Book Review: Criminal Process and Human Rights

A compelling read is Criminal Process and Human Rights, Federation Press (2011) by Jeremy Gans, Terese Henning, Jill Hunter and Kate Warner. It confronts the reader by incisively showing how Australian criminal law lives up to or falls short of human rights principles such as those in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights.1 In world terms, can it be said that Australia is a legal backwater when it comes to enshrining or incorporating human rights?

Not surprisingly, Criminal Process and Human Rights (‘CPHR’) makes the initial and arguably concerning point that Australia has no national overarching and entrenched legislation with human rights bite. Indeed, in a criminal law context, the Commonwealth Constitution is almost quieter than a mouse.2 Contrast the almighty roar of the U.S. Bill of Rights (Amendments to the U.S. Constitution) and, for example, section 38 of the contemporary Constitution of the Republic of South Africa which enables ‘appropriate relief’ where a right has been infringed or threatened. Concisely put by CPHR, most people in such human rights enshrined countries largely know what their rights are given the very fact that such are spelt out in one iconic document.3 By contrast, CPHR notes that, in the Australian criminal law context: ‘… it is not easy to identify with certainty the role of human rights principles and norms.’

What of Australia being a party to the ICCPR and other conventions? It sounds great but largely means zilch especially in the sphere of criminal law4 as any such human rights principles must still be enacted into domestic law to have any direct impact.5 Some limited ICCPR invocation exists. For instance, see section 138(3)(f) of the Evidence Act 1995 (Cth) and its ‘uniform’ counterparts (Queensland aside) which concerns illegally or improperly obtained evidence.6 By contrast, the ACT7 and Victoria8 have taken actually taken the huge legislative leap of enshrining human rights principles. Yet, how, if at all, are such reflected in the remaining Australian jurisdictions?

CPHR, in effect, conducts a ‘check list by comparing each Australian jurisdiction’s legislation and common law (including rules of evidence and procedure) with human rights principles such as the Right to Liberty; the Right to Silence and the Right to a Fair Trial. For instance, true it is that the right to a fair trial in Australia is, as Isaacs J said in R v Macfarlane9:‘.the right which inheres in every system of law that makes any pretension to civilisation’, yet, what does a ‘fair trial’ really mean and/or include when one considers the contents of Article 14 of the ICCPR?10 Indelibly engaging are CHPR’s case studies of Australian decisions vis a vis decisions of the European Court of Human Rights and like jurisdictions (underpinned by human rights instruments).

Whilst some Australian decisions have embraced ICCPR notions – there largely remains a conservative approach. Coleman v Power (2004) 220 CLR 1, as aptly noted by CPHR, demonstrates a narrow vis a vis a wide approach to the applicability of the ICCPR and its’ First Protocol.11 In the common law context, it has been said that it cannot be developed, if at all, in a manner which would cross ‘the Rubicon that divides judicial and legislative powers.” 12

Impressively, CPHR is also very much a source of inspiration for argument and perhaps change whether it be by way of Court advocates or those who petition politicians. Yet what of frequent intrusions by Parliament into time honoured and fair Court processes and notions of judicial independence and the separation of powers? Given the Right to Silence and like ICCPR principles, may there not, for instance, be scope for Queensland defence lawyers to cavil with recent changes to the Justices Act which, in effect, can oblige a defendant to disclose his or her case in the hope of being allowed to cross-examine Crown witnesses at a committal hearing?

This book is also easily digestible though perhaps not on par with the couple of glasses of Verdelho, on a cold Sydney evening in 2005, during the drinking of which Jeremy Gans, an Associate Professor at Melbourne Law School13, and his eventual fellow authors, drew up book plans on the back of a drink coaster.

Footnotes

1. Enact ed and entrenched by legislation in Europe and the U.K. See for instance the Human Rights Act 1998 (UK).
2. Section 80 (trial by jury) is the only ‘right’ expressly mentioned in a criminal law context. Of course, it only applies to Commonwealth offences actually tried upon indictment. In R v Archdall (1928) 41 CLR 128 at p140, Higgins J disturbingly observed that ‘.there is nothing to compel procedure on indictment.’ Compare the Fifth Amendment to the Constitution of the United States which provides: “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … ”
3. UK citizens are largely well aware of the Human Rights Act 1998 (UK) (proclaimed into force on 2 October 2000) as experienced when this reviewer was a Principal Legal Officer (2002-2003) with the UK Government Legal Service.
4. Anti discrimination legislation, reflecting various Convention articles appears in all Australian jurisdictions yet such is not concerned with the criminal law. Indeed, the CPHR authors are critical of the Australian Human Rights Commission Act 1986 (Cth) despite its appending ‘international instruments.’
5. Limited regard, for instance, may be had to international instruments under the various Acts Interpretation Acts and under certain common law principles (largely statutory interpretation based) such as ‘legitimate influence’ (see e.g. Mabo v Queensland (No. 2) (1992) 175 CLR 1 at para [42]); ‘consistency’ (e.g. Polites v Commonwealth (1945) 70 CLR 60) and ‘legality’ (e.g. Coco v R (1994) 129 CLR 427).
6. See Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2008 (Norfolk Island) and, to a lesser ‘uniform’ extent, the Evidence Act 2008 (Tas).
7. Human Rights Act 2004 (ACT).
8. Charter of Human Rights and Responsibilities 2006 (Vic) (the Victorian Charter).
9. R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at pp 541-542.
10. Why did Dietrich v R (1992) 177 CLR 292 at para [7] express the right to a fair trial in negative terms as a right not to be tried unfairly?
11. The freedom of political communication, implied in the Commonwealth Constitution, also featured in Coleman v Power (that limited ‘right’ which can be contrasted with the robust First Amendment to the U.S. Constitution (Freedom of Speech)).
12. per Brennan J in Dietrich v R (1992) 177 CLR 292 at p 320.
13. Associate Professor Gans, for instance, was appointed in 2007 as the Human Rights Adviser to the Victorian Parliament Scrutiny of Acts and Regulations Committee.