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Cite as: (2007) 81(3) LIJ, p. 8

Human Rights Charter and high-risk offenders

The Sentencing Advisory Council’s (SAC) discussion and options paper High-Risk Offenders: Post-sentence supervision and detention, released in January, contemplates a radical undermining of liberty in the name of the quest for perfect safety.

Its reference was driven largely, I suspect, by the tabloid journalists’ penchant for lynch mobs and governments’ fear of their pernicious influence, or being lynched.

The paper nonetheless approaches a real question with careful consideration, extensive analysis of research, and –the impressive novelty – a recognition of the impact of Victoria’s Charter of Human Rights and Responsibilities.

When the report came out I told [ABC radio presenter] Jon Faine that the liberty of the individual has been fundamental to the law since Magna Carta: to deprive a person of liberty on suspicion of a risk they might one day again offend was itself profoundly risky.

Long-held civil liberties principles are at stake: presumption of innocence, finality of proceedings, the rules against double jeopardy and retroactive criminal laws and the right to natural justice, for starters.

And yet, I allowed, “it is conceivable” that extra supervision could be appropriate after a completed sentence, if the facts are sufficiently clear and our understanding of human behaviour is sufficiently precise. But I doubted it.

The new factor is the Charter. It provides a reasoned framework for considering the issues and assessing the risks. For human rights in international law and in the Charter are not isolated and brittle, all or nothing, but weave a fabric in which their scope and meaning, especially when they conflict, are constrained.

Section 7 of the Charter provides “a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”.

Furthermore, in understanding the scope and limits of every human right, international law, and hence the Charter, requires objective assessment of least restrictive means, and rational connection between goals and methods.

The SAC’s proposals acknowledge the Charter. Admirably, it urges reciprocal obligations: we must provide the means for people to change.

I am not convinced, however, that the research on prediction of risk can justify the potential restrictions.

Every Bill presented to Parliament from now on must be accompanied by a statement setting out how it complies, or not, with the Charter.

The public will be able to assess its honesty and rationality, and judge accordingly.


For providing the letter of the month, Jamie Gardiner has won a $50 book voucher from the LIV bookshop, redeemable for the next 12 months.

National qualification needed

Now that we are all Australian lawyers, do we not need verifiable minimum academic qualifications?

I recently had the privilege of moving the admission of a friend using the new formula: “as an Australian lawyer and an officer of this honourable Court”.

The Chief Justice in her address to the new practitioners noted the changes in practice over the past 30 years: increased numbers of candidates, more degree granting universities, different pathways for practical training and more diverse career opportunities.

I would advocate a system of independent accreditation for practice, separate from the degrees granted by universities, so that the public is guaranteed that all candidates for admission have met prescribed standards of content and competence, irrespective of the state in which they trained or the institution they attended, similar to the American Bar exams system.

Law qualifications are now perceived as general business training and not as an automatic gateway to practice.

It is vital that we are a portable continent-wide profession so that a process akin to “due diligence” is not necessary to research the background of prospective lawyers, to try to gauge depth of knowledge or ability.

The time has perhaps come to revisit the undergraduate qualification itself and make provision for a specialised law degree similar to engineering degrees which are divided into civil, mechanical, electrical, etc.

The first two years of the LLB could have a core curriculum followed by the final two years of specialisation into (say) commercial/corporate and individual rights.

To some extent this occurs already with elective subjects. It would therefore merely formalise an existing reality. The day of the general practitioner who does all classes of work has long since disappeared due to consumer demand, office efficiency and insurance requirements.

This contemporary paradigm is recognised by the popularity of the Law Institute of Victoria’s Specialisation Scheme.

The overdue abolition of colonial boundaries for lawyers provides an opportunity and stimulus to examine the broader issues referred to by the Chief Justice in her charge to new practitioners.


Knowing what we do know about David Hicks

As we are increasingly reminded by the Australian Prime Minister John Howard, Guantanamo Bay detainee David Hicks is alleged to have trained with al-Qaeda, and to have knowingly cooperated with the terror organisation – serious allegations with potentially serious consequences.

However, these allegations have been made and reported by the media without any supporting evidence, and without the allegations being tested in a court of law.

What we in Australia do know is that an Australian citizen has been detained by the US in conditions which the US has refused to impose on its own citizens. He has been held for more than five years with no charge for the majority of that time, and with no certainty as to when he would be charged, when a trial would take place, if that trial would be a fair one and what the consequences of a finding of guilt would be.

We in Australia know that the conditions in which this Australian has been kept have been criticised widely by lawyers visiting Hicks, that he has spent a considerable part of his time at Guantanamo Bay in isolation, with limited access to other people or to natural light. We know that a report issued by the cross-party British Foreign Affairs Committee condemned Guantanamo Bay as failing to meet basic British standards for prisoners, and that UN human rights investigators have repeatedly called for the closure of the Guantanamo Bay detention camp.

We know that lawyers and politicians in Australia and around the world have voiced their objections to the inordinate delays in charging Hicks and bringing him to trial, to the failure of the Australian government to uphold the rule of law in Hicks’ case, to the nature of the military commissions and the admissibility of evidence, and to the failure of the entire process to comply with international legal standards.

As Australians we know that this Australian citizen is showing signs of mental and physical deterioration and that there is little hope of Hicks obtaining a fair trial should one eventuate.

The continued detention of David Hicks at Guantanamo Bay contravenes the rule of law and core principles of justice.

Federal Attorney-General Philip Ruddock should insist that unless he is granted a fair trial without delay he must be returned to Australia.


Racial hatred and freedom of speech

In recent months there has been a huge amount of publicity surrounding comments made by certain Muslim clerics.

Most prominent have been the remarks of Sheik al-Hilali, Australia’s most senior Muslim cleric, who has suggested, among other things, that women who dress immodestly invite sexual assault.

Sheik al-Hilali’s response to the public outrage covered by the media about women and sexual assault was a limited retraction at best, in that he appeared to insist that rape victims were still “partly” accountable for what happened to them. Such comments do little to bring broad community understanding across cultures.

While freedom of expression is a fundamental human right and a cornerstone in any democratic society, it has been accepted internationally that this does not protect “hate speech”.

“Hate speech” covers all forms of expression that spreads, incites, promotes or justifies racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance.

This limitation on the right to freely express oneself is justified because of the potential serious harm to others that can be caused by such public comment.

The Victorian Racial and Religious Tolerance Act 2001 attempts to fulfil this role.

Under this Act a person must not engage in conduct that incites hatred, serious contempt, revulsion or serves ridicule on the basis of religious belief or activity.

While it is important not to stifle legitimate religious debate, a free, tolerant and truly democratic society can only be fostered if a stance is taken against speech that incites racial and religious hatred.

While this is one of the stated aims in the Preamble of the Racial and Religious Tolerance Act, the extent that it can meet this aim is still being tested.


Victorian Sentencing Manual access

Thank you for featuring the Victorian Sentencing Manual in the “insites” column in your January/February 2007 edition. Your members may be interested to note that the easiest way to find and access the Sentencing Manual is to simply go to the publications page on the Judicial College of Victoria website at

A range of other useful resources is also available to the profession.



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