Criminal Proceeding Rights

Section 22 of the Human Rights Act 2004 says that:

Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:
1. to be told promptly and in detail, in a language that they understand, about the nature and reason for the charge;
2. to have adequate time and facilities to prepare their defence and to communicate with lawyers or advisors chosen by them;
3. to be tried without delay;
4. to be tried in person, and to defend themselves personally, or through legal assistance chosen by them;
5. to be told, if they do not have legal assistance, about the right to legal assistance chosen by them;
6. to have legal assistance provided to them, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if they cannot afford to pay for the assistance;
7. to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on their behalf under the same conditions as prosecution witnesses;
8. to have the free assistance of an interpreter if they cannot understand or speak the language used in court;
9. not to be compelled to testify against themselves or to confess guilt.
A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.
Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

Section 22 is based on article 14(2)-(5) of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party.

Scope of the rights

The rights listed in section 22 specifically concern criminal proceedings and apply only in those proceedings. They supplement the right to a fair hearing under section 21, which applies both in criminal and in civil cases.

Section 22(1) sets out the fundamental human right of every person charged with a criminal offence to the presumption of innocence. Section 22(2) lists a series of additional, specific guarantees to which every such person is entitled, at a minimum. If the person is a child (meaning anyone under 18), they also have the right to a procedure that takes account of their age and the desirability of promoting their rehabilitation, under section 22(3). The final paragraph of the section, section 22(4), gives every person convicted of a criminal offence the right to have their conviction and sentence reviewed by a higher court.

Many of these rights are self-explanatory. However, one important consideration is at what stage of the process they operate. For example, as section 22(2)(a) says, anyone “charged with a criminal offence” is entitled to be told promptly and in detail about the nature of the charge against them and the reason for it. The United Nations (UN) Human Rights Committee has interpreted this right to apply as soon as the person is either formally charged or publicly named as an accused person (Human Rights Committee General Comment 32). It does not apply during a criminal investigation of the person before that point, but anyone who is arrested has a separate right, under section 18(3), to be told the reasons for that arrest. Section 18(3) also says that arrested people, specifically, must be promptly told of any charges against them.

It is also important to understand the extent of the rights in section 22 that relate to legal assistance. Under section 22(2)(d), for example, a person charged with a criminal offence has the right to choose a lawyer or to defend themselves personally, but both the UN Human Rights Committee and ACT courts have said that this is not an absolute right. It will be balanced against considerations such as potential delays and availability of reasonable alternatives if the person’s first choice of lawyer is unavailable. It will not give the person the right to legal aid funding for an expensive private lawyer. Additionally, the interests of justice may require assigning a lawyer to an accused person against their wishes.

Another minimum guarantee for everyone charged with a criminal offence is to have adequate facilities to prepare their defence (section 22(2)(b)). “Adequate facilities” in this context includes having access to evidence – both the evidence the prosecution plans to present in court against the accused and evidence that could assist that person’s defence.

Section 22(3), on the procedure to which a child charged with a criminal offence is entitled, reflects the fact that children in the criminal process need special protection. Children have all of the rights set out in sections 22(1), 22(2) and 22(4) too. There are further protections for children in the criminal process in section 20 of the Act, including a right to be brought to trial as quickly as possible. However, the UN Human Rights Committee recommends considering measures other than criminal proceedings where children are alleged to have committed crimes, for example, mediation, community service or educational programmes. The UN Committee on the Rights of the Child similarly has recommended dealing with children outside of the judicial system whenever appropriate, in its General Comment 24.

Sections 23, 24 and 25 of the Human Rights Act contain additional criminal process-focused rights. These concern: compensation for wrongful convictions; being tried or punished more than once for the same offence (“double jeopardy”); and being penalised retrospectively.

When could these rights be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 22 may be relevant to:

laws that create an offence that contains a presumption of fact or law and puts the legal or evidential burden on the accused to rebut the presumption;
powers of police or other investigatory bodies to compel testimony;
guidelines or procedures for the provision of translators and interpreters;
guidelines or procedures that enable an accused person to represent themselves personally, or restrict the ability of an accused person to choose for themselves a support person or advisor;
laws or procedures that govern examination of witnesses;
laws or procedures under which a person can appeal against or seek the review of a decision;
regulating the treatment of children in criminal proceedings;
regulating aspects of procedure for criminal investigations, prosecutions and defence. For example, establishing time limits on the lodging of complaints, defence responses or appeals, or filing and service fees;
regulating how an accused person may appear in court, for example, security measures associated with their appearance;
regulating how an accused person who is in detention can communicate with their lawyer;
restricting access to information and material to be used as evidence;
changing the eligibility criteria for legal aid.

Cases

There have been many Australian and international cases on rights referred to in section 22. ACT cases on these rights include:

Parkinson v Alexander [2016] ACTSCFC 1

This decision of the Full Court of the ACT Supreme Court discussed the scope of the right of a person convicted of a criminal offence to have their conviction reviewed by a higher court, under section 22(4) of the Human Rights Act. The Chief Magistrate had found that offences with which the respondent had been charged were “proved”, but had not used the word “convict”, to leave open the possibility of imposing a sentence known as a “non-conviction order”. Receiving a non-conviction order means that the offence committed will not formally be part of the person’s criminal record. A court might impose a non-conviction order if, for example, the offence was minor or the person had no previous criminal history.

The respondent claimed that she had a right to appeal under section 208(1)(b) of the Magistrates Court Act 1930 (ACT), which enables a “person convicted” to appeal against a Magistrates Court “conviction”.

The Full Court agreed. It concluded that a Magistrates Court finding that an offence has been proved (a finding of guilt) is a “conviction”. The reasons for this conclusion included the need to interpret section 208 in a manner that is compatible with the human right to have a conviction reviewed. The Full Court noted that section 31 of the Human Rights Act permitted it to consider General Comments and decisions of the UN Human Rights Committee in interpreting that human right. It found that the Committee’s approach, as reflected in its General Comment 32 and decisions on complaints against Australia, did not distinguish between finding a person guilty and convicting them. Applying that approach, “conviction” in section 22(4) would include the finding made by the Chief Magistrate.

Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70

In this case, the ACT Supreme Court considered the right of a person charged with an offence to communicate with “advisors chosen by them”, under section 22(2)(b) of the Human Rights Act. The applicant was in prison and was in the process of appealing from the sentence imposed on him. He sought permission for “legal advisory visits” with his chosen advisor, another detainee, who had no formal legal qualifications. The Court said that an advisor for the purpose of section 22(2)(b) does not have to have legal qualifications. Indeed, they need not necessarily have qualifications or skills that allow them to assist the accused; “[i]t is not for the court to tell an accused that his or her choice of advisor is a bad one”. Nonetheless, the Court refused the application as it was not convinced that the applicant was seeking the visits to obtain advice about his appeal, as he had claimed.

R v QX (No 2) [2021] ACTSC 244

In this case, the ACT Supreme Court considered whether it was in the interests of justice to appoint an intermediary for a witness in a trial on alleged sexual offences against her, with reference to several human rights, including the accused person’s right to examine prosecution witnesses under section 22(2)(g) of the Human Rights Act. Because the witness was a child at the time of the alleged offending, section 4AK of the ACT’s Evidence (Miscellaneous Provisions) Act required the Court to appoint an intermediary for her, unless it was not in the interests of justice to do so or no intermediary was available.

The accused argued that the use of an intermediary impedes the normal taking and testing of evidence, should therefore only be allowed in limited circumstances that did not exist in this case, and would in this case infringe his section 22(2)(g) witness examination right. However, the Court decided that “the appointment of an intermediary, in and of itself, cannot result in a breach of the right in s 22(2)(g)”. If an intermediary were appointed, the accused could still call witnesses and cross-examine them (themselves or through a legal representative). To the extent that the intermediary may be needed to facilitate communication between the witness and lawyers during examination and cross-examination, as “the same rules apply to both sides”, “there is no inherent prejudice or unfairness” to the accused.

In addition, as discussed in the Commission’s section 21 factsheet, the Court decided that appointing an intermediary does not, in and of itself, affect the right to a fair hearing under section 21 of the Human Rights Act.

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.