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The ACT Human Rights Act

The Human Rights Act 2004 can be drawn on to improve your position in a criminal law case. All legislation in the ACT must comply with the 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 Act declares that everyone has the right to liberty and security of person. No one may be arbitrarily arrested or detained, or deprived of liberty, except on the grounds and in accordance with 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 them. Further, anyone arrested or detained on a criminal charge must be promptly brought before a judge or magistrate; and they have the right to be tried within a reasonable time or released. Anyone awaiting trial must not be detained in custody as a general rule, but their 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 can 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 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 they understand, about the nature and reason for the charge;
  • to have adequate time and facilities to prepare their defence and to communicate with lawyers or advisors chosen by them;
  • to be tried without unreasonable delay;
  • to be tried in person, and to defend themselves personally, or through legal assistance chosen by them;
  • to be told, if they do not have legal assistance, about the right to legal assistance chosen by them;
  • to have legal assistance provided to them, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if they cannot afford to pay for it;
  • to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on their behalf under the same conditions as prosecution witnesses;
  • to have the free assistance of an interpreter if they cannot understand or speak the language used in court;
  • not to be compelled to testify against themselves 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, they benefit from the reduced penalty.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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