Section 32 of the Human Rights Act 2019 (Qld) details the rights of a defendant subject to criminal proceedings in Queensland. Many of the rights included in this provision are similar to those protected by the right to a fair trial, however these relate specifically to criminal proceedings. Section 32 ensures the following foundational rights are protected:

  • Presumed innocent until proven guilty – this means that the prosecution has the burden of proving every element of the offence, before a person can be found guilty.
  • Informed promptly of the details and reason for any charge made against them
  • Have adequate time and facilities to prepare a defence and to communicate with a lawyer or advisor chosen by the person. If the person is eligible for Legal Aid, this provision does not allow them to choose a particular lawyer to provide assistance through Legal Aid.
  • to be tried without unreasonable delay;
  • to be tried in person, and to defend oneself personally or through legal assistance chosen by the person or, if eligible, through legal aid;
  • to be informed, if the person does not have representation, about the right, if eligible to legal aid;
  • to have access, if eligible, and if the interests of justice require it, to free legal aid;
  • to examine, or have examined, witnesses against the person;
  • to obtain the attendance of, and examine witnesses on the person’s behalf, under the same conditions as witnesses for the prosecution;
  • to have the free assistance of an interpreter if the person cannot understand or speak English. If you require an interpreter in a criminal proceeding, contact the registry in the court where your matter will be dealt with as early as possible. You should make your request in writing. Court registry staff will engage an interpreter for criminal proceedings—from an approved service provider or other sign language interpreting service—as directed by the court;
  • to have the free assistance of specialised communication tools and technology, and assistants, if the person has communication or speech difficulties that require this assistance. Once again, the individual or their legal representative can contact the registry to make such arrangements;
  • not to be compelled to testify against themselves or to confess guilt. This aligns with the right against self-incrimination; and
  • to have a conviction or sentence reviewed by a higher court in accordance with the law. A defendant can appeal a guilty verdict and/or apply for leave to appeal against a sentence.There are specific time frames for making an appeal. If the appeal against the conviction is successful, the court will either order a new trial with a different judge and jury, or find the appellant not guilty. If the appeal against the sentence is successful, the sentence may be reduced or a different type of sentence may be imposed.

None of these provisions alter a person’s existing rights and obligations under the Legal Aid process as set out under Legal Aid Queensland Act 1997.


Special Rights for Children

Section 32 of the Act also provides that a child charged with a criminal offence has the right to a procedure that takes into account their age. Section 33 of the Act also states that a child must be treated in an age-appropriate way during criminal proceedings. Examples of this can be seen in the current operation of Queensland Children’s Courts, which alter ordinary court procedure in the following ways:

  • Proceedings are held in a closed court to protect the child’s identity and limit the stress of attending court, allowing only people relevant to the proceeding to attend;
  • There is a prohibition on publishing the identifying material about the child in relation to the proceeding, with limited exceptions;
  • Generally, courts will not deal with a child’s matter unless a parent is present. A court can adjourn a proceeding to enable a parent to be present, and can recommend the department meet a parent’s travel expenses (s 69 Youth Justice Act);
  • Court processes can be conducted less formally, with parties sitting down to speak.

The provision also states that criminal proceedings and outcomes for children should promote the desirability of rehabilitation, supporting the general principle that children should only be detained as a matter of last resort.

Note, s33 of the Act sets out two further rights regarding accused children. Firstly, that they are to be detained separately from all adults. Further, the child must be brought to trial as soon as possible.


Miscellaneous Provisions Relating to Criminal Proceedings

Section 34 of the Act states a person cannot be re-tried for an offence for which they have already been finally convicted or acquitted in criminal proceedings, enshrining the double jeopardy principle. Queensland does have laws that breach this right when it concerns ‘fresh and compelling’ evidence for very serious offences.

Further, section 35 sets out the rules in relation to retrospective laws. It states you cannot be found guilty of an offence for conduct that was not a criminal offence at the time you engaged in it. This stops the government from making laws to outlaw conduct that has already happened, maintaining fairness for individuals by allowing them to have access to the law that applies to them. Likewise, when a person is convicted of an offence, the maximum penalty that can be imposed is that which applies at the date they committed the offence. If, before trial or sentencing this penalty increases, it cannot be handed down to them. However, if a person is convicted of an offence, and before the sentencing hearing occurs the penalty is reduced, they are eligible for this reduced penalty. This seeks to afford maximum fairness to the accused, balancing the power imbalance between the state and individual.


This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!