The key human rights relevant to the justice system at all stages of the process including investigation, court and post-court are outlined in this section.
S 8 of the HR Act provides the right to enjoy human rights ‘without distinction of discrimination of any kind.’
S 8(3) provides:
Everyone is equal before the law and is entitled to the equal protection of the law without discrimination
Everyone has the same rights and deserves the same level of respect. This means that laws, policies and programs should not be discriminatory. It also means that public authorities should not apply or enforce laws, policies and programs in a discriminatory way. These include discrimination because of race, colour, sex, sexual
orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
Human rights law recognises that just treating everybody in exactly the same way (formal equality) can lead to unequal outcomes and to achieve substantive equality sometimes differences of treatment may be necessary for example measures intended to achieve equality under s. 27 of the Discrimination Act 1991.
Some relevant considerations for victims when considering the concept of recognition and equality before the law during the investigation stage include:
Some relevant considerations for victims when considering the concept of recognition and equality before the law during the court stage include:
Example: A witness in a serious criminal matter is a man who has an intellectual disability. He is very anxious about giving evidence, and has significant difficulty concentrating for extended periods of time. A human rights approach to assist him to give the best evidence he can give, would involve allowing him to have a support person sit with him whilst he is giving evidence, taking frequent breaks in proceedings and avoiding the use of long or confusing questions. It may also involve allowing him to give evidence via audiovisual link.
Case example (right to equality)
A 17 year old girl living in the Philippines who was mute and hearing-impaired alleged that she was raped by a neighbour. She reported the incident to police with her sister interpreting for her using sign language. The affidavit drawn up was in Filipino. However, the education system for the deaf was in English and the complainant could not understand the affidavit, and she was not given an interpreter.
It took almost 5 years for the case to be heard and finalised. Reasons for the delay included: the court’s failure to provide an interpreter, leaving it up to the complainant to arrange, placing the case after the other cases scheduled for the day were heard, leading to many adjournments. The accused was acquitted due to insufficient evidence. The court stated that an ordinary Filipina female rape victim would try to escape or resist and call out, and that the complainant’s demeanour was inconsistent with this casting doubt on her credibility.
The UN Committee on the Elimination of Racial Discrimination found that the court’s treatment amounted to a violation of the State’s obligation to end discrimination in the legal process, and that its attitude towards the complainant and towards women and rape in general revealed gender stereotyping. The Committee noted that the State’s obligations included an obligation to consider the complainant’s disability and age. It found that providing a sign language interpreter was essential to ensure the complainant’s full and equal participation in proceedings to ensure protection against discrimination.
Source: RPB v The Philippines, Committee on the Elimination of Discrimination against Women, Communication No 34/2011 (21 February 2014).
Some relevant considerations for victims in the concept of recognition and equality before the law post-court would include: