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Advocacy organisations and academics argue Queensland’s proposed bill of rights will enshrine procedural unfairness in court for survivors and victims of crime. By Bri Lee.

Queensland’s flawed bill of rights draft

Dr Robyn Holder, research fellow at Griffith University’s criminology institute.
Credit: Supplied

Dr Robyn Holder was the ACT’s victims of crime co-ordinator for 15 years, responsible for the protection and promotion of the rights of crime victims – both before and after the ACT enacted its Human Rights Act in 2004. “I was in part a rights-promoting advocate,” she says, “in part like an ombudsperson, so I’d receive complaints and concerns from victims.”

Now a recognised expert in law reform and public policy, and research fellow at Griffith University’s criminology institute, Holder has joined several legal experts and organisations in voicing her concerns about Queensland’s draft bill of rights legislation.

The legislation would see Queensland join Victoria and the ACT, the only state and territory with similar protections. Australia does not have a federal bill of rights, as the United States does. Queensland’s bill protects 23 human rights – primarily civil and political – and also explicitly recognises the importance of human rights to Aboriginal peoples and Torres Strait Islanders.

While Holder welcomes the introduction of the bill, she argues the current draft isn’t fair to victims of crime. “What so many members of the public don’t realise is that the prosecutors are not their lawyers,” she says. “They’re shocked that nobody is there for them. When the [director of public prosecutions] are asked about human rights considerations at trial, their first and only real thoughts are for the fair trial rights of the accused. They have no language and no concept for what rights for the victim might be.”

Holder points specifically to two clauses within Queensland’s draft legislation that outline the details of a “fair trial” and “rights in criminal proceedings” – but only for defendants. The bill does not include or detail corresponding rights for complainants.

“The importance of this issue kind of crystallised for me when I was working with a woman who was a witness in a particularly high-profile case,” Holder says, reflecting on her experience in the ACT. “She had wanted a number of different things from the prosecution – closed court, suppression of her identity and suppression of her evidence. So, anonymity, for various reasons. And the DPP was declining to request those things of the court.”

As the woman’s statutory advocate, Holder intervened, “to press the logic of her case to the DPP”. But the department responded by saying its primary commitment was to open and public justice. “This woman asked me, ‘So where are my human rights?’ ” Holder says. “It was one of the moments where you hear a person say something and just stop.”

 

In criminal proceedings in Australia, as they currently stand, complainants are not considered participants in the same way as defendants. While a defendant has a lawyer, a complainant does not. Meanwhile, the prosecutor’s duty is not to the individual witness in a case but instead to the court.

Holder says that the magnitude of victims’ negative interactions with the criminal justice system is not documented in any sort of adequate way, let alone publicised, because records of complaints are not kept. “Periodically, these issues erupt into the public consciousness,” she says, reflecting on how victims are mistreated by the legal system, “but this is our daily bread”.

Professor Heather Douglas of the University of Queensland echoes Holder’s concerns about the bill. “In theory, we are recognising these things through the charters, but so many women are falling through the cracks, they’re not being treated with courtesy and compassion, respect and dignity,” she says. The introduction of the current draft of the Human Rights Bill would “exacerbate the problem”.

Douglas – who does extensive work in the domestic and family violence space – describes how “so many women … [receive] very little information about their own matters”. One female victim of crime, Jennifer, told her, “I’ve never had a chance to speak to the public prosecutor, before the hearing, during the hearing or after the hearing.” Another, Faith, described being made to feel like “cattle going in and out and just waiting”.

Responding to Queensland’s draft bill, Douglas called for a provision that would explicitly recognise the rights of victims. She highlighted that currently, under the charter of victim’s rights, “it is really difficult to take any action … there should also be an opportunity for a commissioner or office to keep records of those complainants so that we could identify key themes and issues, and that would allow the commissioner to report on that”.

Knowmore, an organisation established in 2013 to assist people who were engaging with the Royal Commission into Institutional Responses to Child Sexual Abuse, also flagged concerns about the bill, particularly how it will affect victims of child sexual abuse. Its submission argues that “a Human Rights Bill which enshrines the rights of defendants in criminal trials, but does not do the same for victims, may adversely impact upon the potential implementation of the structural reforms needed to afford improved access to justice for victims of child abuse”. Knowmore’s submission supported and endorsed the recommendations made by Women’s Legal Service Queensland, such as including reference to “crime victims as participants”, and detailing the rights of a person reporting a crime throughout their dealings with the system.

Queensland’s bill of rights legislation was introduced by the state’s attorney-general and minister for justice, Yvette D’Ath, on October 31. It was then referred to the legal affairs and community safety committee for consideration, with public hearings having happened this week. The introduction honoured an election promise made by Premier Annastacia Palaszczuk and the bill is modelled on the Victorian Charter of Human Rights and Responsibilities Act 2006.

Under the bill, a breach of any human right listed will not give rise to any criminal proceeding. Instead, complainants will be allowed to seek mediation or remedy from the Human Rights Commission. However, the bill will centre human rights in policy-making, requiring parliament to “scrutinise all legislative proposals” for compatibility with human rights. The judiciary will also need to consider the contents of the Human Rights Bill when making decisions. However, in her introductory speech, Attorney-General D’Ath conceded “the bill acknowledges that human rights are not absolute and may need to be balanced against the rights of others and public policy issues of significant importance”.

 

Responding to the draft legislation, 150 written submissions were received – including from the Queensland Bar Association and the Queensland Law Society, neither of which commented on the issue of rights for complainants. Both organisations were contacted for comment about the concerns raised by Holder, Douglas and others. The bar association was unable to reply by time of press, and a representative from the Queensland Law Society indicated its submission had recommended the inclusion of better provisions for freedoms from domestic and family violence.

Women’s Legal Service Queensland made written and verbal submissions. Although supportive of the introduction of human rights legislation, its chief executive, Angela Lynch, also articulates serious concern about the future of legislative updates and judicial decisions if the current draft of the bill is enacted.

“It’s so important to get this right because it means the system will be unbalanced into the future because it requires judges to make decisions based on the contents of the bill,” she says. “If it only recognises the defendant’s rights at trial, that will direct judges’ decisions. And legislation has to comply, so again, while we’re advocating for victim-responsive updates, it could be more difficult in the future without these amendments.”

Lynch says it is surprising that the current government has overlooked this issue, given its strong record in adopting the recommendations of the royal commission and the “Not Now, Not Ever” report into domestic and family violence.

“This was the first recommendation of the royal commission in relation to the criminal justice system’s response: ‘That the criminal justice system operates in the interests of seeking justice for society, including [both] the complainant and the accused.’ And that means the current draft of the bill is out of step with that report.”

That royal commission report goes on to list as the second and third points: “criminal justice responses are available for victims and survivors” and “victims and survivors are supported in seeking criminal justice responses”.

Lynch says that people don’t realise their clients “have their human rights breached every day when they interact with public entities in the criminal justice system, and that they require equal protection with accused”.

Holder adds: “There is already case law in various human rights jurisdictions where rights have to be reconciled between accused, victim, and community.” These submissions, she says, are neither “radical nor controversial”.

The committee is required to report on Queensland’s draft bill of rights by February 4 next year.

This article was first published in the print edition of The Saturday Paper on Dec 8, 2018 as "Bill of half-rights". Subscribe here.

Bri Lee
is a lawyer and the author of Eggshell Skull.