ACR102 – 2020

Introducing Crime
& Criminal Justice

Week 11
Criminal Justice & Human Rights
Dr Andrew Groves
 Contact Information
Unit Chair: Dr Andrew Groves
Burwood / Online Campus Coordinator
Room 3.06, Building D, Burwood Campus
(03) 9246 8961 andrew.groves@deakin.edu.au
Consultation time: Tuesdays 1pm on Bb, OR by appointment

“There is no such thing as a silly question…except the one that isn’t asked!”
 Well done for getting through another trimester! Given the challenges we have all faced this
year, it is an incredible achievement, so you should be proud of what you have done in this
unit and beyond.

 Make sure when communicating with staff (incl. tutors and admin staff), that you are
professional, respectful and courteous at all times.
 This relates to all forms of communication, including in person, email and on the
Discussion Boards.
 Some of these people may end up being potential colleagues, employers or referees in
the future.
 Important Information – general
• Well done on completing the AT3 – grades and feedback will be returned by the Monday of week 12,
October 5, for those who submitted on time. We hope to have most feedback returned prior to AT4, but
it will depend on submission time.

• If you have any queries about your essay, when returned – please contact the Unit Chair, making sure
that you have read the feedback carefully and any questions about marking need to be made and
justified in light of the rubric.

• Reminder for future units: when requesting an extension, you must complete the online extension
request form and provide supporting documentation, as well as indicate the length requested (which
needs to correspond to the evidence).

• It is a student’s responsibility to ensure they submit assignments using the correct file format (Word or
PDF) or, indeed, the correct document!

• No more classes/seminars after this week. However, there will be a recorded revision lecture with
further, detailed information and tips about exam preparation and unit content revision. This will be
available on the Cloudsite in the usual place (‘Class Recordings’).

Week 11
• Reminder for students in Friday seminars, no alternative arrangements needed as AFL Grand Final
public holiday has been moved to Friday 23 October.
 Important Information – AT4
• Instructions, FAQs, Rubric & answer template available on Cloudsite – read carefully!
• Examinable materials include 1) lecture slides, 2) prescribed readings and 3) Study Guides for each
week (including week 3 & 6 chapter, provided as PDFs).
• Seminar materials are not examinable, but can be useful as practical examples.
• DeakinTALENT materials are not examinable.

Timing/Extensions
• The Take-home Exam (AT4) will be open from 9am Monday 12 October until Thursday 15
October, 8pm (AEST) (+ grace period until 11:59pm). Be prepared!
• Read guidance on extensions in Instructions. If students experience unforeseen issues that prevent
completion of this task, they must apply for Special Consideration, within three days of the final
deadline.

Tips/Advice
• Before the exam: Raise any questions you have about the course content/revision in your seminars or on
the Discussion Board, so they can be answered for everyone.
• During the exam: Do not panic, take your time and work methodically!!
• Answer questions correctly and in full (a total of three!)
• Use Turnitin to review your work for referencing and academic integrity
• Students must work individually and submit on time! Things t
o think
abo
ut!!
 Lecture Overview
• Origins of Human Rights
• Enforcement of Human Rights
• Human Rights and the criminal justice system
o The local context
• Relevant bodies and their roles
• The Victorian Charter
• Case Studies
o Bare vs IBAC
o Corinna Horvath
o Recent examples and successes!
• Responding to Human Rights
 Human Ri
ghts is a co
Origins of Human Rights contested nte
area of crim ntious and
inology!

• Religious texts (e.g. the Bible, the Koran, etc.) John Locke

• Political uprisings
o The Magna Carta (1215)
o Rise of the State (and fall of the Church)

• Philosophy
o Furthered by work of Locke, Descartes, Bentham and so on (the 17th and 18th Century Rene Descartes
Enlightenment philosophers) – which shows the relationship between punishment and
human rights
o John Locke – the ‘Social Contract’
o Rights to certain freedoms and protections, including within the CJS

• War (particularly WWI and WWII)

o American Declaration of Independence VIDEO: The Story of Human Rights
o The Geneva and Hague Conventions https://video.deakin.edu.au/media/t/0_0 Jeremy Bentham
o mqsz7mp
The Nuremberg trials
 

• Human rights can be both positive and negative

o Positive: the right to exercise individual expression
o Negative: the right to be protected from intrusions by the State
 Enforcing Human Rights
• Human rights are universal, inherent and inalienable, but that does not mean they can’t be
contravened.
• Enforcement of human rights requires significant social and political will.
Framework
• Individual states enshrine protections in their own laws
• The United Nations oversee a range of instruments
• The Universal Declaration of Human Rights 1948
• Common law
• The Charter of Human Rights and Responsibilities Act 2006 (Vic)

Important criticisms
• Often unenforced – regarded as idealistic ‘nonsense’
• Can be limited where a ‘sufficient need’ is established (e.g. COVID The ‘Biloela family’
restrictions)
• Matza and Sykes – states of denial/techniques of neutralization:
o Denial of responsibility
o Denial of injury
“It didn’
o Blaming the victim t really h URLs embedded!
u r t a n yb
o Condemn the condemners ody”
o Appealing to a higher loyalty

ad to…!”
“We h
“They had it coming to them”
 Local Human Rights Protectors
• Federal
o AHRC – Australian Human Rights Commission

• State
o VEOHRC – Victorian Equal Opportunity &Human Rights Commission
o IBAC – investigate breaches of human rights by Victoria Police & other bodies
o Ombudsman – can consider whether an administrative action of a government agency is
compatible with human rights

• Courts and tribunals

• Non-Government Organisations
o Human Rights Law Centre

• Media?
o An influencer (agitator) but not always protector
o Right to freedom of expression?
• Human Rights is conceptualised in language of harm, not just crime and criminality,
making it a complex problem.
URLs embedded!
 Human Rights & Criminal Justice
• UN Course Human Rights in the Administration of Criminal Justice held at the
Australian Institute of Criminology in 1976.

• If it is determined that a person has broken the law (the ‘social contract’), and they are to
be punished – this naturally concerns human rights and how this is achieved must be
transparent and accountable.

Human rights and criminal justice

Some key elements of the Universal Declaration of Human rights
3. The right to life, liberty, and security of the person
5. The right to freedom from torture & cruel, inhuman & degrading treatment or punishment
6. The right to recognition before the law and equal protection of the law
9. The right to be free from arbitrary arrest and detention
11. The right to be presumed innocent

• International Covenant on Civil and Political Rights

 A ‘Fair Trial’
• Relates to/forms part of the notion of Due Process.
Due Process
Charter of Human Rights and Responsibilities Act 2006 Rights
24 Fair hearing
1) A person charged with a criminal offence or a party to a civil proceeding has the right to have
the charge or proceeding decided by a competent, independent and impartial court or tribunal
after a fair and public hearing.

2) Despite subsection (1), a court or tribunal may exclude members of media organisations or
other persons or the general public from all or part of a hearing if permitted to do so by a law
other than this Charter.

3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be
made public unless the best interests of a child otherwise requires or a law other than this
Charter otherwise permits.

• But what does “fair” mean?

• Are more guarantees needed?

 A ‘Fair Trial’
Charter of Human Rights and Responsibilities Act 2006 (Vic)

25 Rights in criminal proceedings

1) Right to be presumed innocent until proved guilty
2) Entitled without discrimination to the following minimum guarantees:
a) to be informed promptly and in detail of the charges in a way that is understood
b) to have adequate time to prepare a defence and to speak with a lawyer
c) to be tried without unreasonable delay
d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by
him or her or, if eligible, through Legal Aid
e) to be told about the right, if eligible, to legal aid under the Legal Aid Act 1978
f) to have legal aid provided if the interests of justice require it, without costs, if eligible
g) to examine, or have examined, witnesses against him or her
h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as
witnesses for the prosecution
i) to have the free assistance of an interpreter if he or she cannot understand or speak English
j) to have free assistance of assistants and specialised communication technology if he or she has
communication or speech difficulties that require such assistance
k) not to be compelled to testify against himself or herself or to confess guilt.
 Right to Representation
25 Rights in criminal proceedings
2) A person is entitled without discrimination to the following minimum guarantees—
b) to have adequate time to prepare a defence and to communicate with a lawyer or advisor chosen by him/her
d) to be tried in person, and to defend personally or through legal assistance chosen by them or, if eligible,
through Victorian Legal Aid under the Legal Aid Act 1978
e) to be told about the right, if eligible, to legal aid under the Legal Aid Act 1978
f) to have legal aid provided if the interests of justice require it, without costs, if eligible
i) to have the free assistance of an interpreter if he or she cannot understand English
j) to have free assistance of assistants and specialised communication technology if he or she has
communication or speech difficulties that require such assistance

In simple terms, the right to…

• Counsel of one's own choice
• Appointment of counsel in case of indigency Think back to week 3 (slide 12)!
• Self-representation
• Assistance of an interpreter URL embedded!
• Presence of counsel at all stages of the proceedings

• But, some issues with Legal Aid and the impact on representation: e.g. impact on fairness, due process,
access to justice, etc.

• Note: this is not the same as the US, where you will be given a lawyer. It simply acknowledges that all
persons should have access to legal representation.
 Other Fundamental Rights
25 Rights in criminal proceedings
3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age
and the desirability of promoting the child's rehabilitation.
4) Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed
in respect of it reviewed by a higher court in accordance with law.

26 Right not to be tried or punished more than once

Doub
A person must not be tried or punished more than once for an offence in respect of which he or she has already le je o
pard
y!
been finally convicted or acquitted in accordance with law.

27 Retrospective criminal laws

5) A person must not be found guilty of a criminal offence because of conduct that was not a criminal
offence when it was engaged in.
6) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that
applied to the offence when it was committed.
7) If a penalty for an offence is reduced after a person committed the offence but before the person is
sentenced for that offence, that person is eligible for the reduced penalty.
8) Nothing in this section affects the trial or punishment of any person for any act or omission which was a
criminal offence under international law at the time it was done or omitted to be done.

• Are these and other rights open to interpretation (e.g. what is ‘unreasonable delay’?)?
• Legislative changes can impinge upon the interpretation and implementation of these rights.
 Victoria’s Charter of Human
Rights and Responsibilities, 2006
20 fundamental rights
• 8 are directly relevant to criminal justice administration

- Right to protection against cruel, degrading or inhuman treatment

- Right to liberty and security of person
- Right to humane treatment when deprived of liberty
- Rights of children in the criminal process
- Right to fair hearing
- Rights (or minimum guarantees) in criminal proceedings
- Right not to be tried or punished more than once
- Right to be protected from retrospective criminal laws

Are these just ‘words on paper’?

 Investigating Police Misconduct

The right to an impartial and independent tribunal?

Bare v IBAC
“It’s time Victoria complied with recognized international human rights standards and implemented a
system that is institutionally, and practically independent of Victoria Police and that is capable of
conducting fast, effective and fair investigations.”
Tamar Hopkins, Flemington and Kensington Community Legal Centre

“In July 2015, a majority of the Court of Appeal ruled in favour of Mr Bare and remitted Mr Bare’s
complaint to IBAC for a fresh decision. All three judges of the Court of Appeal were in agreement that
the Charter Act did not contain an implied right to an investigation of a police complaint by a body
independent of the police. IBAC is considering its response to the judgment”
IBAC Special Report Concerning Police Oversight – August 2015

• In 2016, IBAC determined that there was insufficient evidence to substantiate Mr Bare’s case.

• Police misbehaviour, & police powers generally, is a key issue for Victoria, and one that skirts around
the edges of individual rights to protection against state power.
 Horvath v Australia (2014)
VIDEO: https://video.deakin.edu.au/media/t/0_sryoeyui
• 1996: Victim of excessive force by police
• 2001: Sought restitution for her treatment by Victoria Police and was
awarded damages
• 2008: Horvath’s lawyers took case to UNHRC
• 2014: received ex gratia payment
• 2016: IBAC review
• 2016: IBAC charge officer with assault
• 2017: Parliament inquiry into police oversight
• 2018: Police officer faces trial – ultimately acquitted

Inquiry and other investigation found there is still improvement needed

with regard to police practice and policy – particularly in dealing with
complaints

URLs embedded!
 Recent Examples and (some) Successes!
• COVID-19 and Victorian Lockdowns
o Concerns notions of ‘arbitrary detention’
o Some in community believed wearing masks and being Expanding Victoria’s police powers
detained were breaches of human rights to freedom/liberty without robust, independent oversight
o Demonstrates how rights are enshrined (or not) is a dangerous idea
o Greater powers afforded to police as health emergency

• Indigenous people and access to justice

o Protection of right to hear issues in Koori Court
o Importance of culturally-appropriate practices
o Recognises harms associated with Western justice

• Solitary confinement
o Challenged as ‘cruel and unusual punishment’
o Use of solitary among vulnerable populations (e.g. ATSI, those with disability)
o Practice exacerbated by COVID restrictions

• Protection of media integrity

o National security laws/media attempts to keep government accountable
o Other organisations, e.g. Human Rights Watch

URLs embedded!
 Responding to Human Rights
• Example of a positive response that protects human rights
o Introduction of Koori Engagement Unit in 2019, within Coroners’ office
• Some key reforms
o Changes to investigative procedures, where coroners will immediately attend
Indigenous deaths in custody & fast-track hearings
o Ensure collaboration/liaison with Koori engagement officers
o Provide support to families through Koori engagement unit

• Reform represents progress from the 1991 RCIADIC

o Improving the coronial process, one of 339 recommendations
• Still a way to go…
o Recent deaths in custody (e.g. Tanya Day)
o Limited accountability of key agencies
 Take home messages
• Human rights and how they interrelate with the CJS, particularly in terms of how
we respond to crime, are equally complex
o Achieving equality, fairness and access to justice
o Relate to, and are shaped by, key themes of accountability, discretion and due
process

• The protection or denial of human rights is experienced differently by different

groups, which is significant for:
o Indigenous communities
o Minority groups
 e.g. Asylum seekers

• Remember, like many of the topics covered in this Unit, these issues are not
‘abstract’ concepts or problems that happen to others
o The protection of human rights is important in the context of Victoria and Australia
right now.
o The success of human rights protections requires knowledge, understanding and
advocacy for many in the community.
  Prepare for your exam by
Next Week: reviewing all of the examinable
materials and making use of the
Swotvac – no more support available.
classes/seminars
 

Remember – Revision lecture recording available next week, as an additional

resource for preparation for the Take-home Exam.

Please don’t pack up/switch off just yet – a few more VERY important
announcements!
Link to access eVALUate survey: https://deakin.is/evaluating-us
  It has been a pleasure teaching you
and we are grateful for your effort,
Thank you & critical engagement and willingness
to learn. All the best in your future
good luck! studies, in Criminology other
otherwise.