The Queensland attorney general, Shannon Fentiman, is “actively” pursuing reforms that would expand redress options for people who have been wrongfully convicted, including the possibility of allowing a second appeal in cases where new evidence emerges.
On Thursday, Guardian Australia wrote about the Aboriginal man Terry Irving’s 25-year pursuit of justice. Irving was wrongfully convicted of a bank robbery in Cairns in 1993. He was released from prison in 1997 after the high court said it had “the gravest misgivings about the circumstances of the case”.
Under Queensland law, which is similar to other Australian jurisdictions except the ACT, there is no statutory legal remedy for a person wrongfully convicted or imprisoned, even in circumstances where they have clearly been mistreated.
Since 1983, Australia has declined to ratify the relevant UN treaty provision – it is the only democracy in the world that refuses to do so.
Irving was forced to sue for malicious prosecution and last year – almost two decades after his arrest – a ruling in his favour was confirmed by the high court, which refused an appeal by the Queensland government.
Asked about the case, Fentiman said: “any miscarriage of justice is distressing”.
The attorney general said she had written to the peak bodies for the legal profession in Queensland – the Law Society and the Bar Association – seeking their views “on reforms that would expand the current avenues of redress open to convicted persons”.
“I am actively seeking improved solutions,” she said.
“These could include making available a second appeal … where further evidence has arisen that justifies overturning a person’s conviction, or other alternative or supplementary means of correcting miscarriages of justice.”
A spokesperson for Irving welcomed Fentiman’s steps to seek community and professional input.
“The government has a deadline to review the Queensland Human Rights Act on 1 July this year,” Irving’s spokesperson said.
“Mr Irving has already written to the Queensland human rights commissioner asking that the commission use its statutory authority to advise the government on suggested reforms to human rights legislation, including providing compensation for exonerees.”
A 2017 study by Civil Liberties Australia, which compared wrongful conviction rates in similar countries, estimated 7% of people in Australian prisons had been wrongfully convicted. Lawyers and some experts say this figure should be treated with caution, but that there remains a considerable number of cases where the justice system has failed.
Michael O’Keeffe, a retired lawyer who represented Irving, said First Nations Australians were “far more likely” to be wrongly convicted than non-Indigenous Australians.
O’Keeffe, who wrote a paper on wrongful convictions, said Queensland had refused several applications from people for ex-gratia payments, forcing them to take legal action. The process of suing is notoriously difficult and requires people to prove their prosecution had been malicious and unreasonable, even in cases where they have been clearly wronged.
“Noted Australian and overseas academics … point to the experience of mature western democracies in dealing with miscarriages of justice, which has led to reforms in those countries which adopt a range of necessary laws and processes to protect the human rights of exonerees,” O’Keeffe wrote in his paper.
“Existing laws and policies in Australia, and in particular the absence of redress to exonerees, cause wrongful convictions to become extended miscarriages of justice.
“One of the weaknesses of the Australian criminal justice system is that with many of the most significant miscarriages of justice … the judicial system did not recognise a fundamental mistake and a serious injustice.
“It was too used to mild correctives, and minor criticisms, but not to declarations that the system had failed.”
