9:1. The Covenant Article also prohibits arbitrary arrest
or detention, and this prohibition is implemented in Article 19:2.
Article 19:4 implements Covenant Article 11, that no one shall be
imprisoned merely on the ground of inability to fulfil a contractual
obligation.
Article 20-Slavery and servitude
Article 20 implements the prohibitions in Covenant Article 8 of slavery and
servitude, and of forced or compulsory labour. As to the prohibition of
forced or compulsory labour, certain limitations are permitted by the
Covenant provision. In the Charter, limitations are permitted by Article 3.
Article 21-Right to be informed of reasons for arrest and of charges
Article 21 (the right to be informed of the reasons for arrest, and to be
informed promptly of any charges) implements Covenant Articles 9:2 and
14:3(a).
Article 22-Right to remain silent and to have access to lawyer
Article 22 protects the rights to remain silent and to have access to a
lawyer before and during questioning. In order to ensure the effective
protection of these important rights, it picks them up at an earlier stage
of the criminal process than the Covenant. Generally, throughout this part
of the Charter, an effort is made to state the rights in the chronological
order in which they would become relevant to an arrested person.
Article 23-Hearings, release and trial
Article 23 implements Covenant Article 9:3, but attempts to separate the
three distinct rights that appear to be involved: a prompt initial hearing
after arrest; a right to bail on reasonable terms (except for good
reasons); and a right to be tried within a reasonable time.
Article 24-Right to test lawfulness of detention
Article 24 implements the right under Covenant Article 9:4 to test the
lawfulness of any detention (for example, by habeas corpus) and, where
appropriate, to be released.
Article 25-Presumption of innocence
Article 25 implements Covenant Article 14:2: a person charged with a
criminal offence is to be presumed innocent until proved guilty according
to law. The phrase "according to law" does not permit the Parliament to
take away the ultimate burden of the prosecutor to prove guilt beyond a
reasonable doubt.
Article 26-Right to fair hearing
Article 26 creates, for both civil and criminal cases, a right "to a fair
and public hearing by a competent, independent and impartial tribunal".
This implements a guarantee in Covenant Article 14:1. The Covenant
provision also declares that all persons "shall be equal before the courts
and tribunals". This requirement is sufficiently implemented by the general
provisions for equality before the law in Article 1 of the Charter. Certain
limitations are permitted by the Covenant provision. In the Charter
limitations are permitted by Article 3.
Article 27-Rights of accused relating to trial
Article 27 should be read with Articles 21 to 23 above. Together these
Articles implement a series of "due process" rights relating to the conduct
of investigations into and trial of criminal offences required by Covenant
Article 14:3. An effort is made in this Article not only to create specific
enforceable rights but also, so far as possible, to group within the
Article the rights in the chronological order in which they would become
relevant. For example, Article 27(b) states the right to communicate with a
lawyer; but Article 27(a) first ensures that a person charged will be
informed of the right to legal assistance.
Article 27(c) provides for free legal aid "if the interests of justice so
require and the person lacks sufficient means to pay for the assistance".
This implements the similarly qualified right in Covenant Article 14:3(d).
The reference to "the interests of justice" is understood as permitting
reasonable discretions in the granting of legal aid, based on the merits of
the case and on the seriousness of the offence.
Other rights set out in Article 27 (all based on Covenant Article 14:3) are
the rights to adequate time and facilities to prepare a defence; to be
present at any trial and to conduct a defence; to examine prosecution
witnesses and have defence witnesses called and examined; to receive the
free assistance of an interpreter when needed; and to be protected against
self-incrimination. In Article 27(i), the words "against himself" used in
Covenant Article 14:3(g) have been omitted because, as the right only
applies to a person in relation to the offence with which that person is
charged, they are unnecessary. Further, in relation to self-incrimination,
see also Article 22.
Covenant Article 14:4 requires a procedure for juveniles which takes
account of their age. This requirement is implemented in Article 27(j).
Article 28-No retrospective criminal offences or penalties
Article 28 prohibits the creation of retrospective criminal offences, or a
retrospective increase in penalties (Covenant Article 15:1). It should be
noted that in both the Covenant and the Charter the ban on retrospectivity
applies only to criminal offences and penalties.
Article 29-Right of review of conviction and sentence
Article 29 recognises a right to review of conviction and sentence
(Covenant Article 14:5).
Article 30-No trial or punishment for same offence
Article 30 prevents "double jeopardy" (Covenant Article 14:7).
Article 31-Rights when deprived of liberty
Article 31 implements rights in relation to deprivation of liberty
contained in Covenant Article 10. Article 31:1 (all persons deprived of
liberty to be treated with humanity and respect to human dignity)
implements Covenant Article 10:1.
Other paragraphs of Covenant Article 10 require segregation of prisoners:
accused persons from those already convicted, and juvenile offenders from
adults (with appropriate treatment for juveniles). In the Covenant the
first of these requirements is to operate "save in exceptional
circumstances"; the second is absolute. Both requirements are implemented
by Article 31:2, but in both cases only "so far as is practicable".
This limitation is a recognition that in the short term, strict compliance
with the Covenant may be difficult for state administrations. Some leeway
is allowed to take into account what is practicable. However, in the long
term strict compliance should not normally be impracticable.
Article 32-No torture or inhuman treatment and no experimentation without
consent
Article 32 prohibits torture and inhuman treatment, and medical
experimentation without consent, and implements Covenant Article 7. The
implementation of this prohibition is essential because it is fundamental
to a general statement of human dignity.