10.160 Criminal trials must always be fair and it will generally not be justified to depart from the accepted attributes of a fair trial. However, both the common law and statute feature some limits on fair trial rights. This chapter has identified a number of Commonwealth laws that limit fair trial rights, for example, to protect vulnerable witnesses and in the interests of national security. For example, although justice should usually be done in public, it may sometimes be justified to close a court to protect a child or to protect trade secrets.
10.161 There is a tension between national security and fair trial rights, as highlighted by submissions criticising laws that limit these rights for national security reasons. Some limits on fair trial rights for national security reasons are justified, but any such limit clearly warrants ongoing and careful scrutiny, given the importance of fair trial principles. Reviewing laws that limit fair trial rights falls within the role of the INSLM, who reviews the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis.
10.162 Laws that protect communications between client and lawyer and between people and their religious confessor may also warrant review, to ensure there are adequate exceptions for defendants seeking to adduce evidence in criminal proceedings. These privileges are themselves important traditional rights, but arguably should sometimes be limited to allow defendants to adduce evidence of their innocence.
10.163 Other chapters of this Interim Report highlight laws that limit other fair trial rights, including laws that reverse the legal burden of proof and laws that abrogate the privilege against self-incrimination.
10.164 The ALRC is interested in further comment on which laws that limit fair trial rights merit further review.