Article 9 (5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation ... & Article 14 (6) When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

If the state does not provide for compensation, then under the First Optional Protocol to the ICCPR (to which Australia became a signatory in December 1991) individuals may complain of a breach to the Human Rights Committee, which may in turn deliver a non-binding opinion. Nick Toonen (of the Tasmanian Gay and Lesbian Rights Group) ran Australia's first such successful action, against Tasmania's anti-gay laws, with the HRC delivering an opinion in his favour in March 1994. The federal government responded with its sexual privacy legislation.

It could be argued that Article 9(5) of the ICCPR is met by the existing common law, in that pursuit of a civil wrong by the state is at least possible. Some of the sense of Article 14(6) is incorporated into considerations of ex gratia payments, that is, payment is often made when a person is exonerated after all the normal processes (usually including a High Court appeal) have failed. Such exoneration usually happens by way of a Royal Commission or, in the peculiar case of NSW, an inquiry under s.474 (previously s.475) of the Crimes Act.

Attorney General Jeff Shaw recently said that ex gratia considerations would include findings of wrong doings against the state or its witnesses, such as would be relevant to any common law action.

If it is found the evidence is fabricated or if the prosecution misconducts itself, then compensation would be paid. (Interview with Andrew Olle, Radio 2BL, 17 November 1995) The Attorney General said this when rejecting a compensation claim by Jonathan Manley, who was acquitted of murder by the Court of Criminal Appeal, on the grounds that the verdict was unsafe and unsatisfactory. Manley had spent 12 months in prison and was acquitted because the case against him was hopelessly weak. Had there been a finding of fabricated evidence, then, according to Shaw, Manley may have been compensated. However this distinction has no real relevance to the actual wrong suffered by Manley.

In practice, the ex gratia system is extremely uneven. Large payouts have been made where a special inquiry has been instituted after the person has been exonerated. Thus Arthur Allan Thomas in New Zealand (who served 10 years for murder before being pardoned) was awarded $1.1 million and Harry Blackburn (who was not convicted and served no time in prison) received almost $1 million. Both had Royal Commissions into their cases after they had been exonerated. The Blackburn case was an unusual example where compensation was paid despite the fact that no conviction occurred. Lindy & Michael Chamberlain received a total of $1.3 million for their wrongful convictions (Lindy had served 3.5 years), but others have received much less:

• Edward Splatt in South Australia received $270,000 for 6 years jail
  
• Ziggy Pohl in NSW received $200,000 for 10 years jail
  
• Douglas Rendell in NSW received $100,000 for 8 years jail, and
  
• Paul Alister, Ross Dunn and Tim Anderson in NSW received $100,000 each for 7 years jail.

In the last case, Chester Porter recommended this payment as "rehabilitation compensation". All ex-gratia payments have been made with no fault admitted by the state. Most of these claims took several years to resolve, on top of the many years which the victims had already spent seeking vindication.

In June 1994 it was reported that the then Attorney General John Hannaford was preparing a system of independent assessment of compensation for people who have suffered miscarriages of justice. This was to replace the ex gratia system, as Malcolm Brown wrote in the Sydney Morning Herald (22 June 1994): Mr Hannaford told the Herald yesterday that a system introduced in Britain in 1988, which replaced an ex gratia scheme, was being examined.

"We are looking at the most effective and efficient way of dealing with these to minimise court cases with regards to disputes over compensation," he said.
"We have never anywhere in Australia had a statutory scheme for assessment of compensation. Here in NSW the ex gratia payments have not been compensation, but some payment to help a person get re-established in life."

He agreed that the proposed change was a radical shift in policy. One factor he had taken into account was the number of applications in the system for quashing of verdicts.

At this time two private members bills on compensation were before the parliament, one from George Thompson (ALP) and a second from John Mills (ALP), seeking independent assessment of compensation. A third was being contemplated by Peter Anderson (ALP), on behalf of Alexander McLeod-Lindsay, who was pardoned after having served nine years for attempted murder. However the Liberal government subsequently made no such changes, and the current Labor government has not announced any such plans.

The main problems of the existing ex gratia/common law system of compensation are then these:

• the ex gratia model limits itself to (a) those few who have exhausted all channels of appeal, have managed to secure a special inquiry and have then (by the longest route possible) been exonerated, or to (b) those acquittals where there has been a finding of wrong doing by the prosecution or its witnesses (and therefore the state faces the prospect of a common law suit).
  
• there are long delays in the consideration of ex gratia matters
  
• there are inexplicable inconsistencies in payments there is no open process of hearings, or avenue for appeal, in the ex gratia system
  
• the common law route involves placing an unfair and extremely difficult burden of proof on a person already found to have been wrongly convicted (and often jailed) by the state.

There can be little doubt that an independent tribunal or panel of assessors would act more rapidly, more favourably and with greater consistency than governments of any stripe, under the ex gratia system. A useful precedent is the Victims Compensation Tribunal. A statutory scheme similar to that proposed by John Hannaford in 1994 would be an important step forward. The recognised principles could be applied by this Tribunal, but one contentious issue remains: what about the people wrongly convicted and jailed, but with no proof as to specific wrong doing by the prosecution? The wrong experienced by them is no less than that of others. Should they be included in a miscarriage compensation scheme, just as other schemes have recognised 'no fault' compensation? The answer to this question must take note of a central principle of Australian and international law, that a person found by the courts to be 'not guilty' of a crime is to be presumed innocent, and cannot be called on to prove his or her innocence. This principle suggests that there is little basis to distinguish one miscarriage from another, and that they must therefore be treated equally.