The ACT Human Rights Act


The Human Rights Act 2004 (ACT) can be drawn on to improve your position in a criminal-law case. All legislation in the ACT has to comply with the Human Rights Act, which includes many provisions in relation to the rights of those caught up in the criminal justice system. The main ways the Act can be called upon is in issues surrounding arrest, detention, bail and delay before trial, but it can be drawn on also throughout a hearing or trial and at sentence.

The Act enshrines many long-held legal principles and embraces various declarations and United Nations conventions. The ACT and Victoria are the only jurisdictions in Australia that have enacted Human Rights legislation.

Right to Liberty and Security of Person

The Human Rights Act declares that everyone has the right to liberty and security of person. No-one may be arbitrarily arrested or detained nor may they be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

Anyone arrested in the ACT must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.

Further, anyone arrested or detained on a criminal charge must be promptly brought before a judge or magistrate; and has the right to be tried within a reasonable time or released.

Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to certain guarantees to appear.

Anyone who is deprived of their liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.

Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

No-one may be imprisoned only because of the inability to carry out a contractual obligation.

Humane Treatment When Deprived of Liberty

Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

An accused person must be segregated from convicted people, except in exceptional circumstances – and an accused child must also be segregated from accused adults.

An accused person must be treated in a way that is “appropriate for a person who has not been convicted”.

Fair Trial

Everyone has the right to have criminal charges decided by a competent, independent and impartial court or tribunal after a fair and public hearing (though the media and public may be excluded from all or part of some trials).

Rights in Criminal Proceedings

The Human Rights Act enshrines one of the most basic principles of the law: everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Further, anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

  • to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge;
  • to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;
  • to be tried without unreasonable delay;
  • to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her;
  • to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;
  • to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance;
  • to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses;
  • to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court;
  • not to be compelled to testify against himself or herself or to confess guilt.

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.

Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

Compensation for Wrongful Conviction

If a person’s conviction is reversed, or he or she is pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person has the right to be compensated according to law.

However, this does not apply if it is proved that the nondisclosure of the unknown fact in time is completely or partly the person’s own doing.

Right Not to Be Tried or Punished More Than Once

No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.

Retrospective Criminal Laws

No-one may be held guilty of a criminal offence because of conduct that was not a criminal offence under Territory law when it was engaged in.

A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offence when it was committed. If the penalty for an offence is reduced after anyone commits the offence, he or she benefits from the reduced penalty.

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

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If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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