When Justice Fails – Wrongful Convictions in Australia

By Phoebe Meeton
Prison Wall
Natalie Tracy

Australia remains the only democracy that does not guarantee compensation for those wrongfully convicted, despite scores of innocent people going to prison for crimes they did not commit.

David Eastman is in his 70s, an age when most are looking to retire, if they haven’t already. Instead, he’s eager to join the workforce and make up for lost time (and income). Despite an early career as a public servant, Eastman will have a hard time finding work with a 20-year gap on his resume. Not to mention the fact that any web search of his name will forever connect him to the murder of Assistant Australian Federal Police Commissioner, Colin Winchester, in 1989. 

A just consequence for a cold-blooded murderer, some might argue. Except that Eastman spent almost two decades behind bars for a crime we now know he did not commit.

No one knows exactly how many people in Australia have been imprisoned for crimes they didn’t commit, however, there is evidence of nearly 100 cases of wrongful convictions since 1922. While this might sound shocking, those working on the frontlines of criminal justice reform warn the number could be much higher. 

If the legal system sometimes incarcerates innocent people, what is the proper form of recourse? How should a government make reparations and attempt to right its wrongs?

To answer these questions, the United Nations developed the International Covenant on Civil and Political Rights. Under Article 14 of the ICCPR, everyone has the right to liberty and freedom from arbitrary detention. Where this right has been violated, victims should be compensated “according to the laws of their country”. In 1980, the Fraser Government agreed to ratify the ICCPR, validating it as international law.

However, the data that is available on this topic suggests less than one-third of Australian exonerees have received compensation. This is no accident or oversight, nor is Australia technically violating its obligations under the ICCPR. When signing the treaty, a specific reservation was added, which allows countries to avoid legal recourse for wrongful conviction. Article 14 states:

“the provision of compensation for miscarriage of justice in the circumstances… may be by administrative procedures rather than pursuant to specific legal provision.” (emphasis added)

In Australia, there are currently three avenues through which an exoneree can request compensation, none of which are used with any regular success. The United Nations’ own Human Rights Commission has consistently stated that these options are unsatisfactory, recommending on multiple occasions that Australia withdraw the reservation. 

Recourse can include ex gratia payments (payments made despite there being no legal obligation to do so),  which are offered in a range of situations involving income loss or damage costs. In Australia, ex gratia payments for wrongful conviction are made at the sole discretion of a state’s Attorney–General—a government-appointed position.

Payments are often politically motivated, only granted after extensive public outrage or a Royal Commission (like in the case of Lindy Chamberlain). Decisions regarding compensation awards are rarely published and there is little transparency in the decision-making process or in the way that compensation is calculated. 

“We don’t know what happens behind the scenes, how they reach their decisions before the awards are given or denied,” explained Rachel Dioso–Villa, a senior lecturer at Griffith University in Queensland, who published the most extensive list of Australia’s wrongful convictions.

“In some cases, even when [exonerees] are awarded, they make sure to say that this does not set a precedent,” Dioso–Villa added.

Wrongfully convicted citizens can also sue the government or police department for negligence, false imprisonment or malicious prosecution. These torts can be difficult to argue in court as the exoneree must prove that public officials knowingly encouraged the violation of their human rights. When compensation is awarded, amounts are based on calculations like those used in determining damages in other civil wrong cases.

As a last resort, exonerees can try passing a private bill through state Parliament, which would authorise direct compensation from the government. The legal and political efforts involved in drafting a parliamentary bill means this is rarely an option. Only once has this avenue been successfully used to claim compensation.

In 2004, the ACT passed the Human Rights Act, becoming the only state or territory in Australia to legislate, as recommended by the UN, the right to be compensated “according to law”. To be eligible for restitution under the act, an individual must have received a pardon or otherwise had their conviction reversed. There are also no guidelines on how to calculate the appropriate amount of compensation.

A photograph of Colin Campbell Eadie Ross, executed for murder in 1922 and exonerated in 2008

Eastman had to carefully consider his options. There had been questions about the legitimacy of Eastman’s guilt for years, and a judicial review conducted in 2014 recommended that he be pardoned for the crime. Prosecutors demanded a new trial – and after 19 years in custody, a jury found the defendant not guilty of murder. 

Months later, as he stood in court and explained his request for civil compensation, Eastman outlined the personal costs of his incarceration: “The loss of opportunity to get married and have children, which was a dream; the loss of opportunity to pursue a career.”

Eastman’s 19-year wrongful imprisonment is the longest in Australian history and he was eventually offered $7 million in compensation. 

Michael Elkaim, the judge responsible for the decision, explained that it was “necessary to take into account the plaintiff’s loss of his working life and economic capacity, [and] the insult to his reputation.”

Australia’s current convoluted system is by no means the norm. The United Kingdom was operating under a similar system to our own until the passing of the 1988 Criminal Justice Act. Under section 133 of the act, exonerees have two years to apply for compensation. Decisions are made by the Secretary of State and, if successful, amounts are determined by an independent assessor. An individual wrongly incarcerated for less than 10 years can receive up to £500,000; the maximum award doubles for those who have spent more than a decade in prison.

Like Australia, compensation claims in America are dealt with on a state level. Fifteen US states do not have statutes concerning restitution in cases of wrongful conviction—those that do vary widely in scope. The state of New York imposes no limit on the amount an exoneree can receive, while California offers a set rate of $140 per day behind bars. Other states offer anywhere between $40,000 and $200,000 per year of incarceration, with some offering additional compensation for time on death row or probation.

Lara Zarowsky, a law instructor at the University of Washington, worked with her students to advocate for legislation aimed at compensating the wrongfully convicted, successfully introducing a state-wide law in 2013. Zarowsky said:

“[It is] a vehicle, really, for people in this position to be able to get some sort of nominal amount for their immeasurable pain and suffering… it also represents official recognition that these cases can and do happen.” 

While few nations can truthfully claim to provide fair and consistent compensation for arbitrary detention, Australia remains the only democracy that denies its citizens due legal process after freedom of liberty violations.

Despite shortcomings in the laws enacted overseas, the UK and certain American states offer insight into how such legislation could be incorporated clearly and with a relative degree of consistency.