Some years ago, a senior prosecutor observed that the ACT's human rights framework had failed victims of crime. It was, he wrote, a "one-way tap" with "no corresponding human obligation to balance the offender's human rights" with those of victims. Many shared the assessment and recommended specific recognition of victims' human rights in the ACT Human Rights Act 2004 (the HRA). With the original commentator, Shane Drumgold SC, now the ACT Director of Public Prosecutions, and a Victims' Rights Act and Human Rights Commission Act (HRCA) amendments passed last week in the Legislative Assembly, has the call for real change finally been heard?
The act is a big advance on previous legislation. It does not stray too far from the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, but, with its greater detail and breadth, it is more like the 2012 Victims Directive of the European Union, establishing minimum standards.
The new act sets out the entitlements of victims to information, support services, and respectful treatment from police, prosecutors, courts and corrective services.
It also consolidates other provisions scattered in different existing legislation that provide opportunities for victims' participation in the administration of justice. Language new to the act includes that justice agencies "must" do or provide the information or service.
Finally, the act sets out the requirement to report how well they are doing meeting their obligations. As an accountability framework, this is a stringent advance to the previous lack of guidance and transparency.
Some have tended to view victims' rights as somehow in conflict with those of offenders. Rather, as equal citizens, each are owed duties.
But it is on this point of accountability - public authorities complying with their statutory duties - that the act wobbles, as it gives such wide-ranging exemptions to justice agencies that they need not comply. Thus, a citizen who becomes a victim of crime and who is involved in the administration of justice has rights - and justice agencies have duties to meet these - but if they fail to do so and the victim complains, then these rights and duties vanish on the say-so of the relevant justice agency. The amendments to the HRCA, ss 59, 73, 74 and 85 plus a specific exemption for the DPP at ss 100B, essentially say "you have rights but at our discretion".
For a human rights jurisdiction, this is a problem. Human rights are universal and to be enjoyed without discrimination. While some are cynical about them, it is this appeal to equality and fairness that makes them such a moving ideal. But what gives them their traction is the equally profound idea that the state and its agencies are duty-bound to respect our rights. They cannot do what they like with us.
This positive duty is imposed on public authorities, including justice agencies. The only exclusions to the duty to comply with human rights in the ACT are the Legislative Assembly and the courts, "except where acting in an administrative capacity". As pointed out years ago by Mr Drumgold, how these duties are recognised and applied vary. For criminal justice agencies, the variation flows partially from the primacy given to the fair trial rights of the accused, and partially because the HRA is not explicit in how the human rights of people as victims are to be engaged. In the new legislation, the recommendation for victims' rights recognition in the HRA itself has not been realised. Instead, a detailed description of how victims' rights engage human rights is provided in the act's accompanying explanatory memorandum.
How, then, are the duties imposed on justice agencies for victims' human rights to be observed? This is a critically important question, as some have tended to view victims' rights as somehow in conflict with those of offenders. Rather, as equal citizens, each are owed duties - some of which are the same and some of which are different. These duties are not cancelled when in conflict. Authorities must find reasonably available alternative measures to reconcile these rights.
A clearer and more robust approach to this responsibility to reconcile rights already exists. All public authorities in the ACT must comply with human rights "where acting in an administrative capacity". The phrase acknowledges the distinction between the decisions that justice agencies make and the decision-making process. Decision-making within justice agencies is notoriously complex, and daily decisions are made after weighing up information from a range of sources. The DPP, as an example, consults with and receives information from police, defence counsel, accused, victims and witnesses when weighing whether to prosecute and on what charges.
The victims' rights in the new act go to this process of decision-making. Ultimately, the DPP makes the decision. Moreover, the DPP make these decisions knowing they have legal immunity under the Director of Public Prosecution Act for acts or omissions done "in good faith".
The "corresponding obligation" Mr Drumgold once called for is partially realised in the Victims' Rights Act - except in circumstances where his and other agencies decide otherwise. And doing what they like with us is exactly what human rights stand against.
- Dr Robyn Holder was the ACT Victims of Crime Coordinator from 1996 to 2011 and is presently an adjunct research fellow with Griffith University.