Page 1686 - Week 06 - Thursday, 23 July 2020
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It also includes specific obligations for a range of justice agencies to protect victims’ rights. These include the right to respect the privacy and safety of victims; the protection and engagement of child victims; the storage and return of a victim’s property; protecting victims during committal hearings; minimising victims’ exposure to offenders; the provision of aid and support; and the provision of legal and financial assistance. They also include an obligation across several justice agencies to keep the victim informed, including information about processes; updates on the status of investigations, including if a charge is dropped or discontinued; bail decisions; and the outcome of trials, parole hearings and decisions. Victims’ concerns are to be raised in bail hearings, pre-sentencing reports, intensive correction assessments and parole or release hearings.
If a victim feels that any part of these processes has not met the obligations, the victim has a right to lodge a complaint with that agency and the agency must investigate and respond. If the victim does not feel that their complaint has been addressed, they have the right to refer the matter to a commissioner. Agencies must deliver all relevant documents and details for the commissioner to settle it.
While supporting the bill, the victims’ rights commissioner mentioned some areas where these rights could be extended. For the record, I would like to include these comments from the Victims of Crime Commissioner, Heidi Yates. These are directly from her.
The first is about exploring the option of victims having recourse to ACAT to resolve charter complaints that have not been resolved by the Human Rights Commission complaint process. These include access to a full range of remedies, including financial remedies. Such an approach would ensure that charter complaints were treated equitably with other civil complaints, such as those relating to discrimination. An ACAT pathway would also provide an additional incentive for agencies to reach a settlement at conciliation, promoting the early resolution of disputes.
Her second point was about getting the balance right—ensuring that the charter does not inappropriately interfere with investigations or prosecutorial decisions but does not provide unreasonably broad loopholes for agencies to excuse themselves from accountability. For example, proposed new section 100B states that the DPP may excuse themselves from human rights compliant processes if they consider that compliance would prejudice the independence of the DPP or the prosecution of an offence. This clause is considerably broader than the comparative clause in Victorian legislation, which focuses on the exercise of prosecutorial discretion and potential prejudice through a criminal office rather than the director’s broader independence.
Other parts of the charter indicate that agencies must only comply with certain rights if it is practicable to do so. Examples are proposed new subsections 14I(2), 17A and 17D(3). It is yet to be seen whether the bill sets a sufficiently high bar to adequately protect victims’ rights.
Thirdly, the commissioner makes a point about working towards the explicit protection of victims’ rights in the Human Rights Act as it exists in relation to the rights of offenders; for example, section 22 of the Human Rights Act.
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