Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Property rights
Section 20
A person must not be deprived of his or her property other than in accordance with law.
CHARTER GUIDELINES
Section 20: Property rights
her property.
• contractual rights;
However, ‘property’ in s. 20 has a wider meaning
• leases;
than title to or ownership of property, and ‘deprived’
has a wider meaning than being stripped of title • shares;
or ownership (discussed below on page 130). • patents;
The primary impact of s. 20 will be in relation to • debts.
these wider senses of property and deprivation.
To comply with the right in these contexts, the The notion of ‘property’ also extends to statutory
deprivation must be authorised by law. rights, particularly where they have the
characteristics of traditional property rights
In the vetting context this means: such as permanence and transferability.
• Where the common law or legislative provision Importantly, property could also apply to non-
deprives a person of title to, or ownership of, traditional and less formal rights in relation to
his or her property, you should ensure that property, such as a licence to enter or occupy
the powers conferred by the common law or land and the right to enjoy uninterrupted possession
legislative provision are not arbitrary. If they of land.
are not arbitrary, nothing further is required to
satisfy the right contained in s. 20. (However, The above list is not comprehensive. These Charter
you should take into account any other policy Guidelines cannot provide policy officers with a
development guidelines that require, for comprehensive statement of Victorian law on
example, provisions for notice, consultation, the definition of property. It is important that you
review and compensation. The Charter does familiarise yourself with the range of rights and
not displace any such existing guidelines or interests considered to be ‘property’ under
existing legal requirements.) Victorian law which might be relevant to s. 20.
SECTION 20
PROPERTY RIGHTS
Section 21
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
declaration or order regarding the lawfulness of his or her detention, and the court must—
(a) make a decision without delay; and
(b) order the release of the person if it finds that the detention is unlawful.
(8) A person must not be imprisoned only because of his or her inability to perform
a contractual obligation.
POLICY TRIGGERS: DO I NEED TO CONSIDER • allows the detention of a person in order for
SECTION 21? the person to ‘sober up’;
You will need to consider s. 21 in assessing • makes it an offence for a person to fail to
legislation, a policy or a program particularly remain at a place (for example, for further
where it: questioning or to conduct a search or test
• permits any public authority to detain an by a police officer or other official);
individual, whether or not he or she is suspected • allows a public authority to cordon an area
of committing an offence, for a period that is and control movement within that area;
more than transitory;
• relates to the management of security
• authorises a person with a mental illness to be of persons within correctional facilities;
detained for treatment in a mental health facility;
• grants a power of arrest.
• allows the detention of a person in order to
prevent the spread of a contagious disease;
SECTION 21
RIGHT TO LIBERTY AND
SECURITY OF PERSON
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
Legality circumstances of the case, for example to
prevent flight or interference with evidence.’ 175
An arrest or detention will be in breach of the
Charter when it is not ‘on grounds and in Arbitrary detention has also arisen before the
accordance with procedures, established by law’. UN Human Rights Committee in the context of
This means that arrest and subsequent detention immigration detention. In a series of cases, the
ought to be specifically authorised and sufficiently committee has found the Australian Government’s
circumscribed by law. Secondly, the law itself and policy of indefinite detention of asylum seekers
the enforcement of that law must not be arbitrary. is a breach of article 9 of the ICCPR.176
For the purposes of these Charter Guidelines, these • Continuation of detention: Although the initial
decisions are useful in respect of the comments power to detain a person may be valid, the
made by the committee about the meaning of detention may become arbitrary if there is no
‘arbitrary detention’. The committee has said that for sufficient reason for continuing to detain the
detention to avoid being characterised as ‘arbitrary’: person. An individual should not be kept in
• it should not continue beyond the period for detention as a matter of convenience.
which a state party can provide appropriate • Improper exercise of power: Although law
justification; enforcement officials may have a statutory
• where a person is initially detained for a limited power to detain a person, the detention may
period for a specific purpose, there must be an be arbitrary if it is not carried out for a valid
appropriate justification to continue to detain reason (for example, if the ostensible reason is
him or her after this purpose no longer applies; a sham) or where there is insufficient cause to
detain an individual (for example, the detaining
• where there are less intrusive measures that
officer may not genuinely or reasonably hold the
can achieve the same end they should be used,
belief that a crime is imminent, which may be
for example, the imposition of reporting
required under the legislation).
obligations, sureties or other conditions.
• Lack of procedural safeguards: Detention
134 Similar principles could apply to Victorian laws
may become arbitrary where there is a lack
providing for detention or the enforcement of
of procedural safeguards which protect against
those laws.
it becoming arbitrary.
Some additional examples of what might constitute
arbitrary arrest or detention are the following: Right to security
• Where an arrest is made in order to achieve Section 21 protects the right to security. This right
an unlawful purpose, the resulting detention applies independently to the right to liberty, which
may be arbitrary. is also protected under s. 21.
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
‘It must be established that the authorities
inform the person of them.
knew or ought to have known at the time of the
existence of a real and immediate risk to the life The information to be provided is twofold:
of an identified individual or individuals from the
• the reason for the arrest or detention, even if
criminal acts of a third party and that they failed
those grounds would be obvious to the person
to take measures within the scope of their
(for example, if he or she were caught ‘red-
powers which, judged reasonably, might have
handed’); and
been expected to avoid that risk.’179
• any proceedings to be brought against him or her.
The European Court of Human Rights has also noted
that the scope of the obligation to protect a person’s The requirement in the Charter that there be no
life must be interpreted in a way that does not arbitrary detention will mean that a public authority
impose an impossible or disproportionate burden on must have information evidencing a reasonable
the state, ‘bearing in mind the difficulties in policing suspicion to support the detention.181 This right
modern societies, the unpredictability of human (in s. 21(4)) requires the public authority to provide
conduct and the operational choices which must this information to the person detained.
be made in terms of priorities and resources.’180
‘Prompt’ presentation and pre-trial detention • the danger that the accused will abscond if
released;
Section 21(5) requires that a person who is
arrested or detained on a criminal charge must • whether the authorities have been diligent in
be promptly brought before a court, brought to the conduct of the proceedings, considering
trial without unreasonable delay, and released the complexity and special characteristics of
if neither requirement is met. the investigation; and
What is ‘prompt presentation’? • whether delays are due to the conduct of the
accused or are due to the prosecution.
In the context of international human rights law, the
UN Human Rights Committee has said that time- Right to release pending trial
limits for ‘prompt’ presentation of persons under
Sub-section 6 of s. 21 provides that a person
this provision are a matter of domestic law; however,
awaiting trial must not be automatically detained
delays in presenting a detained person before a
in custody. Rather, the person has a right to be
court should not exceed a few days.182
released on bail subject to giving a guarantee to
The European Commission on Human Rights has appear for trial, and at any other stage of the
taken the view that the period of time should not judicial proceeding, and, if appropriate, for
ordinarily be longer than four days.183 execution of judgment.
136
What is ‘unreasonable delay’ You will need to consider this provision if you are
vetting the Bail Act 1977 (Vic.) or preparing any
The Charter requires that a person be brought subsequent amendment to that Act, or assisting
to trial without unreasonable delay. in the development of a policy or program that
This right overlaps considerably with s. 25(2)(c) seeks to give effect to the Bail Act.
of the Charter, which seeks to ensure that a person Section 21(6) will be engaged by a provision that
accused of criminal charges is tried without establishes a presumption against bail for a
unreasonable delay. The distinction between the particular category of offence or offender. It will
two rights is that s. 21(5) regulates the length of also be engaged by a provision that precludes bail
pre-trial detention, whereas s. 25(2)(c) regulates for a particular category of offence or offender.
the total length of time that passes before a person’s
trial, whether or not he or she is detained on remand Note however that the right to be released pending
or has been granted bail. trial may be limited under s. 7 of the Charter. Pre-trial
detention may be necessary, for example, to ensure
In international human rights law, there is no fixed the presence of the accused at the trial, at any other
time limit for when detention can be viewed as stage of the judicial proceeding or for execution
occurring ‘without unreasonable delay’. of judgment. It may also be necessary to avert
Whether a period of pre-trial detention meets interference with witnesses and other evidence,
the requirements in s. 21 will depend on a range or to avert the commission of other offences.184
of factors:
• the seriousness of the alleged offence;
• the nature and severity of the possible penalties;
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
reasonable limits, it seems unlikely that any it must be authorised.
provision that absolutely excluded review by • To avoid arbitrary arrest or detention, enforcement
the courts (or rendered it practically impossible) officers should only arrest or detain someone in
would be reasonable or, perhaps, lawful. accordance with established procedures.
Imprisonment for failure to perform • The right to security applies both inside and
a contractual obligation outside detention. It means that a person’s
Section 21(8) establishes a freedom from physical security must be protected in
imprisonment for inability to fulfil a contractual circumstances where a public authority
obligation. This provision was primarily designed is aware that it may be under threat.
to address so-called ‘debtors’ prisons. • Any person who is arrested or detained must
The term ‘contractual obligation’ includes monetary be told (a) the reason for the arrest or detention;
debts arising from private civil law obligations. and (b) about any proceedings to be brought
It will probably not include infringement notices against him or her.
such as public transport fines.
– a provision for officers to receive training • Ensure that you have guidelines in place for
as to the circumstances when the power dealing with threats to a person’s physical
can be used; and security (including persons in a custodial facility)
that comply with the Charter obligations under
– a mechanism by which practice guidelines s. 21 and s. 9.
are developed and disseminated for officers
exercising powers of arrest or detention.
RELATED RIGHTS AND FREEDOMS United Nations Human Rights Committee
Jurisprudence
Situations that engage s. 21 may also raise issues
in relation to the following rights in the Charter: 10. A v. Australia, Human Rights Committee,
Communication No. 560/1993, UN Doc.
• protection from torture and cruel, inhuman CCPR/C/59/D/560/1993 (30 April 1997).
or degrading treatment (s. 10);
11. D & E v. Australia, Human Rights Committee,
• humane treatment when deprived of liberty (s. 22); Communication No. 1050/2002, UN Doc.
• children in the criminal process (s. 23); CCPR/C/87/D/1050/2002 (9 August 2006).
• fair hearing (s. 24); and 12. Delgado Paez v. Colombia, Human Rights
Committee, Communication No. 195/1985,
• rights in criminal proceedings (s. 25).
UN Doc. CCPR/C/39/D/195/1985
(23 August 1990).
HISTORY OF THE SECTION
13. Spakmo v. Norway, Human Rights Committee,
Section 21 is modelled on articles 9 and 11 of
Communication No. 631/1995, UN Doc. CCPR/
the ICCPR. However, unlike article 9 of the ICCPR,
C/67/D/631/1995 (11 November 1999).
s. 21 does not confer a right to compensation for
breach of the right. 14. Torres v. Finland, Human Rights Committee,
Communication No. 291/1998, UN Doc. 139
Similar rights exist in comparative law. Refer to
CCPR/C/38/D/291/1988 (5 April 1990).
Appendix H for further information.
15. Van Alphen v. The Netherlands, Human Rights
BIBLIOGRAPHY Committee, Communication No. 305/1988,
UN Doc. CCPR/C/39/D/305/1988 (15
Case Law August 1990).
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
1. Austin and Another v. Commissioner Of Police 16. WBE v. The Netherlands, Human Rights
For The Metropolis [2005] EWHC 480 (QB). Committee, Communication No. 432/1990,
2. Brogan v. United Kingdom (1988) 145 Eur UN Doc. CCPR/C/46/D/432/1990 (23
Court HR (ser B). October 1992).
Section 22
(1) All persons deprived of liberty must be treated with humanity and with
respect for the inherent dignity of the human person.
(2) An accused person who is detained or a person detained without charge
must be segregated from persons who have been convicted of offences,
except where reasonably necessary.
(3) An accused person who is detained or a person detained without charge must
be treated in a way that is appropriate for a person who has not been convicted.
140 POLICY TRIGGERS: DO I NEED TO CONSIDER These policy triggers are not comprehensive.
SECTION 22?
You will need to consider s. 22 in assessing DISCUSSION OF SECTION 22
legislation, a policy or a program where it: Section 22 requires a public authority to treat all
• enables a public or private authority to detain persons in detention with humanity and dignity.
individuals; The clause also requires the segregation of
persons accused of offences from persons who
• relates to the conditions under which an
have been convicted of offences.
individual may be detained;
This clause is essentially concerned with ensuring
• concerns standards and procedures for treatment
that the conditions under which people are
of individuals who are detained, including the
detained in Victoria conform to internationally
range of custody and supervision services (for
accepted standards. International standards on
example, use of force, dietary choice, access
the conditions for detention are set out in a number
to private shower and toilet facilities);
of human rights instruments which are discussed
• permits the enforcement authorities to hold below. A detention does not include every restraint
individuals for any length of time; on liberty; for example, intervention orders
restraining a person from contacting others or
• authorises enforcement officers to hold
visiting certain places would be unlikely to be
individuals in a place with limited facilities or
considered ‘detention’. The New Zealand Court
services for the care and safety of detainees;
of Appeal has defined detention as ‘a substantial
• enables enforcement officers to undertake intrusion on personal liberty.’186
personal searches of individuals detained in
custody or detainee visitors. (Enforcement officers
include law enforcement officers but also officers,
commonly known as ‘inspectors’ and ‘authorised
officers’, who are appointed and authorised to
exercise powers of entry, investigation, search,
inspection, monitoring, detention, seizure,
confiscation and the issuing of notices.);
CHARTER GUIDELINES
Section 22: Humane treatment
when deprived of liberty
law requires that to the extent that family life can
limited purpose (for example, detention by an
be maintained (for example, through letters and
inspector to obtain a person’s name and address)
regular visits by family members) it should be.
or for non-punitive purposes, (for example, for
Measures that may interfere in the maintenance of
mental health treatment).
a family relationship that are undertaken as a form
In respect of criminal detention, the right applies of punishment, or for administrative convenience,
to pre-trial detention as well as detention after (for example, denying a prisoner communication
conviction. The UN Human Rights Committee has with his or her family members) should be avoided.
made clear that this right applies to all detention
facilities within a state’s jurisdiction.189 The definition
of a ‘public authority’ in the Charter means that the
right to humane treatment when deprived of liberty
will be likely to apply in respect of privately
contracted detention facilities operating in Victoria.
This right applies to anyone detained, whether
he or she is an adult or child.
Individuals who are detained must be provided • refused medical attention or there was a failure
with services that will satisfy their essential needs. to address deteriorating mental health;195
The UN Standard Minimum Rules for the Treatment
• subjected to ridicule;196
of Prisoners establish minimum standards on
a range of matters, including conditions of • denied reading facilities and not allowed to
accommodation; food of adequate quality; facilities listen to the radio;197
for personal hygiene; standard of clothing and • confined to his or her cell for an unreasonably
bedding; opportunities for exercise and availability long period of time;198
of medical services; contacts with the outside world;
access to books and regulation of methods and • required to prepare prison food in unsanitary
procedures for discipline and punishment (including conditions;199
the prohibition of certain forms of punishment).192 • subject to restricted correspondence with
All these matters were taken into consideration family; 200
by the ACT Human Rights Commissioner when
• prevented from being present at the birth
she conducted an audit of Quamby Youth Detention
of a child; 201
Centre during the first year of operation of the
ACT Human Rights Act. 193 • held in a small cage awaiting court appearance.202
Rights Committee (generally in cases not involving 196 Francis v. Jamaica, Human Rights Committee,
Communication No. 606/1994, UN Doc. CCPR/C/54/
Australia) where the detainee was: D/606/1994 (3 August 1995) [9.2].
• held in ‘incommunicado’ detention for any length 197 Nieto v. Uruguay, Human Rights Committee,
Communication No. 92/1981, UN Doc. CCPR/C/19/
of time (an aggravated form of detention where
D/92/1981 (25 July 1983) [1.7], [10.4].
a person is denied access to family, friends and
198 Cabreira v. Uruguay, Human Rights Committee,
others);194 Communication No. 105/1981, UN Doc. CCPR/C/19/
D/105/1981 (21 July 1983) [9.1]–[10.2].
199 Matthews v. Trinidad and Tobago, Human Rights
192 While these rules are not formally binding on signatory Committee, Communication No. 569/1993, UN Doc.
states they have most often been used when interpreting CCPR/C/62/D/569/1993 (29 May 1998) [5.4],
the application of article 10 of the ICCPR, which pertains [7.3] [8].
to humane treatment. 200 Espinoza de Polay v. Peru, Human Rights Committee,
193 Human Rights Office (ACT), Human Rights Audit of Communication No. 577/1994, UN Doc. CCPR/C/61/
Quamby Youth Detention Centre, 30 June 2005 (see D/577/1994 (9 January 1998) [8.6].
more generally ACT Department of Justice and 201 Madafferi v. Australia, Human Rights Committee,
Community Safety Human Rights Act 2004, Twelve- Communication No. 1011/2001, UN Doc.
Month Review – Report, June 2006). CCPR/C/81/D/1011/2001 (26 August 2004) [9.4].
194 Caldas v. Uruguay, Human Rights Committee, 202 Cabal & Passini v. Australia, Human Rights Committee,
Communication No. 43/1979, UN Doc. CCPR/C/19/ Communication No. 1020/2001, UN Doc. CCPR/C/78/
D/43/1979 (21 July 1983) [13.3]. D/1020/2001 (19 September 2003) [8.3].
Sections 22(2) and (3): Additional rights of It might be reasonably necessary not to segregate
certain detainees an accused from a convicted prisoner where, for
Paragraphs (2) and (3) of s. 22 grant the following example, convicted prisoners work as food servers
additional rights to ‘an accused person who is or cleaners in a remand unit in which accused
detained’ and a ‘person detained without charge’: persons are held.204
• to be segregated during detention from Note also that the requirement for segregation
persons convicted of an offence, except does not necessarily require that the two groups
where reasonably necessary; and of detainees (accused persons and convicted
persons) are housed in separate buildings, provided
• to be treated in a way that is appropriate that contact between the two groups of detainees
for a person who has not been convicted. is kept to a strict minimum.205
These rights follow from the principle of the In respect of children, you should refer to the
presumption of innocence in criminal law: a section of these Charter Guidelines on s. 23.
detainee who has not yet been tried is entitled (Accused children, or children detained without
to a different treatment regime than convicted charge, are to be separated from adult detainees.
detainees.203 However, this right does not apply to convicted
Right to segregation children.)
143
The Charter provides a right to segregation. Right to humane treatment
The right is for an accused person who is detained, You should refer to the discussion on page 141
or a person detained without charge, to be for what is meant by humane treatment.
segregated from convicted persons. Section 21(2)
provides, however, that the right applies ‘except
REASONABLE LIMITS ON THE RIGHTS IN
CHARTER GUIDELINES
Section 22: Humane treatment
when deprived of liberty
where reasonably necessary’. SECTION 22
What does ‘except where reasonably As with all of the human rights protected in the
necessary’ mean? Charter, the rights in s. 22 may be subject to
The phrase ‘except where reasonably necessary’ reasonable limitations that can be demonstrably
does not appear in the equivalent ICCPR right justified in a democratic society in accordance
(article 10). with s. 7 of the Charter. Note that lack of material
In the ICCPR, the right to be segregated applies resources or financial difficulties have not been
‘save in exceptional circumstances’. considered to be a justification for inhuman
treatment. You should refer to Part 2 of these
Charter Guidelines for further information on s. 7.
Similar rights exist in comparative law. Refer to 11. Mpandanjila v. Zaire, Human Rights
Appendix H for further information. Committee, Communication No. 138/1983, UN 145
Doc. CCPR/C/27/D/138/1983 (26 March
BIBLIOGRAPHY 1986).
12. Nieto v. Uruguay, Human Rights Committee,
Articles, Books and Report
Communication No. 92/1981, UN Doc. CCPR/
1. Manfred Nowak, UN Covenant on Civil and C/19/D/92/1981 (25 July 1983).
CHARTER GUIDELINES
Section 22: Humane treatment
when deprived of liberty
Political Rights: CCPR Commentary (NP
13. Pinkney v. Canada, Human Rights Committee,
Engel, 1993), 186.
Communication No. 27/1977, UN Doc. CCPR/
2. Human Rights Office (ACT), Human Rights C/14/D/27/1977 (29 October 1981).
Audit of Quamby Youth Detention Centre,
30 June 2005. Other Sources
3. ACT Department of Justice and Community 14. UN Human Rights Committee, General
Safety Human Rights Act 2004, Twelve-Month Comment 9, Article 10 (Sixteenth session,
Review, June 2006. 1982), Compilation of General Comments and
General Recommendations Adopted by Human
United Nations Human Rights Committee Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Jurisprudence
Rev.6 at 131 (2003).
4. Cabal & Passini v. Australia, Human Rights
15. UN Human Rights Committee, General
Committee, Communication No. 1020/2001,
Comment 21, Article 10 (Forty-fourth session,
UN Doc. CCPR/C/78/D/1020/2001
1992), Compilation of General Comments and
(19 September 2003).
General Recommendations Adopted by Human
5. Cabreira v. Uruguay, Human Rights Committee, Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Communication No. 105/1981, UN Doc. Rev.6 at 153 (2003).
CCPR/C/19/D/105/1981 (21 July 1983).
16. http://www.ohchr.org
6. Caldas v. Uruguay, Human Rights Committee,
Communication No. 43/1979, UN Doc. CCPR/
C/19/D/43/1979 (21 July 1983).
Section 23
Children in the
criminal process
Section 23
• provides for sentencing of offenders which may Section 23 specifies additional requirements for
impact on detained children (such as the place the humane treatment of children who are detained
where an adult prisoner is detained); in the criminal process. These rights apply to
children who are detained in the criminal process,
• affects the speed at which a child may be
unlike s. 22, which applies to a person detained
brought to trial (such as alteration to practices
regardless of the purpose of the detention.
or internal procedures for case management in
the Office of Public Prosecutions or the courts);
The additional requirements imposed by s. 23 are: The Charter does not expressly require convicted
children to be segregated from convicted adults.
• Non-convicted children must be segregated
The equivalent ICCPR provision (in Article 10(3))
from adults in detention, whether or not the
was omitted so that a practice by which convicted
adults have been charged.
young adults (aged 18–21) are detained in
• Children accused of an offence must be brought correctional facilities with convicted children rather
to trial ‘as quickly as possible’. than with adults will not contravene the Charter.
• Children found guilty of an offence must be This omission was recommended by the Human
treated in an age-appropriate manner. Rights Consultation Committee:
The purpose of these forms of protection is to ‘on the basis that the current system for the
recognise and address the particular vulnerability punishment of young offenders in Victoria
of children in the criminal process. represents the best practice. The Committee
was concerned that the inclusion of the provision
Section 23(1): Segregation [that juvenile offenders shall be segregated from
The Charter imposes requirements in respect of adults] may have the unintended consequence of
segregation (in relation to both adults and children) requiring the automatic removal of offenders, who
during the criminal process. were under 18 when the crimes were committed,
to adult prisons when they turn 18.’207 147
In summary, with respect to the segregation of
children, any accused child (who is not convicted) Section 23(2): Right of an accused child to
or any child detained without charge must: be brought to trial ‘as quickly as possible’
• be segregated from adults in detention: s. 23(1); The purpose of s. 23(2) is to recognise that
a child should be detained for only the shortest
• be segregated in detention from other children appropriate time.208
CHARTER GUIDELINES
Section 23: Children in the criminal process
who have been convicted of offences, ‘except
where reasonably necessary’: s. 22(2). You There is no prescribed time limit for what will
should refer to s. 22 of these Charter Guidelines amount to being brought to trial ‘as quickly as
for the meaning of this phrase. possible’. However, it is likely to be a period of
time that is shorter than the time permitted under
In relation to a child who is accused, note also s. 21(5), which requires a person to be brought to
s. 21(6) of the Charter, which provides a right trial ‘without unreasonable delay’.
to be released pending trial. Children ought not
usually be detained before trial unless there is
a good reason for doing so. The right to release
pending trial is discussed further under s. 21(6)
of these Charter Guidelines.
In the case of Philis v Greece the following test These documents can be accessed on the
was used to consider the period of delay: internet.210
‘the reasonableness of the length of proceedings These standards are founded on the premise that
must be assessed in the light of the particular ‘the juvenile justice system should uphold the rights
circumstances of the case and ... in particular the and safety and promote the physical and mental
complexity of the case and the conduct of the well-being of juveniles.’211 The standards relate to
applicant and of the relevant authorities.’209 a range of subject matters. Some of these that may
be relevant under s. 23(3) are:
Section 23(3): Right of a convicted child to
be treated in a way that is appropriate for his • children should be provided with opportunities
or her age to continue education while in detention;
The Charter requires a convicted child to be • children should be provided with access to
treated in a way that is appropriate for the vocational training in occupations likely to
child’s age. prepare the child for future employment;
In addition to the standards on detention that are • children should have access to leisure activities;
referred to under s. 22 (which apply to both adults
and children) the United Nations has developed • children should be able to use their own clothing
special standards on the detention of children. in detention, to the extent possible;
148
To comply with this section, it is recommended that • as far as possible, children should be detained
you examine these standards and seek to ensure in ‘open facilities’ with minimal security
that they are complied with. measures and the facilities should be small so
The UN standards are contained in the following as to facilitate access and contact between
documents: detainees and their families.212
• UN Rules for the Protection of Juveniles The standards establish conditions in respect of
Deprived of their Liberty; each of these matters. For example, in relation to
education they impose requirements in respect of
• UN Standard Minimum Rules for the the type, location and content of education.
Administration of Juvenile Justice (Beijing
Rules);
• UN Guidelines for the Prevention of Juvenile
Delinquency (Riyadh Guidelines).
CHARTER GUIDELINES
Section 23: Children in the criminal process
• The Charter recognises that children are etc. The standards on detention generally
particularly vulnerable in the criminal process. are discussed under s. 22. The international
standards are part of international law and
• In addition to the general guarantees in s. 22,
may be used when interpreting human rights
additional guarantees in relation to children in
under s. 32(2) of the Charter.
the criminal process are contained in s. 23.
2. Review pre-trial criminal procedures that apply
• Whereas s. 22 applies to all persons detained,
to children and ensure that they do not create
s. 23 applies only to children detained in the
unnecessary delay in bringing a child to trial
criminal process.
as quickly as possible.
• Section 23 requires:
3. Review sentencing laws and guidelines
– accused children or children detained covering children to ensure that they provide
without charge should be segregated from for age-appropriate treatment.
adults in detention;
– children should be brought to trial as
quickly as possible;
– children should be treated in a way that is
appropriate for their age. Guidance on what
this may require is provided on page 148.
• All of these rights are subject to reasonable
limitations that can be demonstrably justified
in a democratic and free society.
SECTION 23
CHILDREN IN THE
CRIMINAL PROCESS
BIBLIOGRAPHY
Report
1. Human Rights Consultation Committee
(Victoria), Rights, Responsibilities and
Respect (2005).
Case Law
1. Perovic v. CW No. CH 05/1046, Unreported
decision of Magistrate Somes, 1 June 2006.
2. Philis v. Greece (No 2) (1997) IV Eur Court
HR 1074.
Treaties
3. Convention on the Rights of the Child, opened
for signature 20 November 1989, 1577 UNTS
3 (entered into force 2 September 1990).
Section 24
Fair hearing
Section 24
(1) A person charged with a criminal offence or a party to a civil proceeding has the right
to have the charge or proceeding decided by a competent, independent and impartial
court or tribunal after a fair and public hearing.
(2) Despite sub-section (1), a court or tribunal may exclude members of media organisations
or other persons or the general public from all or part of a hearing if permitted to do so
by a law other than this Charter.
Note: For example, section 19 of the Supreme Court Act 1986 sets out the circumstances in
which the Supreme Court may close all or part of a proceeding to the public. See also section
80AA of the County Court Act 1958 and section 126 of the Magistrates’ Court Act 1989.
(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding
must be made public unless the best interests of a child otherwise requires or a law
other than this Charter otherwise permits.
POLICY TRIGGERS: DO I NEED TO CONSIDER • concerns the way in which juries are selected 151
SECTION 24? and regulated;
You will need to consider s. 24 if you are assessing • amends the procedure allowing for a change
legislation, a policy or a program where it: of trial venue;
• creates a new court or tribunal; • regulates the appointment, including term of
appointment, remuneration or removal of judges
CHARTER GUIDELINES
SECTION 24: FAIR HEARING
• creates or restricts rights of review for
administrative decision-making and appeal; or tribunal members from office;
• includes a privative clause (a clause that • regulates the procedures for giving notice of a
purports to make a decision final and ousts hearing, disclosing information to be considered
the jurisdiction of a court to review it); in making a decision or giving the person an
opportunity to make submissions;
• alters the jurisdiction of courts and tribunals;
• regulates the procedures for challenging the
• amends the way in which evidence is presented impartiality and independence of courts and
in a court or tribunal; tribunals.
• limits the requirement of a court or tribunal to
accord natural justice; DISCUSSION
• develops special procedures to provide Right to a fair hearing
safeguards for witnesses when giving evidence
in a court or tribunal (such as giving evidence Section 24 guarantees the right to a fair and
when shielded by a screen so that the defendant public hearing.
cannot see him or her); The right to a fair hearing applies in both civil and
• regulates the way in which the media is able criminal proceedings and in courts and tribunals.
to report on trials or pending court cases or This provision should be read together with ss. 25,
other hearings (for example, the granting of 26 and 27 of the Charter, which establish various
suppression orders); rights of a person in criminal proceedings. For
example, many of the minimum entitlements outlined
in s. 25 are elaborations of the right to a fair hearing.
SECTION 24
FAIR HEARING
Note though that the observance of the requirements The prohibitions in s. 27 on retrospective criminal
of s. 25 will not always be sufficient to ensure the laws and retrospective penalties are included in the
fairness of a hearing under s. 24.213 Charter to help satisfy these requirements.
Thereafter, s. 25 of the Charter elaborates on the
The requirement for a fair hearing applies to all
minimum conditions required to achieve a fair
stages in proceedings and applies in relation to
hearing in criminal proceedings.
proceedings in any Victorian court or tribunal.
Beyond these aspects, the elements of the right to
What is required for a ‘fair hearing’?
a fair hearing in both criminal and civil proceedings
The purpose of the right to a fair hearing is to revolve around the procedures that are followed
ensure the proper administration of justice. This during a hearing and the extent to which they
right is concerned with procedural fairness (that is, protect the rights of the parties and respect
the right of a party to be heard and to respond to the principle of ‘equality of arms’.
any allegations made against him or her, and the The principle of equality of arms means that
requirement that the court or tribunal be unbiased, everyone who is a party to proceedings must have
independent and impartial) rather than the a reasonable opportunity of presenting his or her
substantive fairness of a decision or judgment case to the court under conditions that do not
of a court or tribunal determined on the merits of the place that party at a substantial disadvantage
152 case (that is, the rights or wrongs of the decision). vis‑à‑vis his or her opponent. 215
What constitutes a ‘fair’ hearing will depend on The content of the right to a fair hearing in both
the facts of the case and will require the weighing criminal and civil proceedings may include a right
of a number of public interest factors including the to an oral hearing unless there are circumstances
rights of the accused and the victim (in criminal justifying otherwise.216 This may depend on the
proceedings) or of all parties (in civil proceedings). particular stage of the proceedings as some
preliminary applications are sometimes determined
It is likely to differ in criminal and civil proceedings.
by courts or tribunals ‘on the papers’ and this has
In the criminal law context, an initial requirement been an increasing trend in court management.
is that there is a clear and publicly accessible legal The right to a fair hearing is unlikely to include
basis for all criminal prosecutions and penalties, a right to access a court given the language
so that the criminal justice system can be said expressed in s. 24(1). Access may sometimes
to be operating in a way that is predictable to the depend on jurisdictional requirements or, in the
defendant. However, what is ‘fair ‘ has been said to case of leave to appeal from the Victorian Civil and
involve a triangulation of interests of the victim, the Administrative Tribunal (VCAT), on identifying a
accused and society214. Accordingly, a fair trial does question of law. 217
not require a hearing with the most favourable
What is a ‘competent, independent and impartial’
procedures for the accused. It must take account of court or tribunal?
other interests, including the interests of the victim
A further element of the right to a fair hearing
and of society generally in having a person brought
relates to the character of the court or tribunal
to justice and preventing crime.
before which the hearing takes place.
CHARTER GUIDELINES
SECTION 24: FAIR HEARING
members and control over court or tribunal listings Appellate and first instance decisions are both
generally. In addition, in any particular case, the captured by this provision. However, in international
judge or tribunal member hearing a matter must be human rights law, reviews of appeals ‘on the
independent and impartial, that is, not influenced papers’ have been considered not to breach the
by bias in favour of the government. right where the documents on which the court
bases its decisions are publicly available and
Impartiality the judgment itself is available.222
The requirement of impartiality means that Pre-trial decisions made by prosecutors and public
proceedings must be free from bias and the authorities (not being the hearing of a criminal
objective perception of bias. charge or the conduct of a civil proceeding) would
An example of this right in practice is where a not be required under s. 24 to be held in public.223
complaint was made to the European Court of
Human Rights by a person who argued that the trial
judge had failed to take action to exclude legitimate
doubts that the complainant might be condemned
because of his ethnicity.218 Allegations of racism of
members of the jury had been publicly reported in
the media. The European Court of Human Rights
220 Re Certification of the Constitution of the Republic
upheld the complaint.219 of South Africa, 1996 (4) SA 744.
221 Forge v. ASIC (2006) 229 ALR 223.
222 Axen v. Germany (1984) 72 Eur Court HR (ser A)
[25]–[26]; (1984) 2 EHRR 195 [31]–[32].
218 Sander v. United Kingdom (2000) v. Eur Court HR 243 223 See RM v. Finland, Human Rights Committee,
[34]; (2001) 31 EHRR 44 [34]–[35]. Communication No. 301/1988, UN Doc.
219 Ibid. CCPR/C/35/D/301/1988 (27 March 1989).
SECTION 24
FAIR HEARING
Some methods whereby witnesses give evidence, Exceptions to the right to a public hearing
for example, by video link or when shielded by a
Section 24(2) provides that ‘a court or tribunal may
screen, may raise issues about whether those parts
exclude members of media organisations or other
of the hearing are public and thus whether they
persons or the general public from all or part of a
comply with s. 24 of the Charter. Such methods
hearing if permitted to do so by a law other than
of presenting evidence and the circumstances
this Charter.’
in which they are employed should be assessed
under s. 7. For example, given the importance of This exception recognises that there are occasions
the objective sought to be achieved by the use of where restrictions on the media or the public’s
these methods, the methods may be an example ability to gain access to a court or tribunal or to
of measures that, although they impose a limit on information before a court or tribunal are necessary
s. 24, should nevertheless be permitted by law to facilitate a fair trial. Media restrictions may also
and justifiable under s. 7. be necessary to ensure that the court or tribunal
remains impartial and that the presumption of
The right to a public hearing is expressly limited by
innocence, protected by the Charter in s. 25(1),
s. 24(2). This provision is discussed on page 153.
is maintained. It may also be necessary in certain
Right to public pronouncement of judgments cases to protect particularly vulnerable witnesses
and decisions (for example, children who have been victims of
154 sexual abuse) or to protect national security.
Section 24(3) of the Charter establishes a right
to the public pronouncement of judgments and To satisfy the Charter requirements, the
decisions by a court or tribunal. This means that circumstances in which courts or tribunals may
courts and tribunals must hand down all judgments hold closed hearings, grant suppression orders or
and decisions in public, subject to reasonable otherwise limit access to material before the court
limitations that can be justified under the Charter. or tribunal should be authorised by law.
The purpose of this provision is also to contribute
to a fair trial through public scrutiny. Exception to the right to public pronouncement
of judgments and decisions
The scope of this right is limited to judgments and
Section 24(3) qualifies the right to public
decisions. The right does not require a court or
pronouncement of judgments and decisions
tribunal to publish transcripts of proceedings.
by permitting the suppression of all or part of
a judgment or decision ‘where the best interests
REASONABLE LIMITS ON THE RIGHTS of a child otherwise requires or a law other than
PROTECTED IN SECTION 24
the Charter otherwise permits.’
As with all of the human rights protected in the
This exception was included in recognition that
Charter, the rights in s. 24 may be subject to
there may be other interests which should be
reasonable limitations that can be demonstrably
protected that might outweigh the right to public
justified in a democratic society in accordance with
pronouncement of judgments and decisions. In
s. 7 of the Charter. You should refer to Part 2 of these
some circumstances it may be appropriate for
Charter Guidelines for further information on s. 7.
legislation to authorise that all or part of a
The right in s. 24(1) to a public hearing and the judgment should not be made public, (for example,
right in s. 24(3) to the public pronouncement of information contained in a judgment that relates
judgments and decisions are also expressly qualified to national security). The exception also recognises
by the express exceptions contained in s. 24 (2) that the best interests of a child may require that
and s. 24(3) respectively. These exceptions vary the name of the child in legal proceedings should
somewhat from the exceptions recognised in article be suppressed to protect the identity of the child.
14(1) upon which s. 24 is modelled. The exception for the protection of a child does
not require separate authorising legislation.
KEY POINTS TO REMEMBER • whether there is an appropriate balance between
the legitimate interests of the state in having
• The right to a fair and public hearing applies in
allegations of criminal offences prosecuted in a
both civil and criminal proceedings and in courts
particular way and the broader public interest in
and tribunals (including VCAT). It is concerned
ensuring that an accused receives a fair hearing;
with procedural fairness rather than with the
merits of a decision of a court or tribunal. If the venue where the proceeding will be held
carries a risk of a lack of impartiality (for example,
• What constitutes a ‘fair hearing’ will depend on
where a prosecution takes place in a small closed
the facts of the case and will require a weighing
community close to the home to the accused and
of a number of public interest factors. It is likely
the victim), consider whether there are adequate
to differ in the criminal and civil context. In the
opportunities for shifting the venue of the proceeding.
criminal context, s. 24 is closely related to
ss. 25, 26 and 27 of the Charter. To achieve compliance with the requirement for
a ‘competent, independent and impartial court
• Hearings must in all cases be by a ‘competent,
or tribunal’ in both criminal and civil contexts,
independent and impartial’ court or tribunal.
consider:
This means that the institution of the court
or tribunal as well as each of the individual • whether the policy, program or legislation
members of the court or tribunal must be you are vetting will assist in maintaining 155
competent, independent and impartial. the independence of the court or tribunal by
preserving rules relating to appointment, tenure,
• In general, hearings should be held in public and
and removal of judges or tribunal members, or
judgments and decisions should be pronounced
whether it will affect the manner in which courts
in public. However, the Charter recognises that
and tribunals are funded, or judges or tribunal
there may be situations in which both rights need
members are remunerated, in a way that may
CHARTER GUIDELINES
SECTION 24: FAIR HEARING
to be limited. Express exceptions to the rights to
place independence or impartiality at risk.
a public hearing and public pronouncement of
judgments in s. 24 are contained in this section. In respect of the right to a public hearing, in both
criminal and civil contexts:
• All of the rights in s. 24 are also subject to
s. 7 of the Charter. • Hearings and pronouncement of judgments
should be held in public unless one or more of
the qualifications in s. 24(2) or s. 24(3) applies
MEASURES TO IMPROVE COMPLIANCE
(or a restriction can be justified under s. 7);
If you are developing a policy or a program or vetting
• Consider whether there are any persuasive
legislation that raises an issue of consistency with
reasons why a hearing should not be held
the right to a fair hearing under s. 24 in the criminal
in public.
context, consider:
• whether and to what extent the interests of the
accused, the interests of the complainant and
the interests of the community are addressed;
SECTION 24
FAIR HEARING
Similar rights exist in comparative law. Refer United Nations Human Rights Committee
to Appendix H for further information. Jurisprudence
8. RM v. Finland, Human Rights Committee,
Communication No. 301/1988, UN Doc.
CCPR/C/35/D/301/1988 (27 March 1989).
Other Sources
9. UN Human Rights Committee, General
Comment 13, Article 14 (Twenty-first session,
1984), Compilation of General Comments and
General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 135 (2003).
Section 25(1)
The right to be
presumed innocent
Section 25
(1) A person charged with a criminal offence has the right to be presumed innocent
until proved guilty according to law.
POLICY TRIGGERS: DO I NEED TO CONSIDER • deals with the admissibility of evidence; 157
SECTION 25(1)?
• creates or amends a statutory defence relating
You will need to consider s. 25(1) in assessing to an element of the offence;
legislation, a policy or a program where it:
• alters the criteria or conditions under which
• creates or amends an offence that requires a person may apply for or be released on bail;
the accused to prove or establish the absence
CHARTER GUIDELINES
SECTION 25(1): THE RIGHT TO BE PRESUMED INNOCENT
• allows public officials to comment on the guilt
of an element of an offence;
of persons who have been charged.
• creates or amends an offence that provides that
These policy triggers are not comprehensive.
an exception, qualification, proviso, exemption,
excuse or other defence must be proved or
established by an accused; DISCUSSION
• creates or amends an offence that contains Sub-section (1) of s. 25 protects the presumption of
a presumption of fact or law and puts the legal innocence in criminal proceedings. The presumption
(persuasive) burden on the accused to rebut of innocence is a well-recognised civil and political
the presumption; right and a fundamental principle of common law.
• creates or amends an offence that contains More generally, s. 25 is concerned with rights in
a presumption of fact or law and puts the criminal proceedings. This provision is modelled
evidential burden on the accused to rebut on articles 14(2), 14(3), 14(4) and 14(5) of the
the presumption; ICCPR.
• creates or amends an offence that contains Note that by virtue of s. 49(2) of the Charter
a presumption of fact or law operating against (transitional provisions), the rights in s. 25 will not
an accused which cannot be displaced; affect any proceedings concluded or commenced
before 1 January 2007. (Thus, if a person has
• creates or amends an offence that imposes been convicted of a reverse onus offence
criminal liability on an officer of a corporation before 1 January 2007, his or her conviction
solely by reference to his or her position in the will not be affected by s. 25.)
corporation and requires the officer to make
out a defence;
SECTION 25(1)
THE RIGHT TO BE
PRESUMED INNOCENT
CHARTER GUIDELINES
SECTION 25(1): THE RIGHT TO BE PRESUMED INNOCENT
s. 25(1) involves consideration of all the facts
for further information on s. 7. and circumstances.
However, in this context you should note that in the
UK, courts have held that reverse onus provisions
are more likely to be consistent with human rights
if they require the accused to prove an exception,
proviso or excuse rather than disprove an element
of the offence.227 However, for offences heard
summarily in Victoria, section 130 of the
Magistrates’ Court Act 1989 provides that a
defendant who wishes to rely on an exception,
exemption, proviso, excuse or qualification has an
evidential burden only in relation to that exception,
proviso, excuse or qualification. Similarly, provisions
that place the evidential burden on the accused will
be easier to justify than provisions that place the
legal burden on the accused by requiring him or her
to prove a fact. 228
Case Law
1. R v. DPP, ex parte Kebilene [2000] 2 AC 326.
2. Hansen v R [2007] NZSC 7.
3. R v. Lambert [2002] 2 AC 545.
4. R v. Oakes [1986] 1 SCR 103.
5. Sheldrake v. Director of Public Prosecutions
Attorney-General’s Reference (no 4 of 2002)
[2005] 1 AC 264.
6. Salabiaku v. France (1988) 141 Eur Court
HR (ser A).
7. Van der Tang v. Spain (1995) 321 Eur Court
HR (ser A).
CHARTER GUIDELINES
SECTION 25(1): THE RIGHT TO BE PRESUMED INNOCENT
Other Sources
8. UN Human Rights Committee, General
Comment 13, Article 14 (Twenty-first session,
1984), Compilation of General Comments and
General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 135 (2003).
Section 25(2)
Minimum guarantees
in criminal proceedings
Section 25
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum
guarantees—
(a) to be informed promptly and in detail of the nature and reason for the charge in a language or,
if necessary, a type of communication that he or she speaks or understands; and
(b) to have adequate time and facilities to prepare his or her defence and to communicate with
a lawyer or advisor chosen by him or her; and
(c) to be tried without unreasonable delay; and
(d) to be tried in person, and to defend himself or herself personally or through legal assistance
chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under
the Legal Aid Act 1978; and
(e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid
under the Legal Aid Act 1978; and
(f) to have legal aid provided if the interests of justice require it, without any costs payable by
162 him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978; and
(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for
by law; and
(h) to obtain the attendance and examination of witnesses on his or her behalf under the same
conditions as witnesses for the prosecution; and
(i) to have the free assistance of an interpreter if he or she cannot understand or speak English; and
(j) to have the free assistance of assistants and specialised communication tools and technology
if he or she has communication or speech difficulties that require such assistance; and
(k) not to be compelled to testify against himself or herself or to confess guilt.
• amends the content of charge sheets, • establishes timetables for the prosecution
presentments or indictments or otherwise varies and defence to prepare for trial or appeal;
the requirements regarding information to be • establishes time limits on the lodging of
given at the time of charge; applications or appeals;
• relates to access by a self-represented accused • amends the law relating to adjournments
(including an accused in custody) to witnesses of hearings;
and to legal and research materials;
• amends the law relating to pre-hearing
disclosure;
• regulates the procedures for investigation and DISCUSSION
prosecution of offences;
Section 25(2) is concerned with rights in criminal
• affects the resources available to investigators, proceedings.
prosecutors, forensic services and others
The minimum guarantees are modelled on article
involved in preparing prosecutions for trial
14(3) of the ICCPR. Section 25(2) modifies article
and appeal;
14(3) in three respects:
• affects the caseload of the courts and the
• Paragraph (j) is additional to article 14(3) to
capacity of the courts to hear matters;
reflect the fact that some people charged with
• establishes procedures for giving persons a criminal offence will need, and should be
charged with criminal offences notice of entitled to, specialised communication tools
hearings; and technology in order to understand the
nature of and the reason for the criminal charge
• amends the eligibility criteria for legal aid;
and to participate in the judicial process.
• amends any guidelines or procedures that
• Paragraphs (d), (e) and (f) of s. 25(2) modify
enable an accused to represent himself or
article 14(3) (d) to include references to the
herself personally or restricts the right of an
Victorian Legal Aid Act 1978. This is designed
accused to choose the legal representative
to ensure consistency with current Victorian law 163
or advisor of his or her choice;
and practice within Victoria Legal Aid.
• amends the law of evidence including the
• Paragraph (g) of s. 25(2) reflects paragraph
examination and cross-examination of witnesses,
(e) of article 14(3) but includes in addition the
the admissibility of hearsay evidence and the
words ‘unless otherwise provided by law’. This
evidence of a co-accused;
qualification was considered by the Human
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
• establishes or amends procedures protecting Rights Consultation Committee to be necessary
prosecution witnesses, for example, the use of to ensure that the special rules in relation to
protective screens in the court room or video the cross-examination of children or victims
testimony; of sexual assault would continue to apply.229
• establishes or amends guidelines or procedures
When do these minimum guarantees apply?
for the provision and use of facilities in police
interviews and the court room, for example, Section 25(2) covers persons charged with both
assistive hearing devices; indictable and summary offences. It applies before
and at trial, and (where relevant) on appeal.
• establishes guidelines or procedures for
the provision of assistants, translators and In Victoria, typically a person is charged with an
interpreters in police interviews and the offence when the charge is filed in the Magistrates’
court room; Court on a charge sheet that alleges the person
has committed an indictable or summary offence.
• amends the law relating to self-incrimination;
A person will be arrested and charged, or a summons
• amends the procedures for and law about to answer the charge will be issued. The infringement
obtaining evidence, including confessions. notice system (discussed on page 164) provides an
alternative means of dealing with allegations.
These policy triggers are not comprehensive.
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
‘Time’ lawyer should occur in conditions that allow for
What time period will be ‘adequate’ will depend confidentiality and there should be no restrictions,
upon an assessment of the circumstances of each pressures or undue interference with that lawyer
case, and will vary depending upon the stage of the or advisor or those counsel chosen to represent the
proceedings (for example, whether the proceedings accused.237
are at an interlocutory or preliminary stage, or at Incommunicado detention, which makes it
the stage of a contested trial, or whether the matter impossible to access legal assistance, will be
has gone on appeal); the complexity of the case; likely to breach s. 25(2)(b).
the accused’s access to evidence and access to
his or her lawyer; and the time limits prescribed by
law.233 It is well established in international human
rights law that if a defence lawyer is to be appointed,
The right to be tried without unreasonable delay Where an accused has been provided with a Legal
Aid lawyer, and cannot otherwise afford a lawyer,
Paragraph (c) of s. 25(2) is the right to be tried
s. 25(2)(d) does not entitle the accused to a choice
without unreasonable delay. This right reflects the
of lawyer.239 It does entitle an accused to defend
common law principle that justice delayed is justice
himself or herself in person. 240
denied. Section 25(2)(c) is intended to protect the
right of an accused to examine the evidence led If there are exceptional circumstances and it is
against them while the evidence can still be tested, in the interests of justice, trials may be held in the
and it reflects the public interest in having someone absence of the accused (in absentia), but there
charged with a criminal offence brought before the should nevertheless be strict observance of the
court expeditiously. This right also seeks to preserve rights of the defence.241 In absentia hearings are
public confidence in the administration of justice. permissible in international human rights law only
when the accused has been given ample notice
The UN Human Rights Committee has observed
and opportunity to attend the hearing but has
that this right relates not only to the time by which a
failed to do so.
trial should commence, but also the time by which it
should end and judgment is given – all stages must Legal Aid
take place without unreasonable delay.238
Paragraph (e) of s. 25(2) establishes a right to
166 As with all rights under the Charter, the right to trial be told about the right to legal aid under the Legal
without unreasonable delay is not an absolute right. Aid Act. This right applies only if an accused does
Whether delay is ‘unreasonable’ will depend on the not already have legal assistance and he or she
nature of the case and a range of other factors must be told that the right to legal aid is only
such as whether the accused is held in custody; available if the person is eligible for legal aid.
the length of the delay; the complexity of the case
Paragraph (f) of s. 25(2) establishes a right to
(including the number of witnesses, the number
be provided with legal aid in certain circumstances.
of other parties (if any), and the need to obtain
The obligation to provide legal aid is confined to
expert evidence); the conduct of the parties; the
cases where the ‘interests of justice’ require it and
seriousness of the offence; and the prejudice to
the person is eligible for legal aid. The eligibility
the accused. Where the delay is attributable to
criteria are set out in the Legal Aid Act. The
the accused, there is likely to be no breach of
application of the ‘interests of justice’ criterion
s. 25(2)(c).
in international decisions has shown that this
The right to be tried in person
criterion will take account of the complexity of
Paragraph (d) of s. 25(2) is the right to be tried in the proceedings; the capacity of an accused to
person. The accused has the right to be tried and represent himself or herself; and the severity of
to defend himself or herself in person, or through the potential sentence.242 Whether the ‘interests
legal assistance of his or her choice, or, if eligible, of justice’ require legal aid to be provided is
through legal aid. ultimately a legal question, not solely an
operational or administrative one.
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
or her, either at the time the witness was making Vulnerable witnesses
a statement or at some later stage of the The right of an accused to examine prosecution
proceedings.245 This means that the prosecution witnesses is qualified by the words ‘unless otherwise
must give the accused adequate notice of the provided by law’. This qualification ensures that rules
witnesses that the prosecution intends to call which restrict the cross-examination of children or
so that the accused is able to prepare his or victims of sexual assault would continue to apply.
her defence including accessing evidence that This qualification may well go further than the
will challenge the prosecution’s evidence. recognition given in international law to the need
for protective measures to be instituted to protect
the interests of witnesses. 248
Free assistance for persons with communication At the trial stage, this right means that self-
or speech difficulties incriminating evidence which has been unfairly or
improperly obtained by compulsion from a person,
Paragraph (j) of s. 25(2) confers the right, without
including confessions made under duress, should
discrimination, to have the free assistance of
be excluded.
assistants and specialised communication tools
and technology for persons with communication In international law, obtaining evidence compulsorily
or speech difficulties. This right is an aspect of from a person where the evidence has an existence 169
the right to a fair trial as it seeks to ensure such independent of the will of the person, (for example
persons can understand and participate fully and documents, breath samples, blood and urine
effectively in the preparation of their defence and samples and bodily tissue used for the purpose
during the trial. of DNA testing), does not engage this right.
Where a person has speech or hearing difficulties,
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
proper support must be provided to ensure that
the person fully understands the nature of the
charges against him or her and the nature of
the proceedings. Examples of such support are
Auslan interpreters; braille translations of relevant
documents; and communication technology such
as assistive hearing devices, hearing aid loops and
real-time captioning.
Self-incrimination
Paragraph (k) of s. 25(2) protects the right to be
free from compulsory self-incrimination. This right
means that a person charged with a criminal
offence must not be compelled to testify against
himself or herself or to confess guilt. The right
against self-incrimination is an important element
of the right to a fair trial. 255 UN Human Rights Committee, General Comment 13,
Article 14 (Twenty-first session, 1984), Compilation of
General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc. HRI/
GEN/1/Rev.6 at 135 (2003) [14]; Heaney & McGuinness
v. Ireland (2000) XII Eur Court HR 419 [57]–[59]; (2001)
33 EHRR 12 [57]–[59]. See also Saunders v. United
Kingdom (1996) VI Eur Court HR 37; (1997) 23 EHRR
313, R v Hertfordshire County Council, ex parte Green
Environmental Industries Ltd [2000] 2 AG A17 (HL).
SECTION 25(2)
MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
to be used as evidence in criminal proceedings; the opportunity to examine the witnesses;
• ensure that there are procedures that enable • gives the accused sufficient opportunity to
a self-represented accused to access legal challenge the prosecution evidence;
and research materials;
• where it allows for evidence to be given by
• ensure that an accused has the opportunity to vulnerable witnesses in the absence of the
engage and communicate with a lawyer under accused, provides proper authorisation in clearly
conditions that enable confidential defined circumstances for this to occur.
communications;
To improve compliance with s. 25(2)(i):
• ensure that time limits for lodging appeals or
• ensure that there are procedures for informing
applications and seeking adjournments allow a
an accused who does not speak or understand
reasonable time for the defence to be prepared;
English of the right to the free assistance of an
• ensure that documentary and other forms of interpreter who would provide an oral translation;
evidence necessary for the preparation of the
• ensure that the relevant agencies are aware
defence are disclosed within an adequate time
that competent and accurate translations of
before the relevant hearing.
all relevant documents and interpretation
To improve compliance with s. 25(2)(c): of proceedings are provided to an accused
• ensure that the policy, program or legislation who does not speak or understand English.
you are working on will not unduly delay the
investigation and prosecution of offences.
SECTION 25(2)
MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
To improve compliance with s. 25(2)(j): • the right to be protected from torture and cruel,
inhuman or degrading treatment (s. 10);
• ensure that there are procedures for informing
an accused who has speech or other • the right not to be arbitrarily arrested or detained
communication difficulties of the right to free (s. 21);
assistance;
• the right to humane treatment when deprived
• ensure that there are proper processes to of liberty (s. 22);
facilitate competent and accurate translations
• the rights of children in criminal process (s. 23);
of all relevant documents and interpretation
of proceedings including police interviews • the right to a fair hearing (s. 24).
and trials;
HISTORY OF THE SECTION
• consult or facilitate consultation with
interpretation and translation service providers Section 25(2) is modelled on article 14(3) of
to determine the best way the relevant services the ICCPR. The Charter modifies article 14(3) by
can be delivered; ensuring, where necessary, that people will be
entitled to specialised communication tools and
• seek the views of the groups within the
technology in order to understand the nature and
community who are representative of those
172 reason for the criminal charge and to participate in
who may be affected by speech and hearing
the judicial process. Article 14(3) is also modified
communication difficulties.
as it relates to the provision of legal assistance by
To improve compliance with s. 25(2)(k), ensure making reference to the Legal Aid Act to ensure
the relevant legislation, policy or program you consistency with Victorian law. Also, a qualification
are working on: is made in relation to the examination of witnesses
• provides for, or recognises, that an accused to accommodate Victorian laws regarding cross-
should be informed of the right to remain silent examination of certain witnesses, such as children
and the right against self-incrimination; and victims of sexual assault.
• recognises that, at any stage of the prosecution, The purpose of these modifications was identified
judges have the authority to consider any by the Human Rights Consultation Committee in
allegations made that the accused’s right to this way:
remain silent was violated or to exclude evidence ‘The Charter provision modifies ICCPR article
of the accused on the ground that it was 14(3) in a number of important respects. First,
obtained by compulsion; the Committee has modified the provision to
• provides for, or recognises, that evidence that reflect the fact that some people charged with
has been unfairly or improperly compelled from a criminal offence will need, and are entitled to,
a person may be excluded at trial. specialised communication tools and technology
to understand the nature of and reason for the
criminal charge and to participate in the judicial
RELATED RIGHTS AND FREEDOMS
process. Secondly, the Committee has adapted
When considering whether a policy, a program the sub-sections dealing with the provision
or legislation might give rise to an issue under of legal assistance to include references to
s. 25(2), you should also consider the following the Victorian Legal Aid Act 1978 to ensure
additional rights and freedoms: consistency with current Victorian law.
• the right to recognition and equality before In addition, the Charter provision qualifies
the law (s. 8); the rights of a criminal accused in relation to
the attendance and examination of witnesses
by including the words ‘unless otherwise 14. Unterpertinger v. Austria (1987) 110 Eur Court
provided by law’. The Committee considers that HR (ser A).
this qualification is necessary to ensure that the
15. X and Y v. Austria 15 DR 160 (1978).
special rules in relation to the cross-examination
of children or of victims of sexual assault would United Nations Human Rights Committee
continue to apply.’ 256 Jurisprudence
Similar rights exist in comparative law. Refer 16. Grant v. Jamaica, Human Rights Committee,
to Appendix H for further information. Communication No. 353/1989, UN Doc.
CCPR/C/50/D/353/1989 (4 April 1994).
BIBLIOGRAPHY 17. Harward v. Norway, Human Rights Committee,
Communication No. 451/1991, UN Doc.
Report
CCPR/C/51/D/451/1991 (18 August 1994).
1. Human Rights Consultation Committee
18. Hill and Hill v. Spain, Human Rights
(Victoria) Rights, Responsibilities and
Committee, Communication No. 526/93, UN
Respect (2005).
Doc. CCPR/C/59/D/526/1993 (23 June
Case Law 1997).
2. Doorson v. The Netherlands (1996) II Eur 19. Mbenge v. Zaire, Human Rights Committee, 173
Court HR 470. Communication No. 16/1977, UN Doc. CCPR/
C/18/D/16/1977 (25 March 1983).
3. Goddi v. Italy (1984) 76 Eur Court Hr (ser A).
20. Peart and Peart v. Jamaica, Human Rights
4. Haase v. Federal Republic of Germany, (1977)
Committee, Communications Nos 464/91 &
11 Eur Comm HR 78.
482/91, UN Doc. CCPR/C/54/D/464/1991
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
5. Heaney & McGuinness v. Ireland (2000) XII (24 July 1995).
Eur Court HR 419.
21. Pratt and Morgan v. Jamaica, Human Rights
6. Kostovski v. Netherlands (1989) 166 Eur Court Committee, Communications Nos 210/1986
HR (ser A). & 225/1987, UN Doc. CCPR/C/35/
7. Lucà v. Italy (2001) II Eur Court HR 167. D/210/1987 (7 April 1989).
8. Luedicke, Belkacem and Koc v. Germany 22. Smith v. Jamaica, Human Rights Committee,
(1978) 29 Eur Court HR (ser A). Communication No. 282/1988, UN Doc.
CCPR/C/47/D/282/1988 (12 May 1993).
9. Quaranta v. Switzerland (1991) 205 Eur Court
HR (ser A). Other Sources
10. R v. Delaronde [1997] 1 SCR 213. 23. UN Human Rights Committee, General
Comment 13, Article 14 (Twenty-first session,
11. R v. E (1999) 17 CRNZ 40.
1984), Compilation of General Comments and
12. Regina (D) v. Camberwell Youth Court [2005] General Recommendations Adopted by Human
UKHL 4. Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 135 (2003).
13. Saunders v. United Kingdom (1996) VI Eur
Court HR 37.
Section 25
(3) A child charged with a criminal offence has the right to a procedure that takes account
of his or her age and the desirability of promoting the child’s rehabilitation.
174 POLICY TRIGGERS: DO I NEED TO CONSIDER • amends the law relating to adjournments of
SECTION 25(3)? hearings involving children;
You will need to consider s. 25(3) in assessing • establishes or amends guidelines for sentencing
legislation, a policy or a program where it: children.
• creates or amends procedures applicable to These policy triggers are not comprehensive.
children charged with criminal offences in the
investigation and prosecution of those offences; DISCUSSION
• creates or amends court procedures applicable Sub-section (3) of s. 25 recognises the need
to children charged with criminal offences; for special procedures for children charged with
• creates or amends the law of evidence criminal offences. It provides that a child has the
applicable to children charged with criminal right to a procedure that takes account of the
offences; child’s age and the desirability of promoting the
child’s rehabilitation. This protection is a widely
• creates or amends laws relating to the detention
recognised civil and political right. Sub-section
and custody of children charged with criminal
(3) of s. 25 reflects article 14(4) of the ICCPR.
offences;
When does s. 25(3) apply?
• creates an additional judisdiction or judicial
forum in relation to matters involving children Sub-section (3) of s. 25 applies where a child
or amends the law relating to the existing has been charged with a criminal offence. It applies
Children’s Court of Victoria; to children charged with either an indictable
offence or a summary offence. This right applies
• creates or amends offences for actions likely
at all stages of the proceedings, from the time of
to be performed by children;
the charge, to the trial, to the determination
• alters the definitions of ‘child’ and ‘young of a final appeal.
offender’ (for example, by reducing the age
of criminal responsibility);
A ‘child’ is defined in s. 3 as being a person under Court of Victoria.
the age of 18. Under Victorian law, children under
The right to additional protection means that special
the age of 10 are presumed to be incapable of any
procedures should be applicable to child defendants
criminal offence.257 Children between 10 and 14
at the investigation stage. For example, special
years old are presumed to lack the necessary level
measures may need to be adopted to ensure that
of mental culpability and the prosecution must
an age-appropriate explanation about the nature of
prove that the accused child knew that his or her
the charge is given to a child accused so that he or
conduct was wrong before the child can be found
she understands what is being alleged. Interviews
to be capable of committing the offence.258
should be conducted in the presence of a parent or
International human rights law does not recognise guardian or other support person in a manner that
any particular age as the optimal minimum age for is sensitive to the child’s age, level of maturity and
the imposition of criminal responsibility but the emotional state. In Victoria, special procedures are
chosen age should take account of the emotional, incorporated into the Victoria Police Manual and
mental and intellectual immaturity of children.259 s. 464E of the Crimes Act 1958.
CHARTER GUIDELINES
SECTION 25(3): RIGHTS OF CHILDREN
IN CRIMINAL PROCEEDINGS
placed on the rehabilitation of the child. Children to them, in a manner that they understand;
charged with a criminal offence must be dealt with
in special and appropriate ways that take account • adjournments can be obtained if it is in the
of age, maturity, and intellectual and emotional child’s best interests.
capacities.260 Procedures should be developed to ensure that
Where possible, courts should be established a child’s privacy is fully respected at all stages
specifically to try offences committed by children, of the proceedings to avoid psychological harm
and the relevant laws and court processes should due to publicity or the process of labelling or
take account of the special needs and capacities of stigmatising.261 This may mean that the trial is
children. Where children are involved in the criminal conducted in a closed court. In Victoria, such
justice system, steps should be taken and adult trial procedures are outlined in s.19 of the Children
procedures modified to promote a child’s ability to and Young Persons Act 1989. 262
understand the nature of the charge and the
proceeding and to participate in the proceedings.
In Victoria, this role is performed by the Children’s
257 See section 344 of the Children, Youth and Families Act
2005 (Vic).
258 See R (A Child) v. Whitty (1993) 66 A Crim R 462;
section 7.2 of the Criminal Code (Cth).
259 United Nations Standard Minimum Rules for the 261 See T v. United Kingdom (16/12/99) ECHRR;
Administration of Juvenile Justice (‘The Beijing Rules’) 7 BHRC 659.
G.A. Res. 40/33, annex, 40 UN GAOR Supp. (No. 53), 262 Note that the Children and Young Persons Act will be
UN Doc. A/40/53 (1985) rule 4. repealed upon the commencement of the Children, Youth
260 See T v. United Kingdom (1999) 7 BHRC 659. and Families Act 2005 (Vic).
SECTION 25(3)
RIGHTS OF CHILDREN IN
CRIMINAL PROCEEDINGS
CHARTER GUIDELINES
SECTION 25(3): RIGHTS OF CHILDREN
IN CRIMINAL PROCEEDINGS
you should also consider the following additional for signature 20 November 1989, 1577 UNTS
rights and freedoms: 3, (entered into force 2 September 1990).
• the right to be protected from torture and cruel, Other Sources
inhuman or degrading treatment (s. 10);
7. United Nations Standard Minimum Rules
• protection of families and children (s. 17); for the Administration of Juvenile Justice
• the right not to be arbitrarily arrested or detained (‘The Beijing Rules’) G.A. Res. 40/33, annex,
(s. 21); 40 UN GAOR Supp. (No. 53), UN Doc.
A/40/53 (1985).
• the right to humane treatment when deprived
of liberty (s. 22);
• the rights of children in the criminal process
(s. 23);
• the right to a fair hearing (s. 24).
Section 25(4)
Right to review of
conviction and sentence
Section 25
(4) Any person convicted of a criminal offence has the right to have the conviction and any
sentence imposed in respect of it reviewed by a higher court in accordance with law.
178 POLICY TRIGGERS: DO I NEED TO CONSIDER When does section 25(4) apply?
SECTION 25(4)?
Sub-section (4) of s. 25 applies where a person has
You will need to consider s. 25(4) in assessing been convicted of committing a criminal offence.
legislation, a policy or a program where it: This includes where the accused has been found
to have committed an offence but a conviction
• amends or alters the statutory rights or
has not been recorded.
procedures under which a person convicted
of an offence is able to appeal against or What does it mean?
seek review of the conviction or sentence;
Sub-section (4) of s. 25 recognises that a person
• amends or alters the criteria under which legal convicted of a criminal offence has the right to
aid is granted for criminal appeals. appeal against the conviction and the sentence
imposed. The right applies to all offences, not
These policy triggers are not comprehensive.
simply the most serious.265
Nature of the appeal The right under s. 25(4) is only to one appeal or
Other Sources
13. UN Human Rights Committee, General
Comment 13, Article 14 (Twenty-first session,
1984), Compilation of General Comments and
General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 135 (2003).
Section 26
Right not to be tried or
punished more than once
Section 26
A person must not be tried or punished more than once for an offence in respect
of which he or she has already been finally convicted or acquitted in accordance with law.
182 POLICY TRIGGERS: DO I NEED TO CONSIDER This right means that a person who has been tried
SECTION 26? in proceedings where the person was at risk of the
You will need to consider s. 26 in assessing imposition of a penalty cannot be tried again on
legislation, a policy or a program where it: a charge that is substantially the same as the
original charge.
• makes changes to existing offences that might
allow a person to be tried a second time for the The purpose of the principle against double jeopardy
same underlying criminal activity; is to ensure fairness to an accused and to bring
finality in the system of justice by preventing
• amends any criminal procedure rules relating repeated attempts to convict.
to previous convictions and acquittals;
The following points should be noted regarding
• creates a regulatory regime that provides for the the scope of this right:
imposition of a punishment for doing something
that would also amount to a crime; • It applies in respect of all criminal offences,
regardless of their seriousness.
• creates an overlap between an offence in
regulations and an offence in the parent Act. • It does not apply to civil trials that may result
in a form of civil liability.
These policy triggers are not exhaustive.
• Penalties and sanctions imposed by professional
disciplinary bodies do not usually form a
DISCUSSION
punishment for the purposes of this right.
Section 26 protects an accused against what
• It applies after a final judgment of either
is commonly referred to as ‘double jeopardy’. The
conviction or acquittal. This means that all
prohibition on double jeopardy is a well-supported
applicable proceedings for judicial review and
and fundamental safeguard in the common law
all appeals must be finally exhausted or the
considered to be part of the right to a fair trial.
time limits for invoking such reviews or
appeals must have passed.
• It only applies to the benefit of the same legal KEY POINTS TO REMEMBER
person.278
• A person who has been tried in proceedings
• It is aimed at preventing new trials or where he or she was at risk of the imposition of
punishments for offences with substantially a penalty cannot be tried again on a charge that
the same elements. is substantially the same as the original charge.
• It does not prevent the reopening of a case • This right only applies in respect of criminal
(including the conduct of a new trial) when a offences and not civil trials that may result in a
conviction has been found by an appeal court to form of civil liability. Disciplinary penalties and
have been a miscarriage of justice. New trials may sanctions will most likely not form a punishment
be held, for example, when evidence emerges, for the purposes of this right.
after conviction, of serious procedural flaws or • This right only applies where a person has been
in the event of new or newly discovered facts. finally acquitted or convicted (that is, after all
appeals have been exhausted).
• In particular, it has the consequence that a
person who has been acquitted of a criminal • This right only applies to benefit the same legal
charge is not to be subjected to a criminal person.
trial for the same offence or substantially • This right does not prevent the reopening of
the same offence. cases (including the conduct of a new trial) when 183
The prohibition against double jeopardy appears a conviction has been found by an appeal court
in a number of other human rights instruments from to have been the result of a miscarriage of justice.
comparable jurisdictions. Refer to Appendix H for
more information.
MEASURES TO IMPROVE COMPLIANCE
In many jurisdictions, there have been legislative
If you are creating a statutory offence that is part
CHARTER GUIDELINES
SECTION 26: RIGHT NOT TO BE TRIED OR
PUNISHED MORE THAN ONCE
refinements to this prohibition since the enactment
of a new regime and there are existing offences
of the relevant human rights instrument: for example,
that apply to the activity, ensure that the legislation
in light of advances in DNA technology.
doesn’t allow for the punishment for the new offence
to be imposed in addition to any punishment for
REASONABLE LIMITS ON THE RIGHT NOT TO the existing offence, or for a person convicted or
BE TRIED OR PUNISHED MORE THAN ONCE
acquitted of the existing offence to be tried for
As with all of the human rights protected in the the new offence.
Charter, the right not to be tried or punished more
than once may be subject to reasonable limitations RELATED RIGHTS AND FREEDOMS
that can be demonstrably justified in a democratic If your policy or legislation raises an issue under
society in accordance with s. 7 of the Charter. You s. 26, check whether it also raises an issue under
should refer to Part 2 of these Charter Guidelines s. 27 (retrospective criminal laws).
for further information on s. 7.
HISTORY OF THE SECTION
This right is modeled on article 14(7) of the ICCPR.
Similar rights exist in comparative law. Refer to
Appendix H for further information.
BIBLIOGRAPHY
Case Law
1. Spencer v. Wellington District Court [2000] 3
NZLR 102.
278 Spencer v. Wellington District Court [2000] 3 NZLR 102.
Section 27(1)
No retrospective
criminal laws
Section 27
(1) A person must not be found guilty of a criminal offence because of conduct
that was not a criminal offence when it was engaged in.
184 POLICY TRIGGERS: DO I NEED TO CONSIDER Section 27(1) requires the criminal law to be
SECTION 27(1)? sufficiently accessible and precise to enable a
You will need to consider s. 27(1) in assessing person to know in advance whether his or her
legislation, a policy or a program where it: conduct is criminal.279
• creates an offence for acts done before the Scope of section 27(1)
legislation comes into force; The protection from the operation of retrospective
• seeks to expand or broaden an existing criminal criminal laws applies only to protection from the
offence by altering the range of activities to instigation of criminal proceedings which might
which it applies; result in a conviction or the imposition of a
criminal penalty.
• amends criminal law procedure in a way that
affects fairness of trial procedures. The right does not extend to prevent retrospective
changes to procedures that do not form part of
These policy triggers are not comprehensive.
the penalty or punishment of an offender, or to
changes in procedural law (for example, shifts in
DISCUSSION trial practice or changes to the rules of evidence).
A person has the right not to be prosecuted or However, changes to criminal law procedure
punished for acts or omissions that were not may infringe this right where they affect the
criminal offences at the time they were committed. basic elements of a fair trial.
This flows from the general principle that a person
must be able to predict any criminal culpability that
attaches to his or her actions. Thus, the conduct of
an accused is to be judged by the law at the time
that he or she acted or failed to act. The criminal
law should not apply retrospectively.
CHARTER GUIDELINES
SECTION 27(1): NO RETROSPECTIVE CRIMINAL LAWS
punished for acts or omissions that were not This provision is modelled on article 15(1)
criminal offences at the time they were of the ICCPR.
committed.
Similar rights exist in comparative law. Refer
• This section applies only to protection against to Appendix H for further information.
the instigation of criminal proceedings which
might result in a conviction or the imposition of
BIBLIOGRAPHY
a criminal penalty.
Case Law
• The criminal law must be sufficiently accessible
and precise to enable a person to know in 1. Handyside v. UK (1976) 24 Eur Court HR
advance whether his or her conduct is criminal. (ser A).
2. Kokkinakis v. Greece (1993) 260-A Eur
Court HR (ser A).
SectionS 27(2) and 27(3)
No higher penalty and right
to benefit from lesser penalty
when penalties change
Section 27
(2) A penalty must not be imposed on any person for a criminal offence that is greater
than the penalty that applied to the offence when it was committed.
(3) If a penalty for an offence is reduced after a person committed the offence but before
the person is sentenced for that offence, that person is eligible for the reduced penalty.
186 POLICY TRIGGERS: DO I NEED TO CONSIDER Section 27(3) gives a person the right to benefit
SECTION 27(2) AND SECTION 27(3)? from a lighter punishment if one is provided by law
Compared to many other rights in the Charter, after the commission of the offence.
s. 27(2) and s. 27(3) have a clearly defined sphere Experience in other jurisdictions with comparable
of operation. You need to consider s. 27(2) and human rights legislation suggests that these rights
s. 27(3) in assessing legislation, a policy or a are often relevant in the development and vetting
program that is relevant to sentencing in criminal of legislation. It is therefore important to clarify how
law, where it: these sections operate and indicate their scope.
• seeks to introduce a new range of sentencing These sections should be distinguished from
initiatives that expand or reduce the scope of statutory provisions which allow for a greater
possible sanctions or that impose further penalty to be imposed because the offender has
restrictions or remove restrictions on convicted a previous conviction for the same type of offence.
offenders; For example, such provisions operate in the context
• seeks to extend the period of detention of of serious sexual offences.
persons who have been convicted of an offence; Under s. 27(2), a penalty must not be imposed for
• alters penalties or penalty levels for offences; a criminal offence that is greater than the penalty
which applied at the time when the offence was
• introduces or makes changes to the orders that committed.
can be made on conviction that are in the nature
of a penalty. For example, in the context of international human
rights law, the UN Human Rights Committee
These policy triggers are not exhaustive. examined the operation of this right in a case
against the Government of Canada. A convicted
DISCUSSION prisoner claimed that the retroactive introduction
of ‘mandatory supervision’ during parole under
Section 27(2) bars the imposition of greater
the Canadian Parole Act constituted a heavier
criminal penalties than would have been imposed
penalty in breach of the ICCPR. He claimed that
at the time the offence was committed.
the mandatory supervision requirement did not
exist at the time he was convicted and sentenced
and that the requirement constituted a ‘penalty’.
The Committee found the petition to be These rights only apply in the context of penalties
inadmissible since the prisoner was not a relevant that are imposed following conviction of a criminal
‘victim’ of any abuse of his ICCPR rights. The offence and have a punitive objective.
Committee added that mandatory supervision
was not a ‘penalty’ within the meaning of article What is a penalty?
15 of the ICCPR. The Committee said: The principal issue for consideration under these
‘… mandatory supervision cannot be considered sections is whether a particular measure is a penalty.
as equivalent to a penalty, but is rather a measure You will need to consider if a measure is a penalty.
of social assistance intended to provide for the Factors that may be taken into account in assessing
rehabilitation of the convicted person, in his own whether a measure is a penalty include: 282
interest. The fact that, even in the event of
remission of the sentence being earned, the • the nature and purpose of the measure;
person concerned remains subject to supervision • its characterisation under law;
after his release and does not regain his
• the procedures involved in the making and
unconditional freedom [the requirement of
implementation of the measure; and
mandatory supervision] cannot therefore be
characterised as the imposition or re-imposition • its severity.
of a penalty incompatible with the guarantees
Some examples of penalties are: 187
laid down in article 15(1) of the Covenant.’280
• fines;
However, where the supervision in effect amounts
to punishment (for example, by way of detention or • terms of imprisonment;
effective detention) the right might be engaged. • an imposition by a judge of a non-parole
Section 27(3) is concerned with a decrease in period at the time of sentencing; 283
CHARTER GUIDELINES
SECTIONS 27(2) AND 27(3): NO HIGHER PENALTY AND RIGHT TO
BENEFIT FROM LESSER PENALTY WHEN PENALTIES CHANGE
the penalty applicable to an offence. Under this
• compensation orders;
section, any reduction in a penalty that may occur
after a person commits an offence, but before he • community service orders;
or she is sentenced for that offence, must be • confiscation of property.
applied to the benefit of the accused.
This right has arisen before the UN Human Rights REASONABLE LIMITS ON THE PROHIBITION
Committee in the context of the liberalisation of ON RETROSPECTIVE PENALTIES
parole laws under Canadian criminal law. The The rights in these sections are qualified by
committee was asked to consider whether the section 27(4).
liberalisation of parole laws should be applied
retrospectively. The Committee side-stepped the As with all of the human rights protected in the
issue, however, finding that the authors had failed Charter, they may also be subject to reasonable
to prove that the retrospective application of the limitations that can be demonstrably justified in a
more liberal parole laws would have resulted in democratic society in accordance with s. 7 of the
their early release in any event. 281 Charter. You should refer to Part 2 of these Charter
Guidelines for further information on s. 7.
Section 27
(4) Nothing in this section affects the trial or punishment of any person for any act
or omission which was a criminal offence under international law at the time it
was done or omitted to be done.
CHARTER GUIDELINES
SECTION 27(4): CRIMES UNDER INTERNATIONAL LAW
assessing legislation or developing a new policy that where legislation or policy expressly refers to
intends to create retrospective criminal offences. international criminal law or international
obligations in the creation of an offence.
If you are doing so, s. 27(4) will be relevant if the
retrospective criminal offence is also a criminal
offence in international law. It is these type of DISCUSSION
offences that can have a permissible retrospective Generally, retrospective criminal laws are not
operation. Criminal offences in international law permitted in Victoria (see the discussion of s. 27(1)
include: in these Charter Guidelines). However, s. 27(4)
• crimes against humanity; provides an exception to the prohibition on
retrospective criminal offences in respect of acts
• war crimes; or omissions that constitute an offence under
• the crime of piracy; international law.
• the crime of genocide. Section 27(4) specifically allows for the trial
of persons in respect of acts and omissions that
Note that the following offences are regarded as
were not criminal in Victoria at the time they were
war crimes in the Commonwealth Criminal Code
committed but at that time amounted to grave
Act 1995.
breaches of international humanitarian law (for
• wilful killing; example, war crimes and crimes against humanity,
and also the crimes of piracy, and genocide). It
• torture;
allows for new Victorian offences to be created
• inhuman treatment; that authorise prosecution of these persons.
• biological experiments;
SECTION 27(4)
CRIMES UNDER
INTERNATIONAL LAW
In the future, section 27(4) may also include • Current international law offences covered
international crimes that are yet to be created by this section include:
in international law.
– crimes against humanity;
For more information on what constitutes ‘war
– war crimes;
crimes’, ‘crimes against humanity’ and ‘genocide’,
legal and policy officers should consult: – the crime of piracy; and
The Charter rights apply to all persons, including children. Additionally, there are
a number of Charter rights which are specifically applicable to children. There are
also some general rights which may have a particular significance for children.
For the purposes of the Charter, a child is a person under 18 years of age. This is
so because of the definition of ‘child’ under s. 3.
RIGHTS SPECIFIC TO CHILDREN conviction, and that accused children must be 191
brought to trial as quickly as possible. Section 23
Right to protection of families and children (s. 17) further assists in ensuring that children who have
Section 17 confers a right of protection to families been convicted of an offence will be treated in
and guarantees the right of every child to such an age-appropriate manner. These rights (and
protection as is in his or her best interests and is particularly s. 23(2)) mean that children should be
CHARTER GUIDELINES
SUMMARY OF THE CHARTER RIGHTS
PARTICULARLY RELEVANT TO CHILDREN
needed by him or her by reason of being a child. detained for the shortest possible time. The right
This right to protection should be considered for of children to be segregated from adults does not
proposed laws or policies that touch on aspects mean that child offenders should automatically
of family life and that affect family relations. The be removed to adult prisons when they turn 18.
notion of ‘family’ is to be interpreted broadly to Section 25(3) provides that children charged with
include extended families, gay and lesbian families criminal offences have the right to a procedure that
and single parent families. The best interests of the takes account of their age and the desirability of
child should be taken into account as the paramount promoting their rehabilitation.
consideration in all actions affecting a child.
This right requires that special and appropriate
Rights of children in the criminal process procedures are in place that take account of
(ss. 23 and 25(3))
the age, maturity, and intellectual and emotional
Sections 23 and 25(3) guarantee certain rights capacities of the child, and that procedures are
for children in the criminal process. Both of these in place that emphasise the rehabilitation of the
sections recognise the particular vulnerability of child. For example, trial procedures may need to be
children in criminal proceedings. Section 23 modified to ensure the child understands and can
is concerned with the detention of children in participate in the proceedings, and alternatives to
the criminal process, whereas section 25(3) is detention or imprisonment should be available.
concerned with their procedural rights, especially Services that provide treatment, education or other
during the investigatory or trial stages of criminal assistance may be available either in conjunction
proceedings. with detention or imprisonment, or as part of a non-
custodial order. Section 25(3) is in addition to the
Section 23 guarantees that accused children
rights accorded to adults under the other provisions
who have been detained must be segregated from
of s. 25 (that is, the right to be presumed innocent
detained adults at all times, whether before or after
SUMMARY OF THE CHARTER
RIGHTS PARTICULARLY
RELEVANT TO CHILDREN
(s. 25(1)), the minimum guarantees (s. 25(2)) and culture, and to maintain their language and kinship
the rights in relation to appeals against conviction ties. This section gives children the right to be
and sentence (s. 25(4)). exposed to, and to learn about, their cultural
heritage, their community and their languages for
GENERAL RIGHTS WHICH MAY BE the purpose of having the opportunity to enjoy their
SIGNIFICANT FOR CHILDREN identity and use their language. It also recognises
that kinship plays an important role in Aboriginal
The following general rights may be significant for
communities and that the notion of kinship ties
children and will often need to be read in the light
is closely linked to other cultural and religious
of other provisions of the Charter that specifically
practices. The right to maintain kinship ties is
seek to protect the interests of children.
particularly important in the context of removing
The right to protection from torture and cruel, children from their homes, fostering, adoption and
inhuman or degrading treatment (s. 10(a) and other processes where Aboriginal children could
s. 10(b))
potentially be taken away from their families. Again,
Section 10(a) and s. 10(b) guarantee the rights of this right does not mean that a child should not be
a person not to be subjected to torture or treated removed from his or her home, for example, in an
or punished in a cruel, inhuman or degrading way. abusive situation, but that care should be taken to
The assessment of whether an act amounts to cruel, ensure that whatever arrangements are made for
192
inhuman or degrading treatment is relative and the child, the child’s right to maintain contact with
depends on factors including the duration of the his or her kin is respected.
treatment, its physical or mental affects, and the
age, vulnerability and state of health of the victim. The rights of persons awaiting trial (section
21(6))
Hence, the particular vulnerability of children is
relevant in the application of these rights. Section 21(6) ensures that a person awaiting trial
must not be automatically detained in custody, but
The right to not have privacy, family, home that his or her release may be subject to guarantees
or correspondence unlawfully or arbitrarily
interfered with (s. 13(a)) to appear for trial, and at any other stage of the
proceeding including execution of judgment if
Section 13(a) ensures that a person does not have appropriate. In its application to children, regard
his or her privacy, family, home or correspondence should be had to the rights guaranteed under ss. 23
unlawfully or arbitrarily interfered with. Particular and 25(3) and to the understanding that, due to
attention should be given to this section in the their particular vulnerability, children should not,
context of laws or procedures that concern the where possible, be detained, including prior to trial.
removal of children from the family unit. This right
does not mean that a child should not be removed The right to humane treatment when deprived
from his or her home in, for example, an abusive of liberty (section 22)
situation. However, care should be taken to ensure Section 22 ensures that persons deprived of liberty
that whatever arrangements are made for the child must be treated with humanity and respect for the
take into account the interests of privacy, family inherent dignity of the human person, and that
and the home of the child. persons detained without charge are segregated
from persons convicted of offences (except where
The rights of Aboriginal persons to enjoy
their identity and culture and to maintain their reasonably necessary) and are treated in a way
language and kinship ties (s. 19(2)(a)(b)(c)) that is appropriate for a person who has not been
convicted. Again, given the particular vulnerability
Section 19(2)(a) to (c) recognises that Aboriginal
of children in the criminal process, these rights
persons hold distinct cultural rights and that they
must be read together with and in the light of s. 23.
must not be denied the right, with other members
of their community, to enjoy their identity and
APPENDICES 193
194
human right in the charter clause / part of the bill, consideration of compatibility, discuss in statement of
of human rights and regulation, policy which inc whether the clause limits compatibility or human rights
responsibilities impacts upon the right or restricts or interferes with certificate?
the right and reasons why that
limitation, restriction or degree
of interference is reasonable
APPENDIX A
9 Right to life
12 Freedom of movement
15 Freedom of expression
19 Cultural rights
20 Property rights
24 Fair hearing
CHARTER GUIDELINES
APPENDIX A
195
196
Right provided by the Human Rights Act Section/Part of the Bill which Consideration
directly or indirectly limits
the right
8 Recognition and equality before the law No issue arises on the face of the Bill.
APPENDIX B
10 Protection from torture and cruel, inhuman or degrading Sections 17(1)(f), 40, 48(1)(b), 86 and 96. The provisions of the Bill are consistent with section 10(1) insofar
treatment etc as there is a clear direction to ensure that a detainee is not subjected
to such treatment.
(1) No-one may be—
No issue arises in relation to 10(2).
(a) tortured; or
Table prepared in respect
(2) ….
11 Protection of the family and children Sections 11, 17(1)(h), (l), 49 and 50. The provisions of the Bill are consistent with section 11(1) insofar
of the Terrorism (Extraordinary
Temporary Powers) Bill 2006 (ACT)
12 Privacy and reputation Sections 38 – 41, 49 – 61, 79 – 85 The terms of the Bill are prima facie inconsistent with section 12(a)
and Schedule 1 insofar as the manner in which a preventative detention may be made
Everyone has the right—
and executed interferes with the privacy of the person who is the
(see discussion in the memorandum)
(a) not to have his or her privacy, family, home or correspondence subject of the order and also third parties. The question is whether
interfered with unlawfully or arbitrarily; and the interference is ‘arbitrary’ and whether the limitation provided
by section 28 applies.
(b) not to have his or her reputation unlawfully attacked.
No issue arises in relation to s.12(b)
13 Freedom of movement Sections 68 and 84 and the consequences There is a justifiable limit on these rights.
of detention
Everyone has the right to move freely within the ACT and to enter and
leave it, and the freedom to choose his or her residence in the ACT.
Right provided by the Human Rights Act Section/Part of the Bill which Consideration
directly or indirectly limits
the right
14 Freedom of thought, conscience, religion and belief No issue arises on the face of the Bill with respect to direct
interference. However, the Bill does recognise that these rights should
be considered in making arrangements for a person detained.
15 Peaceful assembly and freedom of association Section 84 and the consequences of There is a justifiable limit on these rights.
detention
(1) Everyone has the right of peaceful assembly.
16 Freedom of expression Sections 49 – 58 and provisions concerned There is prima facie an interference with these rights but the rights
prohibited contact orders. may be limited per section 28.
(1) Everyone has the right to hold opinions without interference.
17 Taking part in public life An issue would only arise if a person was the subject of a detention
order at the time of an election. The Bill does not address this issue.
Every citizen has the right, and is to have the opportunity, to—
(a) …; and
(c) ….
CHARTER GUIDELINES
APPENDIX B
197
198
Right provided by the Human Rights Act Section/Part of the Bill which Consideration
directly or indirectly limits
the right
18 Right to liberty and security of person This is the central human right in issue. No issue arises in relation to section 18(2). Because of the nature of
a preventative detention order there is no ‘arrest’ or ‘charge’ however,
(1) Everyone has the right to liberty and security of person. In
APPENDIX B
(7) Anyone who has been unlawfully arrested or detained has the
right to compensation for the arrest or detention.
19 Humane treatment when deprived of liberty Sections 43 and 48 The Bill is compatible.
20 Children in the criminal process No issue arises on the face of the Bill.
21 Fair trial Section 13 and the powers of the Supreme The Bill is compatible.
Court generally in the Bill. See also more
(1) Everyone has the right to have criminal charges, and rights
detailed discussion in the advice.
and obligations recognised by law, decided by a competent,
independent and impartial court or tribunal after a fair and
public hearing.
(2) However, the press and public may be excluded from all or
part of a trial—
(b) if the interest of the private lives of the parties require the
exclusion; or
CHARTER GUIDELINES
APPENDIX B
199
200
Right provided by the Human Rights Act Section/Part of the Bill which Consideration
directly or indirectly limits
the right
22 Rights in criminal proceedings Not relevant as the proceedings are not ‘strictly’ criminal. However,
given that the orders result in detention, the rights under section 22
(1) Everyone charged with a criminal offence has the right to be
APPENDIX B
(3) A child who is charged with a criminal offence has the right
to a procedure that takes account of the child’s age and the
desirability of promoting the child’s rehabilitation.
23 Compensation for wrongful conviction No issue arises on the face of the Bill.
24 Right not to be tried or punished more than once No issue arises on the face of the Bill.
26 Freedom from forced work No issue arises on the face of the Bill.
27 Rights of minorities. No issue arises on the face of the Bill but an issue may arise indirectly
in relation to the interests of the person detained and whether that
person belongs to a minority group. Section 40(4) and (5)(d) of the
Bill contemplates that such concerns will be taken into account.
CHARTER GUIDELINES
APPENDIX B
201
APPENDIX C
Statement of Compatibility template
Statement of Compatibility
Overview of Bill
1. Human rights protected by the Charter that are relevant to the Bill
202
2. Consideration of reasonable limitations – section 7(2)
(e) any less restrictive means reasonably available to achieve its purpose
Conclusion
[Print name and title of Member of Parliament responsible for introduced the
Bill]
APPENDIX D
Statement of Compatibility template
with instructions and guidance
Statement of Compatibility
Overview of Bill
Provide an overview of the Bill and state its general purpose. 203
1. Human rights protected by the Charter that are relevant to the Bill
CHARTER GUIDELINES
APPENDIx C / AppENDIX D
Identify each human right that the Bill will have an impact upon or engage.
For each relevant right, identify the relevant clause or clauses of the Bill that will
have an impact upon that human right.
Analyse how the clause interacts with the right, e.g. the degree to which it will restrict the
operation of the right or whether the scope of the right is unaffected.
It may be clear at this stage that the Bill, or a specific clause of the Bill, is compatible
with the relevant right or rights it has an impact upon.
If a clause of the Bill limits or restricts or interferes with the relevant human right you
have identified, you should proceed to analyse in detail whether the limitation is
reasonable and can be demonstrably justified in a free and democratic society under
section 7(2) of the Charter. You should take into account all relevant factors, including
the following:
Charter Guidelines
APPENDIX D
Statement of Compatibility template
with instructions and guidance
(d) What is the relationship between the limitation and its purpose?
Is there a rational connection between the limitation or restriction on the right and the
purpose it seeks to achieve? Is there proportionality between the purpose of the limitation
and the means used to achieve that purpose?
(e) Are there any less restrictive means reasonably available to achieve its purpose?
204 Describe how the rights limiting clause is within the range of reasonable solutions to the
problem, including any safeguards that are incorporated.
Conclusion
This section should contain the conclusion about why the Bill is compatible with
human rights.
I consider that the Bill is compatible with the Charter of Human Rights and
Responsibilities because [e.g., it does not raise a human rights issue / it raises human
rights issues but does not limit human rights / it does limit, restrict or interfere with a
human right, but that limitation is reasonable and proportionate].
In the unlikely event that, in the opinion of the member, the Bill is incompatible with the
Charter, the statement should describe under the headings above the nature and extent of
the incompatibility. The statement could contain a conclusion along the following lines:
I consider that the Bill is incompatible with the Charter of Human Rights and
Responsibilities because the restriction it imposes upon the rights identified is more
than is necessary to achieve the stated objective. However, I consider that, in the
circumstances outlined above, the Bill should proceed nevertheless.
Charter Guidelines
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
CHARTER GUIDELINES
APPENDIX E
vulnerable and exposure to family violence may have a serious impact on
children’s current and future physical, psychological and emotional well being
∞ family violence
o affects the entire community
o occurs in all areas of society, regardless of location, socioeconomic
and health status, age, culture, gender, sexual identity, ability,
ethnicity or religion
∞ family violence extends beyond physical and sexual violence and may involve
emotional, psychological or economic abuse
∞ family violence may involve overt or subtle exploitation of power imbalances
and may consist of isolated incidents or patterns of abuse over a period of
time
Page 1 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 2 of 17
Importance of the purpose of the limitation
The limitation is designed to enable children who are of an appropriate age and
maturity to make their own application to the court where protection is required. The
limitation recognises that children under 14 are generally less mature and therefore
less capable of making such an application. In this respect, the provision is likely to
be protective and consistent with the interests of children and hence consistent with
section 17(2) of the Charter.
Nature and extent of the limitation
The nature and extent of the limitation is such that children under 14 years of age
cannot make applications on their own behalf. Nevertheless, a parent of a child, a
police officer or any other person (with a parent’s consent) may apply on behalf of a
child, and a child may also be included in an application in respect of a parent
(clause 47 of the Bill). The court can also make family violence intervention orders of
its own motion to protect children. Accordingly, the nature and extent of the limitation
is confined.
Relationship between the limitation and its purpose 207
The limitation is rational because it recognises the capabilities of children and
maturity levels of children of different ages. The limitation is proportionate because it
applies only to children under 14 and in any event, others may apply on behalf of
children if necessary.
Any less restrictive means reasonably available
None apparent.
CHARTER GUIDELINES
APPENDIX E
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Section 10(c) – Right not to be subjected to medical treatment without his or
her full, free and informed consent
Section 10(c) of the Charter protects a person’s right not to be subjected to medical
treatment unless they have given their full and free informed consent. In this context
‘medical treatment’ encompasses all forms of medical treatment and medical
intervention, including compulsory counselling, examinations and testing.
Clause 130 engages, and limits, section 10(c) of the Charter. It requires, on the order
of a court, that a person attend counselling (which constitutes a form of medical
treatment).
Page 3 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 4 of 17
Importance of the purpose of the limitation
The limitation of the right to freedom of movement is important in these clauses
because they all ensure:
∞ the attendance at court and participation of persons who may be significantly
affected by the court’s decision
∞ the court will have access to the best evidence when making decisions
Nature and extent of the limitation
Under clause 49, a respondent is required to physically appear before a court to give
evidence. The limitation is restricted in that it only applies to a respondent to an
application for a family violence intervention order.
A person may be summonsed, pursuant to clause 32, to attend court on a particular
date in order for a court to hear an application. Non-attendance at court is not an
offence; however, the court may make an order in the absence of a person.
The limitation in clause 134 is confined to requiring the author of a report to attend 209
court and give evidence, where ordered to do so by a court.
Relationship between the limitation and its purpose
There is a direct relationship between the limitation provided for in clauses 49, 32
and 132 for the purpose of ensuring the effective operation of the justice system by
compelling a respondent to attend court so that the court may make enquires to
establish the truth where there are disputed facts or questions of law.
CHARTER GUIDELINES
APPENDIX E
Any less restrictive means reasonably available
None apparent.
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Compulsion to attend counselling
In a similar context, both clauses 129 and 130 engage and limit the right to freedom
of movement provided for in section 12 of the Charter. This is because a respondent
is compelled to attend an interview or any subsequent counselling which is ordered,
at a particular time and place, and is guilty of an offence if they fail to do so, without
reasonable excuse.
The importance of the purpose of the limitation
The limitation is important because it provides for the assessment of the
respondent’s suitability for counselling and, if appropriate, requirement to attend
counselling. Therefore, it aims to change a respondent’s violent behaviour in respect
of which a family violence intervention order has been made. The limitation also
operates indirectly to promote the right to life (pursuant to section 9 of the Charter)
and the right of families and children to protection (under section 17 of the Charter).
The nature and extent of the limitation
The extent of the limitation is restricted to requiring a respondent to attend an
interview and any subsequent counselling sessions. This is not considered to be a
significant limitation. Further, the counselling order regime is presently a trial only,
and is currently due to sunset two years after the commencement of the Bill.
Page 5 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 6 of 17
The relationship between the limitation and its purpose
The relationship between the limitation and its purpose is both rational and
proportionate, given that the legitimate objective of the provisions is to protect a
protected person and any children of a respondent from a respondent by, in the case
of clause 81, imposing conditions which restrict a respondent from coming within a
certain distance of a protected person and from accessing certain places, including a
protected person’s residence.
Clauses 26 and 29 aim to protect a person from further family violence. A
respondent’s rights are protected by the fact that they may be granted access to
particular places that they are prohibited from entering or going near in
circumstances where they are accompanied by a police officer and the police officer
has made all reasonable enquiries to ensure that this is practical in the
circumstances. The limitation balances the rights of a respondent and the rights of a
protected person.
Any less restrictive means available
None apparent. 211
On balance, the limitation in each clause is reasonable and demonstrably justified in
a free and democratic society.
Arrest and detention of a person
Several clauses in the Bill provide for the arrest and detention of a person.
Clauses 50, 51, 52, 124 and 38 engage and limit section 12 of the Charter as a
CHARTER GUIDELINES
APPENDIX E
respondent may be arrested and detained or held in custody, or bailed in accordance
with the provisions of the Bail Act 1977.
Further, clause 15 engages and limits the right in section 12 of the Charter, as it
provides for the detention of a person if they fail to comply with a direction given
under clause 14.
The importance of the purpose of the limitation
The limitations that these clauses create are important because they are each
designed to protect people from family violence prior to a hearing for a family
violence intervention order or charges for contraventions of intervention orders or
safety notices being determined by the court.
Page 7 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 8 of 17
The importance of the purpose of the limitation
The limitation is important as it operates to protect a protected person from family
violence. In this sense, the limit on the right to freedom of movement is balanced
against the protection of families and children and the right to life.
The nature and extent of the limitation
When a police officer intends to make an application for a family violence intervention
order or a family violence safety notice, the officer may direct a person to remain or
go to and remain at a particular location. The person must be warned of the
consequences of failing to comply with the direction.
The relationship between the limitation and its purpose
The limitation is rational and proportionate to the purpose it seeks to achieve, given
that the legitimate objective of the provision is to protect a protected person from
family violence. The limitation balances the rights of a respondent and the rights of a
protected person.
Any less restrictive means reasonably available 213
None apparent.
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Section 13 – Privacy
Section 13 confers a number of rights regarding privacy. Specifically, a person has a
CHARTER GUIDELINES
APPENDIX E
right not to have their privacy, family or home unlawfully or arbitrarily interfered with
or their reputation unlawfully attacked.
Privacy encapsulates concepts of personal autonomy and human dignity. It
encompasses the idea that individuals should have an area of autonomous
development, interaction and liberty – a ‘private sphere’ free from government
intervention and from excessive unsolicited intervention by other individuals. Privacy
comprises bodily, territorial, communications and information privacy.
Disclosure of Personal Information
Part 4 engages the right to privacy because a person’s personal information, such as
the person’s name and address, may be divulged to a court in an application for a
family violence intervention order. In particular:
∞ Clause 45 of the Bill empowers a police officer to make an application for a
family violence intervention order, regardless of whether an affected family
member consents to such an application being made.
∞ Clause 85 engages the right as it requires the court to ask a respondent who
is excluded from a protected person’s residence to provide a court with an
address for service; however, there is no penalty if a respondent fails to give
such an address.
In addition:
∞ Clause 156 engages the right because where a court makes a family
violence intervention order against a carer, the registrar is required to serve a
copy of the order on the carer’s employer or organisation for whom the carer
provides the care to the client.
Page 9 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 10 of 17
Bodily privacy
The right to privacy provided by section 13 of the Charter is also engaged by clause
16 of the Bill which allows a police officer to conduct a personal search of a person
subject to a direction or detention under the holding powers. The clause is designed
to ensure the safety of police officers, third parties and the directed person.
The clause does not, however, limit the right to privacy because any interference is
lawful and not arbitrary. It is legitimate that a police officer should be able to search a
person or items in their possession where that police officer believes, on reasonable
grounds, that the person is carrying dangerous objects or possesses objects that
may assist them to escape.
Further, the clause clearly and precisely sets out the circumstances that do not
amount to sufficient grounds for conducting a search. Therefore, a belief that
searching the person or any vehicle, package or thing in the person's possession
would provide evidence that an offence has been, or is being, committed is not by
itself sufficient grounds for conducting the search.
Section 15 – Freedom of expression 215
Section 15 establishes a number of rights relating to freedom of expression. It
protects the right to hold an opinion without interference and the right to seek, receive
and impart both information and ‘ideas of all kinds’ anywhere and in any form.
Section 15(3) of the Charter, however, contains a specific limitation on the right to
freedom of expression. This invites consideration of particular matters that are
identified as ones which, when satisfied, specifically justify a restriction on the right.
CHARTER GUIDELINES
APPENDIX E
The application of section 15(3) involves satisfying a number of conditions. First, the
relevant restriction proposed on the right to freedom of expression must be ‘lawful’.
Second, the relevant restriction must be imposed for a particular purpose, either to
respect the rights and reputation of other persons, or in order to protect national
security, public order, public health, or public morality. Third, the relevant restriction
must be ‘reasonably necessary’ for one of these purposes.
Clause 81(2)(d) (prohibiting contact of protected person), clause 193 (court
declaring a person to be a vexatious litigant), clause 166 (limiting publication of
identifying information from proceedings) and clause 17 (limiting who a person can
contact if they are detained by police under a holding power) are all clauses which
engage the right to freedom of expression under section 15(2) of the Charter.
However, the clauses all constitute lawful restrictions on the right to freedom of
expression because each restriction is for the purpose of public order and the
effective operation of the justice system. Further, the restriction in clause 166 is also
a lawful restriction to respect the rights of other persons, namely, the right of other
persons to privacy protected in section 13 of the Charter. In addition, clause 17
does not restrict communication with a friend or relative (other than the affected
family member) and is therefore consistent with the rights of families in section 17(1)
of the Charter.
Restriction on children giving evidence
Clause 45 also engages, and limits, section 15(2) of the Charter. This is because a
child is restricted from giving evidence in a proceeding in respect of an application for
a family violence intervention order.
Page 11 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 12 of 17
Any less restrictive means reasonably available
None apparent.
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Section 17 – Protection of families and children
Section 17 provides for the protection of families and children. The Charter provides
that families must be protected by society and the state. However, while family unity
is an important Charter right, it must be balanced with other rights. Section 17(1)
might be qualified by the special right of children to protection in section 17(2) (for
example, when children are removed from a situation of family violence). The Bill
achieves an appropriate balance between the protection of the family unit (section
17(1) of the Charter), the protection of the rights of family members to life (in section
9) and security of the person (in section 21) and the protection of the rights of the
child to such protection as in his or her best interests (in section 17(2)).
Section 20 – Property rights
217
Section 20 establishes a right not to be deprived of property other than in accordance
with law.
Division 5 of Part 4 governs the conditions that may be made in respect of family
violence intervention orders. Several clauses in this Part engage the right to property,
in particular:
∞ Clause 81(2)(b) enables a family violence intervention order to include a
CHARTER GUIDELINES
APPENDIX E
condition which excludes a respondent from a protected person’s residence
∞ Clause 86 (and clause 81(2)(c)) empowers a court to make conditions in
relation to the personal property of parties.
Various provisions in Part 7, which deal with the search and seizure of firearms and
weapons, also engage the right to property contained in section 20 of the Charter.
However, in each instance, any deprivation of property is not arbitrary because it has
a legitimate objective, the protection of a protected person as well as other family
members. Further, clause 88 explicitly states that the inclusion of a condition relating
to personal property in a family violence intervention order does not affect any
underlying rights a protected person or a respondent may have in relation to the
ownership of the property. Therefore, to the extent that these clauses allow for the
deprivation of property, the deprivation is in accordance with law and there is no
limitation on the right.
Page 13 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 14 of 17
Vexatious litigants
Clause 193 provides that a court may, after hearing or giving a person an opportunity
to be heard, make an order declaring a person a vexatious litigant which means that
person may not make an application for a family violence intervention order without
leave of the court. Clause 196 provides that a person who is declared to be a
vexatious litigant may appeal against the order only with leave of the court. Clause
197 provides that a person may apply to vary, set aside or revoke the order only with
the leave of a magistrate of the court.
The vexatious litigant provisions engage but do not limit the right to a fair hearing
because the provisions do not restrict the person's right to a fair hearing before the
court in relation to whether they are to be declared a vexatious litigant and there are
a number of safeguards to ensure that the person is guaranteed a fair hearing in
relation to challenging the order. The restriction on the person making applications
for a family violence intervention order does not engage the right because at that
stage a person is not a party to civil proceedings in respect of the family violence
intervention order. The provisions preserve the right of a person to seek leave to
apply for a family violence intervention and the person will be able to do so where 219
there is no abuse of process. This additional requirement for vexatious litigants
exists to protect people from unsubstantiated claims and to ensure the effective
operation of the justice system.
A Public Hearing
Clause 166 of the Bill restricts the reporting of family violence intervention order
proceedings and clause 68 enables a court to close proceedings to the public.
CHARTER GUIDELINES
APPENDIX E
Clauses 69 and 269 enable a court or Victorian Civil and Administrative Tribunal to
admit evidence via closed circuit television in courts and the Tribunal respectively.
These clauses engage the right to a fair hearing which includes the right to a public
hearing.
However, sections 24(2) and (3) of the Charter enable a court or tribunal to exclude
persons or the general public from a hearing and to prohibit the publication of
judgments or decisions made by a court. Therefore, these provisions fall within a
lawful restriction on the right to a public hearing and do not limit the right.
Right to be heard
It may be argued that clause 173 engages the right to a fair hearing because it
enables the Children’s Court to vary or revoke a family violence intervention order of
its own motion. However, there is no limitation on the right to a fair hearing because
under clause 173(3), the court may only act on its own motion if notice is given of the
court’s intention and parties have the opportunity to be heard.
Applications for interim orders
Clause 54 of the Bill engages and limits section 24 of the Charter. This is because
an application for an interim order may be determined by a court whether or not a
respondent has been given notice of the application and whether or not the
respondent is present at the time an order is granted.
Page 15 of 17
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008
Page 16 of 17
Any less restrictive means reasonably available
None apparent.
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Section 25(1) – The right to be presumed innocent
Section 25(1) protects the presumption of innocence in criminal proceedings. The
presumption of innocence is a well-recognised civil and political right and a
fundamental principle of the common law. Section 25(1) covers persons charged with
an offence whether it is indictable or summary. It requires that the prosecution bears
the onus of proving that the accused committed the offence and must prove all
elements of a criminal offence.
Provisions that merely place an evidential burden on a defendant (that is, the burden
of showing that there is sufficient evidence to raise an issue) with respect to any
available exception or defence do not generally limit the right to be presumed
innocent because the prosecution still bears the legal burden of disproving that
221
matter beyond reasonable doubt.
Clauses 129 and 130 of the Bill engage, but do not limit, the right to be presumed
innocent pursuant to section 25(1) of the Charter. Clauses 129(5) and 130(4)
provide that a defendant who, without reasonable excuse, fails to attend an interview
or subsequent counselling (as applicable) is guilty of an offence. This places an
evidential burden on a respondent with respect to raising such an exception or
defence, and the clauses are therefore compatible with the presumption of
CHARTER GUIDELINES
APPENDIX E
innocence.
Conclusion
I consider that the Bill is compatible with the Charter of Human Rights and
Responsibilities because, to the extent that some provisions may limit human rights,
those limitations are reasonable and demonstrably justified in a free and democratic
society.
ROB HULLS MP
Deputy Premier
Attorney-General
Minister for Industrial Relations
Minister for Racing
Page 17 of 17
APPENDIX F
HUMAN RIGHTS CERTIFICATE
222
APPENDIX G
Exemption Certificate under
Subordinate Legislation Act 1994
223
CHARTER GUIDELINES
APPENDIX F / APPENDIX G
224
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
Section 8: Recognition and Article 16: Section 8(1). Section 9. Schedule 1, Section 15(1) Section 19
equality before the law Everyone shall have the right to art. 14.
Section 8(2). Section 15(2). Section 19(2).
recognition everywhere as a person
Section 8(1): Every person has the
before the law. Section 8(3).
right to recognition as a person
before the law. Articles 2 and 26:
All persons are equal before the law and
Section 8(2): Every person has
are entitled without any discrimination
the right to enjoy his or her human
to the equal protection of the law. In
rights without discrimination.
comparable jurisdictions
9. Right to life Article 6(1): Every human being has Section 9(1). Section 11. Schedule 1, art. 2. Section 7. Section 8.
the inherent right to life. This right shall
Section 9: Every person has the
be protected by law. No one shall be
right to life and has the right not to
arbitrarily deprived of his life.
be arbitrarily deprived of life.
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
10. Protection from torture and Article 7: No one shall be subjected to Section 10. Section 12(1)(d)(e) Schedule 1, art. 3. Section 12. Section 9
cruel, inhuman or degrading torture or to cruel, inhuman or degrading and 12(2).
Section 10
treatment treatment or punishment. In particular,
no one shall be subjected without his Section 11.
Section 10: A person must not be:
free consent to medical or scientific
(a) subjected to torture, experimentation.
11. Freedom from forced work Article 8: Section 26. Section 13. Schedule 1, art. 4. No equivalent No equivalent
section. section.
Section 11(1): A person must not 1. No one shall be held in slavery;
be held in slavery or servitude. slavery and the slave-trade in all
their forms shall be prohibited.
Section 11(2): A person must
not be made to perform forced or 2. No one shall be held in servitude.
compulsory labour.
3 (a) No one shall be required to
Section 11(3) In summary, this perform forced or compulsory
qualifies 11(2) by providing that labour;
forced or compulsory labour
(b) Paragraph 3 (a) shall not be held
does not include work or service
to preclude, in countries where
required to be performed:
imprisonment with hard labour
• pursuant to a court order, may be imposed as a punishment
including work required while for a crime, the performance of
in lawful detention, hard labour in pursuance of a
sentence to such punishment by
• during emergency situations, or
a competent court;
• as part of normal civil
obligations.
CHARTER GUIDELINES
APPENDIX H
225
226
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
11. Freedom from forced work (c) For the purpose of this paragraph
(continued) the term ‘forced or compulsory
labour’ shall not include:
12. Freedom of movement Article 12: Section 13. Section 21. No equivalent Section 6. Section 18.
section.
Section 12: Every person lawfully 1. Everyone lawfully within the
within Victoria has the right to territory of a State shall, within that
move freely within Victoria and to territory, have the right to liberty of
enter and leave it and have the movement and freedom to choose
freedom to choose where to live. his residence.
13. Privacy and reputation Article 17: Section 12. Section 14. Schedule 1, art. 8. No equivalent No equivalent
section. section.
Section 13(a): A person has the 1. No one shall be subjected to
right not to have his or her privacy, arbitrary or unlawful interference
family, home or correspondence with his privacy, family, home or
unlawfully or arbitrarily interfered correspondence, nor to unlawful
with. attacks on his honour and
reputation.
Section 13(b): A person has
the right not to have his or her 2. Everyone has the right to the
reputation unlawfully attacked. protection of the law against
such interference or attacks.
CHARTER GUIDELINES
APPENDIX H
227
228
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
14. Freedom of thought, Article 18: Section 14. Section 15. Schedule 1, art. 9. Section 2(a) Section 13.
conscience, religion and and (b).
1. Everyone shall have the right to Section 15.
belief
freedom of thought, conscience
Section 14(1): Every person has and religion. This right shall include
the right to freedom of thought, freedom to have or to adopt a
conscience, religion and belief, religion or belief of his choice, and
including – freedom, either individually or in
community with others and in public
(a) the freedom to have or to
comparable jurisdictions
15. Freedom of expression Article 19: Section 16. Section 16. Schedule 1, art. 10. Section 2(b). Section 14.
Section 15(1): Every person has 1. Everyone shall have the right to hold
the right to hold an opinion without opinions without interference.
interference.
2. Everyone shall have the right to
Section 15(2): In summary, this freedom of expression; this right shall
provides that people have the right include freedom to seek, receive and
to freedom of expression which impart information and ideas of all
includes the right to seek, receive kinds, regardless of frontiers, either
and impart information and ideas orally, in writing or in print, in the form
via any medium. of art, or through any other media of
his choice.
Section 15(3): In summary, this
provides an express exception 3. The exercise of the rights provided
to this provision. It states that for in paragraph 2 of this article
freedom of expression may be carries with it special duties and
subject to lawful restrictions responsibilities. It may therefore
reasonably necessary to respect be subject to certain restrictions,
the rights and reputation of other but these shall only be such as are
persons and for the protection provided by law and are necessary:
of national security, public order,
(a) For respect of the rights or
public health or public morality.
reputations of others;
CHARTER GUIDELINES
APPENDIX H
229
230
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
16. Peaceful assembly and Article 21: Section 15(1). Section 17. Schedule 1, art. 11. Section 2(c) Section 16.
freedom of association and 2(d).
The right of peaceful assembly shall Section 15(2). Section 18. Section 17.
Section 16(1): Every person has be recognized. No restrictions may be
the right to peaceful assembly. placed on the exercise of this right other
than those imposed in conformity with
Section 16(2): Every person has
the law and which are necessary in a
the right to freedom of association
democratic society in the interests of
with others, including the right to
national security or public safety, public
form and join trade unions.
comparable jurisdictions
Article 22:
CHARTER GUIDELINES
APPENDIX H
231
232
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
17. Protection of families Article 23(1): Section 11(1) Section 28. No equivalent No equivalent No equivalent
and children and 11(2). provision. provision. provision.
1. The family is the natural and
Section 17(1): Families are the fundamental group unit of society
fundamental group unit of society and is entitled to protection by
and are entitled to be protected by society and the State.
society and the State. Article 24(1):
Section 17(2): Every child has 1. Every child shall have, without any
the right, without discrimination,
comparable jurisdictions
18. Taking part in public life Article 25: Section 17. Section 19. No equivalent Section 3. Section 12.
provision.
Section 18(1): In summary, this Every citizen shall have the right and
provides that every person has the the opportunity, without any of the
right to take part in public affairs. distinctions mentioned in Article 2 and
without unreasonable restrictions:
Section 18(2): In summary, this
provides that every eligible person (a) To take part in the conduct of public
has the right to vote and be affairs, directly or through freely
elected and to have access to the chosen representatives;
Victorian public service and public (b) To vote and to be elected at genuine
office. periodic elections which shall be
by universal and equal suffrage
and shall be held by secret ballot,
guaranteeing the free expression
of the will of the electors;
(c) To have access, on general terms
of equality, to public service in his
country.
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
19. Cultural rights Article 27: Section 27. Sections 30 and 31. No equivalent No equivalent Section 20.
provision. provision.
Section 19(1): In summary this In those States in which ethnic, religious
provides that persons with a or linguistic minorities exist, persons
particular cultural, religious, racial belonging to such minorities shall not
or linguistic background have the be denied the right, in community with
right, in community with other the other members of their group, to
members of the same background, enjoy their own culture, to profess and
to enjoy their culture, declare and practise their own religion, or to use
practise their religion and use their their own language.
language.
20. Property rights No equivalent provision. No equivalent Section 25(1). The First Protocol, No equivalent No equivalent
provision. Article 1. provision. provision.
Section 20: A person must not
be deprived of his or her property
other than in accordance with law.
CHARTER GUIDELINES
APPENDIX H
233
234
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
21. Right to liberty and security Article 9: Section 18. Section 12(1)(a) Schedule 1, art. 5. Sections 7 and 9. Section 22.
of person and (b).
1. Everyone has the right to liberty Section 10. Section 23(1)(2)
Section 21(1): Every person has and security of person. No one shall Section 35(2)(a). and (3).
Section 11(e).
the right to liberty and security. be subjected to arbitrary arrest or
Section 35(1)(d)
detention. No one shall be deprived
Section 21(2): A person must not and (e).
of his liberty except on such grounds
be subjected to arbitrary arrest or
and in accordance with such Section 35(1)(f).
detention.
procedure as are established by law.
comparable jurisdictions
21. Right to liberty and security 4. Anyone who is deprived of his liberty
of person (continued) by arrest or detention shall be entitled
to take proceedings before a court,
Section 21(5): A person who is
in order that that court may decide
arrested or detained on a criminal
without delay on the lawfulness of his
charge (a) must be promptly
detention and order his release if the
brought before a court, (b) has
detention is not lawful.
the right to be tried without
unreasonable delay and (c) must 5. Anyone who has been the victim of
be released if paragraph (a) or (b) unlawful arrest or detention shall have
is not complied with. an enforceable right to compensation
CHARTER GUIDELINES
APPENDIX H
235
236
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
22. Humane treatment when Article 10(1) and 10(2)(a): Section 19. Section 35(2)(e). No equivalent No equivalent Section 23(5).
deprived of liberty provision. provision.
1. All persons deprived of their liberty
Section 22(1): All persons deprived shall be treated with humanity
of liberty must be treated with and with respect for the inherent
humanity and with respect for dignity of the human person.
the inherent dignity of the human
2.(a) Accused persons shall, save
person.
in exceptional circumstances,
Section 22(2): An accused person be segregated from convicted
comparable jurisdictions
23. Children in the criminal Article 10(2)(b) and 10(3): Section 20. Section 28(1)(g). No equivalent No equivalent No equivalent
process provision. provision. provision.
2.(b) Accused juvenile persons shall
Section 23(1): An accused child be separated from adults and
who is detained or a child detained brought as speedily as possible
without charge must be segregated for adjudication.
from all detained adults.
3. The penitentiary system shall
Section 23(2): An accused child comprise treatment of prisoners
must be brought to trial as quickly the essential aim of which shall
as possible. be their reformation and social
rehabilitation. Juvenile offenders
Section 23(3): A child who has
shall be segregated from adults
been convicted of an offence
and be accorded treatment
must be treated in a way that is
appropriate to their age and
appropriate for his or her age.
legal status.
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
24. Fair hearing Article 14(1): Section 21. Sections 34 and Schedule 1, art. Section 11(d). Section 25(a).
35(3)(c). 6(1).
Section 24(1): A person charged 1. All persons shall be equal before
with a criminal offence or a the courts and tribunals. In the
party to a civil proceeding has determination of any criminal
the right to have the charge charge against him, or of his rights
or proceeding decided by a and obligations in a suit at law,
competent, independent and everyone shall be entitled to a fair
impartial court or tribunal after and public hearing by a competent,
a fair and public hearing. independent and impartial tribunal
Section 24(2): In summary this established by law. The Press and
provides an express exception to the public may be excluded from
(1) in that a court or tribunal may all or part of a trial for reasons of
exclude the media and the public morals, public order (ordre public)
from all or part of a hearing if or national security in a democratic
permitted to do so by a law other society, or when the interest of
than the Charter. the private lives of the parties so
Section 24(3): In summary this requires, or to the extent strictly
provides that all judgments or necessary in the opinion of the
decisions made by a court or court in special circumstances
tribunal in a criminal or civil where publicity would prejudice
proceeding must be made public the interests of justice; but any
unless the best interests of a judgement rendered in a criminal
child otherwise requires or a law case or in a suit at law shall be made
other than the Charter otherwise public except where the interest
permits. of juvenile persons otherwise
requires or the proceedings
concern matrimonial disputes
or the guardianship of children.
CHARTER GUIDELINES
APPENDIX H
237
238
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
25. Rights in criminal Article 14(2): Section 22(1). Section 35(3)(h). Schedule 1, art. Section 11(d). Section 25(c).
proceedings 6(2).
2. Everyone charged with a criminal
Presumption of innocence offence shall have the right to be
presumed innocent until proved
Section 25(1): A person charged
guilty according to law.
with a criminal offence has the
right to be presumed innocent until
proved guilty according to law.
comparable jurisdictions
25. Rights in criminal Article 14(3)(a): Section 22(2)(a). Section 35(3)(a). Schedule 1, art. Section 11(a). Section 24(a).
proceedings 6(3)(a).
3. In the determination of any criminal
To be informed promptly charge against him, everyone shall
Sources of human rights from
25. Rights in criminal Article 14(3)(b): Section 22(2)(b). Section 35(3)(b). Schedule 1, art. No equivalent Section 24(c)
proceedings 6(3)(b). section. and (d).
In the determination of any criminal
To prepare defence charge against him, everyone shall
be entitled to the following minimum
Section 25(2): A person charged
guarantees, in full equality: …
with a criminal offence is entitled
without discrimination … (b) To have adequate time and facilities
for the preparation of his defence
(b) to have adequate time and
and to communicate with counsel
facilities to prepare his or her
of his own choosing.
defence and to communicate
with a lawyer or advisor
chosen by him or her.
25. Rights in criminal Article 14(3)(c): Section 22(2)(c). Section 35(3)(d). Schedule 1, art. Section 11(b). Section 25(b).
proceedings 6(1).
In the determination of any criminal
To a speedy trial charge against him, everyone shall
be entitled to the following minimum
Section 25(2): A person charged
guarantees, in full equality: …
with a criminal offence is entitled
without discrimination … (c) To be tried without undue delay.
CHARTER GUIDELINES
APPENDIX H
239
240
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
25. Rights in criminal Article 14(3)(d): Section 22(2)(d). Section 35(3)(e) Schedule 1, art. No equivalent Section 25(e).
proceedings and (f). 6(3)(c). provision.
In the determination of any criminal
To defend in person or through charge against him, everyone shall
a lawyer be entitled to the following minimum
guarantees, in full equality: …
Section 25(2): A person charged
with a criminal offence is entitled To be tried in his presence, and to
without discrimination … defend himself in person or through
legal assistance of his own choosing; to
comparable jurisdictions
25. Rights in criminal Article 14(3)(d). Section 22(2)(e). Section 35(3)(g). No equivalent No equivalent No equivalent
proceedings provision. provision. provision.
25. Rights in criminal Article 14(3)(d): Section 22(2)(f) Section 35(3)(g). Schedule 1, art. No equivalent Section 24(f).
proceedings 6(3)(c). provision.
In the determination of any criminal
To legal aid (if eligible) charge against him, everyone shall
be entitled to the following minimum
Section 25(2): A person charged
guarantees, in full equality: …
with a criminal offence is entitled
without discrimination … To be tried in his presence, and to
defend himself in person or through
(f) to have legal aid provided if
legal assistance of his own choosing; to
the interests of justice require
be informed, if he does not have legal
it, without any costs payable
assistance, of this right; and to have
by the accused person if he
legal assistance assigned to him, in any
or she meets the eligibility
case where the interests of justice so
criteria set out in the Legal
require, and without payment by him
Aid Act 1978.
in any such case if he does not have
sufficient means to pay for it.
25. Rights in criminal Article 14(3)(e): Section 22(2)(g). Section 35(3)(i). Schedule 1, art. No equivalent Section 25(f).
proceedings 6(3)(d). provision.
In the determination of any criminal
To examine witnesses charge against him, everyone shall
be entitled to the following minimum
Section 25(2): A person charged
guarantees, in full equality: …
with a criminal offence is entitled
without discrimination … To examine, or have examined, the
witnesses against him and to obtain
(g) to examine, or have examined,
the attendance and examination of
witnesses against him or her,
witnesses on his behalf under the same
unless otherwise provided for
conditions as witnesses against him.
by law; and
CHARTER GUIDELINES
APPENDIX H
241
242
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
25. Rights in criminal Article 14(3)(f): Section 22(2)(h). Section 35(3)(k). Schedule 1, art. Section 14. Section 24(g).
proceedings 6(3)(e).
In the determination of any criminal
To an interpreter charge against him, everyone shall
be entitled to the following minimum
Section 25(2): A person charged
guarantees, in full equality: …
with a criminal offence is entitled
without discrimination … To have the free assistance of an
interpreter if he cannot understand or
(i) to have the free assistance
speak the language used in court.
comparable jurisdictions
of an interpreter if he or she
cannot understand or speak
English.
Sources of human rights from
25. Rights in criminal No equivalent provision. No equivalent No equivalent No equivalent No equivalent No equivalent
proceedings provision. provision. provision. provision. provision.
To specialised communication
tools
25. Rights in criminal Article 14(3)(g): Section 22(2)(i). Section 35(3)(j). No equivalent Section 13. Section 25(d).
proceedings provision.
In the determination of any criminal
Against self-incrimination charge against him, everyone shall
be entitled to the following minimum
Section 25(2): A person charged
guarantees, in full equality: …
with a criminal offence is entitled
without discrimination … Not to be compelled to testify against
himself or to confess guilt.
(k) not to be compelled to testify
against himself or herself or to
confess guilt.
25(3). Rights of children in Article 14(4): Section 22(3). No equivalent No equivalent No equivalent Section 25(i).
criminal proceedings provision. provision. section.
In the case of juvenile persons, the
Section 25(3): A child charged procedure shall be such as will take
with a criminal offence has the account of their age and the desirability
right to a procedure that takes of promoting their rehabilitation.
account of his or her age and
the desirability of promoting
the child’s rehabilitation.
25(4) Right to appeal against Article 14(5): Section 22(4). Section 35(3)(o). No equivalent No equivalent Section 25(h).
conviction and sentence section. section.
Everyone convicted of a crime shall have
Section 25(4): Any person the right to his conviction and sentence
convicted of a criminal offence being reviewed by a higher tribunal
has the right to have the conviction according to law.
and any sentence imposed in
respect of it reviewed by a higher
court in accordance with law.
CHARTER GUIDELINES
APPENDIX H
243
244
Charter ICCPR ACT: Human South Africa: United Canada: New Zealand:
Rights Act Constitution Kingdom: Canadian New Zealand
2004 of the Republic Human Charter of Bill of Rights
of South Rights Rights and Act 1990
Africa 1996 Act 1998 Freedoms
Chapter 2
APPENDIX H
26: Right not to be tried or Article 14 (7): Section 24. Section 35(3)(m). No equivalent Section 11(h). Section 26(2).
punished more than once section.
No one shall be liable to be tried or
Section 26: A person must not punished again for an offence for which
be tried or punished more than he has already been finally convicted or
once for an offence in respect of acquitted in accordance with the law and
which he or she has already been penal procedure of each country.
finally convicted or acquitted in
accordance with law.
comparable jurisdictions
27. Retrospective criminal laws Article 15: Section 25(1). Section 35(3)(l). Schedule 1, art. 7. Section 11(g). Section 26(1).
Section 27(1): A person must 1. No one shall be held guilty of any Section 25(2). Section 35(3)(n).
not be found guilty of a criminal criminal offence on account of
Sources of human rights from
offence because of conduct that any act or omission which did not
was not a criminal offence when it constitute a criminal offence, under
was engaged in. national or international law, at the
time when it was committed. Nor
Section 27(2): A penalty must
shall a heavier penalty be imposed
not be imposed on any person for
than the one that was applicable at
a criminal offence that is greater
the time when the criminal offence
than the penalty that applied to
was committed. If, subsequent to the
the offence at the time when it
commission of the offence, provision
was committed.
is made by law for the imposition of
Section 27(3): If a penalty for an the lighter penalty, the offender shall
offence is reduced after a person benefit thereby.
committed the offence but before
2. Nothing in this article shall prejudice
the person is sentenced for that
the trial and punishment of any
offence, that person is eligible for
person for any act or omission which,
the reduced penalty.
at the time when it was committed,
Section 27(4): Nothing in was criminal according to the general
this section affects the trial principles of law recognized by the
or punishment of any person community of nations.
for any act or omission which
was a criminal offence under
international law at the time it
was done or omitted to be done.
APPENDIX I
reference LIST
Set out below is a selection of key texts, • K. Reid, A Practitioners Guide to the European
commentaries, journals and websites which Convention on Human Rights, (Sweet &
legislative policy officers may find useful on Maxwell, 2004).
international human rights law. This list is
• K. Starmer, European Human Rights Law:
necessarily selective and is not designed
The Human Rights Act 1998 and the European
to be comprehensive.
Convention on Human Rights (Legal Action
Group, 1999).
TEXTS AND COMMENTARIES
• P.M. Taylor, Freedom of Religion, UN and
ICCPR European Human Rights Law and Practice
• S. Joseph et al, The International Covenant on (CUP, 2006).
Civil and Political Rights: ICCPR Commentary: • N. Jayawickrama, The Judicial Application
Cases, Materials and Commentary, (OUP, 2nd of Human Rights Law, (CUP, 2003).
ed, 2000).
Canada
• M. Nowak, UN Covenant on Civil and Political
Rights: CCPR Commentary, (Kehl, Germany; • P. Hogg, Constitutional Law of Canada,
Arlington USA; N.P Engel 2nd Rev. ed, 2005). (Carswell, Toronto, 4th ed, 1997).
245
• S. Marks and A. Clapham, International Human New Zealand
Rights Lexicon (OUP, 2005).
• A. Butler and P. Butler, The New Zealand Bill of
• A. Eide et al (eds), The Universal Declaration Rights Act: A Commentary, (Lexis Nexis, 2005).
of Human Rights: A Commentary (Scandinavia
• P. Rishworth, G. Huscroft, S. Optican,
University Press; OUP, 1992).
R. Mahoney, The New Zealand Bill of Rights,
CHARTER GUIDELINES
APPENDIX I
UK (OUP, 2003).