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Vertigan, Phoebe --- "Criminal Process and Human Rights" [2011] UTasLawRw 21; (2011) 30(2) University of Tasmania Law Review 175


Criminal Process and Human Rights

Jeremy Gans, Terese Henning, Jill Hunter and Kate Warner

Australia: Federation Press 2011, pp 518, ISBN 978 186287 838 9, $125.00

Criminal Process and Human Rights addresses a deficit in Australian legal literature through a comprehensive exploration of human rights and their application to the criminal process. This is both timely and critical to the debate regarding developments in Australian human rights law, and follows legislative enactment of two comprehensive human rights instruments in the ACT and Victoria. The text also complements discussions about reform at a federal level, and works to remedy the intellectual and practical isolationism that threatens Australia as a direct result of consecutive governments failing to fully incorporate human rights treaties in domestic legislation.

Human rights have had a muted history in Australian law. The authors’ successfully clarify existing rights under common law, statute, the Constitution and international law and their interaction with the criminal process. The issue of human rights is paramount to the twenty first century, especially with the increase in anti-terrorism legislation, mobile technologies and overt surveillance of both individuals and communities.

The early chapters provide a useful background and explanation of the nuances of various jurisdictions’ approach to the issue of human rights. This helps the reader develop an understanding of the diverse range of legal instruments which make up human rights law, and the interaction between common law, statutory, constitutional and international treaties that are currently encompassed by this aspect of law. In the absence of a federal Bill of Rights these initial chapters successfully consolidate the limited forms of protection operating in this area.

The body of the book is broken down into four discrete sections; the right to personal liberty, the right to silence, the right to security of the person and privacy, and the right to a fair trial. This structure enables the authors to explore all elements of individual rights, and provide the reader with an understanding of the theoretical background and practical operation to each dimension of that right. By initially defining the right in each section, the author assumes no prior knowledge on behalf of the reader before developing higher order analysis.

An impressive level of scholarship is evident throughout the work, with constant reference and examination of other jurisdictions and their respective legislation and case law, including the UK, Europe, Canada, South Africa, Hong Kong and the US. The authors provide further evidence to support the discussion by including current examples that demonstrate the interaction of human rights principles, and human rights practice. For instance, the disproportionate impact of anti-terror legislation on the right to liberty is illustrated by the detainment of Dr Haneef in 2007. This demonstrates the inherent risk in expanded police powers and their potential impact on individual citizens’ liberty.

The ‘first and primary end of human laws’, the right to liberty, is split over chapters four and five, allowing the reader to gain an understanding of the definition and scope of the right, before considering the ancillary rights and their application. Henning provides a broad overview of the complex legal issues that warrant exploration. However, due to the extensive body of law in this area the reader would be required to use this information as an introduction to the topic, and complete more detailed research if they wished to grapple with a discrete aspect of this right.

The right to privacy is one of the most fragmented rights, often limited by the executive in areas such as the admissibility of DNA evidence, anti-terrorism laws, surveillance and telecommunications laws. Warner’s inquiry assists the reader to gain understanding of the way the right to privacy is defined, protected and restricted under Australian law. The global response to threats of terrorism and organised crime is a particular challenge at the domestic level in the absence of a tort to protect individuals’ privacy. In many instances, the rights of the state have curtailed the rights of individuals. To this end, the exploration of the right to privacy in chapter 8 is a key contribution to the text.

Consideration of the omnibus of rights compiled under the right to a fair trial is consolidated in the final third of the book. Hunter works to clarify the challenges inherent in drawing principle from common law precedents distilled through a multiplicity of case law, contrasted with the specific prerequisites established in human rights instruments.[1] The pervasive impact of modern technology and rapid dissemination of information on jury impartiality provides additional challenges for the courts when ensuring a fair trial and the defendant’s right to a fair process. The engagement of the rights to a fair trial under the Victorian Charter is illustrated by discussion of a publication ban on the television series Underbelly, which dramatised aspects of underworld crime in Melbourne prior to a gangland murder. The final chapters of the book demonstrate that despite a rich body of law to draw upon, a defendant’s experience within the criminal justice system may differ from the principles established by the right to a fair trial.

Unfortunately, this work was published prior to the High Court’s interpretation of the Victorian Charter in Momcilovic v the Queen[2] being handed down. This book narrowly missed out on including this decision, however, in all other respects stands as an authoritative foundation for students and practitioners. This demonstrates that despite current and extensive research by the authors, human rights is a rapidly developing context and a dynamic area of law. The heightened awareness and interest in human rights assures the relevance of this text. Although the text is content rich, its structure ensures that it is accessible and informative. It allows a scholar to delve into specific operations of the law, and the complexities of human rights at each stage of the criminal justice process.

As stated by Justice Richard Refshauge in the foreword, there can be no doubt that this text will encourage an exploration of the ‘human rights culture in Australia’. Criminal Process and Human Rights complements existing academic literature on this topic and supplements the debate by focusing on contemporary examples from both Australian and international experiences with rights.

Phoebe Vertigan[∗]


[1] See, eg, Article 14 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 3 January 1976).

[2] [2011] HCA 34.

[∗] Final year BA-LLB (Hons) student at the University of Tasmania, and co-editor of the University of Tasmania Law Review for 2011.


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