Section 20
Property rights
Section 20
A person must not be deprived of his or her property other than in accordance with law.
128 POLICY TRIGGERS: DO I NEED TO CONSIDER
SECTION 20?
You will need to consider s. 20 in assessing
legislation, a policy or a program where it:
• provides for acquisition, seizure or forfeiture of
a person’s property under civil or criminal law;
• confers on a public authority a right of access
to private property;
• limits or terminates property rights (for
example, by legislation which establishes
a limitation period);
• restricts the use of private property (for
example, under planning laws);
• restricts or regulates established patterns
of access (especially for commercial or
business purposes) to public property;
• modifies commercial or business licensing
arrangements;
• implements government control over its own
property (for example, resumption of land);
• deprives a co-owner of property;
• impounds or suspends registration of a
motor vehicle;
• creates a charge or mortgage on land;
• creates a charge or mortgage on personal
property.
These policy triggers are not comprehensive.
DISCUSSION
Section 20 establishes a right not to be deprived of
property other than in accordance with law. This right
does not provide a right to compensation. Although
the Charter does not, as a matter of law, require
compensation when property is acquired, you
should consider in those circumstances whether
compensation is required as a matter of policy. The
Scrutiny of Acts and Regulations Committee will be
likely to continue to comment adversely on legislation
that provides for the acquisition of property without
compensation, although it has been recognised
by the High Court that the requirement under
the federal Constitution that the Commonwealth
Parliament cannot pass a law that acquires property
without compensation on just terms (s. 51 (xxxi))
does not apply to the States.167
Section 20 ensures that the institution of property
is recognised and acknowledges that Victoria is
a market economy that depends on the institution
of private property.
The scope of the right protected by s. 20 is a
person’s right not to be deprived of his or her
property other than in accordance with law.
167 Durham Holdings Pty Ltd v. New South Wales (2001)
205 CLR 399.
As mentioned above, this provision is distinct from
the provision in the Australian Constitution which
provides property guarantees in relation to property
acquired under federal law. Section 20 applies to
Victorian law, not Federal law.
It is well established in international human rights
law that a person must not be arbitrarily deprived
of his or her property. Deprivation otherwise than
in accordance with law is an example of arbitrary
deprivation. The Universal Declaration on Human
Rights was the first international instrument to
codify this right in article 17, which reads:
(1) Everyone has the right to own property
alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his
property.
What this right means
In one sense it is quite impossible for a government
to deprive a person of his or her property otherwise
than in accordance with law: if a Government acts
unlawfully its actions will not be effective to deprive
a person of his or her title to, or ownership of, his or
her property.
However, ‘property’ in s. 20 has a wider meaning
than title to or ownership of property, and ‘deprived’
has a wider meaning than being stripped of title
or ownership (discussed below on page 130).
The primary impact of s. 20 will be in relation to
these wider senses of property and deprivation.
To comply with the right in these contexts, the
deprivation must be authorised by law.
In the vetting context this means:
• Where the common law or legislative provision
deprives a person of title to, or ownership of,
his or her property, you should ensure that
the powers conferred by the common law or
legislative provision are not arbitrary. If they
are not arbitrary, nothing further is required to
satisfy the right contained in s. 20. (However,
you should take into account any other policy
development guidelines that require, for
example, provisions for notice, consultation,
review and compensation. The Charter does
not displace any such existing guidelines or
existing legal requirements.)
• Where the common law or legislative provision
authorises the deprivation of property (in the
wider sense), you should ensure that the powers
conferred by the common law or legislative
provision are not arbitrary. If those powers cannot
be exercised arbitrarily, nothing further is required
to satisfy the right contained in s. 20. (Again,
however, you should take into account any other
policy development guidelines.)
• Where a policy authorises or requires a
deprivation of property (in the wider sense),
you should ensure that the policy is authorised
by the common law or legislation and that the
powers conferred by the law are not arbitrary.
‘Property’
The term ‘property’ is not defined in the Charter.
It includes both real and personal property and 129
any right or interest regarded as property under
Victorian law. For example, the following will be
included under s. 20:
• personal possessions;
• land;
CHARTER GUIDELINES
Section 20: Property rights
• contractual rights;
• leases;
• shares;
• patents;
• debts.
The notion of ‘property’ also extends to statutory
rights, particularly where they have the
characteristics of traditional property rights
such as permanence and transferability.
Importantly, property could also apply to non-
traditional and less formal rights in relation to
property, such as a licence to enter or occupy
land and the right to enjoy uninterrupted possession
of land.
The above list is not comprehensive. These Charter
Guidelines cannot provide policy officers with a
comprehensive statement of Victorian law on
the definition of property. It is important that you
familiarise yourself with the range of rights and
interests considered to be ‘property’ under
Victorian law which might be relevant to s. 20.
 SECTION 20
PROPERTY RIGHTS
‘Deprived’
The term ‘deprived’ is not defined in the Charter.
It will include situations where:
• title to property is transferred to someone
other than the owner;
• title to property is extinguished;
• a regulation has the effect of substantially
depriving a property owner of the ability to
use his or her property or part of that property
(including enjoying exclusive possession of it,
disposing of it, destroying it, transferring it or
deriving profits from it).
‘Other than in accordance with law’
Section 20 only prohibits a deprivation of property
that is carried out unlawfully.
130
To comply with this right, if a program or a policy
may deprive a person of his or her property:
• the deprivation must occur under powers that
are conferred by legislation or the common law;
and
• if the deprivation of property occurs under
discretionary powers, those powers should be
confined and structured rather than arbitrary
or unclear.
The second requirement is imposed because the
requirement that permissible deprivations only be
carried out ‘in accordance with law’ imports a
requirement that the law not be arbitrary – that it
be accessible to the public and formulated precisely
enough to guide those who apply the law. Consult
Measures to Improve Compliance below for ways
to help ensure that these requirements are met.
REASONABLE LIMITS
As with all of the human rights protected in the
Charter, the right protected by s. 20 may be subject
to reasonable limitations that can be demonstrably
justified in a democratic society in accordance
with s. 7 of the Charter. You should refer to Part 2
of these Charter Guidelines for further information
on s. 7.
KEY POINTS TO REMEMBER
• A person must not be deprived of his or her
property unless the law provides that he or she
may be.
• The right to property does not entail at state
level any right to compensation upon deprivation.
MEASURES TO IMPROVE COMPLIANCE
If you are developing any policy or legislation
that might result in the deprivation of property,
ensure that:
• any deprivation of property is authorised by
legislation or the common law;
• the criteria that is to be used for determining
when it will occur are clearly articulated; and
• the criteria will not result in any discrimination,
as defined in the Charter.
RELATED RIGHTS AND FREEDOMS
If your policy or legislation involves an issue under
s. 20, you may also wish to examine whether the
policy or legislation has an impact upon s. 13
which protects against the unlawful and arbitrary
interference with privacy, family, home and
correspondence.
HISTORY OF THE SECTION
The ICCPR does not contain a provision that
protects against arbitrary deprivation of property,
although articles 2(1), 24(1) and 24 of the ICCPR
prohibit discrimination on various grounds, including
property. Section 20 also reflects part of the
content of article 17 of the Universal Declaration
on Human Rights.
Similar rights exist in comparative law. Refer to
Appendix H for further information.
BIBLIOGRAPHY
Case Law
1. Durham Holdings Pty Ltd v. New South Wales
(2001) 205 CLR 399.
Section 21
Right to liberty and
security of person

Section 21

(1) Every person has the right to liberty and security.

(2) A person must not be subjected to arbitrary arrest or detention.
(3) A person must not be deprived of his or her liberty except on grounds, and in accordance
with procedures, established by law.
(4) A person who is arrested or detained must be informed at the time of arrest or detention
of the reason for the arrest or detention and must be promptly informed about any
proceedings to be brought against him or her.
(5) A person who is arrested or detained on a criminal charge—
(a) must be promptly brought before a court; and
(b) has the right to be brought to trial without unreasonable delay; and
(c) must be released if paragraph (a) or (b) is not complied with.
(6) A person awaiting trial must not be automatically detained in custody, but his or her release
may be subject to guarantees to appear— 131
(a) for trial; and
(b) at any other stage of the judicial proceeding; and
(c) if appropriate, for execution of judgment.
(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a

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
SECTION 21?
You will need to consider s. 21 in assessing
legislation, a policy or a program particularly
where it:
• permits any public authority to detain an
individual, whether or not he or she is suspected
of committing an offence, for a period that is
more than transitory;
• authorises a person with a mental illness to be
detained for treatment in a mental health facility;
• allows the detention of a person in order to
prevent the spread of a contagious disease;
• allows the detention of a person in order for
the person to ‘sober up’;
• makes it an offence for a person to fail to
remain at a place (for example, for further
questioning or to conduct a search or test
by a police officer or other official);
• allows a public authority to cordon an area
and control movement within that area;
• relates to the management of security
of persons within correctional facilities;
• grants a power of arrest.
 SECTION 21
RIGHT TO LIBERTY AND
SECURITY OF PERSON
DISCUSSION OF SECTION 21
Section 21 achieves two main purposes. It protects
an individual’s right to liberty and security. It also
sets out the minimum rights of individuals who
are arrested or detained to minimise the risk of
arbitrary or unlawful deprivation of liberty by
restricting the valid reasons for detention. It also
ensures that detained persons are provided with
information about the reason for the detention and
told that they have opportunities to challenge the
lawfulness of their detention.
This section does not confer a right to
compensation for any breach of s. 21. Nor is s. 21
intended to extend to such matters as a right to
bodily integrity or personal autonomy, or a right
to access medical procedures.
In summary, the rights protected by s. 21 are:
132
• the right to liberty and the right not to be
subjected to arbitrary arrest or detention;
• the right to security;
• the right to be informed of the reasons for
arrest and any charges;
• the right to be brought promptly before a court;
• the right to be tried within a reasonable time
or to be released from detention;
• the right to be released pending trial, subject
to certain guarantees;
• the right to challenge the lawfulness of the
detention;
• the right not to be detained for the failure to
fulfil a contractual obligation.
As with all of the human rights in the Charter, the
rights protected in s. 21 may be subject under law
to reasonable limitations in accordance with s. 7
of the Charter.
More information on each of these rights is
outlined below.
Right to liberty
When does it apply?
The right to liberty may be interfered with by all
forms of detention including detention for the
purpose of criminal justice, medical or psychiatric
treatment, and treatment of contagious diseases.168
Any detention that is more than transitory will be
covered under this section.169
Under Victorian law, a person may be detained
for a range of purposes and durations.170
To detain a person means to keep that person in
custody. Lawful arrest is one of the ways a person
may be lawfully detained. Arrest is lawful where
it is made under a warrant, by infringement warrant
or by court order. At common law, a person is
considered to be under arrest when it has been
made plain by what is said or done by a police
officer that the person is no longer a free person.171
Some other examples of lawful detention are
where a statute authorises:
• a person to be held for questioning by an
investigating official;
• a person to be held in a prison, police gaol,
youth training centre or residential centre;
• an intellectually disabled person to be held as
a security resident in a residential institution;
• a mentally ill person to be held as an involuntary
or security patient in an approved mental health
service;
• a young person to be apprehended and
detained to prevent self-harm from inhaling
168 UN Human Rights Committee, General Comment 8,
Article 9 (Sixteenth session, 1982), Compilation of
General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc. HRI/
GEN/1/Rev.6 at 130 (2003) [1].
169 Austin & Anor v. Commissioner of Police for the
Metropolis [2005] EWHC 480 (QB) citing R (Gillan) v.
Commissioner of the Police of the Metropolis [2004]
3 WLR 1144.
170 One such purpose may be to protect the community.
For example, legislation may provide for the granting of
an extended supervision order to protect the community
from a risk of further harm by certain convicted offenders.
In 2007, the Sentencing Advisory Council released a
discussion paper titled ‘High Risk Offenders: Post-
Sentence Supervision and Detention’. The Victorian
Government has made a commitment to address
the issues outlined in that paper.
171 R v. O’Donoghue (1988) 34 A Crim R 397.
 a volatile substance.
As these examples illustrate, a person may be
detained for punitive purposes (for example, in
prison) and non-punitive purposes (for example, a
mentally ill person), and either for lengthy periods
of time (for example, in prison) or for short periods
of time for a limited purpose (for example, in
detention by an inspector to obtain a person’s
name and address).
What does it mean?
The first three sub-sections of s. 21 all relate to the
right to liberty. These rights, which were modelled
on article 9(1) of the ICCPR, are all expressions of
the same basic principle: every person has a right
to physical liberty and should not be arrested or
detained unless, first, the law provides that he or
she may be so arrested or detained and, second,
those administering the law do so in accordance
with established procedures.
Thus, a breach of s. 21 will only occur if someone
has been arrested or is detained and either or both
of these conditions have not been met.
Legality
An arrest or detention will be in breach of the
Charter when it is not ‘on grounds and in
accordance with procedures, established by law’.
This means that arrest and subsequent detention
ought to be specifically authorised and sufficiently
circumscribed by law. Secondly, the law itself and
the enforcement of that law must not be arbitrary.
The expression ‘on grounds … established by law’
refers to domestic law. The United Nations Human
Rights Committee has said that domestic law
should conform with international human rights
standards to meet the requirements of article 9(1)
(s. 21(1)–(3)).172
Legal and policy officers should ensure that they
are familiar with current Victorian law on when an
arrest will be lawful.
172 Kenmache v. France (No.3) (1994) 296C Eur Court HR
(ser A).
‘Arbitrary’
An arrest or detention that is unlawful is likely also
to be arbitrary. However, the converse is not true. An
arrest or detention may be arbitrary even though it is
lawful; this may be so if the law is vague, over-broad,
or is in violation of other fundamental standards
such as the right to freedom of expression.
The term ‘arbitrary’ does not only mean that a
detention is ‘against the law’. Arbitrariness includes
elements of inappropriateness, injustice and lack
of predictability.173
Detention that initially complies with s. 21 may
become arbitrary if it continues without being
justified. 174 (It is therefore necessary that a
detained person be able to challenge the
lawfulness of their detention, not just at the
outset, but at regular intervals throughout any 133
extended period of detention.)
In the context of remand in custody, the UN
Human Rights Committee has said:
‘ … remand in custody could be considered
arbitrary if it is not necessary in all the
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
circumstances of the case, for example to
prevent flight or interference with evidence.’ 175
Arbitrary detention has also arisen before the
UN Human Rights Committee in the context of
immigration detention. In a series of cases, the
committee has found the Australian Government’s
policy of indefinite detention of asylum seekers
is a breach of article 9 of the ICCPR.176
173 Van Alphen v. The Netherlands, Human Rights
Committee, Communication No. 305/1988, UN Doc.
CCPR/C/39/D/305/1988 (15 August 1990) [5.8].
174 Spakmo v. Norway, Human Rights Committee,
Communication No. 631/1995, UN Doc. CCPR/C/67/
D/631/1995 (11 November 1999) [6.3].
175 A v. Australia, Human Rights Committee, Communication
No. 560/1993, UN Doc. CCPR/C/59/D/560/1993
(30 April 1997) [9.2]. Another example of where remand
in custody may be necessary is to prevent a breach of
the peace.
176 The most recent decision is the case of D & E v.
Australia, Human Rights Committee, Communication
No. 1050/2002, UN Doc. CCPR/C/14/D/27/1977
(9 August 2006).
 SECTION 21
RIGHT TO LIBERTY AND
SECURITY OF PERSON
For the purposes of these Charter Guidelines, these
decisions are useful in respect of the comments
made by the committee about the meaning of
‘arbitrary detention’. The committee has said that for
detention to avoid being characterised as ‘arbitrary’:
• it should not continue beyond the period for
which a state party can provide appropriate
justification;
• where a person is initially detained for a limited
period for a specific purpose, there must be an
appropriate justification to continue to detain
him or her after this purpose no longer applies;
• where there are less intrusive measures that
can achieve the same end they should be used,
for example, the imposition of reporting
obligations, sureties or other conditions.
134 Similar principles could apply to Victorian laws
providing for detention or the enforcement of
those laws.
Some additional examples of what might constitute
arbitrary arrest or detention are the following:
• Where an arrest is made in order to achieve
an unlawful purpose, the resulting detention
may be arbitrary.
• An arrest or form of detention may be unlawful
(and thereby arbitrary) even though it is carried
out in consequence of a statutory power.
• The exercise of a statutory power may be
considered unlawful (and thereby arbitrary)
where it is carried out pursuant to a mandatory
requirement without regard to the merits of
the case.
• Where law enforcement officers carry out
an arrest that is unwarranted in the individual
circumstances (for example, where there is
no cause to do so), the arrest or detention will
be unlawful and may also be arbitrary because
the decision to arrest was without a rational
foundation.
There are therefore a number of ways in which
an otherwise valid power of arrest or detention,
or its exercise, may be considered arbitrary:
• Continuation of detention: Although the initial
power to detain a person may be valid, the
detention may become arbitrary if there is no
sufficient reason for continuing to detain the
person. An individual should not be kept in
detention as a matter of convenience.
• Improper exercise of power: Although law
enforcement officials may have a statutory
power to detain a person, the detention may
be arbitrary if it is not carried out for a valid
reason (for example, if the ostensible reason is
a sham) or where there is insufficient cause to
detain an individual (for example, the detaining
officer may not genuinely or reasonably hold the
belief that a crime is imminent, which may be
required under the legislation).
• Lack of procedural safeguards: Detention
may become arbitrary where there is a lack
of procedural safeguards which protect against
it becoming arbitrary.
Right to security
Section 21 protects the right to security. This right
applies independently to the right to liberty, which
is also protected under s. 21.
When does it apply?
The right to security applies to persons inside
and outside detention. For example, it is likely to be
invoked where a correctional facility fails to protect
a prisoner against an attack by a dangerous prisoner
or where the police fail to act on complaints of
domestic violence or fail to act on death threats.
Scope of the obligation
The scope of this obligation remains unsettled
in international human rights law.
It would appear to require a person’s physical
security to be protected by a public authority in
circumstances where the public authority is aware
that the person’s physical security may be under
threat.177
177 Delgado Paez v. Colombia, Human Rights Committee,
Communication No. 195/1985, UN Doc. CCPR/C/39/
D/195/1985 (23 August 1990).
The threat may arise from a public authority itself,
or from a private actor.
The level of awareness required to trigger this
right is not clear. The UN Human Rights Committee
has said:
‘It cannot be the case that, as a matter of law,
States can ignore known threats to the life of
persons under their jurisdiction, just because
he or she is not arrested or otherwise detained.
States parties are under an obligation to take
reasonable and appropriate measures to
protect them.’178
Some guidance may be found in the commentary
in these Charter Guidelines on the positive
obligation of a public authority to safeguard the
right to life. You may wish to refer to the discussion
in s. 9 of these Charter Guidelines in relation to
that obligation.
In relation to the right to life, the European Court
of Human Rights has said the following about the
level of awareness required to trigger the positive
obligation to protect the right to life:
‘It must be established that the authorities
knew or ought to have known at the time of the
existence of a real and immediate risk to the life
of an identified individual or individuals from the
criminal acts of a third party and that they failed
to take measures within the scope of their
powers which, judged reasonably, might have
been expected to avoid that risk.’179
The European Court of Human Rights has also noted
that the scope of the obligation to protect a person’s
life must be interpreted in a way that does not
impose an impossible or disproportionate burden on
the state, ‘bearing in mind the difficulties in policing
modern societies, the unpredictability of human
conduct and the operational choices which must
be made in terms of priorities and resources.’180
178 Ibid [5.5].
179 Osman v United Kingdom (1998) VIII Eur Court HR 3124
[116]; (1989) 29 EHRR 245 [116].
180 Kiliç v. Turkey (2000) III Eur Court HR 75 [63]; (2001) 33
EHRR 58 [63]. See also Mahmut Kaya v. Turkey Mahmut
Kaya v. Turkey (2000) III Eur Court HR 149 [86] and
Osman v. United Kingdom (1998) VIII Eur Court HR 3124
[116]; (1989) 29 EHRR 245 [116].
Applying this reasoning to the right to security,
if a public authority is aware that there is a real
and serious threat to a person’s physical security
(which is a broader concept than a person’s life),
they should do everything that they can reasonably
and practically do, within their resources, to protect
that person from the threat.
Information to be provided upon arrest
or detention
Section 21(4) imposes certain informational
requirements in respect of persons arrested
or detained.
This sub-section modifies the equivalent
ICCPR right under article 9(2) by extending the
requirement to a person who is detained. Article
9(2) of the ICCPR applies only to a person who
is arrested. The significance of this modification 135
is that even if a person is only detained (and not
arrested), in Victoria they must still be told why
they are being detained. This should happen at
the time he or she is first detained. If there are
to be any proceedings to be brought against a
person detained, a public authority must ‘promptly’
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
inform the person of them.
The information to be provided is twofold:
• the reason for the arrest or detention, even if
those grounds would be obvious to the person
(for example, if he or she were caught ‘red-
handed’); and
• any proceedings to be brought against him or her.
The requirement in the Charter that there be no
arbitrary detention will mean that a public authority
must have information evidencing a reasonable
suspicion to support the detention.181 This right
(in s. 21(4)) requires the public authority to provide
this information to the person detained.
181 O’Hara v. United Kingdom (2001) X Eur Court HR 121;
(2002) 34 EHRR 32.
 SECTION 21
RIGHT TO LIBERTY AND
SECURITY OF PERSON
‘Prompt’ presentation and pre-trial detention
Section 21(5) requires that a person who is
arrested or detained on a criminal charge must
be promptly brought before a court, brought to
trial without unreasonable delay, and released
if neither requirement is met.
What is ‘prompt presentation’?
In the context of international human rights law, the
UN Human Rights Committee has said that time-
limits for ‘prompt’ presentation of persons under
this provision are a matter of domestic law; however,
delays in presenting a detained person before a
court should not exceed a few days.182
The European Commission on Human Rights has
taken the view that the period of time should not
ordinarily be longer than four days.183
136
What is ‘unreasonable delay’
The Charter requires that a person be brought
to trial without unreasonable delay.
This right overlaps considerably with s. 25(2)(c)
of the Charter, which seeks to ensure that a person
accused of criminal charges is tried without
unreasonable delay. The distinction between the
two rights is that s. 21(5) regulates the length of
pre-trial detention, whereas s. 25(2)(c) regulates
the total length of time that passes before a person’s
trial, whether or not he or she is detained on remand
or has been granted bail.
In international human rights law, there is no fixed
time limit for when detention can be viewed as
occurring ‘without unreasonable delay’.
Whether a period of pre-trial detention meets
the requirements in s. 21 will depend on a range
of factors:
• the seriousness of the alleged offence;
• the nature and severity of the possible penalties;
182 UN Human Rights Committee, General Comment 8,
Article 9 (Sixteenth session, 1982), Compilation of
General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc. HRI/
GEN/1/Rev.6 at 130 (2003) [2].
183 Brogan v. United Kingdom (1988) 145 Eur Court HR
(ser B) (55); (1989) 11 EHRR 117.
• the danger that the accused will abscond if
released;
• whether the authorities have been diligent in
the conduct of the proceedings, considering
the complexity and special characteristics of
the investigation; and
• whether delays are due to the conduct of the
accused or are due to the prosecution.
Right to release pending trial
Sub-section 6 of s. 21 provides that a person
awaiting trial must not be automatically detained
in custody. Rather, the person has a right to be
released on bail subject to giving a guarantee to
appear for trial, and at any other stage of the
judicial proceeding, and, if appropriate, for
execution of judgment.
You will need to consider this provision if you are
vetting the Bail Act 1977 (Vic.) or preparing any
subsequent amendment to that Act, or assisting
in the development of a policy or program that
seeks to give effect to the Bail Act.
Section 21(6) will be engaged by a provision that
establishes a presumption against bail for a
particular category of offence or offender. It will
also be engaged by a provision that precludes bail
for a particular category of offence or offender.
Note however that the right to be released pending
trial may be limited under s. 7 of the Charter. Pre-trial
detention may be necessary, for example, to ensure
the presence of the accused at the trial, at any other
stage of the judicial proceeding or for execution
of judgment. It may also be necessary to avert
interference with witnesses and other evidence,
or to avert the commission of other offences.184
184 WBE v. The Netherlands, Human Rights Committee,
Communication No. 432/1990, UN Doc. CCPR/C/46/
D/432/1990 (23 October 1992) [6.3].
Judicial review of the legality of detention
Section 21(7) provides that a person who is
deprived of liberty by arrest or detention, for
whatever reason, has the right to challenge
the lawfulness of his or her detention.
The section requires a court to make a decision
on such an application without delay and to order
the person’s release if it finds that the detention
is unlawful. Executive review of the legality of
detention (for example, by a Minister) will not
be sufficient to comply with this right.185
The right to challenge the legality of detention
encompasses the principle of habeas corpus,
which is well established in the common law.
It applies regardless of whether the deprivation
of liberty is actually lawful.
In international human rights law it has been
recognised that the substance of the right in
article 9(4) of the ICCPR cannot be realised
without access to a lawyer.
Although the right under s. 21(7), as with all
the rights in the Charter, can be subject to
reasonable limits, it seems unlikely that any
provision that absolutely excluded review by
the courts (or rendered it practically impossible)
would be reasonable or, perhaps, lawful.
Imprisonment for failure to perform
a contractual obligation
Section 21(8) establishes a freedom from
imprisonment for inability to fulfil a contractual
obligation. This provision was primarily designed
to address so-called ‘debtors’ prisons.
The term ‘contractual obligation’ includes monetary
debts arising from private civil law obligations.
It will probably not include infringement notices
such as public transport fines.
185 Torres v. Finland, Human Rights Committee,
Communication No. 291/1998, UN Doc. CCPR/C/38/
D/291/1988 (5 April 1990) [7.2].
REASONABLE LIMITS ON THE RIGHTS
PROTECTED IN SECTION 21
As with all of the human rights protected in the
Charter, the rights protected in s. 21 may be
subject to reasonable limitations that can be
demonstrably justified in a democratic society in
accordance with s. 7 of the Charter. You should
refer to Part 2 of these Charter Guidelines for
further information on s. 7.
KEY POINTS TO REMEMBER
• Section 21 both protects a person’s right to
liberty and security, and sets out the minimum
rights of individuals who are arrested or detained.
• The right to liberty applies to all forms of detention.
• Any arrest or detention must be lawful and must
137
not be arbitrary.
• An arrest or detention that is unlawful is likely to
also be arbitrary. However, an arrest or detention
may be arbitrary even though it is lawful.
• For a person’s arrest or detention to be lawful
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
it must be authorised.
• To avoid arbitrary arrest or detention, enforcement
officers should only arrest or detain someone in
accordance with established procedures.
• The right to security applies both inside and
outside detention. It means that a person’s
physical security must be protected in
circumstances where a public authority
is aware that it may be under threat.
• Any person who is arrested or detained must
be told (a) the reason for the arrest or detention;
and (b) about any proceedings to be brought
against him or her.
 SECTION 21
RIGHT TO LIBERTY AND
SECURITY OF PERSON
• A person who is arrested or detained on a
criminal charge must be promptly brought before
a court, brought to trial without unreasonable
delay, and released if neither requirement is
met. You should consult the discussion section
on these requirements if they are relevant to
your policy or legislation.
• A person has a right to be released pending
trial, subject to certain guarantees. These are
outlined in s. 21(6) and discussed above. This
right may be limited, for example, to ensure the
presence of the accused at the trial, to avert
interference with witnesses and other evidence,
or avert the commission of other offences.
• Any person who has been arrested or detained
has the right to challenge the lawfulness of his
or her detention in court, without delay;
138
• A person must not be imprisoned only because
he or she cannot fulfil a contractual obligation.
MEASURES TO IMPROVE COMPLIANCE
Right to liberty:
If you are developing a policy or program involving
the arrest or detention of individuals, consider
taking the following steps:
• Set out clearly the circumstances in which
the power may be used and who may effect
the arrest or detention.
• Ensure that the discretion to arrest or detain
is prescribed in terms that are consistent with
the objective of the policy.
• Ask yourself whether there are clearly
defined, express criteria for determining
when an individual can be detained.
• Consider including in the policy:
– a provision for officers to receive training
as to the circumstances when the power
can be used; and
– a mechanism by which practice guidelines
are developed and disseminated for officers
exercising powers of arrest or detention.
The legislation should:
• ensure that the enforcement officer gives
a person who is arrested or detained (‘the
detainee’) sufficient information about the
reasons for arrest or detention;
• ensure that sufficient information is provided to
the detainee about any proceedings to be
brought against him or her;
• ensure that a detainee may seek judicial review
of the legality of the detention; and
• establish minimum standards and conditions
to which the detainee may be subjected.
Assess your policy or practice against the
following criteria:
• Are the grounds for arrest or detention
prescribed by law?
• Will the arrest or detention be made in
accordance with proper procedures?
• Is the arrest or detention necessary and
reasonable in the circumstances (for example,
to prevent flight or a breach of the peace, prevent
a rapid spread of disease, avoid interference with
evidence or prevent the recurrence of a crime)?
• Is the length of time that the person may
be arrested or detained justifiable in the
circumstances?
Judicial review of the legality of detention
• Include a provision in new Bills and policy
proposals that provides for judicial oversight
of detention and ensure that it is possible for
detained persons to make an application for
judicial review if there is a change in basis for,
or the conditions of, their detention.
Right to security
• Ensure that you have guidelines in place for
dealing with threats to a person’s physical
security (including persons in a custodial facility)
that comply with the Charter obligations under
s. 21 and s. 9.
RELATED RIGHTS AND FREEDOMS
Situations that engage s. 21 may also raise issues
in relation to the following rights in the Charter:
• protection from torture and cruel, inhuman
or degrading treatment (s. 10);
• humane treatment when deprived of liberty (s. 22);
• children in the criminal process (s. 23);
• fair hearing (s. 24); and
• rights in criminal proceedings (s. 25).
HISTORY OF THE SECTION
Section 21 is modelled on articles 9 and 11 of
the ICCPR. However, unlike article 9 of the ICCPR,
s. 21 does not confer a right to compensation for
breach of the right.
Similar rights exist in comparative law. Refer to
Appendix H for further information.
BIBLIOGRAPHY
Case Law
1. Austin and Another v. Commissioner Of Police
For The Metropolis [2005] EWHC 480 (QB).
2. Brogan v. United Kingdom (1988) 145 Eur
Court HR (ser B).
3. Kenmache v. France (No.3) (1994) 296C
Eur Court HR (ser A).
4. Kiliç v. Turkey (2000) III Eur Court HR 75.
5. Mahmut Kaya v. Turkey (2000) III Eur Court
HR 149.
6. O’Hara v. United Kingdom (2001) X Eur Court
HR 121.
7. Osman v. United Kingdom (1998) VIII Eur
Court HR 3124.
8. R (Gillan) v. Commissioner of the Police of
the Metropolis [2004] 3 WLR 1144.
9. R v. O’Donoghue (1988) 34 A Crim R 397.
United Nations Human Rights Committee
Jurisprudence
10. A v. Australia, Human Rights Committee,
Communication No. 560/1993, UN Doc.
CCPR/C/59/D/560/1993 (30 April 1997).
11. D & E v. Australia, Human Rights Committee,
Communication No. 1050/2002, UN Doc.
CCPR/C/87/D/1050/2002 (9 August 2006).
12. Delgado Paez v. Colombia, Human Rights
Committee, Communication No. 195/1985,
UN Doc. CCPR/C/39/D/195/1985
(23 August 1990).
13. Spakmo v. Norway, Human Rights Committee,
Communication No. 631/1995, UN Doc. CCPR/
C/67/D/631/1995 (11 November 1999).
14. Torres v. Finland, Human Rights Committee,
Communication No. 291/1998, UN Doc. 139
CCPR/C/38/D/291/1988 (5 April 1990).
15. Van Alphen v. The Netherlands, Human Rights
Committee, Communication No. 305/1988,
UN Doc. CCPR/C/39/D/305/1988 (15
August 1990).
CHARTER GUIDELINES
Section 21: Right to liberty and security of person
16. WBE v. The Netherlands, Human Rights
Committee, Communication No. 432/1990,
UN Doc. CCPR/C/46/D/432/1990 (23
October 1992).
Other Sources
17. UN Human Rights Committee, General
Comment 8, Article 9 (Sixteenth session,
1982), Compilation of General Comments and
General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 130 (2003).
 Section 22
Humane treatment when
deprived of liberty

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.);

186 Police v. Smith and Herewini [1994] 2 NZLR 306.

Section 22 (1): Right to humane treatment
The right to humane treatment when deprived of
liberty is a universally accepted human right. Its
purpose is to recognise the particular vulnerability
of persons in detention and to ensure that they
are treated humanely.
This right complements the right to be free from
torture and cruel, inhumane and degrading treatment
or punishment. However, it is engaged by much less
serious (mis)treatment or punishment than torture.187
When does it apply?
In the context of international human rights law,
the UN Human Rights Committee has observed
that this right applies not just to persons detained
under the criminal law, but also to persons detained
elsewhere (for example, in an approved mental
health service) under the laws and authority of
the government.188
Under Victorian law, a person may be detained for
a range of purposes and durations. For example,
a person may be detained as punishment for
committing an offence, for a brief period for a
What does it require?
The right to humane treatment means that
individuals who are detained should not be subject
to any hardship or constraint in addition to that
resulting from the deprivation of liberty.190
(Additional hardship imposed as part of an internal
disciplinary measure within a prison would need
to meet the requirements of s. 7 as a permissible
limitation or restriction upon the right.) The UN
Human Rights Committee has emphasised that
persons who are detained retain all their rights,
subject only to the restrictions that are unavoidable
in a closed environment.191
Some rights are unavoidably restricted in a closed
environment. For example, a person’s freedom of
movement, elements of freedom of expression and
communication, and some elements of privacy are
inevitably restricted in a closed environment. Family 141
life is also necessarily interfered with for those in
detention as detention requires separation from
family members and renders detainees inevitably
incapable of carrying on family life in a normal
manner. Mindful of this, international human rights

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.

187 M Nowak, UN Covenant on Civil and Political Rights:

CCPR Commentary, NP Engel, 1993, 186.
188 UN Human Rights Committee, General Comment 21,
Article 10 (Forty-fourth session, 1992), Compilation of
General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc. HRI/
GEN/1/Rev.6 at 153 (2003) [2]. 190 Ibid [3].
189 Ibid. 191 Ibid.
 SECTION 22
HUMANE TREATMENT WHEN
DEPRIVED OF LIBERTY
Individuals who are detained must be provided
with services that will satisfy their essential needs.
The UN Standard Minimum Rules for the Treatment
of Prisoners establish minimum standards on
a range of matters, including conditions of
accommodation; food of adequate quality; facilities
for personal hygiene; standard of clothing and
bedding; opportunities for exercise and availability
of medical services; contacts with the outside world;
access to books and regulation of methods and
procedures for discipline and punishment (including
the prohibition of certain forms of punishment).192
All these matters were taken into consideration
by the ACT Human Rights Commissioner when
she conducted an audit of Quamby Youth Detention
Centre during the first year of operation of the
ACT Human Rights Act. 193
142 In considering whether legislation, a policy or a
program provides for humane detention, attention
should be given to the conditions, circumstances
and purpose of the detention. The purpose and
duration of the detention will be relevant. For
example, humane treatment in the context of
detention in a correctional facility will require,
among other things, the provision of appropriate
food. But clearly such a requirement is not
necessary if someone is detained only for
a very short period of time.
A detainee’s right to be treated humanely has been
held to be violated in cases before the UN Human
Rights Committee (generally in cases not involving
Australia) where the detainee was:
• held in ‘incommunicado’ detention for any length
of time (an aggravated form of detention where
a person is denied access to family, friends and
others);194
192 While these rules are not formally binding on signatory
states they have most often been used when interpreting
the application of article 10 of the ICCPR, which pertains
to humane treatment.
193 Human Rights Office (ACT), Human Rights Audit of
Quamby Youth Detention Centre, 30 June 2005 (see
more generally ACT Department of Justice and
Community Safety Human Rights Act 2004, Twelve-
Month Review – Report, June 2006).
194 Caldas v. Uruguay, Human Rights Committee,
Communication No. 43/1979, UN Doc. CCPR/C/19/
D/43/1979 (21 July 1983) [13.3].
• refused medical attention or there was a failure
to address deteriorating mental health;195
• subjected to ridicule;196
• denied reading facilities and not allowed to
listen to the radio;197
• confined to his or her cell for an unreasonably
long period of time;198
• required to prepare prison food in unsanitary
conditions;199
• subject to restricted correspondence with
family; 200
• prevented from being present at the birth
of a child; 201
• held in a small cage awaiting court appearance.202
195 Mpandanjila v. Zaire, Human Rights Committee,
Communication No. 138/1983, UN Doc. CCPR/C/27/
D/138/1983 (26 March 1986) [8.2]; Madafferi v.
Australia, Human Rights Committee, Communication
No 1011/2001, UN Doc. CCPR/C/81/D/1011/2001
(26 August 2004) [9.3].
196 Francis v. Jamaica, Human Rights Committee,
Communication No. 606/1994, UN Doc. CCPR/C/54/
D/606/1994 (3 August 1995) [9.2].
197 Nieto v. Uruguay, Human Rights Committee,
Communication No. 92/1981, UN Doc. CCPR/C/19/
D/92/1981 (25 July 1983) [1.7], [10.4].
198 Cabreira v. Uruguay, Human Rights Committee,
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
Committee, Communication No. 569/1993, UN Doc.
CCPR/C/62/D/569/1993 (29 May 1998) [5.4],
[7.3] [8].
200 Espinoza de Polay v. Peru, Human Rights Committee,
Communication No. 577/1994, UN Doc. CCPR/C/61/
D/577/1994 (9 January 1998) [8.6].
201 Madafferi v. Australia, Human Rights Committee,
Communication No. 1011/2001, UN Doc.
CCPR/C/81/D/1011/2001 (26 August 2004) [9.4].
202 Cabal & Passini v. Australia, Human Rights Committee,
Communication No. 1020/2001, UN Doc. CCPR/C/78/
D/1020/2001 (19 September 2003) [8.3].
Sections 22(2) and (3): Additional rights of
certain detainees
Paragraphs (2) and (3) of s. 22 grant the following
additional rights to ‘an accused person who is
detained’ and a ‘person detained without charge’:
• to be segregated during detention from
persons convicted of an offence, except
where reasonably necessary; and
• to be treated in a way that is appropriate
for a person who has not been convicted.
These rights follow from the principle of the
presumption of innocence in criminal law: a
detainee who has not yet been tried is entitled
to a different treatment regime than convicted
detainees.203
Right to segregation
The Charter provides a right to segregation.
The right is for an accused person who is detained,
or a person detained without charge, to be
segregated from convicted persons. Section 21(2)
provides, however, that the right applies ‘except
where reasonably necessary’.
What does ‘except where reasonably
necessary’ mean?
The phrase ‘except where reasonably necessary’
does not appear in the equivalent ICCPR right
(article 10).
In the ICCPR, the right to be segregated applies
‘save in exceptional circumstances’.
203 UN Human Rights Committee, General Comment 9,
Article 10 (Sixteenth session, 1982), Compilation of
General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc. HRI/
GEN/1/Rev.6 at 131 (2003) [4] and UN Human Rights
Committee, General Comment 21, Article 10 (Forty-fourth
session, 1992), Compilation of General Comments and
General Recommendations Adopted by Human Rights
Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 153
(2003) [9].
It might be reasonably necessary not to segregate
an accused from a convicted prisoner where, for
example, convicted prisoners work as food servers
or cleaners in a remand unit in which accused
persons are held.204
Note also that the requirement for segregation
does not necessarily require that the two groups
of detainees (accused persons and convicted
persons) are housed in separate buildings, provided
that contact between the two groups of detainees
is kept to a strict minimum.205
In respect of children, you should refer to the
section of these Charter Guidelines on s. 23.
(Accused children, or children detained without
charge, are to be separated from adult detainees.
However, this right does not apply to convicted
children.)
143
Right to humane treatment
You should refer to the discussion on page 141
for what is meant by humane treatment.
REASONABLE LIMITS ON THE RIGHTS IN
CHARTER GUIDELINES
Section 22: Humane treatment
when deprived of liberty
SECTION 22
As with all of the human rights protected in the
Charter, the rights in s. 22 may be subject to
reasonable limitations that can be demonstrably
justified in a democratic society in accordance
with s. 7 of the Charter. Note that lack of material
resources or financial difficulties have not been
considered to be a justification for inhuman
treatment. You should refer to Part 2 of these
Charter Guidelines for further information on s. 7.
204 These facts arose in the case of Pinkney v. Canada,
Human Rights Committee, Communication No. 27/1977,
UN Doc. CCPR/C/14/D/27/1977 (29 October 1981).
The UN Human Rights Committee found that the
arrangements were not a breach of article 10(2)(a)
of the ICCPR.
205 Pinkney v. Canada, Human Rights Committee,
Communication No. 27/1977, UN Doc. CCPR/C/14/
D/27/1977 (29 October 1981) [30].
 SECTION 22
HUMANE TREATMENT WHEN
DEPRIVED OF LIBERTY

KEY POINTS TO REMEMBER • UN Code of Conduct for Law Enforcement

• A public authority must treat all persons in
detention with humanity and dignity.
• The conditions under which people are detained
in Victoria should conform to internationally
accepted standards. These standards are
discussed on page 142.
• The right to humane treatment applies to all
persons (children and adults) under detention.
It requires that individuals who are detained
ought not to be subject to any hardship or
constraint other than that resulting from the
deprivation of liberty.
• Persons detained ought to be provided with
services that will satisfy their essential needs.
• An accused person who is detained is entitled
144
to a different treatment regime than a convicted
detainee. This includes segregation from
convicted prisoners while in detention, except
where it is reasonably necessary not to
segregate. Convicted detainees are nonetheless
entitled to the full enjoyment of the rights in the
Charter, subject to any reasonable limitations
on these rights under section 7.
• Refer to s. 23 for the rights of children in the
criminal process.
Officials;
• UN Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials;
• UN Principles of Medical Ethics relevant to the
role of health personnel, particularly physicians,
in the protection of prisoners and detainees
against torture and other cruel, inhuman or
degrading treatment or punishment;
• UN Principles for the Protection of Persons
with Mental Illness and the Improvement of
Mental Health Care.
Various international human rights instruments also
set out minimum requirements in relation to child
detainees. This is discussed in relation to s. 23 of
the Charter.
These instruments are all available on the Internet.206
You will also need to consider whether training
is required to enable staff to comply with the
legislation, policy or program you are reviewing
or developing.
If you are reviewing a policy, a program or
legislation that creates an exception to the
requirements for segregation of prisoners ensure
that any exception is ‘reasonably necessary’.

RELATED RIGHTS AND FREEDOMS

MEASURES TO IMPROVE COMPLIANCE
Section 22 is closely related to the following
If you are developing legislation or a policy or a sections of the Charter:
program that involves detention, you should refer
• Protection from torture and cruel, inhuman or
to the conditions and circumstances of detention
degrading treatment (s. 10);
outlined in the international standards of detention.
The international standards are part of international • Right to liberty (s, 21);
law and may be used when interpreting human • Children in the criminal process (s. 23).
rights under s. 32(2) of the Charter.
These international standards are set out in the
following instruments:
• UN Standard Minimum Rules for the Treatment
of Prisoners;
• UN Body of Principles for the Protection of
All Persons Under Any Form of Detention
or Imprisonment; 206 These documents are all available at <http://www.ohchr.
org/>, which is the website of the United Nations Office
of the High Commissioner for Human Rights.
The following additional rights should be checked if
your policy or legislation raises an issue under s. 22:
• the right to life (s. 9);
• the protection of families and children (s. 17).
HISTORY OF THE SECTION
Section 22 is modelled on article 10 of the ICCPR.
Sections 22(2) and 22(3) of the Charter broaden
article 10 of the ICCPR by extending the
protections to persons who have been detained
without charge. Section 22(2) also modifies article
10 of the ICCPR by requiring that an accused is
segregated except where reasonably necessary.
The ICCPR requires an accused to be segregated
unless in exceptional circumstances.
Similar rights exist in comparative law. Refer to
Appendix H for further information.
BIBLIOGRAPHY
Articles, Books and Report
1. Manfred Nowak, UN Covenant on Civil and
Political Rights: CCPR Commentary (NP
Engel, 1993), 186.
2. Human Rights Office (ACT), Human Rights
Audit of Quamby Youth Detention Centre,
30 June 2005.
3. ACT Department of Justice and Community
Safety Human Rights Act 2004, Twelve-Month
Review, June 2006.
United Nations Human Rights Committee
Jurisprudence
4. Cabal & Passini v. Australia, Human Rights
Committee, Communication No. 1020/2001,
UN Doc. CCPR/C/78/D/1020/2001
(19 September 2003).
5. Cabreira v. Uruguay, Human Rights Committee,
Communication No. 105/1981, UN Doc.
CCPR/C/19/D/105/1981 (21 July 1983).
6. Caldas v. Uruguay, Human Rights Committee,
Communication No. 43/1979, UN Doc. CCPR/
C/19/D/43/1979 (21 July 1983).
7. Espinoza de Polay v. Peru, Human Rights
Committee, Communication No. 577/1994,
UN Doc. CCPR/C/61/D/577/1994 (9
January 1998).
8. Francis v. Jamaica, Human Rights Committee,
Communication No. 606/1994, UN Doc.
CCPR/C/54/D/606/1994 (3 August 1995).
9. Madafferi v. Australia, Human Rights
Committee, Communication No. 1011/2001,
UN Doc. CCPR/C/81/D/1011/2001 (26
August 2004).
10. Matthews v. Trinidad and Tobago, Human
Rights Committee, Communication No.
569/1993, UN Doc. CCPR/C/62/
D/569/1993 (29 May 1998).
11. Mpandanjila v. Zaire, Human Rights
Committee, Communication No. 138/1983, UN 145
Doc. CCPR/C/27/D/138/1983 (26 March
1986).
12. Nieto v. Uruguay, Human Rights Committee,
Communication No. 92/1981, UN Doc. CCPR/
C/19/D/92/1981 (25 July 1983).
CHARTER GUIDELINES
Section 22: Humane treatment
when deprived of liberty
13. Pinkney v. Canada, Human Rights Committee,
Communication No. 27/1977, UN Doc. CCPR/
C/14/D/27/1977 (29 October 1981).
Other Sources
14. UN Human Rights Committee, General
Comment 9, Article 10 (Sixteenth session,
1982), Compilation of General Comments and
General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 131 (2003).
15. UN Human Rights Committee, General
Comment 21, Article 10 (Forty-fourth session,
1992), Compilation of General Comments and
General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. HRI/GEN/1/
Rev.6 at 153 (2003).
16. http://www.ohchr.org
 Section 23
Children in the
criminal process

Section 23

(1) An accused child who is detained or a child detained without charge

must be segregated from all detained adults.
(2) An accused child must be brought to trial as quickly as possible.
(3) A child who has been convicted of an offence must be treated in a way
that is appropriate for his or her age.

146 POLICY TRIGGERS: DO I NEED TO CONSIDER • relates to remand or bail;

SECTION 23?
Note that a ‘child’ is defined under s. 3 of the
Charter as a person under 18 years of age. You
will need to consider s. 23 in assessing legislation,
a policy or a program particularly where it:
• enables a public or private authority to detain
children;
• permits enforcement authorities to hold children
for any length of time;
• authorises enforcement authorities to hold
children in amenities that have limited facilities
or services for the care and safety of detainees;
• enables enforcement authorities to undertake
personal searches of a convicted child in
detention;
• impacts on the design of detention centres or
relates to the conditions under which children
are detained in a public or private institution,
either before or after conviction;
• provides for the sentencing of children;
• establishes or alters programs in prisons,
youth training centres or residential centres;
• otherwise regulates the custodial care
of children.
These policy triggers are not comprehensive.
DISCUSSION OF SECTION 23
As previously noted, s. 22 of the Charter requires
persons deprived of liberty (irrespective of the
purpose of that deprivation) to be treated with
humanity and respect for the inherent dignity
of the human person. Section 22 also makes
requirements with respect to segregation and
appropriate treatment for accused persons and
persons detained without charge.
As human beings, children are entitled to all of
the rights in the Charter (unless the right includes
an eligibility condition which they do not meet, for
example, the right to vote under s. 18(2) of the
Charter), including the right outlined in s. 22.

• provides for sentencing of offenders which may
impact on detained children (such as the place
where an adult prisoner is detained);
• affects the speed at which a child may be
brought to trial (such as alteration to practices
or internal procedures for case management in
the Office of Public Prosecutions or the courts);
Section 23 specifies additional requirements for
the humane treatment of children who are detained
in the criminal process. These rights apply to
children who are detained in the criminal process,
unlike s. 22, which applies to a person detained
regardless of the purpose of the detention.
The additional requirements imposed by s. 23 are:
• Non-convicted children must be segregated
from adults in detention, whether or not the
adults have been charged.
• Children accused of an offence must be brought
to trial ‘as quickly as possible’.
• Children found guilty of an offence must be
treated in an age-appropriate manner.
The purpose of these forms of protection is to
recognise and address the particular vulnerability
of children in the criminal process.
Section 23(1): Segregation
The Charter imposes requirements in respect of
segregation (in relation to both adults and children)
during the criminal process.
In summary, with respect to the segregation of
children, any accused child (who is not convicted)
or any child detained without charge must:
• be segregated from adults in detention: s. 23(1);
• be segregated in detention from other children
who have been convicted of offences, ‘except
where reasonably necessary’: s. 22(2). You
should refer to s. 22 of these Charter Guidelines
for the meaning of this phrase.
In relation to a child who is accused, note also
s. 21(6) of the Charter, which provides a right
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.
The Charter does not expressly require convicted
children to be segregated from convicted adults.
The equivalent ICCPR provision (in Article 10(3))
was omitted so that a practice by which convicted
young adults (aged 18–21) are detained in
correctional facilities with convicted children rather
than with adults will not contravene the Charter.
This omission was recommended by the Human
Rights Consultation Committee:
‘on the basis that the current system for the
punishment of young offenders in Victoria
represents the best practice. The Committee
was concerned that the inclusion of the provision
[that juvenile offenders shall be segregated from
adults] may have the unintended consequence of
requiring the automatic removal of offenders, who
were under 18 when the crimes were committed,
to adult prisons when they turn 18.’207 147
Section 23(2): Right of an accused child to
be brought to trial ‘as quickly as possible’
The purpose of s. 23(2) is to recognise that
a child should be detained for only the shortest
appropriate time.208
CHARTER GUIDELINES
Section 23: Children in the criminal process
There is no prescribed time limit for what will
amount to being brought to trial ‘as quickly as
possible’. However, it is likely to be a period of
time that is shorter than the time permitted under
s. 21(5), which requires a person to be brought to
trial ‘without unreasonable delay’.
207 Human Rights Consultation Committee (Victoria), Rights,
Responsibilities and Respect (2005) 43.
208 See for example Convention on the Rights of the Child,
opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September 1990, article 37(b).
 SECTION 23
CHILDREN IN THE
CRIMINAL PROCESS
In the case of Philis v Greece the following test
was used to consider the period of delay:
‘the reasonableness of the length of proceedings
must be assessed in the light of the particular
circumstances of the case and ... in particular the
complexity of the case and the conduct of the
applicant and of the relevant authorities.’209
Section 23(3): Right of a convicted child to
be treated in a way that is appropriate for his
or her age
The Charter requires a convicted child to be
treated in a way that is appropriate for the
child’s age.
In addition to the standards on detention that are
referred to under s. 22 (which apply to both adults
and children) the United Nations has developed
special standards on the detention of children.
148
To comply with this section, it is recommended that
you examine these standards and seek to ensure
that they are complied with.
The UN standards are contained in the following
documents:
• UN Rules for the Protection of Juveniles
Deprived of their Liberty;
• UN Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing
Rules);
• UN Guidelines for the Prevention of Juvenile
Delinquency (Riyadh Guidelines).
209 Philis v. Greece (No 2) (1997) IV Eur Court HR 1074;
(1998) 25 EHRR 417.
These documents can be accessed on the
internet.210
These standards are founded on the premise that
‘the juvenile justice system should uphold the rights
and safety and promote the physical and mental
well-being of juveniles.’211 The standards relate to
a range of subject matters. Some of these that may
be relevant under s. 23(3) are:
• children should be provided with opportunities
to continue education while in detention;
• children should be provided with access to
vocational training in occupations likely to
prepare the child for future employment;
• children should have access to leisure activities;
• children should be able to use their own clothing
in detention, to the extent possible;
• as far as possible, children should be detained
in ‘open facilities’ with minimal security
measures and the facilities should be small so
as to facilitate access and contact between
detainees and their families.212
The standards establish conditions in respect of
each of these matters. For example, in relation to
education they impose requirements in respect of
the type, location and content of education.
210 These documents are all available at <http://www.ohchr.
org/>, which is the website of the United Nations Office
of the High Commissioner for Human Rights.
211 UN Rules for the Protection of Juveniles Deprived of
their Liberty, G.A. res. 45/113, annex, 45 UN GAOR
Supp. (No. 49A) at 205, UN Doc. A/45/49 (1990) s. 1.
212 These are just some of the matters covered by the
standards. If you are examining legislation or developing
a new policy relating to the imprisonment of children,
you should obtain copies of the UN standards and review
them in full.
These include the requirement that where possible,
education of children of compulsory school age
1. If you are developing legislation or a policy or
should take place outside the place of detention in
community schools by qualified teachers. Children
with learning disabilities should be provided with
access to special education programs.
As discussed on page 147, the segregation of
children who are convicted offenders from adult
prisoners is another way in which children may be
treated in an age-appropriate manner.
REASONABLE LIMITS ON THE RIGHTS
IN SECTION 23
As with all of the human rights protected in the
Charter, the rights in s. 23 may be subject to
reasonable limitations that can be demonstrably
justified in a democratic society in accordance with
s. 7 of the Charter. You should refer to Part 2 of
these Charter Guidelines for further information
on s. 7.
KEY POINTS TO REMEMBER
MEASURES TO IMPROVE COMPLIANCE
program regarding detention or imprisonment
of children, ensure that:
• the legislation provides for the segregation of
children in accordance with the requirements
in ss. 22(2) and 23(1) of the Charter;
• the conditions and circumstances of detention
or imprisonment are in accordance with:
– the international standards of detention
set out in the instruments outlined under
the commentary on s. 22 in these Charter
Guidelines; and
– the international standards that apply
specifically to children who are detained
in the criminal justice context.
149
The standards on children are discussed
on page 148. They relate to matters such as
education and training of children in detention,
children’s access to leisure facilities and the size
of the facility in which children are detained,

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

RELATED RIGHTS AND FREEDOMS Other Sources

Section 23 is closely related to the right to humane
treatment when deprived of liberty (s. 22). It is also
related to the following additional rights:
• Right to liberty and security of person (s. 21);
• Rights in criminal proceedings (s. 25, particularly
sub-section (3));
• Protection of families and children (s. 17)
4. UN Rules for the Protection of Juveniles
Deprived of their Liberty, G.A. res. 45/113,
annex, 45 UN GAOR Supp. (No. 49A) at 205,
UN Doc. A/45/49 (1990).
5. <http://www.ohchr.org. United Nations Office of
the High Commissioner for Human Rights.

HISTORY OF THE SECTION

This provision is modeled on article 10(2)(b) and
partly on article 10(3) of the ICCPR. The rights
protected in ss. 22 and 23 of the Charter are
protected in one provision of the ICCPR, namely
article 10.
150 Similar rights exist in comparative law. Refer to
Appendix H for further information.

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
SECTION 24?
You will need to consider s. 24 if you are assessing
legislation, a policy or a program where it:
• creates a new court or tribunal;
• concerns the way in which juries are selected 151
and regulated;
• amends the procedure allowing for a change
of trial venue;
• 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
purports to make a decision final and ousts
the jurisdiction of a court to review it);
• alters the jurisdiction of courts and tribunals;
• amends the way in which evidence is presented
in a court or tribunal;
• limits the requirement of a court or tribunal to
accord natural justice;
• develops special procedures to provide
safeguards for witnesses when giving evidence
in a court or tribunal (such as giving evidence
when shielded by a screen so that the defendant
cannot see him or her);
• regulates the way in which the media is able
to report on trials or pending court cases or
other hearings (for example, the granting of
suppression orders);
• regulates the procedures for giving notice of a
hearing, disclosing information to be considered
in making a decision or giving the person an
opportunity to make submissions;
• regulates the procedures for challenging the
impartiality and independence of courts and
tribunals.
DISCUSSION
Right to a fair hearing
Section 24 guarantees the right to a fair and
public hearing.
The right to a fair hearing applies in both civil and
criminal proceedings and in courts and tribunals.
This provision should be read together with ss. 25,
26 and 27 of the Charter, which establish various
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
of s. 25 will not always be sufficient to ensure the
fairness of a hearing under s. 24.213
The requirement for a fair hearing applies to all
stages in proceedings and applies in relation to
proceedings in any Victorian court or tribunal.
What is required for a ‘fair hearing’?
The purpose of the right to a fair hearing is to
ensure the proper administration of justice. This
right is concerned with procedural fairness (that is,
the right of a party to be heard and to respond to
any allegations made against him or her, and the
requirement that the court or tribunal be unbiased,
independent and impartial) rather than the
substantive fairness of a decision or judgment
of a court or tribunal determined on the merits of the
152 case (that is, the rights or wrongs of the decision).
What constitutes a ‘fair’ hearing will depend on
the facts of the case and will require the weighing
of a number of public interest factors including the
rights of the accused and the victim (in criminal
proceedings) or of all parties (in civil proceedings).
It is likely to differ in criminal and civil proceedings.
In the criminal law context, an initial requirement
is that there is a clear and publicly accessible legal
basis for all criminal prosecutions and penalties,
so that the criminal justice system can be said
to be operating in a way that is predictable to the
defendant. However, what is ‘fair ‘ has been said to
involve a triangulation of interests of the victim, the
accused and society214. Accordingly, a fair trial does
not require a hearing with the most favourable
procedures for the accused. It must take account of
other interests, including the interests of the victim
and of society generally in having a person brought
to justice and preventing crime.
213 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) [5].
214 R v A (No. 2) [2002] 1 AC 45 at 65., per Lord Steyn.
The prohibitions in s. 27 on retrospective criminal
laws and retrospective penalties are included in the
Charter to help satisfy these requirements.
Thereafter, s. 25 of the Charter elaborates on the
minimum conditions required to achieve a fair
hearing in criminal proceedings.
Beyond these aspects, the elements of the right to
a fair hearing in both criminal and civil proceedings
revolve around the procedures that are followed
during a hearing and the extent to which they
protect the rights of the parties and respect
the principle of ‘equality of arms’.
The principle of equality of arms means that
everyone who is a party to proceedings must have
a reasonable opportunity of presenting his or her
case to the court under conditions that do not
place that party at a substantial disadvantage
vis‑à‑vis his or her opponent. 215
The content of the right to a fair hearing in both
criminal and civil proceedings may include a right
to an oral hearing unless there are circumstances
justifying otherwise.216 This may depend on the
particular stage of the proceedings as some
preliminary applications are sometimes determined
by courts or tribunals ‘on the papers’ and this has
been an increasing trend in court management.
The right to a fair hearing is unlikely to include
a right to access a court given the language
expressed in s. 24(1). Access may sometimes
depend on jurisdictional requirements or, in the
case of leave to appeal from the Victorian Civil and
Administrative Tribunal (VCAT), on identifying a
question of law. 217
What is a ‘competent, independent and impartial’
court or tribunal?
A further element of the right to a fair hearing
relates to the character of the court or tribunal
before which the hearing takes place.
215 Brown v. Stott [2001] 2 WLR 817; Fitt v. United Kingdom
(2000) II Eur Court HR 367[44].
216 Fredin v. Sweden (No 2) (1994) 283 Eur Court HR
(ser A) [19]; Fischer v. Austria (1995) 312 Eur Court
HR (ser A) [43]–[44]; (1995) 20 EHRR 349.
217 Victorian Civil and Administrative Tribunal Act 1998 (Vic)
s. 148.
The Charter expressly requires that the court or
tribunal is ‘competent, independent and impartial’.
These requirements reflect the fundamental notion
of the rule of law that a hearing should be
conducted by an independent and impartial tribunal
that is established by law and jurisdictionally
competent to hear the case.
The requirement of a ‘competent, independent and
impartial’ court or tribunal applies both to each of
the individual members of the court or tribunal and
the whole institution of the court or tribunal.
Independence
The institutional design and structure of the court
or tribunal must be such as to maintain the
independence of the institution and its individual
members from government, and to maintain the
capacity of the judiciary or tribunal members to
act impartially.
The requirement of independence also means that
courts and tribunals should have control over
internal procedural matters such as allocating
cases to be heard by particular judges or tribunal
members and control over court or tribunal listings
generally. In addition, in any particular case, the
judge or tribunal member hearing a matter must be
independent and impartial, that is, not influenced
by bias in favour of the government.
Impartiality
The requirement of impartiality means that
proceedings must be free from bias and the
objective perception of bias.
An example of this right in practice is where a
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
upheld the complaint.219
218 Sander v. United Kingdom (2000) v. Eur Court HR 243
[34]; (2001) 31 EHRR 44 [34]–[35].
219 Ibid.
There have also been concerns raised about the
independence and impartiality of acting judges,
at least where their tenure is very short and they are
subject to reappointment. In most international
jurisdictions, appointment of judges by the executive
has not, in itself, raised doubts as to
independence.220 Note that the High Court of
Australia recently upheld the validity of the
appointment of acting judges under the New
South Wales scheme as not compromising
the independence and impartiality of the court
or tribunal.221
Right to a public hearing
The Charter requires that a hearing of a criminal
offence or a civil proceeding is not only fair but
also public. In international human rights law,
the right to a fair hearing incorporates a right
153
to a hearing that is held in public.
The rationale for this requirement is the principle
of open justice: not only should justice be done,
it should be seen to be done. It is also intended
to contribute to a fair trial through public scrutiny.
CHARTER GUIDELINES
SECTION 24: FAIR HEARING
Appellate and first instance decisions are both
captured by this provision. However, in international
human rights law, reviews of appeals ‘on the
papers’ have been considered not to breach the
right where the documents on which the court
bases its decisions are publicly available and
the judgment itself is available.222
Pre-trial decisions made by prosecutors and public
authorities (not being the hearing of a criminal
charge or the conduct of a civil proceeding) would
not be required under s. 24 to be held in public.223
220 Re Certification of the Constitution of the Republic
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].
223 See RM v. Finland, Human Rights Committee,
Communication No. 301/1988, UN Doc.
CCPR/C/35/D/301/1988 (27 March 1989).
 SECTION 24
FAIR HEARING
Some methods whereby witnesses give evidence,
for example, by video link or when shielded by a
screen, may raise issues about whether those parts
of the hearing are public and thus whether they
comply with s. 24 of the Charter. Such methods
of presenting evidence and the circumstances
in which they are employed should be assessed
under s. 7. For example, given the importance of
the objective sought to be achieved by the use of
these methods, the methods may be an example
of measures that, although they impose a limit on
s. 24, should nevertheless be permitted by law
and justifiable under s. 7.
The right to a public hearing is expressly limited by
s. 24(2). This provision is discussed on page 153.
Right to public pronouncement of judgments
and decisions
154
Section 24(3) of the Charter establishes a right
to the public pronouncement of judgments and
decisions by a court or tribunal. This means that
courts and tribunals must hand down all judgments
and decisions in public, subject to reasonable
limitations that can be justified under the Charter.
The purpose of this provision is also to contribute
to a fair trial through public scrutiny.
The scope of this right is limited to judgments and
decisions. The right does not require a court or
tribunal to publish transcripts of proceedings.
REASONABLE LIMITS ON THE RIGHTS
PROTECTED IN SECTION 24
As with all of the human rights protected in the
Charter, the rights in s. 24 may be subject to
reasonable limitations that can be demonstrably
justified in a democratic society in accordance with
s. 7 of the Charter. You should refer to Part 2 of these
Charter Guidelines for further information on  s. 7.
The right in s. 24(1) to a public hearing and the
right in s. 24(3) to the public pronouncement of
judgments and decisions are also expressly qualified
by the express exceptions contained in s. 24 (2)
and s. 24(3) respectively. These exceptions vary
somewhat from the exceptions recognised in article
14(1) upon which s. 24 is modelled.
Exceptions to the right to a public hearing
Section 24(2) provides that ‘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.’
This exception recognises that there are occasions
where restrictions on the media or the public’s
ability to gain access to a court or tribunal or to
information before a court or tribunal are necessary
to facilitate a fair trial. Media restrictions may also
be necessary to ensure that the court or tribunal
remains impartial and that the presumption of
innocence, protected by the Charter in s. 25(1),
is maintained. It may also be necessary in certain
cases to protect particularly vulnerable witnesses
(for example, children who have been victims of
sexual abuse) or to protect national security.
To satisfy the Charter requirements, the
circumstances in which courts or tribunals may
hold closed hearings, grant suppression orders or
otherwise limit access to material before the court
or tribunal should be authorised by law.
Exception to the right to public pronouncement
of judgments and decisions
Section 24(3) qualifies the right to public
pronouncement of judgments and decisions
by permitting the suppression of all or part of
a judgment or decision ‘where the best interests
of a child otherwise requires or a law other than
the Charter otherwise permits.’
This exception was included in recognition that
there may be other interests which should be
protected that might outweigh the right to public
pronouncement of judgments and decisions. In
some circumstances it may be appropriate for
legislation to authorise that all or part of a
judgment should not be made public, (for example,
information contained in a judgment that relates
to national security). The exception also recognises
that the best interests of a child may require that
the name of the child in legal proceedings should
be suppressed to protect the identity of the child.
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
RELATED RIGHTS AND FREEDOMS
If your policy, program or legislation raises an issue
with respect to the right to a fair hearing under
s. 24, you should also check whether it engages
the following rights:
• freedom of expression (s. 15);
• rights in criminal proceedings (s. 25);
• the right not to be tried or punished more than
once (s. 26);
• the prohibition on retrospective criminal laws
(s. 27).
HISTORY OF THE SECTION
Section 24 is modelled on article 14(1) of the ICCPR.
The express exceptions contained within s. 24 vary
156 somewhat from the exceptions in article 14(1).
Similar rights exist in comparative law. Refer
to Appendix H for further information.
BIBLIOGRAPHY
Case Law
1. Axen v. Germany (1984) 72 Eur Court HR
(ser A).
2. Brown v. Stott [2001] 2 WLR 817.
3. Fischer v. Austria (1995) 312 Eur Court
HR (ser A).
4. Fitt v. United Kingdom (2000) II Eur Court
HR 367.
5. Fredin v. Sweden (No 2) (1994) 283 Eur
Court HR (ser A).
6. Re Certification of the Constitution of the
Republic of South Africa, 1996 (4) SA 744.
7. Sander v. United Kingdom, (2000) v. Eur
Court HR 243.
United Nations Human Rights Committee
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
SECTION 25(1)?
You will need to consider s. 25(1) in assessing
legislation, a policy or a program where it:
• creates or amends an offence that requires
the accused to prove or establish the absence
of an element of an offence;
• creates or amends an offence that provides that
an exception, qualification, proviso, exemption,
excuse or other defence must be proved or
established by an accused;
• creates or amends an offence that contains
a presumption of fact or law and puts the legal
(persuasive) burden on the accused to rebut
the presumption;
• creates or amends an offence that contains
a presumption of fact or law and puts the
evidential burden on the accused to rebut
the presumption;
• creates or amends an offence that contains
a presumption of fact or law operating against
an accused which cannot be displaced;
• creates or amends an offence that imposes
criminal liability on an officer of a corporation
solely by reference to his or her position in the
corporation and requires the officer to make
out a defence;
• deals with the admissibility of evidence; 157
• creates or amends a statutory defence relating
to an element of the offence;
• alters the criteria or conditions under which
a person may apply for or be released on bail;
CHARTER GUIDELINES
SECTION 25(1): THE RIGHT TO BE PRESUMED INNOCENT
• allows public officials to comment on the guilt
of persons who have been charged.
These policy triggers are not comprehensive.
DISCUSSION
Sub-section (1) of s. 25 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 common law.
More generally, s. 25 is concerned with rights in
criminal proceedings. This provision is modelled
on articles 14(2), 14(3), 14(4) and 14(5) of the
ICCPR.
Note that by virtue of s. 49(2) of the Charter
(transitional provisions), the rights in s. 25 will not
affect any proceedings concluded or commenced
before 1 January 2007. (Thus, if a person has
been convicted of a reverse onus offence
before 1 January 2007, his or her conviction
will not be affected by s. 25.)
 SECTION 25(1)
THE RIGHT TO BE
PRESUMED INNOCENT
When does section 25(1) apply?
Section 25(1) covers persons charged with an
offence, whether it is an indictable or a summary
offence.
In Victoria, typically a person is charged with an
offence when the charge is filed in the Magistrates’
Court on a charge sheet that alleges the person has
committed an indictable or summary offence. A
person will either be arrested and charged or
a summons to answer the charge will be issued. The
infringement notice system (discussed on page 164)
provides an alternative means of dealing with
allegations.
What does it mean?
The right to be presumed innocent until proven
guilty is a fundamental common law principle. It
158
requires that the prosecution has the burden of
proving that the accused committed the charged
offence. The prosecution must prove the guilt of
the accused beyond reasonable doubt.224 This
means that the prosecution must prove all
elements of a criminal offence.
A law that shifts the burden of proof to the accused
or applies a presumption of fact or law operating
against an accused may breach this provision. Both
are commonly called reverse onus provisions.
224 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) [7].
Reverse onus offences
Reverse onus offences are offences that impose
a legal (persuasive) burden on the accused by
requiring the accused to prove, on the balance
of probabilities, a fact that is essential to the
determination of guilt or innocence.
Some offences impose an evidential burden on
the accused by requiring the accused to present
or point to evidence to raise an issue. In such
offences, the prosecution bears the legal burden
of disproving the issue beyond reasonable doubt.
These offences may also limit the presumption
of innocence.
Reverse onus offences may undermine the
presumption of innocence because there is a
risk that an accused can be convicted despite
reasonable doubt of his or her guilt. However,
in international human rights law, reverse onus
provisions do not necessarily violate the
presumption of innocence as long as they are
‘within reasonable limits which take into account
the importance of what is at stake and maintain
the rights of the defence’.225
Reverse onus offences should be examined
carefully to determine if they breach s. 25(1). 226
If so, the provision may still be compatible with
the Charter if it can be justified under s. 7. It must
be a reasonable limitation that can be demonstrably
justified in a free and democratic society. For more
information, refer to the discussion in these Charter
Guidelines on s. 7.
225 Salabiaku v. France (1988) 141 Eur Court HR (ser A);
(1991) 13 EHRR 379.
226 See for example R v. Lambert [2002] 2 AC 545 and
R v. Oakes [1986] 1 SCR 103.
The more serious the reverse onus offence, and
the higher the penalty the courts can impose for
the offence, the more likely it is that s. 25(1) has
been breached. In assessing the seriousness of
an offence (including the seriousness of the
consequence for a convicted person), consider
the purpose for which the offence was created
and whether the offence has an element of moral
fault. If the nature of the offence makes it very
difficult for the prosecution to prove each element
of the offence, a reverse onus provision may be
acceptable. Similarly, if it is clearly easier and more
practical for an accused to prove a fact than for the
prosecution to disprove it, a reverse onus provision
may be justifiable.
REASONABLE LIMITS ON THE RIGHT
TO BE PRESUMED INNOCENT
As with all of the human rights protected in the
Charter, the right to be presumed innocent in
s. 25(1) may be subject to reasonable limitations
that can be demonstrably justified in a democratic
society in accordance with s. 7 of the Charter. You
should refer to Part 2 of these Charter Guidelines
KEY POINTS TO REMEMBER
• The presumption of innocence is a well-
recognised civil and political right and a
fundamental common law principle.
• Section 25(1) applies to persons who have been
charged with a criminal offence.
• A charged person is entitled to be presumed
innocent until proven guilty of committing the
offence with which he or she has been charged.
• The prosecution has the burden of proof and
must prove the guilt of the accused beyond
reasonable doubt. This usually means the
prosecution must prove both the physical
and fault elements of an offence and disprove
any exceptions or defences that are raised
by the accused.
159
• Reverse onus provisions, being laws that shift
the burden of proof to the accused or apply
a presumption of fact or law operating against
an accused, may breach s. 25(1).
• Whether a reverse onus provision breaches

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

227 R v. DPP, ex parte Kebilene [2000] 2 AC 326.

228 R v. Lambert [2002] 2 AC 545.
 SECTION 25(1)
THE RIGHT TO BE
PRESUMED INNOCENT

MEASURES TO IMPROVE COMPLIANCE RELATED RIGHTS AND FREEDOMS

To improve compliance with s. 25(1): When considering whether a policy or legislation
might give rise to an issue under s. 25(1), you
• If you are developing a policy or legislation that
should also consider the following additional rights
creates or amends a criminal offence or criminal
and freedoms:
procedure, ensure so far as possible that it is
consistent with the presumption of innocence. • the right not to be arbitrarily arrested or detained
(s. 21);
If you are developing a policy or legislation that
creates or amends a criminal offence which • the right to humane treatment when deprived
does not require the prosecution to prove all the of liberty (s. 22);
elements of the offence, but places a burden on • the right to a fair hearing (s. 24).
the accused, then consider the following criteria
in deciding if the offence breaches s. 25(1): HISTORY OF THE SECTION
– the nature and context of the conduct you Section 25(1) is modelled on article 14(2)
are attempting to regulate; of the ICCPR.
– the nature and purpose of the offence; Similar rights exist in comparative law. Refer
160 – the reason you want the accused to provide to Appendix H for further information.
evidence or prove that they were not at fault.
Is it very difficult for the prosecution to
provide that evidence?
– the ability of the accused to exonerate himself
or herself. Is it difficult and impractical for the
accused to establish a defence?
– the severity of the penalty to be imposed;
– the nature of the burden placed on the
accused. Is it a legal or evidential burden?
Does the accused have to prove a qualification,
proviso or excuse (in which case the provision
may be inconsistent with section 130 of the
Magistrates’ Court Act) or is he or
she required to prove an essential element
of the offence?
• If the offence cannot be justified on the above
criteria, the provision may still be permissible
if it is a reasonable limit on the right to the
presumption of innocence, which can be
demonstrably justified in a free and
democratic society (under s. 7).
BIBLIOGRAPHY

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).

United Nations Human Rights Committee

Jurisprudence 161

7. Rameka v. New Zealand Human Rights

Committee, Communication No. 1090/2002,
UN Doc. CCPR/C/79/D/1090/2002
(15 December 2003).

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.

POLICY TRIGGERS: DO I NEED TO CONSIDER • establishes conditions restricting access to

SECTION 25(2)?
You will need to consider s. 25(2) in assessing
legislation, a policy or a program where it:
• amends the procedures for filing, issuing or
serving charges, presentments or indictments;
information and material to be used as evidence
in criminal proceedings;
• regulates storage and destruction of evidence
before and after the conclusion of criminal
proceedings;

• amends the content of charge sheets,
presentments or indictments or otherwise varies
the requirements regarding information to be
given at the time of charge;
• relates to access by a self-represented accused
(including an accused in custody) to witnesses
and to legal and research materials;
• establishes timetables for the prosecution
and defence to prepare for trial or appeal;
• establishes time limits on the lodging of
applications or appeals;
• amends the law relating to adjournments
of hearings;
• amends the law relating to pre-hearing
disclosure;
• regulates the procedures for investigation and
prosecution of offences;
• affects the resources available to investigators,
prosecutors, forensic services and others
involved in preparing prosecutions for trial
and appeal;
• affects the caseload of the courts and the
capacity of the courts to hear matters;
• establishes procedures for giving persons
charged with criminal offences notice of
hearings;
• amends the eligibility criteria for legal aid;
• amends any guidelines or procedures that
enable an accused to represent himself or
herself personally or restricts the right of an
accused to choose the legal representative
or advisor of his or her choice;
• amends the law of evidence including the
examination and cross-examination of witnesses,
the admissibility of hearsay evidence and the
evidence of a co-accused;
• establishes or amends procedures protecting
prosecution witnesses, for example, the use of
protective screens in the court room or video
testimony;
• establishes or amends guidelines or procedures
for the provision and use of facilities in police
interviews and the court room, for example,
assistive hearing devices;
• establishes guidelines or procedures for
the provision of assistants, translators and
interpreters in police interviews and the
court room;
• amends the law relating to self-incrimination;
• amends the procedures for and law about
obtaining evidence, including confessions.
These policy triggers are not comprehensive.
DISCUSSION
Section 25(2) is concerned with rights in criminal
proceedings.
The minimum guarantees are modelled on article
14(3) of the ICCPR. Section 25(2) modifies article
14(3) in three respects:
• Paragraph (j) is additional to article 14(3) to
reflect the fact that some people charged with
a criminal offence will need, and should be
entitled to, specialised communication tools
and technology in order to understand the
nature of and the reason for the criminal charge
and to participate in the judicial process.
• Paragraphs (d), (e) and (f) of s. 25(2) modify
article 14(3) (d) to include references to the
Victorian Legal Aid Act 1978. This is designed
to ensure consistency with current Victorian law 163
and practice within Victoria Legal Aid.
• Paragraph (g) of s. 25(2) reflects paragraph
(e) of article 14(3) but includes in addition the
words ‘unless otherwise provided by law’. This
qualification was considered by the Human
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
Rights Consultation Committee to be necessary
to ensure that the special rules in relation to
the cross-examination of children or victims
of sexual assault would continue to apply.229
When do these minimum guarantees apply?
Section 25(2) covers persons charged with both
indictable and summary offences. It applies before
and at trial, and (where relevant) on appeal.
In Victoria, typically a person is charged with an
offence when the charge is filed in the Magistrates’
Court on a charge sheet that alleges the person
has committed an indictable or summary offence.
A person will be arrested and charged, or a summons
to answer the charge will be issued. The infringement
notice system (discussed on page 164) provides an
alternative means of dealing with allegations.
229 Human Rights Consultation Committee (Victoria) Rights,
Responsibilities and Respect (2005) 44.
 SECTION 25(2)
MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
Infringement notices
The infringement notice system provides for
penalisation without prosecution.
When an infringement notice is issued, if the person
pays the set penalty within the prescribed period, no
further proceedings are taken in respect of the
infringement. Alternatively, the person may elect to
defend proceedings in court. When a person elects
to go to court, he or she then receives a charge and
summons and the infringement notice is withdrawn.
An infringement notice is not itself a charge under
Victorian law. This means that infringement notices
are not captured by s. 25, nor do they attract the
protection of the minimum guarantees.
Nevertheless, when reviewing relevant legislation or
amendments to current legislation, we recommend
164 that legislative policy officers should bear in mind
the desirability of ensuring that infringement notices
satisfy, or continue to satisfy, the requirements in
s. 25(2)(a). For example, an infringement notice
should always be sufficiently clear and detailed
to inform the person of the nature and reason for it
being issued, and persons issued with such notices
should always be informed of their option to elect
to defend proceedings in court.
What do the minimum guarantees mean?
The minimum guarantees are minimal guarantees
that apply in relation to the processing of a criminal
charge against a person.
The minimum guarantees must be provided to all
persons charged with a criminal offence ‘without
discrimination’. Discrimination is defined in s. 3
of the Charter. This means that people must be
treated equally in the provision of the minimum
guarantees and additional measures may be
needed in certain cases to ensure that a person’s
rights under s. 25(2) are met.
The right to be informed of the charge
Paragraph (a) of s. 25(2) establishes an accused’s
right to be informed promptly of the charge. This
right is relevant to the information required to be
given, and the mode in which it is given, at the time
the charge is laid, rather than the disclosure of
evidence necessary to enable an accused to
prepare for trial.
The purpose of s. 25(2)(a) is to enable the accused
to make a full answer and defence to any charge.
If the charges are subsequently varied, the accused
should be promptly notified about the specific
variations.230
‘Promptly’
The person must be notified of the charge
‘promptly’. In international law, this means the
person who is charged must be informed of
the nature of the charge once the enforcement
authorities have decided to lay the charge.231
An unreasonable delay in notifying the person
of the charge may result in a breach of s. 25(2)
(a). Factors relevant to whether the delay was
unreasonable are whether the person contributed
to the delay or whether the delay can be attributed
to the conduct of the enforcement officers;
the resources that were available for finding
the person; and the prejudice experienced
by the person as a result of the delay.232
‘Informed’
The specific requirements of sub-paragraph 2(a)
of s. 25(2) may be met by stating the charge either
orally or in writing, provided that the information
indicates both the law and the alleged facts (but
not the evidence) on which the charge is based.
The person should be informed of each specific
offence with which he or she is being charged.
If the charges are complex, the person may need
to be given additional information.
230 R v. E (1999) 17 CRNZ 40.
231 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) [8].
232 R v. Delaronde [1997] 1 SCR 213.
If the person does not speak or understand
English, the information must be communicated
in a language he or she understands.
If the person has communication or speech
difficulties and requires assistance, he or she has
the right to be informed of the nature of the charge
by a type of communication that the person
understands (for example, Auslan).
The right to adequate time and facilities
Paragraph (b) of s. 25(2) guarantees the right to
adequate time and facilities to prepare a defence
and the right to adequate time and facilities to
communicate with a lawyer or advisor of the
accused’s choice. It applies to all stages following
the laying of the charge, including the preparation
to meet each procedural step.
The purpose of s. 25(2)(b) is to enable the
accused to have his or her interests properly and
adequately represented so that the accused can
make informed decisions relating to the preparation
of his or her defence. The aim is to put the accused
on an equal footing with the prosecution.
‘Time’
What time period will be ‘adequate’ will depend
upon an assessment of the circumstances of each
case, and will vary depending upon the stage of the
proceedings (for example, whether the proceedings
are at an interlocutory or preliminary stage, or at
the stage of a contested trial, or whether the matter
has gone on appeal); the complexity of the case;
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,
233 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) [9].
he or she should be appointed in sufficient time
to allow proper preparation of the defence to take
place.234 For example, adequate time to trace key
witnesses should be provided for.235
‘Facilities’
An accused must be given access to documents
and other evidence required for the preparation of
his or her case. This may include access to earlier
case law, to witnesses, and to prosecution files, all
subject to reasonable restrictions.236 The adequacy
of facilities depends on the complexity of the case;
whether the accused is represented by a lawyer
or is self-represented; and the type of evidence
required to make a full defence. This does not
mean an accused must have the same access
to facilities as the prosecution has.
‘Lawyer or advisor’ 165
The accused should have the opportunity to
engage and communicate with a lawyer. If the
accused does not request a lawyer or advisor,
the accused should have the opportunity later
to request a lawyer or advisor in the event of a
change of mind. The communications with the
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
lawyer should occur in conditions that allow for
confidentiality and there should be no restrictions,
pressures or undue interference with that lawyer
or advisor or those counsel chosen to represent the
accused.237
Incommunicado detention, which makes it
impossible to access legal assistance, will be
likely to breach s. 25(2)(b).
234 X and Y v. Austria 15 DR 160 (1978); Goddi v. Italy
(1984) 76 Eur Court HR (ser A); (1984) 6 EHRR 457.
235 Smith v. Jamaica, Human Rights Committee,
Communication No. 282/1988, UN Doc.
CCPR/C/47/D/282/1988 (12 May 1993).
236 Haase v. Federal Republic of Germany, (1977)
11 Eur Comm HR 78.
237 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) [9].
 SECTION 25(2)
MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
The right to be tried without unreasonable delay
Paragraph (c) of s. 25(2) is the right to be tried
without unreasonable delay. This right reflects the
common law principle that justice delayed is justice
denied. Section 25(2)(c) is intended to protect the
right of an accused to examine the evidence led
against them while the evidence can still be tested,
and it reflects the public interest in having someone
charged with a criminal offence brought before the
court expeditiously. This right also seeks to preserve
public confidence in the administration of justice.
The UN Human Rights Committee has observed
that this right relates not only to the time by which a
trial should commence, but also the time by which it
should end and judgment is given – all stages must
take place without unreasonable delay.238
166 As with all rights under the Charter, the right to trial
without unreasonable delay is not an absolute right.
Whether delay is ‘unreasonable’ will depend on the
nature of the case and a range of other factors
such as whether the accused is held in custody;
the length of the delay; the complexity of the case
(including the number of witnesses, the number
of other parties (if any), and the need to obtain
expert evidence); the conduct of the parties; the
seriousness of the offence; and the prejudice to
the accused. Where the delay is attributable to
the accused, there is likely to be no breach of
s. 25(2)(c).
The right to be tried in person
Paragraph (d) of s. 25(2) is the right to be tried in
person. The accused has the right to be tried and
to defend himself or herself in person, or through
legal assistance of his or her choice, or, if eligible,
through legal aid.
238 Ibid.
Where an accused has been provided with a Legal
Aid lawyer, and cannot otherwise afford a lawyer,
s. 25(2)(d) does not entitle the accused to a choice
of lawyer.239 It does entitle an accused to defend
himself or herself in person. 240
If there are exceptional circumstances and it is
in the interests of justice, trials may be held in the
absence of the accused (in absentia), but there
should nevertheless be strict observance of the
rights of the defence.241 In absentia hearings are
permissible in international human rights law only
when the accused has been given ample notice
and opportunity to attend the hearing but has
failed to do so.
Legal Aid
Paragraph (e) of s. 25(2) establishes a right to
be told about the right to legal aid under the Legal
Aid Act. This right applies only if an accused does
not already have legal assistance and he or she
must be told that the right to legal aid is only
available if the person is eligible for legal aid.
Paragraph (f) of s. 25(2) establishes a right to
be provided with legal aid in certain circumstances.
The obligation to provide legal aid is confined to
cases where the ‘interests of justice’ require it and
the person is eligible for legal aid. The eligibility
criteria are set out in the Legal Aid Act. The
application of the ‘interests of justice’ criterion
in international decisions has shown that this
criterion will take account of the complexity of
the proceedings; the capacity of an accused to
represent himself or herself; and the severity of
the potential sentence.242 Whether the ‘interests
of justice’ require legal aid to be provided is
ultimately a legal question, not solely an
operational or administrative one.
239 Pratt and Morgan v. Jamaica, Human Rights Committee,
Communications Nos 210/1986 & 225/1987, UN Doc.
CCPR/C/35/D/210/1987 (7 April 1989) [13.2].
240 Hill and Hill v. Spain, Human Rights Committee,
Communication No. 526/93, UN Doc.
CCPR/C/59/D/526/1993 (23 June 1997).
241 Mbenge v. Zaire, Human Rights Committee,
Communication No. 16/1977, UN Doc.
CCPR/C/18/D/16/1977 (25 March 1983).
242 Quaranta v. Switzerland (1991) 205 Eur Court HR (ser A).
Witness attendance
Paragraph (g) of s. 25(2) protects the right
of an accused to examine, or to have examined,
prosecution witnesses unless the law provides
otherwise. Paragraph (h) of s. 25(2) establishes the
right of the accused to obtain the attendance and
examination of witnesses on his or her own behalf
under the same conditions as the prosecution.
The UN Human Rights Committee has said that
these rights ‘guarantee to the accused the same
legal powers of compelling the attendance of
witnesses and of examining or cross-examining
any witnesses as are available to the prosecution.’243
The term ‘witness’ has been interpreted in
international decisions as including a person whose
statements are produced as evidence before a
court, even if he or she is not called to give oral
evidence.244 It also includes a co-accused.
Prosecution witnesses
An accused should be given an adequate
opportunity to challenge and question a witness
who will give or has given evidence against him
or her, either at the time the witness was making
a statement or at some later stage of the
proceedings.245 This means that the prosecution
must give the accused adequate notice of the
witnesses that the prosecution intends to call
so that the accused is able to prepare his or
her defence including accessing evidence that
will challenge the prosecution’s evidence.
243 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) [12].
244 Kostovski v. Netherlands (1989) 166 Eur Court HR
(ser A); (1990) 12 EHRR 434.
245 Ibid.
For the right to cross-examine the prosecution
witnesses to be effective, the evidence must usually
be given orally in the presence of the accused in
court so that its reliability as well as the credibility of
the witness can be tested. For this reason, reliance
on hearsay evidence may amount to a breach of this
right. In international law, a conviction that was
based on the evidence of witnesses whom the
accused had no opportunity to cross-examine was
found to have breached the right to a fair trial.246
Similarly, reliance on statements of anonymous
witnesses may offend this right.247
However, if there are good reasons for a witness
not to appear and the accused can still test the
reliability and credibility of the evidence given by
means of written statements, then evidence from
unexamined witnesses will probably not interfere
with these rights (or will be justifiable under s. 7). 167
Nor is it likely that reliance on written evidence that
can be independently corroborated will amount to a
breach of this right (that is, such reliance is unlikely
to amount to an interference with the right that
cannot be justified as a reasonable limit).
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
Vulnerable witnesses
The right of an accused to examine prosecution
witnesses is qualified by the words ‘unless otherwise
provided by law’. This qualification ensures that rules
which restrict the cross-examination of children or
victims of sexual assault would continue to apply.
This qualification may well go further than the
recognition given in international law to the need
for protective measures to be instituted to protect
the interests of witnesses. 248
246 Lucà v. Italy (2001) II Eur Court HR 167; (2003) 36
EHRR 46. See also Unterpertinger v. Austria (1987)
110 Eur Court HR (ser A); (1991) 13 EHRR 175.
247 Kostovski v. Netherlands (1989) 166 Eur Court HR
(ser A); (1990) 12 EHRR 434.
248 Doorson v. The Netherlands (1996) II Eur Court HR
470 [70]; (1990) 22 EHRR 330 [70].
 SECTION 25(2)
MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
In international law, these protective measures must
be limited to what is strictly necessary to protect the
witness. It is for the prosecution to establish the
need for any special measures and there must be
a proper assessment of any alleged threat to a
witness. Special measures may include: 249
• giving evidence by closed circuit television link or
video recordings for child witnesses in
proceedings concerning sexual abuse;
• the use of special protective screens to protect
a witness’s identity; or
• the use of written statements.
Although the terms of s. 25(2)(g) mean that the right
is unlikely to be breached when legislation authorises
these kinds of special measures, attention should be
given in developing such legislation to whether the
168 special measures chosen are strictly necessary or
are disproportionate to the aim.
Defence witnesses
It is a matter for an accused to decide who should
be called as a defence witness.250 If an accused
calls a witness who then fails to turn up to the
hearing, the hearing may need to be adjourned.
Alternatively, the presiding judge may need to issue
a subpoena, or a warrant, to secure the attendance
of the witness in court and/or the police may be
required to assist to transport the witness to court.
Securing the attendance of defence witnesses
is particularly important in circumstances where the
penalty for the offence faced by an accused
is harsh.251
249 See Regina (D) v. Camberwell Youth Court [2005]
UKHL 4.
250 Peart and Peart v. Jamaica, Human Rights Committee,
Communications Nos 464/91 & 482/91, UN Doc.
CCPR/C/54/D/464/1991 (24 July 1995) [11.3].
251 Grant v. Jamaica, Human Rights Committee,
Communication No. 353/1989, UN Doc.
CCPR/C/50/D/353/1989 (4 April 1994).
The right to an interpreter
Paragraph (i) of s. 25(2) confers a right to the free
assistance of an interpreter for persons charged
with a criminal offence who do not understand
or speak English. It does not give a person who
prefers to speak a language other than English
the right to an interpreter without payment.
This right applies at all stages of the prosecution
once the charge has been laid, including during
police interviews and during any court hearing,
(including the trial and any appeal). It is critically
important that an accused who does not speak
English understands that he or she has this right
and the effect of it should be that he or she can
participate fully and effectively in the preparation
of a defence and during the trial. For the right to
be meaningful and effective, the interpretation
and translation provided by the interpreter must
be competent and accurate.
In international human rights law, the comparable
right (article 14(3)(f)) has been construed as
prohibiting an accused from being ordered to pay
the costs of an interpreter.252 This right applies to
both citizens and non-citizens.253 In international law,
it includes the right to have all relevant documents
translated free of charge although oral translations
may sometimes be sufficient to guarantee the
right (for example, where the documents are made
available to the person’s lawyer).254 However, under
the Charter, free access to an interpreter does
not require that the relevant documents need to
be translated into writing. This is because
‘interpreter’ in s. 3 of the Charter is defined as
relating only to the oral rendering of the meaning
of the spoken word or other form of communication
from one language or form of communication into
another language or form of communication.
252 Luedicke, Belkacem and Koc v. United Kingdom (1978)
29 Eur Court HR (ser A); (1979–80) 2 EHRR 149.
253 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) [13].
254 Harward v. Norway, Human Rights Committee,
Communication No. 451/1991, UN Doc.
CCPR/C/51/D/451/1991 (18 August 1994).
The definition of an ‘interpreter’ in s. 3 of the Charter
means an accredited interpreter (the Regulations will
set out the bodies that may accredit interpreters) or,
if an accredited interpreter is not readily available,
a competent interpreter. This may mean that if it
is not reasonably possible to access an accredited
interpreter (for example, at a rural police station), a
competent interpreter (for example, an adult family
member who speaks both the accused’s native
language and English) who is not accredited
may be used.
Free assistance for persons with communication
or speech difficulties
Paragraph (j) of s. 25(2) confers the right, without
discrimination, to have the free assistance of
assistants and specialised communication tools
and technology for persons with communication
or speech difficulties. This right is an aspect of
the right to a fair trial as it seeks to ensure such
persons can understand and participate fully and
effectively in the preparation of their defence and
during the trial.
Where a person has speech or hearing difficulties,
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.
At the pre-trial stage, this right includes the right
not to answer self incriminating questions.
However, the person can still be compelled to
answer other questions. When a use immunity is
provided, a person cannot be regarded to have
incriminated themself, regardless of the nature of
the question. If legislation was to allow for adverse
inferences to be made as a result of a person’s
refusal to answer questions or his or her continuing
to remain silent, it might interfere with the right
against self-incrimination.255
At the trial stage, this right means that self-
incriminating evidence which has been unfairly or
improperly obtained by compulsion from a person,
including confessions made under duress, should
be excluded.
In international law, obtaining evidence compulsorily
from a person where the evidence has an existence 169
independent of the will of the person, (for example
documents, breath samples, blood and urine
samples and bodily tissue used for the purpose
of DNA testing), does not engage this right.
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
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

REASONABLE LIMITS ON THE RIGHTS • Whether delay is unreasonable will depend on

IN SECTION 25(2)
As with all of the human rights protected in the
Charter, the rights in section 25(2) may be subject
to reasonable limitations that can be demonstrably
justified in a democratic society in accordance with
s. 7 of the Charter. You should refer to Part 2 of
these Charter Guidelines for further information
on s. 7.
KEY POINTS TO REMEMBER
• Section 25(2) applies to persons who have been
charged with a criminal offence and provides
minimum guarantees, which are specific aspects
of the right to a fair trial.
• The minimum guarantees must be provided to all
170 persons charged with a criminal offence ‘without
discrimination’.
• A person charged with a criminal offence has
the right to be informed promptly of the charge
so that he or she may make a full answer and
defence to that charge.
• A person charged with a criminal offence also
has the right to adequate time and facilities to
prepare a defence and the right to adequate
time and facilities to communicate with a lawyer
or advisor of the person’s choice during all
stages following the laying of the charge,
including, for example, pre-trial procedural steps.
• Whether time and facilities are adequate
depends on factors such as the nature of the
proceedings and the complexity of the case.
• An accused should have the opportunity to
engage and communicate with a lawyer. If the
accused does not request a lawyer or advisor,
the accused should have the opportunity later
to request a lawyer or advisor in the event that
the accused changes his or her mind.
• The right to trial without unreasonable delay
relates to the time by which a trial should
commence, but also the time by which it should
end and judgment is given.
the nature of the case and a range of factors,
such as whether the accused is in custody
and the length of the delay.
• An accused has the right to be tried and to
defend himself or herself in person or through
legal assistance of his or her choice or if eligible,
through legal aid.
• If an accused does not already have legal
assistance, he or she must be told, if eligible,
about the availability of legal aid.
• The obligation to provide legal aid is confined
to cases where the interests of justice require
it and the person is eligible for legal aid under
the Legal Aid Act.
• An accused has the right to examine
prosecution witnesses and also has the right
to obtain the attendance and examination of
witnesses on his or her behalf under the same
conditions as the prosecution.
• The accused should have the same powers as
the prosecution to compel the attendance of
witnesses and of examining or cross-examining
any witness. However, the right of the accused
to examine prosecution witnesses is qualified
by the words ‘unless otherwise provided by law’.
• An accused who does not speak or understand
English has the right to the assistance of an
interpreter to provide an oral translation free
of charge.
• Persons with communication or speech
difficulties have the right to have the free
assistance of assistants and specialised
communication tools and technology.
• A person charged with a criminal offence has
a right not to be compelled to testify against
himself or herself or to confess guilt.
MEASURES TO IMPROVE COMPLIANCE
To improve compliance with s. 25(2)(a), ensure that
the policy, program or legislation you are working
on establishes procedures or processes:
• for informing people charged with a criminal
offence of the necessary information relevant to
the offence with which they have been charged
without delay;
• for identifying when people charged with
a criminal offence may require the provision
of translation facilities;
• for identifying when people charged with
a criminal offence may require specialised
communications tools or technology due to
communication difficulties or other disabilities.
To improve compliance with s. 25(2)(b):
• ensure that there are procedures to ensure that
persons charged with a criminal offence are
aware of their right to legal representation;
• ensure that there are procedures that enable
an accused to access information and material
to be used as evidence in criminal proceedings;
• ensure that there are procedures that enable
a self-represented accused to access legal
and research materials;
• ensure that an accused has the opportunity to
engage and communicate with a lawyer under
conditions that enable confidential
communications;
• ensure that time limits for lodging appeals or
applications and seeking adjournments allow a
reasonable time for the defence to be prepared;
• ensure that documentary and other forms of
evidence necessary for the preparation of the
defence are disclosed within an adequate time
before the relevant hearing.
To improve compliance with s. 25(2)(c):
• ensure that the policy, program or legislation
you are working on will not unduly delay the
investigation and prosecution of offences.
To improve compliance with s. 25(2)(d):
• ensure that there are procedures for informing
persons charged with a criminal offence of
their right to legal representation or to defend
themselves in person;
• ensure that there are procedures in place so
that hearings are not held in the absence of
the accused unless he or she has been given
adequate notice and the opportunity to attend
and has failed to do so, and it is in the interests
of the administration of justice that the hearing
proceeds.
To improve compliance with s. 25(2)(e) and
s.25(2)(f), ensure that the legislation, policy or
program you are working on does not introduce
arbitrary or discriminatory criteria for applying
and qualifying for legal aid. 171
To improve compliance with s. 25(2)(g) and
s.25(2)(h), ensure that the policy, program or
legislation you are working on:
• preferably provides for witnesses to give
evidence orally and for the accused to have
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
the opportunity to examine the witnesses;
• gives the accused sufficient opportunity to
challenge the prosecution evidence;
• where it allows for evidence to be given by
vulnerable witnesses in the absence of the
accused, provides proper authorisation in clearly
defined circumstances for this to occur.
To improve compliance with s. 25(2)(i):
• ensure that there are procedures for informing
an accused who does not speak or understand
English of the right to the free assistance of an
interpreter who would provide an oral translation;
• ensure that the relevant agencies are aware
that competent and accurate translations of
all relevant documents and interpretation
of proceedings are provided to an accused
who does not speak or understand English.
 SECTION 25(2)
MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
To improve compliance with s. 25(2)(j):
• ensure that there are procedures for informing
an accused who has speech or other
communication difficulties of the right to free
assistance;
• ensure that there are proper processes to
facilitate competent and accurate translations
of all relevant documents and interpretation
of proceedings including police interviews
and trials;
• consult or facilitate consultation with
interpretation and translation service providers
to determine the best way the relevant services
can be delivered;
• seek the views of the groups within the
community who are representative of those
172
who may be affected by speech and hearing
communication difficulties.
To improve compliance with s. 25(2)(k), ensure
the relevant legislation, policy or program you
are working on:
• provides for, or recognises, that an accused
should be informed of the right to remain silent
and the right against self-incrimination;
• recognises that, at any stage of the prosecution,
judges have the authority to consider any
allegations made that the accused’s right to
remain silent was violated or to exclude evidence
of the accused on the ground that it was
obtained by compulsion;
• provides for, or recognises, that evidence that
has been unfairly or improperly compelled from
a person may be excluded at trial.
RELATED RIGHTS AND FREEDOMS
When considering whether a policy, a program
or legislation might give rise to an issue under
s. 25(2), you should also consider the following
additional rights and freedoms:
• the right to recognition and equality before
the law (s. 8);
• the right to be protected from torture and cruel,
inhuman or degrading treatment (s. 10);
• the right not to be arbitrarily arrested or detained
(s. 21);
• the right to humane treatment when deprived
of liberty (s. 22);
• the rights of children in criminal process (s. 23);
• the right to a fair hearing (s. 24).
HISTORY OF THE SECTION
Section 25(2) is modelled on article 14(3) of
the ICCPR. The Charter modifies article 14(3) by
ensuring, where necessary, that people will be
entitled to specialised communication tools and
technology in order to understand the nature and
reason for the criminal charge and to participate in
the judicial process. Article 14(3) is also modified
as it relates to the provision of legal assistance by
making reference to the Legal Aid Act to ensure
consistency with Victorian law. Also, a qualification
is made in relation to the examination of witnesses
to accommodate Victorian laws regarding cross-
examination of certain witnesses, such as children
and victims of sexual assault.
The purpose of these modifications was identified
by the Human Rights Consultation Committee in
this way:
‘The Charter provision modifies ICCPR article
14(3) in a number of important respects. First,
the Committee has modified the provision to
reflect the fact that some people charged with
a criminal offence will need, and are entitled to,
specialised communication tools and technology
to understand the nature of and reason for the
criminal charge and to participate in the judicial
process. Secondly, the Committee has adapted
the sub-sections dealing with the provision
of legal assistance to include references to
the Victorian Legal Aid Act 1978 to ensure
consistency with current Victorian law.
In addition, the Charter provision qualifies
the rights of a criminal accused in relation to
the attendance and examination of witnesses
 by including the words ‘unless otherwise
provided by law’. The Committee considers that
this qualification is necessary to ensure that the
special rules in relation to the cross-examination
of children or of victims of sexual assault would
continue to apply.’ 256
Similar rights exist in comparative law. Refer
to Appendix H for further information.
BIBLIOGRAPHY
Report
1. Human Rights Consultation Committee
(Victoria) Rights, Responsibilities and
Respect (2005).
Case Law
2. Doorson v. The Netherlands (1996) II Eur
Court HR 470.
3. Goddi v. Italy (1984) 76 Eur Court Hr (ser A).
4. Haase v. Federal Republic of Germany, (1977)
11 Eur Comm HR 78.
5. Heaney & McGuinness v. Ireland (2000) XII
Eur Court HR 419.
6. Kostovski v. Netherlands (1989) 166 Eur Court
HR (ser A).
7. Lucà v. Italy (2001) II Eur Court HR 167.
8. Luedicke, Belkacem and Koc v. Germany
(1978) 29 Eur Court HR (ser A).
9. Quaranta v. Switzerland (1991) 205 Eur Court
HR (ser A).
10. R v. Delaronde [1997] 1 SCR 213.
11. R v. E (1999) 17 CRNZ 40.
12. Regina (D) v. Camberwell Youth Court [2005]
UKHL 4.
13. Saunders v. United Kingdom (1996) VI Eur
Court HR 37.
256 Human Rights Consultation Committee (Victoria), Rights,
Responsibilities and Respect (2005) 44.
14. Unterpertinger v. Austria (1987) 110 Eur Court
HR (ser A).
15. X and Y v. Austria 15 DR 160 (1978).
United Nations Human Rights Committee
Jurisprudence
16. Grant v. Jamaica, Human Rights Committee,
Communication No. 353/1989, UN Doc.
CCPR/C/50/D/353/1989 (4 April 1994).
17. Harward v. Norway, Human Rights Committee,
Communication No. 451/1991, UN Doc.
CCPR/C/51/D/451/1991 (18 August 1994).
18. Hill and Hill v. Spain, Human Rights
Committee, Communication No. 526/93, UN
Doc. CCPR/C/59/D/526/1993 (23 June
1997).
19. Mbenge v. Zaire, Human Rights Committee, 173
Communication No. 16/1977, UN Doc. CCPR/
C/18/D/16/1977 (25 March 1983).
20. Peart and Peart v. Jamaica, Human Rights
Committee, Communications Nos 464/91 &
482/91, UN Doc. CCPR/C/54/D/464/1991
CHARTER GUIDELINES
SECTION 25(2): MINIMUM GUARANTEES
IN CRIMINAL PROCEEDINGS
(24 July 1995).
21. Pratt and Morgan v. Jamaica, Human Rights
Committee, Communications Nos 210/1986
& 225/1987, UN Doc. CCPR/C/35/
D/210/1987 (7 April 1989).
22. Smith v. Jamaica, Human Rights Committee,
Communication No. 282/1988, UN Doc.
CCPR/C/47/D/282/1988 (12 May 1993).
Other Sources
23. 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(3)
Rights of children in
criminal proceedings

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
SECTION 25(3)?
You will need to consider s. 25(3) in assessing
legislation, a policy or a program where it:
• creates or amends procedures applicable to
children charged with criminal offences in the
investigation and prosecution of those offences;
• creates or amends court procedures applicable
to children charged with criminal offences;
• creates or amends the law of evidence
applicable to children charged with criminal
offences;
• creates or amends laws relating to the detention
and custody of children charged with criminal
offences;
• creates an additional judisdiction or judicial
forum in relation to matters involving children
or amends the law relating to the existing
Children’s Court of Victoria;
• creates or amends offences for actions likely
to be performed by children;
• alters the definitions of ‘child’ and ‘young
offender’ (for example, by reducing the age
of criminal responsibility);
• amends the law relating to adjournments of
hearings involving children;
• establishes or amends guidelines for sentencing
children.
These policy triggers are not comprehensive.
DISCUSSION
Sub-section (3) of s. 25 recognises the need
for special procedures for children charged with
criminal offences. It provides that a child has the
right to a procedure that takes account of the
child’s age and the desirability of promoting the
child’s rehabilitation. This protection is a widely
recognised civil and political right. Sub-section
(3) of s. 25 reflects article 14(4) of the ICCPR.
When does s. 25(3) apply?
Sub-section (3) of s. 25 applies where a child
has been charged with a criminal offence. It applies
to children charged with either an indictable
offence or a summary offence. This right applies
at all stages of the proceedings, from the time of
the charge, to the trial, to the determination
of a final appeal.
A ‘child’ is defined in s. 3 as being a person under
the age of 18. Under Victorian law, children under
the age of 10 are presumed to be incapable of any
criminal offence.257 Children between 10 and 14
years old are presumed to lack the necessary level
of mental culpability and the prosecution must
prove that the accused child knew that his or her
conduct was wrong before the child can be found
to be capable of committing the offence.258
International human rights law does not recognise
any particular age as the optimal minimum age for
the imposition of criminal responsibility but the
chosen age should take account of the emotional,
mental and intellectual immaturity of children.259
What does it mean?
Children charged with a criminal offence are
entitled to the same guarantees and protections as
are accorded to adults under s. 25. However, under
this sub-section, children are entitled to additional
special protection. The additional protection
is directed at ensuring that age-appropriate
procedures are in place and that an emphasis is
placed on the rehabilitation of the child. Children
charged with a criminal offence must be dealt with
in special and appropriate ways that take account
of age, maturity, and intellectual and emotional
capacities.260
Where possible, courts should be established
specifically to try offences committed by children,
and the relevant laws and court processes should
take account of the special needs and capacities of
children. Where children are involved in the criminal
justice system, steps should be taken and adult trial
procedures modified to promote a child’s ability to
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
Administration of Juvenile Justice (‘The Beijing Rules’)
G.A. Res. 40/33, annex, 40 UN GAOR Supp. (No. 53),
UN Doc. A/40/53 (1985) rule 4.
260 See T v. United Kingdom (1999) 7 BHRC 659.
Court of Victoria.
The right to additional protection means that special
procedures should be applicable to child defendants
at the investigation stage. For example, special
measures may need to be adopted to ensure that
an age-appropriate explanation about the nature of
the charge is given to a child accused so that he or
she understands what is being alleged. Interviews
should be conducted in the presence of a parent or
guardian or other support person in a manner that
is sensitive to the child’s age, level of maturity and
emotional state. In Victoria, special procedures are
incorporated into the Victoria Police Manual and
s. 464E of the Crimes Act 1958.
Similarly, special procedures should be put in place
to provide age-appropriate support during hearings.
For example, a policy or program should seek to
175
ensure that processes are put in place so that:
• children are supported by a parent or guardian
or other support person at all stages of the
criminal process;
• children have the court procedures explained
CHARTER GUIDELINES
SECTION 25(3): RIGHTS OF CHILDREN
IN CRIMINAL PROCEEDINGS
to them, in a manner that they understand;
• adjournments can be obtained if it is in the
child’s best interests.
Procedures should be developed to ensure that
a child’s privacy is fully respected at all stages
of the proceedings to avoid psychological harm
due to publicity or the process of labelling or
stigmatising.261 This may mean that the trial is
conducted in a closed court. In Victoria, such
procedures are outlined in s.19 of the Children
and Young Persons Act 1989. 262
261 See T v. United Kingdom (16/12/99) ECHRR;
7 BHRC 659.
262 Note that the Children and Young Persons Act will be
repealed upon the commencement of the Children, Youth
and Families Act 2005 (Vic).
 SECTION 25(3)
RIGHTS OF CHILDREN IN
CRIMINAL PROCEEDINGS

Procedures that promote a child’s rehabilitation KEY POINTS TO REMEMBER

may include those that:
• minimise harmful publicity;
• ensure that a restriction on the personal liberty
of a child is imposed only after careful
consideration;
• ensure that detention or imprisonment is used
as a measure of last resort and for the shortest
appropriate period of time;
• provide treatment, education or other assistance
either in conjunction with detention or
imprisonment or as part of a non-custodial order.
There are a number of international human rights
instruments that relate to the rights of children,
some of which give general guidance on the sort
of protection children may require in the criminal
176
process. See in particular the UN Convention on
the Rights of the Child 1989263 and UN Standard
Minimum Rules for the Administration of Juvenile
Justice (the Beijing Rules).264
• Section 25(3) applies to children who have
been charged with a criminal offence.
• Where possible, courts should be established
specifically to try offences committed by
children and the relevant laws and court
processes should take account of the special
needs and capacities of children.
• Special procedures should be followed at
all stages of a proceeding to take account
of a child’s age and maturity.
• Children should be supported by a parent or
guardian or other support person at all stages
of the proceeding.
• Where there is a risk of psychological harm to
the child due to publicity, hearings (including the
trial) may need to be conducted in closed court.
• Alternatives to imprisonment should be available
and imprisonment should be a last resort.

REASONABLE LIMITS ON RIGHTS OF MEASURES TO IMPROVE COMPLIANCE

CHILDREN IN CRIMINAL PROCEEDINGS
As with all of the human rights protected by
the Charter, the rights of children in criminal
proceedings may be subject to reasonable
limitations that can be demonstrably justified in
a democratic society in accordance with s. 7 of
the Charter. You should refer to Part 2 of these
Charter Guidelines for further information on s. 7.
To improve compliance with s. 25(3):
• ensure that the relevant laws and court
processes take account of the special needs
and capacities of children;
• ensure that age-appropriate procedures are
in place that will assist a child accused to
understand the charges against him or her;
• ensure that procedures are in place so that
a child defendant has the opportunity to be
accompanied by a parent or guardian or other
support person at the various steps in the
proceeding;

263 Convention on the Rights of the Child, opened for

signature 20 November 1989, 1577 UNTS 3, (entered
into force 2 September 1990. See particularly articles
3, 37 and 40.
264 United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (‘The Beijing Rules’)
G.A. Res. 40/33, annex, 40 UN GAOR Supp. (No. 53),
UN Doc. A/40/53 (1985). See articles 8 and 17.
• ensure that the applicable court and court-
related procedures and processes accommodate
a child defendant’s age, maturity, and intellectual
and emotional capacities;
• ensure that law enforcement officers, court
personnel and judges have adequate training
in dealing sensitively with children;
• ensure that policy or legislation that will impact
on children makes special provision for the fact
that children will be affected by these
arrangements;
• ensure that any guidelines for the sentencing of
children promote the rehabilitation of the child
as a core goal;
• where necessary, consult with persons who
have knowledge or expertise on child and youth
issues about the impact on children of
legislation, a policy proposal or a program.
RELATED RIGHTS AND FREEDOMS
When considering whether legislation, a policy or a
program might give rise to an issue under s. 25(3),
you should also consider the following additional
rights and freedoms:
• the right to be protected from torture and cruel,
inhuman or degrading treatment (s. 10);
• protection of families and children (s. 17);
• the right not to be arbitrarily arrested or detained
(s. 21);
• 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).
HISTORY OF THE SECTION
Section 25(3) is modelled on article 14(4)
of the ICCPR.
Similar rights exist in comparative law. Refer
to Appendix H for further information.
BIBLIOGRAPHY
Case Law
1. R (A Child) v. Whitty (1993) 66 A Crim R 462.
2. T v. United Kingdom, Application No
24724/1994 (Unreported, European Court of
Human Rights, Grand Chamber, 16 December
1999).
Legislation
3. Children and Young Persons Act 1989 (Vic.). 177
4. Children, Youth and Families Act 2005 (Vic.).
5. Criminal Code 1995 (Cth).
Treaties
6. Convention on the Rights of the Child, opened
CHARTER GUIDELINES
SECTION 25(3): RIGHTS OF CHILDREN
IN CRIMINAL PROCEEDINGS
for signature 20 November 1989, 1577 UNTS
3, (entered into force 2 September 1990).
Other Sources
7. United Nations Standard Minimum Rules
for the Administration of Juvenile Justice
(‘The Beijing Rules’) G.A. Res. 40/33, annex,
40 UN GAOR Supp. (No. 53), UN Doc.
A/40/53 (1985).
 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
SECTION 25(4)?
You will need to consider s. 25(4) in assessing
legislation, a policy or a program where it:
• amends or alters the statutory rights or
procedures under which a person convicted
of an offence is able to appeal against or
seek review of the conviction or sentence;
• amends or alters the criteria under which legal
aid is granted for criminal appeals.
These policy triggers are not comprehensive.
DISCUSSION
Sub-section (4) of s. 25 of the Charter protects
the right to have a conviction and sentence for a
criminal offence reviewed by a higher court. This
is a widely accepted civil and political right and
reflects article 14(5) of the ICCPR.
When does section 25(4) apply?
Sub-section (4) of s. 25 applies where a person has
been convicted of committing a criminal offence.
This includes where the accused has been found
to have committed an offence but a conviction
has not been recorded.
What does it mean?
Sub-section (4) of s. 25 recognises that a person
convicted of a criminal offence has the right to
appeal against the conviction and the sentence
imposed. The right applies to all offences, not
simply the most serious.265
An appeal carries with it the same protections that
are afforded the accused at trial, including, for
example, the right to adequate time and facilities,
and access to an interpreter, and the right to have
the appeal or review heard without delay.266 The
reason for this is that a criminal charge is not finally
determined until all avenues of appeal have been
exhausted.267
265 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) [17].
266 Evans v. Trinidad and Tobago, Human Rights Committee,
Communication No. 908/2000, UN Doc.
CCPR/C/77/D/908/2000 (5 May 2003) [6.3].
267 Delcourt v. Belgium (1970) 11 Eur Court HR (ser A) [25];
(1979-80) 1 EHRR 355 [25].
This right means that a person convicted of
a criminal offence must be provided with an
opportunity to seek review by a higher court
of the conviction made against him or her and
any sentence imposed.268
Higher court
A person convicted of a criminal offence must be
given an opportunity for an appeal or review of the
conviction and the sentence, and the appeal or
review must be heard by a court or tribunal that
is higher than the court or tribunal that made
the original decision. It is not sufficient that the
conviction or sentence is confirmed by the same
judge.269 However, the court hearing the appeal or
conducting the review may be a different division
of the same court providing it is differently
constituted, such as the Court of Appeal of
the Supreme Court of Victoria.
The court hearing the appeal or conducting the
review must have the power to overturn, replace
or affirm the conviction or sentence.
Nature of the appeal
The right to an appeal must be given substance
so that it is an effective right of appeal or review.270
The mere presence of an appeal process may not
be sufficient if the person is unable adequately
to present his or her case to a higher court.
A dismissal of an application for leave to appeal
without any written reasons being given would
violate this right.271 An effective appeal requires
a ‘collective judicial decision’ that is arrived at after
a hearing that should be held in public.272
268 Reid v. Jamaica, Human Rights Committee,
Communication No. 355/1989, UN Doc.
CCPR/C/51/D/355/1989 (20 July 1994).
269 Salgar de Montejo v. Colombia, Human Rights
Committee, Communication No. 64/1979, UN Doc.
CCPR/C/15/D/64/197 (24 March 1982).
270 Reid v. Jamaica, Human Rights Committee,
Communication No. 355/1989, UN Doc.
CCPR/C/51/D/355/1989 (20 July 1994 [14.3];
Taito v. R (2002) 19 CRNZ 224 [12].
271 Taito v. R (2002) 19 CRNZ 224.
272 Taito v. R (2002) 19 CRNZ 224, 236.
The right will usually require that there is an oral
hearing, although this may depend on the nature
of the proceedings and the scope of the appeal.273
For example, if the issues are not complex and
it would not unreasonably prejudice the accused,
in the interests of expediency it is possible that
the appeal could be heard by the court ‘on the
papers’, without any oral hearing.
This right does not require the appeal court to
conduct a retrial of the factual issues, and does
not require that any further evidence be led. 274
However, a right to judicial review instead of appeal
might fall short of the requirements of sub‑section
(4) of s. 25.275
In international human rights law, the opportunity
to ‘seek leave to appeal’ is ordinarily not considered
sufficient. However, if the hearing of an application
for leave to appeal entails a full review of the 179
evidence and the law, the requirements in
s. 25(4) would probably be met.276
Multiple appeals
The right under s. 25(4) is only to one appeal or
CONVICTION AND SENTENCE
CHARTER GUIDELINES
SECTION 25(4): RIGHT TO REVIEW OF
review. However, if there is provision for more than
one appeal within the court hierarchy, the convicted
person must be given a fair opportunity to pursue
each of those appeals.277
273 See Taito v. R (2002) 19 CRNZ 224 and Monnell and
Morris v. United Kingdom (1987) 115 Eur Court HR
(ser A); (1988) 10 EHRR 205.
274 Perera v. Australia, Human Rights Committee,
Communication No. 536/1993, UN Doc.
CCPR/C/53/D/536/1993 (28 March 1995); H T B v.
Canada, Human Rights Committee, Communication No.
534/1993, UN Doc. CCPR/C/49/D/534/1993 (3
November 1993).
275 Domukovsky v. Georgia, Human Rights Committee,
Communications Nos 623/1995, 624/1995, 626/1995,
627/1995, UN Doc. CCPR/C/62/D/626/1995
(29 May 1998).
276 Lumley v. Jamaica, Human Rights Committee,
Communication No. 662/1995, UN Doc.
CCPR/C/65/D/662/1999 (30 April 1999).
277 Henry v. Jamaica, Human Rights Committee,
Communication No. 230/1987, UN Doc.
CCPR/C/43/D/230/1987 (19 November 1991).
 SECTION 25(4)
RIGHT TO REVIEW OF
CONVICTION AND SENTENCE

REASONABLE LIMITS ON THE RIGHT TO RELATED RIGHTS AND FREEDOMS

REVIEW OF CONVICTION AND SENTENCE
As with all of the human rights protected by
the Charter, the right of a person convicted of
a criminal offence to have the conviction and
sentence reviewed by a higher court may be
subject to reasonable limitations that can be
demonstrably justified in a democratic society in
accordance with s. 7 of the Charter. You should
refer to Part 2 of these Charter Guidelines for
further information on s. 7.
When considering whether legislation, a policy,
or a program might give rise to an issue under
s. 25(4), you should also consider the following
additional rights and freedoms:
• the right to a fair hearing (s. 24);
• the right to the relevant minimum guarantees
in criminal proceedings (s. 25(2));
• the rights of children in criminal proceedings
(ss. 23 and 25(3));

KEY POINTS TO REMEMBER • the right to recognition and equality before

the law (s. 8).
• Section 25(4) applies to persons who have
been convicted of a criminal offence.
HISTORY OF THE SECTION
• A person convicted of a criminal offence
Section 25(4) is modelled on article 14(5)
180 has a right to appeal to a higher court and
of the ICCPR.
legislation, policies and programs must take
account of this right. Similar rights exist in comparative law. Refer
to Appendix H for further information.

MEASURES TO IMPROVE COMPLIANCE

BIBLIOGRAPHY
To improve compliance with s. 25(4), ensure that:
Case Law
• policy, programs and legislation establish a
1. Delcourt v. Belgium (1970) 11 Eur Court
statutory framework for appeals against
HR (ser A).
conviction and sentence in all criminal matters;
2. Monnell and Morris v. United Kingdom (1987)
• legislation clearly sets out what avenues of
115 Eur Court HR (ser A).
appeal exist following a conviction;
3. Spencer v. Wellington District Court [2000]
• procedures for lodging an appeal are
3 NZLR 102.
established including a reasonable timeframe
for lodging an appeal; 4. Taito v. R (2002) 19 CRNZ 224.
• legislation provides that the appellant can make United Nations Human Rights Committee
oral submissions unless there are good reasons Jurisprudence
for restricting the form of appeal to one that is
5. Domukovsky v. Georgia, Human Rights
done simply ‘on the papers’ (without an oral
Committee, Communications Nos 623/1995,
hearing).
624/1995, 626/1995, 627/1995, UN Doc.
CCPR/C/62/D/626/1995 (29 May 1998).
6. Evans v. Trinidad and Tobago, Human Rights
Committee, Communication No. 908/2000,
UN Doc. CCPR/C/77/D/908/2000
(5 May 2003).
7. H T B v. Canada, Human Rights
Committee, Communication No. 534/1993,
UN Doc. CCPR/C/49/D/534/1993
(3 November 1993).
8. Henry v. Jamaica, Human Rights
Committee, Communication No. 230/1987,
UN Doc. CCPR/C/43/D/230/1987
(19 November 1991).
9. Lumley v. Jamaica, Human Rights Committee,
Communication No. 662/1995, UN Doc.
CCPR/C/65/D/662/1999 (30 April 1999).
10. Perera v. Australia, Human Rights Committee,
Communication No. 536/1993, UN Doc. 181
CCPR/C/53/D/536/1993 (28 March 1995).
11. Reid v. Jamaica, Human Rights Committee,
Communication No. 355/1989, UN Doc.
CCPR/C/51/D/355/1989 (20 July 1994).

CONVICTION AND SENTENCE

CHARTER GUIDELINES
SECTION 25(4): RIGHT TO REVIEW OF
12. Salgar de Montejo v. Colombia, Human
Rights Committee, Communication No.
64/1979, UN Doc. CCPR/C/15/D/64/197
(24 March 1982).

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
SECTION 26?
You will need to consider s. 26 in assessing
legislation, a policy or a program where it:
• makes changes to existing offences that might
allow a person to be tried a second time for the
same underlying criminal activity;
• amends any criminal procedure rules relating
to previous convictions and acquittals;
• creates a regulatory regime that provides for the
imposition of a punishment for doing something
that would also amount to a crime;
• creates an overlap between an offence in
regulations and an offence in the parent Act.
These policy triggers are not exhaustive.
DISCUSSION
Section 26 protects an accused against what
is commonly referred to as ‘double jeopardy’. The
prohibition on double jeopardy is a well-supported
and fundamental safeguard in the common law
considered to be part of the right to a fair trial.
This right means that a person who has been tried
in proceedings where the person was at risk of the
imposition of a penalty cannot be tried again on
a charge that is substantially the same as the
original charge.
The purpose of the principle against double jeopardy
is to ensure fairness to an accused and to bring
finality in the system of justice by preventing
repeated attempts to convict.
The following points should be noted regarding
the scope of this right:
• It applies in respect of all criminal offences,
regardless of their seriousness.
• It does not apply to civil trials that may result
in a form of civil liability.
• Penalties and sanctions imposed by professional
disciplinary bodies do not usually form a
punishment for the purposes of this right.
• It applies after a final judgment of either
conviction or acquittal. This means that all
applicable proceedings for judicial review and
all appeals must be finally exhausted or the
time limits for invoking such reviews or
appeals must have passed.
• It only applies to the benefit of the same legal
person.278
• It is aimed at preventing new trials or
punishments for offences with substantially
the same elements.
• It does not prevent the reopening of a case
(including the conduct of a new trial) when a
conviction has been found by an appeal court to
have been a miscarriage of justice. New trials may
be held, for example, when evidence emerges,
after conviction, of serious procedural flaws or
in the event of new or newly discovered facts.
• In particular, it has the consequence that a
person who has been acquitted of a criminal
charge is not to be subjected to a criminal
trial for the same offence or substantially
the same offence.
The prohibition against double jeopardy appears
in a number of other human rights instruments from
comparable jurisdictions. Refer to Appendix H for
more information.
In many jurisdictions, there have been legislative
refinements to this prohibition since the enactment
of the relevant human rights instrument: for example,
in light of advances in DNA technology.
REASONABLE LIMITS ON THE RIGHT NOT TO
BE TRIED OR PUNISHED MORE THAN ONCE
As with all of the human rights protected in the
Charter, the right not to be tried or punished more
than once may be subject to reasonable limitations
that can be demonstrably justified in a democratic
society in accordance with s. 7 of the Charter. You
should refer to Part 2 of these Charter Guidelines
for further information on s. 7.
278 Spencer v. Wellington District Court [2000] 3 NZLR 102.
KEY POINTS TO REMEMBER
• A person who has been tried in proceedings
where he or she was at risk of the imposition of
a penalty cannot be tried again on a charge that
is substantially the same as the original charge.
• This right only applies in respect of criminal
offences and not civil trials that may result in a
form of civil liability. Disciplinary penalties and
sanctions will most likely not form a punishment
for the purposes of this right.
• This right only applies where a person has been
finally acquitted or convicted (that is, after all
appeals have been exhausted).
• This right only applies to benefit the same legal
person.
• This right does not prevent the reopening of
cases (including the conduct of a new trial) when 183
a conviction has been found by an appeal court
to have been the result of a miscarriage of justice.
MEASURES TO IMPROVE COMPLIANCE
If you are creating a statutory offence that is part
CHARTER GUIDELINES
SECTION 26: RIGHT NOT TO BE TRIED OR
PUNISHED MORE THAN ONCE
of a new regime and there are existing offences
that apply to the activity, ensure that the legislation
doesn’t allow for the punishment for the new offence
to be imposed in addition to any punishment for
the existing offence, or for a person convicted or
acquitted of the existing offence to be tried for
the new offence.
RELATED RIGHTS AND FREEDOMS
If your policy or legislation raises an issue under
s. 26, check whether it also raises an issue under
s. 27 (retrospective criminal laws).
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.
 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)?
You will need to consider s. 27(1) in assessing
legislation, a policy or a program where it:
• creates an offence for acts done before the
legislation comes into force;
• seeks to expand or broaden an existing criminal
offence by altering the range of activities to
which it applies;
• amends criminal law procedure in a way that
affects fairness of trial procedures.
These policy triggers are not comprehensive.
DISCUSSION
A person has the right not to be prosecuted or
punished for acts or omissions that were not
criminal offences at the time they were committed.
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.
Section 27(1) requires the criminal law to be
sufficiently accessible and precise to enable a
person to know in advance whether his or her
conduct is criminal.279
Scope of section 27(1)
The protection from the operation of retrospective
criminal laws applies only to protection from the
instigation of criminal proceedings which might
result in a conviction or the imposition of a
criminal penalty.
The right does not extend to prevent retrospective
changes to procedures that do not form part of
the penalty or punishment of an offender, or to
changes in procedural law (for example, shifts in
trial practice or changes to the rules of evidence).
However, changes to criminal law procedure
may infringe this right where they affect the
basic elements of a fair trial.
279 Handyside v. UK (1976) 24 Eur Court HR (ser A);
(1979–80) 1 EHRR 737; Kokkinakis v. Greece (1993)
260-A Eur Court HR (ser A); (1994) 17 EHRR 397.
When considering s. 27(1), you should also refer
to the discussion on s. 27(4) of these Charter
Guidelines. Section 27(4) expressly limits the rights
in s. 27(1), s. 27(2) and s. 27(3) by providing that
they do not affect ‘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.’
REASONABLE LIMITS ON THE PROHIBITION
ON RETROSPECTIVE CRIMINAL LAW
The right not to be found guilty of a retrospective
criminal offence in s. 27(1) is qualified by s. 27(4).
As with all of the human rights protected in the
Charter, the right under s. 27(1) may also be
subject to reasonable limitations that can be
demonstrably justified in a democratic society in
accordance with s. 7 of the Charter. You should
refer to Part 2 of these Charter Guidelines for
further information on s. 7.
KEY POINTS TO REMEMBER
• A person has the right not be to prosecuted or
punished for acts or omissions that were not
criminal offences at the time they were
committed.
• This section applies only to protection against
the instigation of criminal proceedings which
might result in a conviction or the imposition of
a criminal penalty.
• The criminal law must be sufficiently accessible
and precise to enable a person to know in
advance whether his or her conduct is criminal.
MEASURES TO IMPROVE COMPLIANCE
• If you are amending offence provisions ensure
that all elements of the offence are clearly
defined.
• Avoid giving offence provisions retrospective
effect.
• Include transitional provisions that will enable
conduct to be dealt with under previous
legislation if it occurred before the statute
which creates the new offence came into force.
RELATED RIGHTS AND FREEDOMS
If your policy or legislation raises an issue under
s. 27(1), check whether it also raises an issue
under the following rights and freedoms:
• the right to a fair trial (s. 24); 185
• rights in criminal proceedings (s. 25); and
• the rights relating to criminal penalties (s. 27(2)
and s. 27(3).
HISTORY OF THE SECTION
CHARTER GUIDELINES
SECTION 27(1): NO RETROSPECTIVE CRIMINAL LAWS
This provision is modelled on article 15(1)
of the ICCPR.
Similar rights exist in comparative law. Refer
to Appendix H for further information.
BIBLIOGRAPHY
Case Law
1. Handyside v. UK (1976) 24 Eur Court HR 
(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(2) AND SECTION 27(3)?
Compared to many other rights in the Charter,
s. 27(2) and s. 27(3) have a clearly defined sphere
of operation. You need to consider s. 27(2) and
s. 27(3) in assessing legislation, a policy or a
program that is relevant to sentencing in criminal
law, where it:
• seeks to introduce a new range of sentencing
initiatives that expand or reduce the scope of
possible sanctions or that impose further
restrictions or remove restrictions on convicted
offenders;
• seeks to extend the period of detention of
persons who have been convicted of an offence;
• alters penalties or penalty levels for offences;
• introduces or makes changes to the orders that
can be made on conviction that are in the nature
of a penalty.
These policy triggers are not exhaustive.
DISCUSSION
Section 27(2) bars the imposition of greater
criminal penalties than would have been imposed
at the time the offence was committed.
Section 27(3) gives a person the right to benefit
from a lighter punishment if one is provided by law
after the commission of the offence.
Experience in other jurisdictions with comparable
human rights legislation suggests that these rights
are often relevant in the development and vetting
of legislation. It is therefore important to clarify how
these sections operate and indicate their scope.
These sections should be distinguished from
statutory provisions which allow for a greater
penalty to be imposed because the offender has
a previous conviction for the same type of offence.
For example, such provisions operate in the context
of serious sexual offences.
Under s. 27(2), a penalty must not be imposed for
a criminal offence that is greater than the penalty
which applied at the time when the offence was
committed.
For example, in the context of international human
rights law, the UN Human Rights Committee
examined the operation of this right in a case
against the Government of Canada. A convicted
prisoner claimed that the retroactive introduction
of ‘mandatory supervision’ during parole under
the Canadian Parole Act constituted a heavier
penalty in breach of the ICCPR. He claimed that
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
inadmissible since the prisoner was not a relevant
‘victim’ of any abuse of his ICCPR rights. The
Committee added that mandatory supervision
was not a ‘penalty’ within the meaning of article
15 of the ICCPR. The Committee said:
‘… mandatory supervision cannot be considered
as equivalent to a penalty, but is rather a measure
of social assistance intended to provide for the
rehabilitation of the convicted person, in his own
interest. The fact that, even in the event of
remission of the sentence being earned, the
person concerned remains subject to supervision
after his release and does not regain his
unconditional freedom [the requirement of
mandatory supervision] cannot therefore be
characterised as the imposition or re-imposition
of a penalty incompatible with the guarantees
laid down in article 15(1) of the Covenant.’280
However, where the supervision in effect amounts
to punishment (for example, by way of detention or
effective detention) the right might be engaged.
Section 27(3) is concerned with a decrease in
the penalty applicable to an offence. Under this
section, any reduction in a penalty that may occur
after a person commits an offence, but before he
or she is sentenced for that offence, must be
applied to the benefit of the accused.
This right has arisen before the UN Human Rights
Committee in the context of the liberalisation of
parole laws under Canadian criminal law. The
committee was asked to consider whether the
liberalisation of parole laws should be applied
retrospectively. The Committee side-stepped the
issue, however, finding that the authors had failed
to prove that the retrospective application of the
more liberal parole laws would have resulted in
their early release in any event. 281
280 ARS v. Canada, Human Rights Committee,
Communication No. 91/1981, UN Doc.
CCPR/C/14/D/91/1981 (28 October 1981) [5.3].
281 Van Duzen v. Canada, Human Rights Committee,
Communication No. 50/1979, UN Doc.
CCPR/C/15/D/50/1979 (7 April 1982); MacIsaac v.
Canada, Human Rights Committee, Communication
No. 55/1979, UN Doc. CCPR/C/17/D/55/1979
(14 October 1982).
These rights only apply in the context of penalties
that are imposed following conviction of a criminal
offence and have a punitive objective.
What is a penalty?
The principal issue for consideration under these
sections is whether a particular measure is a penalty.
You will need to consider if a measure is a penalty.
Factors that may be taken into account in assessing
whether a measure is a penalty include: 282
• the nature and purpose of the measure;
• its characterisation under law;
• the procedures involved in the making and
implementation of the measure; and
• its severity.
Some examples of penalties are: 187
• fines;
• terms of imprisonment;
• an imposition by a judge of a non-parole
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
• compensation orders;
• community service orders;
• confiscation of property.
REASONABLE LIMITS ON THE PROHIBITION
ON RETROSPECTIVE PENALTIES
The rights in these sections are qualified by
section 27(4).
As with all of the human rights protected in the
Charter, they may also be subject to reasonable
limitations that can be demonstrably justified in a
democratic society in accordance with s. 7 of the
Charter. You should refer to Part 2 of these Charter
Guidelines for further information on s. 7.
282 Welch v. United Kingdom (1995) 307 Eur Court Hr
(ser A); (1995) 20 EHRR 247.
283 R v. Pora [2001] 2 NZLR 37.
 SECTIONS 27(2) AND 27(3)
NO HIGHER PENALTY AND RIGHT
TO BENEFIT FROM LESSER PENALTY
WHEN PENALTIES CHANGE
KEY POINTS TO REMEMBER
• These rights arise frequently in the development
and vetting of legislation.
• Criminal law penalties must not be applied
retrospectively.
• A penalty must not be imposed for a criminal
offence that is greater than the penalty applying
at the time the offence was committed.
• Any reduction in a penalty that may occur after
a person commits an offence, but before he or
she is sentenced for that offence, must be
applied to the benefit of the accused.
• Both sections only apply to criminal penalties.
• The term ‘penalty’ is not restricted to fines or
terms of imprisonment.
188
• The imposition by a judge of a non-parole period
at the time of sentencing is likely to be regarded
as a penalty.
• If you are considering whether a measure
amounts to a penalty, consider the following
factors:
– the nature and purpose of the measure;
– its characterisation under law;
– the procedures involved in the making and
implementation of the measure; and
– its severity.
MEASURES TO IMPROVE COMPLIANCE
• In relevant circumstances, ensure that all Bills
have transitional provisions which clarify the
application of any altered offence or altered
sentencing regime.
RELATED RIGHTS AND FREEDOMS
If your policy or legislation raises an issue under
s. 27(1), check whether it also raises an issue
under the following rights and freedoms:
• The right to a fair trial (s. 24);
• Rights in criminal proceedings (s. 25); and
• No retrospective criminal laws (s. 27(1)).
HISTORY OF THE SECTION
This provision is modelled on article 15(1)
of the ICCPR.
BIBLIOGRAPHY
Case Law
1. R v. Pora [2001] 2 NZLR 37.
2. Welch v. UK (1995) 307 Eur Court Hr (ser A).
United Nations Human Rights Committee
Jurisprudence
3. ARS v. Canada, Human Rights Committee,
Communication No. 91/1981, UN Doc. CCPR/
C/14/D/91/1981 (28 October 1981).
4. MacIsaac v. Canada, Human Rights Committee,
Communication No. 55/1979, UN Doc. CCPR/
C/17/D/55/1979 (14 October 1982).
5. Van Duzen v. Canada, Human Rights
Committee, Communication No. 50/1979, UN
Doc. CCPR/C/15/D/50/1979 (7 April 1982).
Section 27(4)
Crimes under
international law

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.

POLICY TRIGGERS: DO I NEED TO CONSIDER • wilfully causing great suffering; 189

SECTION 27(4)
• taking hostages; and
Compared to many other rights in the Charter,
• denying a fair trial.
s. 27(4) has a more clearly defined sphere of
operation. This list is not exhaustive.
You will need to consider s. 27(4) if you are You should also consider s. 27(4) in a situation

assessing legislation or developing a new policy that
intends to create retrospective criminal offences.
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
offences that can have a permissible retrospective
operation. Criminal offences in international law
include:
• crimes against humanity;
• war crimes;
• the crime of piracy;
CHARTER GUIDELINES
SECTION 27(4): CRIMES UNDER INTERNATIONAL LAW
where legislation or policy expressly refers to
international criminal law or international
obligations in the creation of an offence.
DISCUSSION
Generally, retrospective criminal laws are not
permitted in Victoria (see the discussion of s. 27(1)
in these Charter Guidelines). However, s. 27(4)
provides an exception to the prohibition on
retrospective criminal offences in respect of acts
or omissions that constitute an offence under
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
international crimes that are yet to be created
in international law.
For more information on what constitutes ‘war
crimes’, ‘crimes against humanity’ and ‘genocide’,
legal and policy officers should consult:
• Part 2 of the Rome Statute of the International
Criminal Court (to which Australia is a party).
A copy of this Statute is available at
www.un.org/law/icc/statute/romefra.htm; and
• Schedule, Chapter 8, Division 268 of the
Commonwealth Criminal Code Act.
Section 27(4) also has the effect of denying
the benefits of s. 27(2) and s. 27(3) to any person
charged with the commission of any act or
omission which was a criminal offence under
190 international law at the time it was done or
omitted to be done.
REASONABLE LIMITS ON SECTION 27(4)
Section 27(4) creates an express exception to
s. 27(1), s. 27(2) and s. 27(3) of the Charter. As
s. 27(4) does not protect a right, there is no need
to examine the issue of reasonable limits on it.
KEY POINTS TO REMEMBER
• Generally, retrospective criminal laws are not
permitted in Victoria under s. 27(1). However,
the Charter establishes an exception to this
prohibition in section 27(4) with respect to
conduct which would have constituted offences
under international law at the time they were
committed.
• The prohibition on retrospectivity does not apply
in respect of legislation or policy providing for
the trial of persons for an offence under
international law.
• Current international law offences covered
by this section include:
– crimes against humanity;
– war crimes;
– the crime of piracy; and
– the crime of genocide.
• Further international crimes may be created in
the future. If you have a policy in which you plan
to create a retrospective criminal law offence,
you should check whether the offence is also
an offence in international law. If it is, it may fall
within the scope of s. 27(4) and be permitted
despite the general prohibition in the Charter
on retrospective criminal offences.
MEASURES TO IMPROVE COMPLIANCE
If you are developing a policy or legislation that
will establish a retrospective criminal offence you
should check whether the act is an offence under
international law. You may wish to rely on this
exception on retrospective criminal laws. You
should pay particular attention to the elements
of the offences. Ensure that the elements of the
offences are consistent with those that apply
in respect of the international law counterpart
offence. (Consult Part 2 of the Rome Statute of
the International Criminal Court for the elements
of offences.)
RELATED RIGHTS AND FREEDOMS
Section 27(4) is related to the other parts of s. 27.
HISTORY OF THE SECTION
This provision is modelled on article 15(2) of the
ICCPR.
Similar rights exist in comparative law. Refer to
Appendix H for further information.
Summary of the Charter
rights particularly
relevant to children
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
Right to protection of families and children (s. 17)
Section 17 confers a right of protection to families
and guarantees the right of every child to such
protection as is in his or her best interests and is
needed by him or her by reason of being a child.
This right to protection should be considered for
proposed laws or policies that touch on aspects
of family life and that affect family relations. The
notion of ‘family’ is to be interpreted broadly to
include extended families, gay and lesbian families
and single parent families. The best interests of the
child should be taken into account as the paramount
consideration in all actions affecting a child.
Rights of children in the criminal process
(ss. 23 and 25(3))
Sections 23 and 25(3) guarantee certain rights
for children in the criminal process. Both of these
sections recognise the particular vulnerability of
children in criminal proceedings. Section 23
is concerned with the detention of children in
the criminal process, whereas section 25(3) is
concerned with their procedural rights, especially
during the investigatory or trial stages of criminal
proceedings.
Section 23 guarantees that accused children
who have been detained must be segregated from
detained adults at all times, whether before or after
conviction, and that accused children must be 191
brought to trial as quickly as possible. Section 23
further assists in ensuring that children who have
been convicted of an offence will be treated in
an age-appropriate manner. These rights (and
particularly s. 23(2)) mean that children should be
CHARTER GUIDELINES
SUMMARY OF THE CHARTER RIGHTS
PARTICULARLY RELEVANT TO CHILDREN
detained for the shortest possible time. The right
of children to be segregated from adults does not
mean that child offenders should automatically
be removed to adult prisons when they turn 18.
Section 25(3) provides that children charged with
criminal offences have the right to a procedure that
takes account of their age and the desirability of
promoting their rehabilitation.
This right requires that special and appropriate
procedures are in place that take account of
the age, maturity, and intellectual and emotional
capacities of the child, and that procedures are
in place that emphasise the rehabilitation of the
child. For example, trial procedures may need to be
modified to ensure the child understands and can
participate in the proceedings, and alternatives to
detention or imprisonment should be available.
Services that provide treatment, education or other
assistance may be available either in conjunction
with detention or imprisonment, or as part of a non-
custodial order. Section 25(3) is in addition to the
rights accorded to adults under the other provisions
of s. 25 (that is, the right to be presumed innocent
 SUMMARY OF THE CHARTER
RIGHTS PARTICULARLY
RELEVANT TO CHILDREN
(s. 25(1)), the minimum guarantees (s. 25(2)) and
the rights in relation to appeals against conviction
and sentence (s. 25(4)).
GENERAL RIGHTS WHICH MAY BE
SIGNIFICANT FOR CHILDREN
The following general rights may be significant for
children and will often need to be read in the light
of other provisions of the Charter that specifically
seek to protect the interests of children.
The right to protection from torture and cruel,
inhuman or degrading treatment (s. 10(a) and
s. 10(b))
Section 10(a) and s. 10(b) guarantee the rights of
a person not to be subjected to torture or treated
or punished in a cruel, inhuman or degrading way.
The assessment of whether an act amounts to cruel,
192
inhuman or degrading treatment is relative and
depends on factors including the duration of the
treatment, its physical or mental affects, and the
age, vulnerability and state of health of the victim.
Hence, the particular vulnerability of children is
relevant in the application of these rights.
The right to not have privacy, family, home
or correspondence unlawfully or arbitrarily
interfered with (s. 13(a))
Section 13(a) ensures that a person does not have
his or her privacy, family, home or correspondence
unlawfully or arbitrarily interfered with. Particular
attention should be given to this section in the
context of laws or procedures that concern the
removal of children from the family unit. This right
does not mean that a child should not be removed
from his or her home in, for example, an abusive
situation. However, care should be taken to ensure
that whatever arrangements are made for the child
take into account the interests of privacy, family
and the home of the child.
The rights of Aboriginal persons to enjoy
their identity and culture and to maintain their
language and kinship ties (s. 19(2)(a)(b)(c))
Section 19(2)(a) to (c) recognises that Aboriginal
persons hold distinct cultural rights and that they
must not be denied the right, with other members
of their community, to enjoy their identity and
culture, and to maintain their language and kinship
ties. This section gives children the right to be
exposed to, and to learn about, their cultural
heritage, their community and their languages for
the purpose of having the opportunity to enjoy their
identity and use their language. It also recognises
that kinship plays an important role in Aboriginal
communities and that the notion of kinship ties
is closely linked to other cultural and religious
practices. The right to maintain kinship ties is
particularly important in the context of removing
children from their homes, fostering, adoption and
other processes where Aboriginal children could
potentially be taken away from their families. Again,
this right does not mean that a child should not be
removed from his or her home, for example, in an
abusive situation, but that care should be taken to
ensure that whatever arrangements are made for
the child, the child’s right to maintain contact with
his or her kin is respected.
The rights of persons awaiting trial (section
21(6))
Section 21(6) ensures that a person awaiting trial
must not be automatically detained in custody, but
that his or her release may be subject to guarantees
to appear for trial, and at any other stage of the
proceeding including execution of judgment if
appropriate. In its application to children, regard
should be had to the rights guaranteed under ss. 23
and 25(3) and to the understanding that, due to
their particular vulnerability, children should not,
where possible, be detained, including prior to trial.
The right to humane treatment when deprived
of liberty (section 22)
Section 22 ensures that persons deprived of liberty
must be treated with humanity and respect for the
inherent dignity of the human person, and that
persons detained without charge are segregated
from persons convicted of offences (except where
reasonably necessary) and are treated in a way
that is appropriate for a person who has not been
convicted. Again, given the particular vulnerability
of children in the criminal process, these rights
must be read together with and in the light of s. 23.
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

8 Recognition and equality before

the law

9 Right to life

10 Protection from torture and cruel,

inhuman or degrading treatment

11 Freedom from forced work

12 Freedom of movement

13 Privacy and reputation

Human Rights Impact Assessment Table

14 Freedom of thought, conscience,

religion and belief

15 Freedom of expression

16 Peaceful assembly and freedom

of association

17 Protection of families and children

18 Taking part in public life

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

19 Cultural rights

20 Property rights

21 Right to liberty and security of

person

22 Humane treatment when deprived

of liberty

23 Children in the criminal process

24 Fair hearing

25 Rights in criminal proceedings

26 Right not to be tried or punished

more than once

27 Retrospective criminal laws

CHARTER GUIDELINES
APPENDIX A
195

Right provided by the Human Rights Act
8 Recognition and equality before the law
9 Right to life
10 Protection from torture and cruel, inhuman or degrading
treatment etc
(1) No-one may be—
(a) tortured; or
(b) treated or punished in a cruel, inhuman or degrading way.
(2) ….
11 Protection of the family and children
(1) The family is the natural and basic group unit of society and is
entitled to be protected by society.
(2) Every child has the right to the protection needed by the child
because of being a child, without distinction or discrimination of
any kind.
12 Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence
interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
13 Freedom of movement
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.
196
Section/Part of the Bill which
directly or indirectly limits
the right
Sections 17(1)(f), 40, 48(1)(b), 86 and 96.
Sections 11, 17(1)(h), (l), 49 and 50.
Sections 38 – 41, 49 – 61, 79 – 85
and Schedule 1
(see discussion in the memorandum)
Sections 68 and 84 and the consequences
of detention
Consideration
No issue arises on the face of the Bill.
APPENDIX B
No issue arises on the face of the Bill
The provisions of the Bill are consistent with section 10(1) insofar
as there is a clear direction to ensure that a detainee is not subjected
to such treatment.
No issue arises in relation to 10(2).
Table prepared in respect
The provisions of the Bill are consistent with section 11(1) insofar
of the Terrorism (Extraordinary
Temporary Powers) Bill 2006 (ACT)
as the Bill recognises the importance of contact with family members.
It is further consistent with section 11(2) as no detention order may
be made in relation to a child.
The terms of the Bill are prima facie inconsistent with section 12(a)
insofar as the manner in which a preventative detention may be made
and executed interferes with the privacy of the person who is the
subject of the order and also third parties. The question is whether
the interference is ‘arbitrary’ and whether the limitation provided
by section 28 applies.
No issue arises in relation to s.12(b)
There is a justifiable limit on these rights.
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.

(2) Everyone has the right to freedom of association.

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.

(2) Everyone has the right to freedom of expression. This right

includes the freedom to seek, receive and impart information
and ideas of all kinds, regardless of borders, whether orally, in
writing or in print, by way of art, or in another way chosen by
him or her.

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

(b) vote and be elected at periodic elections, that guarantee

the free expression of the will of the electors; 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

the Bill provides for a person to be informed of the reasons for

particular, no-one may be arbitrarily arrested or detained.
detention, so the terms comply with sections 18(3), (4), (5) and (6).
(2) No-one may be deprived of liberty, except on the grounds and
There is strictly no provision for compensation with respect to rights
in accordance with the procedures established by law.
under section 18(7).
(3) Anyone who is arrested must be told, at the time of arrest, of
No issue arises under section 18(8).
the reasons for the arrest and must be promptly told about any
charges against him or her.

(4) Anyone who is arrested or detained on a criminal charge—

Table prepared in respect

(a) must be promptly brought before a judge or magistrate;

and

(b) has the right to be tried within a reasonable time or

released.
of the Terrorism (Extraordinary
Temporary Powers) Bill 2006 (ACT)

(5) Anyone who is awaiting trial must not be detained in custody

as a general rule, but his or her release may be subject to
guarantees to appear for trial, at any other stage of the judicial
proceeding, and, if appropriate, for execution of judgment.

(6) Anyone who is deprived of 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.

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

(8) No-one may be imprisoned only because of the inability to

carry out a contractual obligation.
Right provided by the Human Rights Act Section/Part of the Bill which Consideration
directly or indirectly limits
the right

19 Humane treatment when deprived of liberty Sections 43 and 48 The Bill is compatible.

(1) Anyone deprived of liberty must be treated with humanity and

with respect for the inherent dignity of the human person.

(2) An accused person must be segregated from convicted

people, except in exceptional circumstances.

(3) An accused person must be treated in a way that is

appropriate for a person who has not been convicted.

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—

(a) to protect morals, public order or national security in a

democratic society; or

(b) if the interest of the private lives of the parties require the
exclusion; or

(c) if, and to the extent that, the exclusion is strictly

necessary, in special circumstances of the case, because
publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be

made public unless the interest of a child requires that the
judgment not be made public.

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

could be construed as applying to the type of proceedings where a

presumed innocent until proved guilty according to law.
preventative detention order may be made. In this respect the rights
(2) Anyone charged with a criminal offence is entitled to the provided by section 22(2) are compatible with the terms of the Bill.
following minimum guarantees, equally with everyone else:

(a) to be told promptly and in detail, in a language that he

or she understands, about the nature and reason for
the charge;

(b) to have adequate time and facilities to prepare his or her

defence and to communicate with lawyers or advisors
Table prepared in respect

chosen by him or her;

(c) to be tried without unreasonable delay;

(d) to be tried in person, and to defend himself or herself

of the Terrorism (Extraordinary
Temporary Powers) Bill 2006 (ACT)

personally, or through legal assistance chosen by him or

her;

(e) to be told, if he or she does not have legal assistance,

about the right to legal assistance chosen by him or her;

(f) 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;

(g) 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;

(h) to have the free assistance of an interpreter if he or she

cannot understand or speak the language used in court;

(i) not to be compelled to testify against himself or herself or

to confess guilt.
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 (continued)

(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.

(4) Anyone convicted of a criminal offence has the right to have

the conviction and sentence reviewed by a higher court in
accordance with law.

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.

25 Retrospective criminal laws 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

Charter of Human Rights and Responsibilities

Statement of Compatibility

In accordance with section 28 of the Charter of Human Rights and Responsibilities,

I make this statement of compatibility with respect to the […………] Bill 200X.

In my opinion, the [……….] Bill 200X, as introduced to the Legislative

[Assembly/Council], is compatible with the human rights protected by the Charter.
I base my opinion on the reasons outlined in this statement.

Overview of Bill

Human Rights Issues

1. Human rights protected by the Charter that are relevant to the Bill

202
2. Consideration of reasonable limitations – section 7(2)

(a) the nature of the right being limited

(b) the importance of the purpose of the limitation

(c) the nature and extent of the limitation

(d) the relationship between the limitation and its purpose

(e) any less restrictive means reasonably available to achieve its purpose

(f) any other relevant factors

Conclusion

[Print name and title of Member of Parliament responsible for introduced the
Bill]
APPENDIX D
Statement of Compatibility template
with instructions and guidance

Charter of Human Rights and Responsibilities

Statement of Compatibility

[Insert name of Bill]

In accordance with section 28 of the Charter of Human Rights and Responsibilities, I

make this statement of compatibility with respect to the […………] Bill 200X.

In my opinion, the [……….] Bill 200X, as introduced to the Legislative

[Assembly/Council], is compatible with the human rights protected by the Charter. I
base my opinion on the reasons outlined in this statement.

Overview of Bill

Provide an overview of the Bill and state its general purpose. 203

Human Rights Issues

This is the central section of the statement of compatibility.

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.

2. Consideration of reasonable limitations – section 7(2)

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

(a) What is the nature of the right being limited?

For example, what are the values underlying the human right? Is it an 'absolute' right in
international law?

(b) What is the importance of the purpose of the limitation?

Does the purpose of the limitation or restriction address a public or social concern that is
pressing and substantial? Where possible, provide empirical data that demonstrates that
the limitation or restriction is important.

(c) What is the nature and extent of the limitation?

In what ways does the Bill or a clause in the Bill limit or restrict the right? How far
does this limitation or restriction go?

(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.

(f) Are there any other relevant factors?

For example, does the Bill replace previous legislation which provided for a regime
with less strict safeguards for the protection of rights?

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.

[Print name and title of Member of Parliament responsible for introducing

the Bill]

Charter Guidelines
APPENDIX E
Compatibility Statement and Statement of
Reasons for the Family Violence Protection Bill 2008

Charter of Human Rights and Responsibilities

Statement of Compatibility
Family Violence Protection Bill 2008
In accordance with section 28 of the Charter of Human Rights and Responsibilities
(“Charter”), I make this Statement of Compatibility with respect to the Family Violence
Protection Bill 2008.
In my opinion, the Family Violence Protection Bill 2008, as introduced to the
Legislative Assembly, is compatible with the human rights protected by the Charter. I
base my opinion on the reasons outlined in this statement.
Overview of Bill
The Bill recognises the following principles:
∞ non-violence is a fundamental social value that must be promoted
∞ family violence is a fundamental violation of human rights and is unacceptable
in any form
∞ family violence is not acceptable in any community or culture
∞ in responding to family violence and promoting the safety of persons who
have experienced family violence, the justice system should treat the views of 205
victims of family violence with respect
In enacting this Bill, the following features of family violence are also recognised:
∞ while anyone can be a victim or perpetrator of family violence, family violence
is predominantly committed by men against women, children and other
vulnerable persons
∞ children who are exposed to the effects of family violence are particularly

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

The Bill seeks to:

∞ maximise safety for persons who have experienced family violence
∞ reduce and prevent family violence to the greatest extent possible
∞ promote the accountability of perpetrators of family violence for their actions
The Bill achieves this by providing an effective and accessible system of family
violence intervention orders and family violence safety notices and creating offences
for contraventions of these orders and notices.
Human Rights Issues
Section 8 – Right to recognition and equality before the law
Section 8 of the Charter establishes a series of equality rights. The right to
recognition as a person before the law means that the law must recognise that all
people have legal rights. The right of every person to equality before the law and to
the equal protection of the law without discrimination means that the government
206 ought not discriminate against any person, and the content of all legislation ought not
be discriminatory.
However, formal equality may cause unequal outcomes, so to achieve substantive
equality, differences of treatment may be necessary. To this end, section 8(4) of the
Charter provides that certain differential measures do not constitute discrimination,
namely, measures ‘taken for the purpose of assisting or advancing persons or groups
of persons disadvantaged because of discrimination’.
Special provisions for children
Clause 70 of the Bill engages section 8(3) of the Charter in that it discriminates on
the basis of age and disability. Nevertheless, the clause falls within the exception
provided for in section 8(4) of the Charter, as it provides special measures taken to
assist or advance persons or groups of persons disadvantaged because of
discrimination.
Clause 67 of the Bill raises section 8(3) of the Charter as it discriminates on the
basis of age. Nevertheless, the clause falls within the bounds of section 8(4) because
it constitutes a special measure taken to assist or advance children. In addition, the
provision is consistent with section 17(2) of the Charter.
Clause 45 of the Bill engages and limits the right contained in section 8(3) of the
Charter as, under clause 17(c)(iv), only a child above the age of 14 may make an
application for a family violence intervention order.

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

The importance of the purpose of the limitation

The limitation is important as it operates to ensure that a respondent receives
treatment that is intended to address their violent behaviour. In this sense, it works to
change a respondent’s violent behaviour in respect of which a family violence
intervention order has been made. Thus, 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 at a
particular location for counselling treatment for a fixed period of time.
The relationship between the limitation and its purpose
Given the importance of the purpose, the limitation is both rational and proportionate.
Any less restrictive means reasonably available

208 None apparent.

On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Section 12 – Freedom of movement &
Section 14- Freedom of religion &
Section 21- Right to liberty and security
This section of the statement discusses clauses which engage the right to freedom of
movement in section 12. Certain clauses also engage the rights in section 14 and
section 21 which are also discussed where relevant.
Section 12 of the Charter protects various rights in relation to freedom of movement.
These rights include the right to move freely within Victoria, the right to choose where
to live in Victoria, and the right to be free to enter and leave Victoria. The rights
conferred by section 12 apply only to persons who are ‘lawfully’ within Victoria.
Compulsion to attend court
Clauses 49, 32(d) and 134 in the Bill require a person to attend at court at a
particular time and place, either as a party or as a witness. To this extent, they limit a
person’s freedom of movement.

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

The relationship between the limitation and its purpose

The limitation is both rational and proportionate, given the importance of the purpose
and the restricted circumstances in which the limitation operates.
Any less restrictive means reasonably available
None apparent.
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Restricting where a person may be and who they may contact
Insofar as a respondent may be excluded from a protected person’s residence, or
may be prohibited from being within a particular distance of a person or prohibited
from approaching a person (by telephone or otherwise) pursuant to clause 81, the
right to freedom of movement is engaged and limited.
Further, clauses 26 and 29 engage, and limit, the right to freedom of movement
210 provided for in section 12 of the Charter. This is because a person may be prohibited
from living in the family home and going within a certain distance of family members,
the family home or other places, such as the protected person’s workplace.
It is possible that, in certain circumstances, clauses 81(2)(e), 26 and 29 could
engage and limit section 14 of the Charter (freedom of thought, conscience, religion
and belief). This is because the clauses could result in a person being prohibited
from being within a specified distance of a particular spiritual leader or religious
centre.
The importance of the purpose of the limitation
In each case, the reason for the limitation is highly important, as it operates to protect
a protected person from further family violence. In this sense, the limit on the rights is
balanced against the protection of families and children and the right to life.
The nature and extent of the limitation
Although a respondent may be excluded from certain areas or places, a respondent
does have the right, under clause 109 of the Bill, to apply for the variation or
revocation of a family violence intervention order if there is a change in
circumstances.
The operation of clauses 26 and 29 means that a respondent may be prohibited
from living in the family home and going within a certain distance of family members,
the family home or other places. However, a family violence safety notice is of limited
duration (up to 72 hours), may only be made after hours (that is, after 5pm or before
9am on a weekday, and at any time on a weekend or public holiday), may only be
made in circumstances which require an urgent response and are subject to the
supervision of the courts.

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

The nature and extent of the limitation

The limitation created by clauses 50, 51 and 52 is confined to empowering a police
officer to arrest and detain a respondent, hold them in custody, or bail them in
accordance with the provisions of the Bail Act 1977. This may only occur subsequent
to the issuing of a warrant by a registrar or magistrate in situations of urgency.
In the case of clause 124, when a police officer believes on reasonable grounds that
a person has breached a family violence intervention order, they can arrest and
detain that person without a warrant.
The limitation in clause 15 is restricted to situations where a person refuses to
comply with a direction under clause 14 and had been informed that a failure to
comply with such a direction may result in the person being apprehended and
detained. The nature and extent of the limitation is also minimised by the context in
which any detention occurs, namely the protection of another person from family
violence. This is further enhanced by the fact that the period for which a person may
be apprehended and detained is limited to six hours (with a possible extension to 10
hours by a court order).
212
Under clause 38, when a police officer believes on reasonable grounds that a person
has contravened a family violence safety notice, they can arrest and detain that
person without a warrant. Arrest for a contravention of a family violence safety notice
can only be made if police believe on reasonable grounds that a person has
committed an offence under clause 37 of the Bill.
The relationship between the limitation and its purpose
The limitation that each of the clauses imposes is rational and proportionate, given
that the legitimate objective of the provisions is to protect a person from further family
violence incidents, a breach of a family violence safety notice, or a breach of a family
violence intervention order. Furthermore, rights to bail remain available to a
respondent. Thus, the limitation strikes a fair balance between the rights of a
respondent and the rights of a protected person.
Any less restrictive means reasonably available
None apparent.
On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Clauses 50, 124, 38 and 18 also engage the right to liberty in section 21 of the
Charter which provides that a person must not be subjected to arbitrary arrest or
detention, and must not be deprived of his or her liberty except on grounds and in
accordance with procedures established by law. However, none of these clauses
limit the right to liberty because the arrest or detention is not arbitrary and the
deprivation of liberty is on grounds and in accordance with procedures established by
law. In light of these reasonable and carefully supervised limits, the detention, and
any court authorised extension, is not arbitrary.
Direction to attend a particular location
Clause 14 engages and limits section 12 of the Charter, the right to freedom of
movement. This is because a police officer may direct a person to remain or go to
and remain at a specified location (while the officer seeks a family violence safety
notice, warrant or interim intervention order), where it is reasonable in the
circumstances.

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

∞ Clause 32 engages the right to privacy because it provides for personal

information to be included in family violence safety notices.
∞ Clauses 140, 141, 142 and 143 of the Bill all deal with the confidentiality of
personal information disclosed in the process of determining whether
counselling orders are appropriate and any subsequent counselling sessions.
The provisions engage the right to privacy because they provide for
disclosure of personal information in certain limited circumstances.
∞ Clause 207 of the Bill obliges certain public sector organisations to disclose
information they hold about a respondent to a police officer if that police
officer applies for such information in order to serve documents.
While these provisions interfere with a person’s right to privacy, they do so in a
manner that is neither unlawful nor arbitrary. This is because there are proper
processes through which the information is divulged and the purpose of the
interference is in accordance with the provisions, aims and objectives of the Charter
(particularly section 17, which provides for the protection of children and families).
214 Further, in relation to Part 4, the information is provided to the court only and the Bill
restricts publication of proceedings in relation to family violence, thus ensuring that a
person’s personal details are only divulged to a limited class of recipients. Also, the
privacy of any third party is protected, as the Bill provides that where a respondent
gives an address for service that is not their place of residence or work, any other
person may refuse to consent to the use of the address as the address for service of
documents under the Bill, invalidating the address for service of documents in the
process (see clauses 85(4) and 33).
Privacy of the home
Clause 159 of the Bill engages the right to privacy of the home because it provides in
certain circumstances for a search for firearms, firearms authority, ammunition and
weapons without warrant, of a person’s home or former home. Clause 157 engages
the right because it allows a premises to be searched for a person without warrant, in
certain circumstances. Clause 160 engages the right because it allows for a search
of third parties’ premises for firearms or weapons under warrant.
Additionally, the exclusion of a respondent from a protected person’s residence, may
have the effect of interfering with a respondent’s right to privacy of the home. Such
exclusion is provided for clause 81(2)(b), clause 82, clause 83 (in relation to child
respondents) and clause 29 of the Bill.
However, in each instance, the right to privacy of the home is not limited as the
interference is lawful and not arbitrary. The interference is not arbitrary because it is
in accordance with the provisions, aims and objectives of the Charter (particularly
section 17, which provides for the protection of children and families) and is
reasonable in the circumstances (where the intent is to protect a person from further
family violence incidents). Further, in relation to the provisions which provide for
exclusion of a respondent from a protected person’s residence, any exclusion only
occurs if either police officers (in the case of a family violence safety notice) or a
court (in respect of a family violence intervention order) consider it is necessary in the
circumstances. Further, in respect of child respondents, clause 83 imposes an
obligation on a court to be satisfied as to a number of matters (for example, the
availability of alternative accommodation) before making an order excluding a child
respondent from a residence. Therefore, the interference with the right is neither
unlawful nor arbitrary and the right is not limited.

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

The importance of the purpose of the limitation

The purpose of the limitation is to protect the best interests of a child, as provided for
under section 17(2) of the Charter.
The nature and extent of the limitation
The restriction on the giving of evidence only applies to persons under the age of 18.
The extent of the limitation is circumscribed because a court is required to consider,
when determining whether to allow a child to give evidence, the desirability of
protecting children from unnecessary exposure to the court system and the harm that
could occur to a child and to family relationships if a child gave evidence.
The relationship between the limitation and its purpose
There is a direct relationship between the limitation and the purpose of protecting the
best interests of the child.
Any less restrictive means available

216 None apparent.

On balance, the limitation is reasonable and demonstrably justified in a free and
democratic society.
Compulsion to provide information to court
Clauses 129 and 134 engage, and limit, the right to freedom of expression because
they provide for a specified person to be required to express information in an report
for the court regarding an assessment of eligibility for counselling and may require
that person to give evidence at a hearing to which the report relates.
The importance of the purpose of the limitation
The limitations in clauses 129 and 134 are important as they operate to ensure that
a court is provided with relevant evidence about the eligibility of a respondent for
counselling which is necessary for the court to determine whether it should order a
person to attend counselling under clause 130.
The nature and extent of the limitation
In the case of clause 129, the limitation is restricted to requiring a report to be
provided to the court, whilst clause 134 requires a person to give evidence in person
to the court.
The relationship between the limitation and its purpose
Given the importance of the purpose, the limitation is both rational and proportionate.

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

Section 24 – Fair hearing

Section 24 guarantees the right to a fair and public hearing. The right to a fair hearing
applies in both civil and criminal proceedings and in courts and tribunals. The
requirement for a fair hearing applies to all stages in proceedings and applies in
relation to proceedings in any Victorian court or tribunal.
The purpose of the right to a fair hearing is to ensure the proper administration of
justice. This right is concerned with procedural fairness (that is, the right of a party to
be heard and to respond to any allegations made against them, and the requirement
that the court or tribunal be unbiased, independent and impartial) rather than the
substantive fairness of a decision or judgment of a court or tribunal (that is, the merits
of the decision).
Rules of Evidence
This right is engaged, but not limited, by clause 65 which provides that the court is
not bound by rules of evidence in proceedings for a family violence intervention
order. Clause 65 does not apply to proceedings for contraventions of family violence
218 intervention orders, which are criminal in nature.
The rule in clause 65 operates in a context in which there are often no witnesses to
family violence and the content of statements made by a victim to family, friends or
doctors may be the only available evidence. A court, even if not strictly bound by the
rules of evidence, must act judicially and impartially. Clause 65 specifies that in
determining what evidence to admit, a court must be satisfied that it is just and
equitable to admit such evidence, and that the probative value of the evidence is not
substantially outweighed by the danger that the evidence might be unfairly prejudicial
to a party, or misleading or confusing. Thus, while the right is engaged, it is not
limited, because a person will still have the proceeding decided by a competent,
independent and impartial court after a fair and public hearing.
A further safeguard is provided for in clause 66 which states that where evidence is
admitted in an affidavit or sworn statement, a party to proceedings may, with leave of
the court, cross-examine a person who gives evidence by way of affidavit or written
statement. This power is in addition to a party’s general right to cross-examine
witnesses.
Accessibility of the Court and Court processes
Clause 69 (and clause 269 in relation to the Victorian Civil and Administrative
Tribunal) provide for alternative arrangements for giving evidence and conducting
proceedings. These provisions engage, but do not limit the right to a fair hearing
because a person will still have the proceeding decided by a competent, independent
and impartial court after a fair and public hearing. Where such alternative
arrangements are taken in relation to children, they are in their best interests and
therefore work to promote section 17 of the Charter, which recognises the special
right of children to protection.

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

Importance of the purpose of the limitation

The purpose of the limitation is to ensure the safety of an affected family member
from family violence (or to preserve property or protect a child in those
circumstances) as swiftly as possible. This is an important purpose in the context of
family violence, and the limitation promotes the right to life (section 9 of the Charter)
which arguably imposes a positive obligation on public authorities, including Victoria
Police, to protect the lives of Victorians in certain circumstances.
Nature and extent of the limitation
The nature and extent of the limitation is confined because the duration of an interim
order is limited. The order ceases to have effect as soon as the application is finally
determined, which is likely to occur within a short period of time.
Further, there are safeguards in place. These include that an applicant must arrange
for an application to be served on a respondent as soon as practicable after an order
is made (clause 48); a court cannot make an interim order unless it is supported by
oral or affidavit evidence (clause 55) (although it can if the application is made by
220 telephone, fax or other electronic communication); and if a respondent is not present,
a court must give them a written explanation of the relevant matters set out in the
order (clause 57(2)). In addition, the Bill provides scope for an application to be
made for the variation or revocation of an interim family violence intervention order
(clause 100). Unless the interim order is preceded by a family violence safety notice
(the terms of which may apply until the interim order is served), a respondent will not
be criminally liable for a breach of an interim order until it is served.
Relationship between the limitation and its purpose
Given the importance of the context in which such orders are made, and the
safeguards referred to above, the limitation is rational and proportionate to its
purpose.

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

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              
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 
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APPENDIX G
Exemption Certificate under
Subordinate Legislation Act 1994

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           
          
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              
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            


CHARTER GUIDELINES
APPENDIX F / APPENDIX G
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 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

this respect, the law shall prohibit any

Section 8(3): Every person discrimination and guarantee to all
is equal before the law and is persons equal and effective protection
Sources of human rights from

entitled to the equal protection of against discrimination on any ground

the law without discrimination and such as race, colour, sex, language,
has the right to equal and effective religion, political or other opinion,
protection against discrimination. national or social origin, property,
birth or other status.
Section 8(4): Measures taken
for the purpose of assisting or
advancing persons or groups of
persons disadvantaged because
of discrimination do not constitute
discrimination.

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.

(b) treated or punished in a cruel,

inhuman or degrading way, or

(c) subjected to medical or

scientific experimentation or
treatment without his or her
full, free and informed consent.

11. Freedom from forced work
Section 11(1): A person must not
be held in slavery or servitude.
Section 11(2): A person must
not be made to perform forced or
compulsory labour.
Section 11(3) In summary, this
qualifies 11(2) by providing that
forced or compulsory labour
does not include work or service
required to be performed:
• pursuant to a court order,
including work required while
in lawful detention,
• during emergency situations, or
• as part of normal civil
obligations.
Article 8: Section 26. Section 13. Schedule 1, art. 4. No equivalent No equivalent
section. section.
1. No one shall be held in slavery;
slavery and the slave-trade in all
their forms shall be prohibited.
2. No one shall be held in servitude.
3 (a) No one shall be required to
perform forced or compulsory
labour;
(b) Paragraph 3 (a) shall not be held
to preclude, in countries where
imprisonment with hard labour
may be imposed as a punishment
for a crime, the performance of
hard labour in pursuance of a
sentence to such punishment by
a competent court;

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APPENDIX H

11. Freedom from forced work (c) For the purpose of this paragraph
(continued) the term ‘forced or compulsory
labour’ shall not include:

(i) Any work or service, not referred

to in subparagraph (b), normally
required of a person who is
under detention in consequence
of a lawful order of a court, or
comparable jurisdictions

of a person during conditional

release from such detention;

(ii) Any service of a military

Sources of human rights from

character and, in countries

where conscientious objection
is recognized, any national
service required by law of
conscientious objectors;

(iii) Any service exacted in cases

of emergency or calamity
threatening the life or well-being
of the community;

(iv) Any work or service which forms

part of normal civil obligations.
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

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.

2. Everyone shall be free to leave any

country, including his own.

3. The above-mentioned rights shall

not be subject to any restrictions
except those which are provided
by law, are necessary to protect
national security, public order (ordre
public), public health or morals or the
rights and freedoms of others, and
are consistent with the other rights
recognized in the present Covenant.

4. No one shall be arbitrarily deprived

of the right to enter his own country.

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.

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APPENDIX H

14. Freedom of thought,
conscience, religion and
belief
Section 14(1): Every person has
the right to freedom of thought,
conscience, religion and belief,
including –
(a) the freedom to have or to
Article 18: Section 14. Section 15. Schedule 1, art. 9. Section 2(a) Section 13.
and (b).
1. Everyone shall have the right to Section 15.
freedom of thought, conscience
and religion. This right shall include
freedom to have or to adopt a
religion or belief of his choice, and
freedom, either individually or in
community with others and in public
comparable jurisdictions

or private, to manifest his religion

adopt a religion of his or her
or belief in worship, observance,
choice; and
practice and teaching.
Sources of human rights from

(b) the freedom to demonstrate

his or her religion or belief
in worship, observance,
practice and teaching, either
individually or as part of a
community, in public or in
private.
Section 14(2): A person must not
be coerced or restrained in a way
that limits his or her freedom to
have or adopt a religion or belief in
worship, observance, practice or
teaching
2. No one shall be subject to coercion
which would impair his freedom to
have or to adopt a religion or belief
of his choice.
3. Freedom to manifest one’s religion
or beliefs may be subject only to
such limitations as are prescribed
by law and are necessary to protect
public safety, order, health, or morals
or the fundamental rights and
freedoms of others.
4. The States Parties to the present
Covenant undertake to have respect
for the liberty of parents and, when
applicable, legal guardians to ensure
the religious and moral education of
their children in conformity with their
own convictions.
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

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
the right to hold an opinion without
interference.
Section 15(2): In summary, this
provides that people have the right
to freedom of expression which
includes the right to seek, receive
and impart information and ideas
via any medium.
Section 15(3): In summary, this
provides an express exception
to this provision. It states that
freedom of expression may be
subject to lawful restrictions
reasonably necessary to respect
the rights and reputation of other
persons and for the protection
of national security, public order,
public health or public morality.
1. Everyone shall have the right to hold
opinions without interference.
2. Everyone shall have the right to
freedom of expression; this right shall
include freedom to seek, receive and
impart information and ideas of all
kinds, regardless of frontiers, either
orally, in writing or in print, in the form
of art, or through any other media of
his choice.
3. The exercise of the rights provided
for in paragraph 2 of this article
carries with it special duties and
responsibilities. It may therefore
be subject to certain restrictions,
but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or
reputations of others;

(b) For the protection of national

security or of public order (ordre
public), or of public health or
morals.

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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

order (ordre public), the protection of

public health or morals or the protection
of the rights and freedoms of others.
Sources of human rights from

Article 22:

1. Everyone shall have the right to

freedom of association with others,
including the right to form and join
trade unions for the protection of
his interests.
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

16. Peaceful assembly and 2. No restrictions may be placed on

freedom of association the exercise of this right other than
(continued) those which are prescribed by
law and which are necessary in a
democratic society in the interests
of national security or public safety,
public order (ordre public), the
protection of public health or morals
or the protection of the rights and
freedoms of others. This Article
shall not prevent the imposition of
lawful restrictions on members of
the armed forces and of the police
in their exercise of this right.

3. Nothing in this Article shall authorise

States Parties to the International
Labour Organisation Convention
of 1948 concerning Freedom of
Association and Protection of the
Right to Organise to take legislative
measures which would prejudice, or
to apply the law in such a manner
as to prejudice, the guarantees
provided for in that Convention.

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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

discrimination as to race, colour, sex,

to such protection as is in his or language, religion, national or social
her best interests and is needed origin, property or birth, the right to
by him or her by reason of being such measures of protection as are
Sources of human rights from

a child. required by his status as a minor,

on the part of his family, society
and the State.

18. Taking part in public life
Section 18(1): In summary, this
provides that every person has the
right to take part in public affairs.
Section 18(2): In summary, this
provides that every eligible person
has the right to vote and be
elected and to have access to the
Victorian public service and public
office.
Article 25: Section 17. Section 19. No equivalent Section 3. Section 12.
provision.
Every citizen shall have the right and
the opportunity, without any of the
distinctions mentioned in Article 2 and
without unreasonable restrictions:
(a) To take part in the conduct of public
affairs, directly or through freely
chosen representatives;
(b) To vote and to be elected at genuine
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.

Section 19(2): In summary this

provides specific cultural rights for
Aboriginal persons. They have the
right, with other members of their
community, to enjoy their identity
and culture, to maintain and use
their language, to maintain their
kinship ties and to maintain their
distinctive spiritual and material
relationship with the land, waters
and other resources to which they
have a connection under traditional
laws and customs.

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.

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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

Section 21(3): A person must

2. Anyone who is arrested shall be
not be deprived of his or her
informed, at the time of arrest, of the
liberty, except on grounds, and
reasons for his arrest and shall be
Sources of human rights from

in accordance with procedures,

established by law.
Section 21(4): A person who is
3. Anyone arrested or detained on
arrested or detained must be
informed at the time of arrest or
detention of the reason for the
arrest or detention and must be
promptly informed about any
proceedings to be brought against
him or her.
Section 21(8) provides that a
person must not be imprisoned
only because of his or her
inability to perform a contractual
obligation.
promptly informed of any charges
against him.
a criminal charge shall be brought
promptly before a judge or other
officer authorized by law to exercise
judicial power and shall be entitled
to trial within a reasonable time or
to release. It shall not be the general
rule that persons awaiting trial shall
be detained in custody, but release
may be subject to guarantees to
appear for trial, at any other stage of
the judicial proceedings, and, should
occasion arise, for execution of the
judgement.
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

21. Right to liberty and security
of person (continued)
Section 21(5): A person who is
arrested or detained on a criminal
charge (a) must be promptly
brought before a court, (b) has
the right to be tried without
unreasonable delay and (c) must
be released if paragraph (a) or (b)
is not complied with.
4. Anyone who is deprived of his liberty
by arrest or detention shall be entitled
to take proceedings before a court,
in order that that court may decide
without delay on the lawfulness of his
detention and order his release if the
detention is not lawful.
5. Anyone who has been the victim of
unlawful arrest or detention shall have
an enforceable right to compensation

Section 21(6) provides that a Article 11:

person awaiting trial must not be
No one shall be imprisoned merely on the
automatically detained in custody,
ground of inability to fulfil a contractual
but his or her release may be
obligation.
subject to guarantees to appear –

(a) for trial; and

(b) at any other stage of the

judicial proceeding; and

(c) if appropriate, for execution

of judgment.

Section 21(7) provides that any

person who is deprived of liberty
by arrest or detention is entitled to
apply to a court for a declaration
or order regarding the lawfulness
of the detention. In relation to
that application, 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.

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APPENDIX H

22. Humane treatment when
deprived of liberty
Section 22(1): All persons deprived
of liberty must be treated with
humanity and with respect for
the inherent dignity of the human
person.
Section 22(2): An accused person
Article 10(1) and 10(2)(a): Section 19. Section 35(2)(e). No equivalent No equivalent Section 23(5).
provision. provision.
1. All persons deprived of their liberty
shall be treated with humanity
and with respect for the inherent
dignity of the human person.
2.(a) Accused persons shall, save
in exceptional circumstances,
be segregated from convicted
comparable jurisdictions

who is detained, or a person persons and shall be subject to

detained without charge, must be separate treatment appropriate
segregated from persons who have to their status as unconvicted
Sources of human rights from

been convicted of offences, except persons.

where reasonably necessary.
Section 22(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.

23. Children in the criminal
process
Section 23(1): An accused child
who is detained or a child detained
without charge must be segregated
from all detained adults.
Section 23(2): An accused child
must be brought to trial as quickly
as possible.
Section 23(3): A child who has
been convicted of an offence
must be treated in a way that is
appropriate for his or her age.
Article 10(2)(b) and 10(3): Section 20. Section 28(1)(g). No equivalent No equivalent No equivalent
provision. provision. provision.
2.(b) Accused juvenile persons shall
be separated from adults and
brought as speedily as possible
for adjudication.
3. The penitentiary system shall
comprise treatment of prisoners
the essential aim of which shall
be their reformation and social
rehabilitation. Juvenile offenders
shall be segregated from adults
and be accorded treatment
appropriate to their age and
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
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.
Section 24(2): In summary this
provides an express exception to
(1) in that a court or tribunal may
exclude the media and the public
from all or part of a hearing if
permitted to do so by a law other
than the Charter.
Section 24(3): In summary this
provides that 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 the Charter otherwise
permits.
Article 14(1): Section 21. Sections 34 and Schedule 1, art. Section 11(d). Section 25(a).
35(3)(c). 6(1).
1. All persons shall be equal before
the courts and tribunals. In the
determination of any criminal
charge against him, or of his rights
and obligations in a suit at law,
everyone shall be entitled to a fair
and public hearing by a competent,
independent and impartial tribunal
established by law. The Press and
the public may be excluded from
all or part of a trial for reasons of
morals, public order (ordre public)
or national security in a democratic
society, or when the interest of
the private lives of the parties so
requires, or to the extent strictly
necessary in the opinion of the
court in special circumstances
where publicity would prejudice
the interests of justice; but any
judgement rendered in a criminal
case or in a suit at law shall be made
public except where the interest
of juvenile persons otherwise
requires or the proceedings
concern matrimonial disputes
or the guardianship of children.

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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

of charge be entitled to the following minimum

guarantees, in full equality:
Section 25(2): A person charged
with a criminal offence is entitled (a) To be informed promptly and
without discrimination … in detail in a language which he
understands of the nature and
(a) to be informed promptly and in
cause of the charge against him.
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.
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

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.

(c) to be tried without

unreasonable delay.

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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

(d) to be tried in person, and to

be informed, if he does not have legal
defend himself or herself
assistance, of this right; and to have
personally or through legal
legal assistance assigned to him, in any
Sources of human rights from

assistance chosen by him or

case where the interests of justice so
her or, if eligible, through legal
require, and without payment by him
assistance provided by Victoria
in any such case if he does not have
Legal Aid under the Legal Aid
sufficient means to pay for it.
Act 1978.

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.

To be informed about legal aid

Section 25(2): A person charged

with a criminal offence is entitled
without discrimination …

(e) to be told, if he or she does not

have legal assistance, about
the right, if eligible, to legal
assistance under the Legal
Aid Act 1978.
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

25. Rights in criminal
proceedings
To legal aid (if eligible)
Section 25(2): A person charged
with a criminal offence is entitled
without discrimination …
(f) to have legal aid provided if
the interests of justice require
it, without any costs payable
by the accused person if he
or she meets the eligibility
criteria set out in the Legal
Aid Act 1978.
Article 14(3)(d): Section 22(2)(f) Section 35(3)(g). Schedule 1, art. No equivalent Section 24(f).
6(3)(c). provision.
In the determination of any criminal
charge against him, everyone shall
be entitled to the following minimum
guarantees, in full equality: …
To be tried in his presence, and to
defend himself in person or through
legal assistance of his own choosing; to
be informed, if he does not have legal
assistance, of this right; and to have
legal assistance assigned to him, in any
case where the interests of justice so
require, and without payment by him
in any such case if he does not have
sufficient means to pay for it.

25. Rights in criminal
proceedings
To examine witnesses
Section 25(2): A person charged
with a criminal offence is entitled
without discrimination …
(g) to examine, or have examined,
witnesses against him or her,
unless otherwise provided for
by law; and
Article 14(3)(e): Section 22(2)(g). Section 35(3)(i). Schedule 1, art. No equivalent Section 25(f).
6(3)(d). provision.
In the determination of any criminal
charge against him, everyone shall
be entitled to the following minimum
guarantees, in full equality: …
To examine, or have examined, the
witnesses against him and to obtain
the attendance and examination of
witnesses on his behalf under the same
conditions as witnesses against him.

(h) to obtain the attendance and

examination of witnesses on
his or her behalf under the
same conditions as witnesses
for the prosecution.

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
proceedings
To an interpreter
Section 25(2): A person charged
with a criminal offence is entitled
without discrimination …
(i) to have the free assistance
Article 14(3)(f): Section 22(2)(h). Section 35(3)(k). Schedule 1, art. Section 14. Section 24(g).
6(3)(e).
In the determination of any criminal
charge against him, everyone shall
be entitled to the following minimum
guarantees, in full equality: …
To have the free assistance of an
interpreter if he cannot understand or
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

Section 25(2): A person charged

with a criminal offence is entitled
without discrimination …

(j) to have the free assistance

of assistants and specialised
communication tools and
technology if he or she has
communication or speech
difficulties which require
such assistance.
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

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,
commentaries, journals and websites which
legislative policy officers may find useful on
international human rights law. This list is
necessarily selective and is not designed
to be comprehensive.
TEXTS AND COMMENTARIES
ICCPR
• S. Joseph et al, The International Covenant on
Civil and Political Rights: ICCPR Commentary:
Cases, Materials and Commentary, (OUP, 2nd
ed, 2000).
• M. Nowak, UN Covenant on Civil and Political
Rights: CCPR Commentary, (Kehl, Germany;
Arlington USA; N.P Engel 2nd Rev. ed, 2005).
• S. Marks and A. Clapham, International Human
Rights Lexicon (OUP, 2005).
• A. Eide et al (eds), The Universal Declaration
of Human Rights: A Commentary (Scandinavia
University Press; OUP, 1992).
UK
• Lester and Pannick, Human Rights Law and
Practice, (Lexis Nexis, Butterworths, 2004).
• Human Rights Direct (on-line service,
Butterworths).
• R. Clayton and H. Tomlinson, Law of Human
Rights,(OUP, 2000) and supplements.
• S. Grosz, J. Beatson, R. Singh, S. Palmer,
T. Hickman, Grosz, Beatson and Duffy on
Human Rights,(Sweet & Maxwell, 2nd Rev
Ed, 2006).
• D. Feldman, Civil Liberties and Human Rights
in England and Wales, (OUP, 2nd ed, 2002).
• C. Gearty, Principles of Human Rights
Adjudication, (OUP, 2004).
• S. Trechsel, Human Rights in Criminal
Proceedings, (OUP, 2005).
• M. Amos, Human rights law, (Hart Publishing,
2006).
• K. Reid, A Practitioners Guide to the European
Convention on Human Rights, (Sweet &
Maxwell, 2004).
• K. Starmer, European Human Rights Law:
The Human Rights Act 1998 and the European
Convention on Human Rights (Legal Action
Group, 1999).
• P.M. Taylor, Freedom of Religion, UN and
European Human Rights Law and Practice
(CUP, 2006).
• N. Jayawickrama, The Judicial Application
of Human Rights Law, (CUP, 2003).
Canada
• P. Hogg, Constitutional Law of Canada,
(Carswell, Toronto, 4th ed, 1997).
245
New Zealand
• A. Butler and P. Butler, The New Zealand Bill of
Rights Act: A Commentary, (Lexis Nexis, 2005).
• P. Rishworth, G. Huscroft, S. Optican,
R. Mahoney, The New Zealand Bill of Rights,
CHARTER GUIDELINES
APPENDIX I
(OUP, 2003).
Australia
• C. Evans and S. Evans, Australian Bills of Rights:
The Law of the Victorian Charter and the ACT
Human Rights Act (LexisNexis, 2008).
• A. Pound and K. Evans, An Annotated Guide
to the Victorian Charter of Human Rights and
Responsibilities (Thomson, 2008).
South Africa
• M. H. Cheadle, D. M. Davis and N. R. L. Haysom
(eds), South African Constitutional Law: the
Bill of Rights, Lexis Nexis Butterworths, Durban,
2005.
• I. Currie and J de Waal, The Bill of Rights
Handbook, Juta & Co, Lansdowne, 2005.
• J. Kruger and B. Currin, Interpreting a Bill of
Rights, Juta Law, Kenwyn, South Africa, 1994.
• S. Woolman and T. Roux (eds), Constitutional
Law of South Africa, Looseleaf Service, 2nd ed,
Juta Law, 2002.
 APPENDIX I
reference LIST

JOURNALS Some websites of relevant organisations are:

The principal journals dedicated to international
human rights law include:
• European Human Rights Law Review (EHRLR)
• Harvard Human Rights Law Journal (HarvHRJ
– formerly Harvard Human Rights Yearbook)
• Human Rights Law Review (HRLR)
• Human Rights Quarterly (HRQ)
• International Journal of Human Rights (IJHR)
• Interights Bulletin (Interights Bull)
• Netherlands Quarterly of Human Rights
(NQHR)
• Review of the International Commission
of Jurists (Rev ICJ)
246
In addition, most international law journals
contain articles on international human rights
law. For example:
• American Journal of International Law (AJIL)
• European Journal of International Law (EJIL)
• International & Comparative Law Quarterly
(ICLQ)
Also, subject matter journals often contain
articles on human rights law. For example:
• Medical Law Review
• International Criminal Law Review
WEBSITES
United Nations
www.un.org
UN High Commissioner for Human Rights
www.unhchr.ch
Council of Europe
www.coe.int
European Court of Human Rights
www.echr.coe.int/echr
NZ Human Rights Commission
www.hrc.co.nz/home/default.php
Canadian Charter of Rights Decisions Digest
www.canlii.org/ca/com/chart/index.html
Some government websites that may be useful
to look at are:
New Zealand Ministry of Justice
www.justice.govt.nz/bill-of-rights/
UK Ministry of Justice
www.justice.gov.uk/guidance/humanrights.htm
ACT Human Rights Office
www.hro.act.gov.au
ACT Department of Justice Human Rights
Act Website
www.jcs.act.gov.au/humanrightsact/indexbor.
html
Victorian Equal Opportunity and Human Rights
Commission
www.humanrightscommission.vic.gov.au

Some of the more useful websites on

international human rights law are:
The International Centre for the Legal Protection
of Human Rights
www.interights.org
The Centre for International HR Law Inc
www.rightsinternational.org
American Society of International Law
www.asil.org/resource/humrts1.htm
University of Minnesota
Human Rights Library
www1.umn.edu/humanrts