What the Act says
This right is based on Article 14(7) of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.
Scope of the right
This right generally applies where a person is charged with the same, or a substantially similar, offence for which they have already been convicted or acquitted.
- The principle of double jeopardy only applies to criminal offences. It does not apply to civil proceedings, which may result in civil liability.
- Sanctions or penalties imposed by professional disciplinary bodies are typically not considered a breach of this right, as the purpose of the sanctions or penalties is to protect the public, not to punish the individual.
- This right applies where a person has been finally acquitted or convicted, meaning all appeals have been exhausted.
- This right does not prevent cases from being reopened if an appeal court finds a conviction has resulted from a miscarriage of justice.
This right can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
The rule against double jeopardy is provided for in sections 16 and 17 of Queensland’s Criminal Code. However, there are exceptions to the rule, including that the Court of Appeal may order an acquitted person be retried for certain offences if there is fresh and compelling evidence and a retrial is in the interests of justice. In the government’s view, this limitation of section 34 of the Human Rights Act 2019 is justified, including because of its purpose to preserve the integrity of the criminal justice system and the range of procedural safeguards in place to mitigate the impact on human rights.
(See Statement of Compatibility, Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Bill 2023 (Qld)).
Learn more about justification and other obligations on public entities to respect human rights.
Case examples
Criminal charges and removal of blue card
The applicant, who had been charged with drug-related offences several years before, applied for a blue card to coach a softball team. She was issued a negative notice. The applicant sought review of the decision, including an argument that a negative notice would contravene her right not to be punished more than once. The tribunal found that the purpose of the review and decision was not to impose additional punishment on the applicant for her past conduct, but rather to protect children. The review did not constitute a retrial because the tribunal’s role was not to determine the applicant’s guilt, but rather to review the respondent’s decision that it was not in the best interests of children for the applicant to be issued a blue card. On the evidence, the Tribunal set aside the respondent’s negative notice, enabling her to obtain a blue card.
TRE v Director-General, Department of Justice and Attorney-General [2020] QCAT 306 (5 August 2020)
Professional disciplinary proceedings and double punishment (Victoria)
In this case, a registered psychologist was found guilty of multiple fraud offences under the Crimes Act 1958 (Vic). Following the fraud conviction, the Psychology Board of Australia ruled that the psychologist had also engaged in unprofessional conduct under the Health Professions Registration Act 2005 (Vic) and suspended her registration.
The Tribunal found the Psychology Board’s decision to suspend the psychologist’s registration did not violate the right not to be tried more than once (section 26 of the Victorian Charter, equivalent to section 34 under the Queensland Act). The Tribunal determined that the purpose of the disciplinary proceedings was primarily to protect the public, and not to punish the practitioner’ and therefore the Charter’s protection against being ‘punished’ twice for the same offence was not engaged.
(Psychology Board of Australia v Ildiri (Occupational and Business Regulation) [2011] VCAT 1036) (14 June 2011)
This information is not intended to be a substitute for legal advice.