Bri Lee on how Queens­land’s draft bill of rights fails vic­tims

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

The Saturday Paper - - Front Page - By Bri Lee.

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 at­tor­ney­gen­eral 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.

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

BRI LEE is a lawyer and the au­thor of Eg­gshell Skull.

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