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Right not to be tried or punished more than once

Section 26 of the Charter of Human Rights and Responsibilities (the Charter) protects your right to not be tried or punished for the same crime more than once. The Charter applies to public authorities in Victoria, such as state and local government departments and agencies, and people delivering services on behalf of the government.

How does the law protect me?

To be effective, Victoria’s justice system must treat people convicted of offences fairly. 

Under the Charter, if you have already been convicted or acquitted of a criminal offence, you cannot be tried or punished for the same offence again. This right generally applies if a person is charged with exactly – or a substantially similar – offence for which he or she has previously convicted or acquitted.

Can this right be limited in any way?

In some circumstances, one person’s right may come into conflict with the right of another person or group. In these circumstances, it can be necessary to limit or restrict these rights. Under section 7(2) of the Charter, rights may be limited in certain circumstances, but it must be reasonable, necessary, justified and proportionate.

In certain situations, this right may be limited. If there is new evidence or if the original trial was not conducted fairly, it is possible someone who has been acquitted previously could be prosecuted again for serious offences. 

Example

Professional disciplinary proceedings and the question of double punishment – Psychology Board of Australia v Ildiri (Occupational and Business Regulation) [2011] VCAT 1036

In this case, Ms Ildiri had been found guilty of numerous fraud offences under the Crimes Act 1958 (Vic). The Psychology Board of Australia sought to rely on those findings of guilt to support the making of a decision that Ms Ildiri engaged in unprofessional conduct under the Health Professions Registration Act 2005 (Vic). The Tribunal found that a finding of unprofessional conduct could not violate the right not to be tried or punished more than once under section 26 of the Charter as the purpose of the disciplinary proceedings was ‘primarily to protect the public, and not to punish the practitioner’. This case confirms that the right not to be tried or punished more than once was only relevant where the purpose of the penalty was punitive.

How we can help

We can give you information about Victoria’s Charter of Human Rights and Responsibilities but the Victorian Equal Opportunity and Human Rights Commission does not handle complaints related to the Charter.

If you would like more information about the Charter and your rights contact us.

For information about the legal history of this right, case law or Australia’s human rights framework, you can read more in our Policy and Legal sections of this website.

How to make a human rights complaint

If you think your human rights have been breached, you should contact the Victorian Ombudsman.

If you want to make a complaint about police conduct, contact the Independent Broad-based Anti-corruption Commission.

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Address
Level 3, 204 Lygon Street Carlton Victoria 3053

General enquiries
enquiries@veohrc.vic.gov.au

Reception
1300 891 848

Enquiry line
1300 292 153 or (03) 9032 3583

Interpreters
1300 152 494

NRS Voice Relay
1300 555 727 then use 1300 292 153

Media enquiries
0447 526 642

The Victorian Equal Opportunity and Human Rights Commission acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and deep connection to the land.

We acknowledge that the Commission is on the land of the Kulin Nation and pay our respects to Elders past and present.