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This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

The Human Rights Act and Criminal Matters (ACT)


The ACT is one of only three jurisdictions in Australia which has a Human Rights Act that provides protection for basic human rights and can be used for a defendant’s protection in criminal law matters. As its name would imply, the ACT Act is a statutory creation and not an adjunct to the Constitution like the United States Bill of Rights which is made up of the first 10 amendments to the US Constitution. It is often argued that this makes it a weaker protection of rights. However, it is also sometimes argued that the Act is under-utilised, especially in criminal law. This article outlines how the Human Rights Act can be used to uphold the rights of those involved in criminal offending.

Why have a Human Rights Act?

The preamble to the Human Rights Act notes that “Human rights are necessary for individuals to live lives of dignity and value” and that respecting, protecting and promoting the rights of individuals improves the welfare of the whole community. It says, “Setting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation.

How does the Human Rights Act help criminal defendants?

The ACT Human Rights Act defines rights in the same way as the great United Nations Covenants do, with separate protection for civil and political rights, and another category for social, economic and cultural rights.

It is the civil and political rights that most often come into play in criminal law. These rights include recognition and equality before the law, protection from torture and cruel, inhuman or degrading treatment, freedom of movement, thought, conscience, religion and belief, peaceful assembly and freedom of association and expression.

Particularly relevant to criminal cases are the right to liberty and security of the person, the right to a fair trial and the Act even spells out, at Section 22, enumerated rights in criminal proceedings.

Human Rights Act can be a factor in granting bail

Human rights might have been the extra factor that recently allowed a Canberra woman to be released on bail ahead of the hearing of a multitude of charges recently. The woman suffered from mental health issues, and this was to form the basis of a defence to at least some of the many charges against her. Others were to be defended on their facts, and she instructed her solicitor to plead guilty to yet others. All charges related to traffic offences and drug use.

As required under the Bail Act 1992, the court assessed the woman’s likelihood of attending court, her likelihood of committing further offences and her likelihood of interfering with witnesses or evidence. However, perhaps the clinching argument in relation to bail was the picture relayed to the court of a mentally troubled defendant being chained to her hospital bed, under police guard, in a human-rights jurisdiction.

The woman’s solicitor invoked that general proposition but looked particularly to Section 19, which deals with “humane treatment when deprived of liberty”, and specifies that:

  • Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person, and
  • An accused person must be treated in a way that is appropriate for a person who has not been convicted.

It was suggested also that the treatment was degrading (contrary to Section 10). Bail was granted over police and prosecution objection.

Human rights for victims

The Human Rights Act can also be used to uphold the rights of victims.

The Human Rights Commission gives advice to the Territory’s Legislative Assembly. Recently, Commissioner Helen Watchirs, together with Victims of Crime Commissioner Heidi Yates, wrote about the impact of a proposal for tougher sentencing in family violence matters. While mindful always that any new law must comply with the Human Rights Act, their letter pointed out that the planned scope of the Crimes (Family Violence) Legislation Amendment Bill 2021 was not broad enough to capture some offending.

The Bill proposed nominating a list of certain offences for which convicted persons would face harsher sentences. The commissioners noted that the list “would have practical effect in very few cases given that most family violence matters involve different offences”. They cited a recent case where an offender was found guilty of property damage, aggravated dangerous driving, common assault, making a demand with threat to kill and possession of an offensive weapon with intent. None of those offences was listed in the Bill.

Human rights and dealing with prosecutors

Human rights are important in shaping legislation. Indeed, the impact on human rights of every piece of ACT law must be considered before it comes into operation. However, the application of human rights is at its sharpest when the liberty of the citizen is in question, whether in a bail application or more broadly in the manner and shape of charges brought against them.

Solicitors often invoke the Human Rights Act when making representations to the office of the Director of Public Prosecutions in an attempt to have charged withdrawn or downgraded.  Representations and negotiations are a part of the solicitor’s craft that are like an iceberg. Often the most substantial work in a matter can be done under the surface, lessening the charges so that what appears in court is only the tip of the good case that has been made for the client.

As well as the Human Rights Act, the DPP has its own extensive guidelines, which says, at 1.7, “The ACT is a human rights compliant jurisdiction, and all staff of the DPP must be mindful of the principles underlying the Human Rights Act and its purpose, as they conduct the business of the DPP. In particular, they are responsible for respecting, protecting and promoting the human rights that are set out in that Act.”

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

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