The common law
15.1 The common law recognises a duty to accord a person procedural fairness—a term often used interchangeably with natural justice—when a decision is made that affects a person’s rights, interests or legitimate expectations.[1] Courts may construe a statutory provision as implying that a power be exercised with regard to procedural fairness where a party’s interests …
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Read moreMigration law
15.43 The ALRC received a number of submissions from stakeholders regarding provisions in migration law that may be characterised as denying procedural fairness to persons affected by the exercise of public power.[53]Migration Act15.44 Some provisions of the Migration Act 1958 (Cth) may be characterised as excluding procedural fairness. The provisions highlighted below explicitly exclude the …
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Read moreOther laws
15.97 There are provisions in the empowering Acts of some statutory bodies that limit access to legal representation. There may be circumstances where a person whose interests are adversely affected by an administrative decision, is entitled to legal representation. Section 596(1) of the Fair Work Act 2009 (Cth) is an example of a provision that …
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Read moreJustifications for laws that deny procedural fairness
15.99 As with other rights, freedoms and privileges, laws that limit or deny procedural fairness may be justified on policy grounds, typically in the interests of quick and efficient decision-making, or when a matter is sufficiently clear or serious such as in national security matters.15.100 Academic writing and extra-judicial commentary provide useful criteria or principles …
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Read moreA common law presumption
14.1 There is a common law presumption that ‘mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence’.[1] The general requirement of mens rea is said to be ‘one of the most fundamental protections in criminal law’,[2] and it reflects the idea that it …
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Read moreThe common law
13.1 Client legal privilege is an ‘important common law immunity’[1] and a ‘fundamental and general principle of the common law’.[2] It ‘exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers’.[3]13.2 This chapter is about client legal privilege—also known as legal professional privilege—as …
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Read moreA common law right
12.1 The privilege against self-incrimination is ‘a basic and substantive common law right, and not just a rule of evidence’.[1] It reflects ‘the long-standing antipathy of the common law to compulsory interrogations about criminal conduct’.[2]12.2 In 1983 the High Court described the privilege as follows:A person may refuse to answer any question, or to produce …
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Read moreA common law principle
11.1 In criminal trials, the prosecution bears the burden of proof. This has been called ‘the golden thread of English criminal law’[1] and, in Australia, ‘a cardinal principle of our system of justice’.[2] The High Court of Australia observed in 2014 that[o]ur system of criminal justice reflects a balance struck between the power of the …
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Read moreLaws that reverse the legal burden
11.35 A range of Commonwealth laws place a legal burden on the defendant in respect of particular issues.Criminal Code11.36 There are a number of provisions in the Criminal Code that place a legal burden on the defendant. These include terrorism offences, drug offences, child sex offences, and offence relating to unmarked plastic explosives.Terrorism offences11.37 Some …
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Read moreA common law right
10.1 The right to a fair trial has been described as ‘a central pillar of our criminal justice system’,[1] ‘fundamental and absolute’,[2] and a ‘cardinal requirement of the rule of law’.[3]10.2 Fundamentally, a fair trial is designed to prevent innocent people being convicted of crimes. It protects liberty, property, reputation and other fundamental interests. Being …
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