Human Rights Acts protect rights relevant to the criminal law by prohibiting retrospective criminal laws, ensuring fair trial rights (such as the right to be informed, prepare a defence, be tried without delay, and be assisted by legal counsel) and guaranteeing the presumption of innocence. While there are only Human Rights Acts in force in the Australian Capital Territory, Victoria and Queensland, governments of other states and territories, and potentially the Federal Government, may follow suit in the future.
The Australian Human Rights Commissions also emphasises the importance of preventing discrimination and upholding privacy within the criminal justice system, while the existence of these acts also influences the interpretation and application of civil penalty provisions to ensure they align with fundamental criminal process guarantees.
Protection Against Retrospective Criminal Laws
Under the Human Rights Acts, no one can be found guilty of a criminal offence for conduct that was not a criminal offence when it was committed. Furthermore, a heavier penalty cannot be imposed than the one that applied when the offence was committed (see, for example, s26 of the Human Rights Act 2004 in the ACT). If a lighter penalty becomes available later, the offender benefits from that reduced penalty.
Rights in Criminal Proceedings
The presumption of innocence guaranteed that everyone charged with a criminal offence is entitled to be presumed innocent until proven guilty. This is a fundamental right that underpins criminal offences across Australia. There are also a number of fair trial rights that include the right to (see s22 Human Rights Act 2004 (ACT):
- Be informed promptly and in detail, in a language that the accused understands, about the nature and reason for the charge.
- Have adequate time and facilities to prepare a defence and to communicate with lawyers or advisors chosen by the person accused.
- Be tried without unreasonable delay.
- Be tried in person and defend oneself personally or through legal assistance.
- Examine prosecution witnesses and have their own witnesses examined.
- Receive legal assistance, including free assistance if the interests of justice require it and the person cannot afford it.
- Have the free assistance of an interpreter if the accused person cannot understand or speak the language used in court.
- Not to be compelled to testify against themselves or to confess guilt.
- If the accused person is a child, the court must take account of the child’s age and the desirability of promoting the child’s rehabilitation.
- Have the right to have a conviction or sentence reviewed by a higher court in accordance with the law.
Non-Discrimination and Privacy
The Human Rights Acts also prevent discrimination based on factors such as race, sex, religion or political opinion within the criminal justice system. The right to privacy is also protected, meaning there should be no unlawful or arbitrary interference with a person’s privacy, family life, home, or correspondence.
The Scope of the Rights
An important consideration is at what state of the process these rights operate. Anyone charged with a criminal offence can benefit from the rights the Acts contain, which has been interpreted to mean that it applies from the time the police first indicate that criminal charges will be laid. The rights in criminal proceedings can apply in a range of circumstances, including:
- If a person is charged with an offence but their trial is delayed for far longer than usual through no fault of their own, the guarantee against ‘unreasonable delay’ may stop the trial from going ahead.
- If the police or other investigatory bodies have powers to compel testimony, they must exercise the powers (if possible) compatibly with the right not to be compelled to incriminate oneself.
- A person has the right to choose a lawyer, but this is not an absolute right, and it will be balanced against considerations such as potential delays and availability of reasonable alternatives if the person’s first choice of lawyer is unavailable. Additionally, it will not give a person accused of a criminal offence the right to Legal Aid funding for an expensive private lawyer.
In general, an action or decision made by a public entity will be considered compatible with human rights if it does not restrict a protected right—or, if it does impose a restriction, the limitation is reasonable and can be clearly justified. As a result, all actions, policies, or decisions by public bodies must be assessed for their compatibility with human rights. This assessment typically involves the following three steps:
- Identify which rights protected under the relevant legislation may be affected.
- Assess whether the action or decision limits any of those rights. If no rights are limited, the action or decision is compatible. If rights are impacted, proceed to step 3.
- Evaluate whether the limitation is reasonable and justifiable by considering the following:
- Is there a legal basis—such as a law or regulation—that permits the limitation of the right?
- Does the limitation serve a legitimate purpose?
- Is limiting the right necessary to achieve that purpose?
- Do the benefits of the action or decision outweigh the harm caused by the limitation?
If the answer to each of these questions is “yes,” the action or decision is likely to be compatible with human rights.
Conclusion
The Human Rights Acts play a crucial role in shaping and safeguarding the criminal justice process in Australia, particularly in jurisdictions where the Act is in force. By prohibiting retrospective criminal laws, guaranteeing fair trial rights, upholding the presumption of innocence, and ensuring non-discrimination and privacy, the Act ensures that the rights of individuals accused of crimes are protected throughout the legal process.
These protections apply from the earliest stages of a criminal matter and must guide the conduct of public authorities and the interpretation of legislation. While not yet adopted nationwide, the influence of Human Rights Acts is growing, and their principles are increasingly informing legal standards and government decision-making across Australia. Ultimately, the Human Rights Act reinforces the rule of law by requiring that any limitations on fundamental rights are lawful, necessary, and proportionate, ensuring that justice is both fair and accountable.
