Victim and Witness Rights
- 1.1Complying with the ACT Human Rights Act 2004: Victims of Crime
- 2Part 1: Victims of Crime ACT 1994
- 2.1Section 4: Governing Principles
- 3Part 2: About the Human Rights Act 2004
- 3.1Why do I need to know about the Human Rights Act?
- 3.2What are Human Rights?
- 4Part 3: Human Rights Compliance Tools
- 4.1Further information on how the flowchart works
- 5Part 4: Key HR Act rights for victims and witnesses
- 5.1 Overview
- 5.2Section 8: Recognition and Equality before the Law
- 5.1Section 9: Right to Life
- 5.1Section 10: Right to protection from torture and cruel, inhuman or degrading treatment
- 5.1Section 11: Protection of the Family
- 5.1Section 11(2): Right to protection of children and young people
- 5.1Section 12: Privacy and home
- 5.1Section 18: Right to security of person
- 5.1Section 21: Fair Trial
Complying with the ACT Human Rights Act 2004: Victims of Crime
This guide has been prepared by the ACT Human Rights and Discrimination Commissioner and the Victims of Crime Commissioner to assist workers in the justice sector in the ACT to understand the rights and obligations contained in the Victims of Crime Act 1994 (ACT) and the Human Rights Act 2004 (ACT) (HR Act) that apply to victims of crime. Workers will be able to use information and checklists in the guide to review their policies and practices to ensure human rights are considered when dealing with victims of crime and witnesses in justice settings.
Who is a victim?
A victim is a person who suffers harm because of an offence.
This includes a broad range of people who suffer harm including:
- harm suffered during or as a result of the commission of an offence;
- harm as a result of witnessing an offence;
- a family member of a primary, or a person financially or psychologically dependant on the primary victim who suffers harm because of the harm to the primary victim;
- people who fall within the Victims of Crime (Financial Assistance) Act 1983.
If the person is a child or legally incompetent person, a guardian of that person [Victims of Crime Act 1994 (ACT) s6(1)]. A person can be a victim even if the offender has not been convicted of an offence.
Governing Principles for Victims of Crime
The Victims of Crime Act 1994 clearly specifies principles for the treatment of victims of crime by all agencies involved in the administration of justice. All public authorities have an obligation under the Human Rights Act to treat all people who are the victim of a crime with respect and dignity.
In addition to the Human Rights provided to a person under the Human Rights Act, a person who is a victim of crime has a right to be treated in a way compatible with the governing principles.
In the explanatory statement for the 2010 amendment of the Act, the Attorney General reaffirmed that it:
“is important the ACT strive for best practice in the support of victims of crime in our community, particularly given the ACT was Australia’s first jurisdiction to adopt a statutory human rights framework” [Victims of Crime Amendment Bill 2010; Explanatory Statement. 2010 Simon Corbell, Attorney General].
Human Rights for Victims of Crime
People who have been victims of crime have limited influence on the course of investigation, prosecution and sentencing of crimes committed against them. They do not usually have lawyers to protect their interests and guide the prosecution process – their primary role in the criminal justice system is as witnesses. There is now recognition that vulnerable victims can be re-victimised through the trial and court processes. In particular, the vulnerability of victims of sexual assault and child victims has led to law reform in this area including:
- Children may be separately represented
- allowing victims and witnesses to give evidence via audiovisual link;
- prohibiting a self-represented litigant from personally cross-examining a victim;
- allowing a support person in court;
- prohibiting cross-examination on the prior sexual activities or sexual reputation of victims of sexual assault.
These legislative changes seek to strike a balance between the interests of an accused with those of a victim.
This need for balance was highlighted by Simon Corbell, ACT Attorney General:
“while the right to a fair trial is a central pillar of the criminal justice system, the too long now maintaining the balance of fairness in the prosecution of sexual assault has been heavily weighted against the complainant” [Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 3 July 2008, 2667 (Simon Corbell, Attorney-General)].
The European Court of Human Rights observed that:
“principles of fair trial require that the interests of the defence are balanced against those of witnesses and victims called upon to testify, in particular where life, liberty or security of person is at stake” [PS v Germany (2003) 36 EHRR 61 ].
This guide includes real life case studies where human rights have been used to ensure:
- victims’ rights with regard to a fair trial;
- vulnerable victims such as women and people from culturally and linguistically diverse backgrounds have adequate access to justice;
- victims safety is considered and acted upon in criminal justice matters;
- the protection of children and young people who are victims;
- a person’s right to access to information held about them;
- victims’ right to life are protected.