Guide to Human Rights Act 2004 for Victims and Witnesses in the Justice System, Study Guides, Projects, Research of Human Rights

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• VICTIM AND WITNESS RIGHTS under the ACT Human Rights Act 2004A practical guide for the justice sector on the Human Rights Act (ACT)

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

IntroductionComplying with the ACT

Human Rights Act 2004

: Victims of Crime

This guide has been prepared by the ACT Human Rights and Discrimination Commissioner and the Victims ofCrime Commissioner to assist workers in the justice sector in the ACT to understand the rights and obligationscontained in the

sŝĐƟŵƐŽĨƌŝŵĞĐƚϭϵϵϰ

(ACT) and the

,ƵŵĂŶZŝŐŚƚƐĐƚϮϬϬϰ

(ACT) (HR Act) that apply to

victims of crime. Workers will be able to use information and checklists in the guide to review their policies andpractices to ensure human rights are considered when dealing with victims of crime and witnesses in justicesettings. Who is a victim? A victim is a person who suffers harm because of an offence. This includes a broad range of people who sufferharm including: ͻ^ harm suffered during or as a result of the commission of an offence; ͻ^ harm as a result of witnessing an offence; ͻ^ a family member of a primary, or a person financially or psychologically dependant on the primary victimwho suffers harm because of the harm to the primary victim; ͻ^ people who fall within the

sŝĐƟŵƐŽĨƌŝŵĞ;&ŝŶĂŶĐŝĂůƐƐŝƐƚĂŶĐĞͿĐƚϭϵϴϯ͘

If the person is a child or legally incompetent person, a guardian of that person

1. A person can be a victim even if

the offender has not been convicted of an offence. Governing Principles for Victims of Crime The^ sŝĐƟŵƐŽĨƌŝŵĞĐƚϭϵϵϰ

clearly specifies principles for the treatment of victims of crime by all agencies

involved in the administration of justice. All public authorities have an obligation under the Human Rights Act totreat all people who are the victim of a crime with respect and dignity.In addition to the Human Rights provided to a person under the

,ƵŵĂŶZŝŐŚƚƐĐƚ

, a person who is a victim of

crime has a right to be treated in way compatible with the governing principles.In the explanatory statement for the 2010 amendment of the Act, the Attorney General reaffirmed that it^ “is important the ACT strive for best practice in the support of victims of crime in our community,particularly given the ACT was Australia’s first jurisdiction to adopt a statutory human rightsframework.”

2

Human Rights for Victims of Crime People who have been victims of crime have limited influence on the course of investigation, prosecution andsentencing of crimes committed against them. They do not usually have lawyers to protect their interests andguide the prosecution process – their primary role in the criminal justice system is as witnesses. There is nowrecognition that vulnerable victims can be re-victimised through the trial and court processes. In particular, thevulnerability of victims of sexual assault and child victims has led to law reform in this area including: 1 Victims of Crime Act 1994 (ACT)

s6(1).

2 Victims of Crime Amendment Bill 2010; Explanitory Statement. 2010 Simon Corbell, Attorney General.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

Part 1: Victims of Crime ACT 1994 –Section 4: Governing Principles Why do I need to know about the Governing Principles? Any person who exercises a function in the administration of justice

must

have regard to these principles when

dealing with someone who is a victim of crime.

5

The Victims of Crime Commissioner monitors and promotes compliance with the governing principles. TheCommissioner also deals with complaints relating to non-compliance with these principles.

6 Agencies must

provide any documentation or information required by the Commissioner to resolve a complaint.

7 Formal

complaints are referred to a relevant complaints entity by the Commissioner.

8

What are the Governing Principles? Section 4 stipulates that in the administration of justice, the following principles are to, as far as practicable andappropriate, govern the treatment of victims. In addition to the principles below, people who are the victim of acrime are also entitled to have their human rights considered and protected. All Stages of the Criminal Justice Process a) A victim should be dealt with at all times in a sympathetic, constructive and reassuring manner and with dueregard to his or her personal situation, rights and dignity; Investigation Stage b) A victim should be informed at reasonable intervals (generally not exceeding one month) of the progressof police investigations concerning the relevant offence, except where such disclosure might jeopardise theinvestigation, and, in that case, the victim should be informed accordingly;c) A victim should be informed of all the charges laid against the accused and of any modification of the charges; Court Stage d) A victim should be informed of any decision concerning the accused to accept a plea of guilty to a lessercharge or a guilty plea in return for a recommendation of leniency in sentencing;e) A victim should be informed of any decision not to proceed with a charge against the accused;f ) Where any property of the victim is held by the Crown for the purposes of investigation or evidence -inconvenience to the victim should be minimised and the property returned promptly;g) A victim should be informed about the trial process and of the rights and responsibilities of witnesses;h) A victim should be protected from unnecessary contact with the accused and defence witnesses during thecourse of the trial; 5 Victims of Crime Act 1994

(ACT) s5(1).

6 Victims of Crime Act 1994

(ACT) s11(c) – (d).

7 Victims of Crime Act 1994

(ACT) s12(2).

8 Victims of Crime Act 1994

(ACT) s12(4).

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

i) A victim’s residential address should be withheld unless court directs otherwise;j) A victim should be relieved from appearing at preliminary hearings or committal proceedings unless the courtdirects otherwise; Post Court k) A victim should be given an explanation of the outcome of criminal proceedings and of any sentence and itsimplications;l) A victim who is known to have expressed a concern about the need for protection from an offender should beinformed of the offender’s impending release from custody. 8

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

What are Human Rights? Human rights are inherent to all of us as human beings, regardless of who we are, where we live orany other characteristic. They are intended to provide an interrelated safety net of protections thatensure we are able to reach our potential and be treated fairly by our Government. The human rightsprotected in the 10

ACT Human Rights Act

are drawn from internationally agreed documents about what

rights must be protected by Governments. Human Rights in the ACT The human rights protected in the ACT HR Act are:^ –^

Recognition and equality before the law (s.8) – Right to Life (s.9) – Right to Protection from Torture and cruel, inhuman or degrading treatment (s.10) – Right to Protection of the Family and children (s.11) – Right to Privacy and Reputation (s.12) – Right to Freedom of Movement (s.13) – Right to Freedom of Thought, Conscience, Religion and Belief (s.14) – Right to Freedom of Association (s.15) – Right to Freedom of Expression (s.16) – Right to Take Part in Public Life (s.17) – Right to Liberty and Security of Person (S. 18) – Right to Humane Treatment when Deprived of Liberty (s.19) – Rights of Children in the Criminal Process (s.20) – Right to Fair Trial (s.21) – Rights in Criminal Proceedings (s.22) – Right to Compensation for Wrongful Conviction (s.23) – Right not to be Tried or Punished more than once (s.24) – Right against Retrospective Criminal Laws (s.25) – Freedom from Forced Work (s.26) – Rights of Minorities (s.27)

Are human rights absolute? The majority of protected human rights are able to be subject to

reasonable and proportionate limitation

Exceptions in international treaties are generally the right to freedom from torture, slavery and servitude, and theright to recognition before the law.The human rights of victims of crime may, at times, conflict with those of defendants or other people in a legalcontext. When this occurs, a human rights analysis should be undertaken to consider whether reasonable limitscan be placed on the human rights of either party. This analysis must be adequately documented in order todemonstrate that it has occurred.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

Deciding whether a limit is reasonable and proportionate requires a consideration of:1. the nature of the

right affected

2. the importance of the

purpose

of the limitation

3. the nature and extent of the

limitation

4. the^

relationship

between the limitation and its purpose

5. any

less restrictive means

reasonably available to achieve the purpose the limitation seeks to achieve.

If the action or decision is not reasonable and proportionate, it may be unlawful, unless the Public Authority canrely on the defence of having no discretion in law to act in a different way. Defence Section 40B(2)(a) of the HR Act, provides a defence where a public authority could not have acted differently, ormade a different decision because it was required under another Territory or Federal law to act that (non-humanrights compliant) way. (s. 40B(2)(a) below) Interpretation of laws and human rights Section 30 of the

Human Rights Act 2004

says that:

so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a waythat is compatible with human rights So a Court or Tribunal should adopt a “human rights consistent” interpretation within the “purpose” of the statute.The ACT Supreme Court held,

In the Matter of an Application for Bail

by Isa Islam

9 , that the ordinary processes of

statutory interpretation, including that under section 30 of the HR Act, should be applied when interpretingTerritory legislation, with the aim of finding a provision that is both human rights-compatible and consistentwith purpose. 9 [2010] ACTSC 147 (19 November 2010)

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

Figure 2: Example of Assessing Compliance Example: this example considers whether courts not paying for interpreters for women who are victims ofdomestic violence in a hearing application for a civil domestic violence order is compatible with human rights.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

Further information on how the flowchart works Step 1 : 14

The decision

Who will be affected by the decision?/What is the objective of the decision? ͻ^ consider why this decision is being made and what the decision is intending to achieve; ͻ^ think broadly about all people who are likely to be affected by the decision; ͻ^ identify the legislative basis for the decision.^ Example:^ The people who would be affected by a decision to grant bail under the Bail Act 1992 (ACT) would be:^ –

the defendant – any victims – witnesses that may be involved – family, including children of both parties – the general community.

Step 2:

Identify Relevant Rights

What rights could be affected by the decision? Identify the rights. Consider all the rights contained in the HR Act and consider whether the decision could affect any of thoserights. It is possible that a number of rights will be relevant.Consider who could claim protection of those rights. It is possible that two people may claim the same right, orthat different rights might seem to conflict. Step 3:

Identify impacts

Does the decision limit, restrict or interfere with a person’s human rights? This step requires you to consider the impact of your decision. It is important to note both whether the decisionwill protect or restrict rights.Look at who might claim a right using your rights to step 2 above. It is possible that one person’s right will berestricted in order to protect another person’s rights, or the rights of the wider community.If the decision does affect one or more human rights, consider whether it protects, limits, interferes with orrestricts a human right.^ Example:

the decision whether to grant a defendant bail impacts on a number of rights of both the

defendant and a victim. Not granting bail impacts on the defendant’s right to liberty (s 18), but it mayalso impact on a victim or witness’s right to security of person (s 18). Refusing bail may impact on adefendant’s right to the protection of the family and children (s 11) if he/she is the primary carer ofchildren. If there is a risk of violence, a decision to grant bail may also affect a victim’s right to life (s 9).Step 4:^

Consider the limitations

Are the limitations or restrictions reasonable and demonstrably justified under s.28 of the Act? If the decision limits, restricts or interferes with human rights you must ask whether the limitation is reasonableand demonstrably justified under the HR Act.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

-^ providing for an interpreter to assist a person to make a statement to police when that person does notspeak English or for whom English is not their primary language. At Court Some relevant considerations for victims when considering the concept of recognition and equalitybefore the law during the court stage include: ͻ courts providing appropriate adjustments for victims/witnesses with disabilities such as the availability ofsupport persons, audiovisual link, frequent breaks in proceedings, and other adjustments; ͻ providing updates on preparation of cases and information about court processes in accessible formats forpeople with disabilities; ͻ giving consideration to limiting the amount of times people with disabilities and other vulnerable witnessesare required to give their evidence – the number of times proofing occurs should be kept to a strictminimum, especially if evidence has been pre-recorded. Asking a witness to recount their story multiple timesmay create inconsistencies in their evidence and can cause secondary victimisation.

10

Example:

A witness in a serious criminal matter is a man who has an intellectual disability. He is very anxious about giving evidence, and has significant difficulty concentrating for extended periods oftime. A human rights approach to assist him to give the best evidence he can give, would involveallowing him to have a support person sit with him whilst he is giving evidence, taking frequent breaksin proceedings and avoiding the use of long or confusing questions. It may also involve allowing him togive evidence via audiovisual link. ͻ providing adjustments to the way in which evidence is given in court, and recognition of the effects of delay.This includes allowing witnesses to give evidence via audiovisual link, as well as allowing an audiovisualrecording of a police interview to be admissible as evidence; ͻ allowing a right of access to alternative dispute resolution processes – e.g. if referral made to restorativejustice, victims have the ability to decide whether they would like to participate in the process and meet faceto face with the offender. This may include consideration of whether mediation is a suitable option, takinginto account any disabilities or vulnerabilities that may affect this; ͻ providing interpreter services for civil matters, including domestic violence and personal protection orderapplications and hearings, which are currently not usually provided by the ACT court and must be organisedby the applicant at their own cost; ͻ ensuring early allocation to the prosecutor who will deal with the matter at trial to provide continuityof support.^ Case example (right to equality) A 17 year old girl living in the Philippines who was mute and hearing-impaired alleged that she wasraped by a neighbour. She reported the incident to police with her sister interpreting for her using signlanguage. The affidavit drawn up was in Filipino. However, the education system for the deaf was inEnglish and the complainant could not understand the affidavit, and she was not given an interpreter.It took almost 5 years for the case to be heard and finalised. Reasons for the delay included: the court’sfailure to provide an interpreter, leaving it up to the complainant to arrange, placing the case afterthe other cases scheduled for the day were heard, leading to many adjournments. The accused wasacquitted due to insufficient evidence. The court stated that an ordinary Filipina female rape victim 10 Attorney-General’s Department South Australia,

Supporting vulnerable witnesses in the giving of evidence: Guidelines for securing best

evidence

, 11.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

would try to escape or resist and call out, and that the complainant’s demeanour was inconsistent withthis casting doubt on her credibility.The UN Committee on the Elimination of Racial Discrimination found that the court’s treatmentamounted to a violation of the State’s obligation to end discrimination in the legal process, andthat its attitude towards the complainant and towards women and rape in general revealed genderstereotyping. The Committee noted that the State’s obligations included an obligation to considerthe complainant’s disability and age. It found that providing a sign language interpreter was essentialto ensure the complainant’s full and equal participation in proceedings to ensure protection againstdiscrimination. Source:^ RPB v The Philippines

, Committee on the Elimination of Discrimination against Women, Communication No 34/

(21 February 2014) Post CourtSome relevant considerations for victims in the concept of recognition and equality before the lawpost-court would include: ͻ ensuring that the outcome of a matter is explained clearly in an understandable format to victims withdisabilities, or people who are culturally and linguistically diverse. Section 9: Right to Life The right to life is one of the most fundamental human rights, and has two main aspects. Public authorities must: ͻ not take away anyone’s life, except in a very few limited circumstances and only when absolutely necessary; ͻ take reasonable steps to protect life, including taking steps to protect someone whose life is at risk fromanother person, where the authorities know or should know of this risk. Investigation stageSome relevant considerations for victims when considering the concept of the right to life during theinvestigation stage would include: ͻ ACT Policing taking appropriate steps to protect a person when they know there is a real and immediate riskto the life of that individual, including through domestic violence. Police may have a duty to do all that can bereasonably expected of them to prevent a real and immediate risk to life, which they knew or ought to haveknown;

11 ͻ^ ACT Policing taking steps to protect witnesses, including a duty to warn persons who may be at risk of a life-threatening situation.

12

11 Osman v United Kingdom

(1998) 29 EHRR 245.

12 Van Colle v Chief Constable of Hertfordshire

[2008] UKHL 50.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

The police had guidelines on how to deal with this type of crime. However the guidelines were largelyignored and officers did not receive any training on them. As a result, there was a series of systematicfailures in this case which led to the failure to apprehend the attacker at an earlier date.The police service was found liable to the claimants for a breach of the

Human Rights Act

which imposed

a duty upon police to conduct investigations into particularly severe violent acts perpetuated by privateparties in a timely and efficient manner. Source: DSD and Anor v Commissioner of Police [2015] 1 WLR 1833. Court StageSome relevant considerations for victims when considering this right during the court stage wouldinclude: ͻ restricting the ability of counsel to cross-examine vulnerable witnesses in certain circumstances includingchildren and victims of sexual assault, for example; to only asking necessary questions ͻ assisting witnesses to give evidence to the court through the use of intermediaries. Section 11: Protection of the Family The term ‘family’ has a broad meaning that recognises the many different types of families who live in the ACT.Family life covers close and personal ties of a family kind. It does not just cover blood ties or formal relationshipsand goes beyond the so-called ‘nuclear family’. It includes a right to develop normal family relationships and theright to ongoing contact if a family separates.This right is a qualified right, which can be limited or restricted in certain circumstances to protect the rights ofothers or the interests of the wider community. For example, a child may be separated from their parents if thereis evidence of child abuse. Any interference with this right must be lawful, necessary and proportionate. Investigation StageSome relevant considerations for victims when considering the concept of protection of familyduring the investigation stage would include: ͻ ACT Policing must ensure they consider the victim when making a decision about whether police bail shouldbe granted to a defendant. They must consider the likelihood of the defendant harassing or endangeringthe safety or welfare of anyone,

15 and take into account any concerns the victim has about their need for

protection.

16 ͻ^ in situations where a victim has expressed concern about their need for protection from violence orharassment from a defendant, the police informant is required to inform the victim liaison officer about anybail decisions by police. The liaison officer is required to take all reasonable steps to tell the victim of baildecisions as soon as practicable. 15 Bail Act 1992

(ACT) s 22 16 Ibid, s 23A.

VICTIM AND WITNESS RIGHTS

under the ACT Human Rights Act 2004

Court stageSome relevant considerations for victims when considering the concept of protection of familyduring the court stage would include: ͻ 20

in Childrens Court – when making decisions about whether a child needs to be removed from the care of aparent, and in considerations of suitable out-of-home care for that child;^ Example:

A woman living in a domestic violence situation, and Care and Protection Services (CPS) are concerned about the impact of violence on the children. Her children are removed from her carebecause she is unwilling or unable to guarantee the children will not have contact with the allegedperpetrator. A human rights approach would consider examining the supports and services that wouldbe needed for her to enable the children to remain in her care in a manner that would protect theirrights to be safe, and if this is not possible finding a carer placement as close as possible to the familye.g. a grandparent. It would also involve ensuring appropriate resourcing for agencies to provideongoing services after the “crisis” event to ensure trauma is not exacerbated. Lack of resources post-crisiscan lead to victims of domestic violence situation deteriorating , for example becoming homeless. ͻ in Childrens Court – when making decisions about the child’s contact with family members and significantpeople in their lives. The

Children & Young People Act 2008

acknowledges that a child’s best interests may

involve maintaining contact with a person outside their immediate family; ͻ when considering whether bail should be granted to a defendant – the Court must consider the likelihood ofthe person harassing or endangering the safety or welfare of anyone,

17 and to take into account any concerns

the victim has about their need for protection;

18

ͻ^ when a decision has been made about the grant of bail or review of bail by a court, if the victim hasexpressed concern about the need for protection from violence or harassment, the police informant must tellthe ACT Policing victim liaison officer and that officer must take all reasonable steps to tell the victim aboutthe bail decision as soon as practicable.

19

Case example (right to equality, rights to family) A single mother in Victoria, living with cerebral palsy was at risk of having her daughter taken from herby Child Protection. She needed to demonstrate that with the appropriate assistance she would becompetent, both emotionally and physically, to care for her daughter. The advocate in this case usedthe Victorian Charter of Human Rights to communicate the woman’s rights through mediation in theChildren’s Court with Care and Protection. These rights included recognition and equality before the law,and protection of families and children. The woman was provided the opportunity to demonstrate thatshe had adequate supports in place to ensure the safety of her child and to give her the full recognitionof her capability of mothering her child, so that Child Protection are no longer involved. Source: Leadership Plus: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006. 17 Bail Act 1992

(ACT) s 22 18 Ibid, s 23A. 19 Bail Act 1992

(ACT) s 47A.