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Report No. 277

G. Australia

3.44 In Australia, individuals wrongfully convicted and imprisoned do not have a common law or statutory right to compensation except for in the Australian Capital Territory (ACT). However, a State or territory government may choose to make an ex gratia payment either on its own accord or as a result of a request by a party for such a payment.37

3.45 With respect to the ACT, Human Rights Act 2004 (ACT) lays down the law regarding compensation for wrongful conviction for ACT. Under section 23 of the Act, an individual who is wrongfully convicted of a criminal offence may apply for compensation if such individual:

(i) has been convicted of a criminal offence by a final decision of a court;

(ii) they have suffered punishment because of the conviction; and

(iii) that conviction was reversed or the individual was pardoned as a result of a new fact showing conclusively that there has been a miscarriage of justice (Section 23(1)). Foregoing criteria being met, the section provides for a right to be compensated 'according to law' (Section 23(2)). The section marks a specific exception for cases where it is proved that the non-disclosure of unknown fact in time is completely or partly the person's own doing (Section 23(3)).

3.46 Section 23, though pursuant to Article 14(6) of ICCPR, via its sub-section 1(b) adds an additional element of the person having suffered punishment because of the conviction to qualify for compensation thereunder. It is notable that the term 'punishment' as used in section 23(1)(b) has been interpreted to include not just imprisonment but even lesser sanctions, such as a fine or the recording of a conviction alone.38

3.47 It is noteworthy that in the absence of a legal framework or even guidelines for the award of compensation, these ex gratia compensation payments have been noted to be 'arbitrary' and generally 'very modest', marred by lack of transparency, making it difficult to establish any formal or informal tariff of compensation payable39. 3.48 A study of the international perspective shows that the international law and the law in Western countries (including the above-discussed) understands miscarriage of justice to take place after the claimant has been convicted by a final court, and a new fact comes to light that proved conclusively that the claimant did not commit the offence. And, they primarily address this miscarriage of justice by providing relief to the victim of wrongful conviction via monetary compensation and non-monetary assistance.



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