What the Act says
This section is based on Article 14 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.
The rights in section 32 complement the right to a fair hearing (section 31).
Scope of the rights
Who does this apply to?
The rights apply to individuals charged with and/or convicted of a criminal offence. In Victoria, where a similar protection exists under the Victorian Charter of Human Rights and Responsibilities Act 2006, courts have interpreted these rights as applying from the moment police indicate charges will be laid.
These rights 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.
Right to be presumed innocent until proven guilty
Internationally, the presumption of innocence underpins principles such as:
- the prosecution must prove guilt beyond reasonable doubt;
- the accused should be given the benefit of the doubt;
- public authorities should refrain from prejudging the outcome of a trial, for example, they should not make public statements regarding the guilt of an accused;
- the accused should not be presented in court in a way that implies they are a dangerous criminal;
- bail should only be refused for genuine reasons, rather than used as punishment, and a denial of bail should not affect the presumption of innocence. (UN Human Rights Committee, General Comment No. 32 [30]).
The right to be presumed innocent until proven guilty is also recognised in Australian common law.
Minimum guarantees
People charged with an offence are entitled, without discrimination, to minimum guarantees about how they will be treated and how the proceedings will be conducted.
These include a person’s right:
- To be informed promptly of the nature and reason for the charge against them;
- To have adequate time and facilities to prepare a defence and to communicate with a lawyer or advisor chosen by the person;
- To be tried without unreasonable delay;
- To be tried in person, and to defend themselves personally or through chosen legal assistance or, if eligible, through legal aid;
- To examine witnesses for and against them;
- To have access to interpreters or other communication tools where needed;
- Not to be compelled to testify against themselves or to confess guilt.
These guarantees may be subject to reasonable and justifiable limits. For example, the right to examine witnesses may be limited by preventing an accused from cross-examining a witness without representation to protect vulnerable witnesses.
Rights to legal aid are intended to be consistent with existing rights under Legal Aid Queensland Act 1997 and are conditional on the person for being eligible for legal aid under that Act.
Children charged with criminal offences
Children charged with offences must be treated in a way that takes into account the child’s age and the desirability of promoting the child’s rehabilitation. This may require providing special measures to ensure they can participate equally in the legal process.
The United Nations Human Rights Committee has stated that alternatives to criminal proceedings should be considered for children, such as mediation, conferences, counselling, community service or educational programs (UN Human Rights Committee, General Comment No. 32 [44]).
Children in criminal proceedings also have rights under section 33 of the Human Rights Act.
Right to review of a conviction
Section 32(4) of the Act ensures that individuals convicted of a criminal offence have the right to have their conviction and sentence reviewed by a higher court in accordance with law.
The UN Human Rights Committee has explained that this right includes access to written judgments, trial transcripts and other relevant documents (General Comment No. 32 [49]).
Case examples
Opportunity for legal representation not provided in age-appropriate way
A 12 year old child appealed a decision by the Mount Isa Magistrates Court to make a protection order against him under the Domestic and Family Violence Protection Act 2012, after sentencing the child in a separate proceeding. He submitted, among other things, that in making the protection order, the magistrate did not provide a procedure that took account of his age, specifically that a short adjournment did not afford him a reasonable opportunity to obtain representation by a lawyer.
Hearing the matter on appeal, the District Court found that the magistrate did not provide a reasonable opportunity for the child to provide informed consent to any orders, or to obtain representation by a lawyer in an age-appropriate way. This as well as other errors contributed to the District Court’s decision to set aside the protection order.
SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65 (5 March 2024)
Trial delay found to be unreasonable
In considering an application for a permanent stay of an indictment, the Court found that the delay in prosecution of the applicant since 2002 breached the applicant’s rights to a trial without unreasonable delay. To allow the prosecution to now proceed would be unduly oppressive and an abuse of process requiring the applicant to face, in effect, a third prosecution and in circumstances of widespread adverse publicity and significant adverse effects on the applicant’s ability to live and work.
(Volkers v The Queen [2020] QDC 25)
Right against self-incrimination justifiably limited
The Crime and Corruption Commission required a person to answer a question that allegedly touched on charges against them and could have an impact on their receiving a fair trial in relation to those charges.
The person sought leave to appeal the decision under the Crime and Corruption Act 2001. The court found that while the person’s right to a fair hearing (section 31) and right against self-incrimination (that is, the right not to be compelled to testify against themselves or confess guilt, section 32(2)(k)) had been limited, the limit was justified.
This included because of the protections in place under the legislative scheme, such as direct use immunity and confidentiality in respect of the identity of the witness and any evidence given. A further protective order required limited disclosure of the evidence to prevent it from being given to the prosecution.
(SQH v Scott [2022] QSC 16)
This information is not intended to be a substitute for legal advice.