8.161 In addition to the laws discussed above, stakeholders commented on other laws that may limit fair trial rights.
Trial by jury
8.162 The Constitution provides that the ‘trial on indictment of any offence against any law of the Commonwealth shall be by jury’. As discussed above, this has been given a narrow interpretation: Parliament may determine which offences are indictable. Therefore any criminal law that provides for a summary trial may, broadly speaking, be said to deny a jury trial to a person charged with that offence.
8.163 Section 4G of the Crimes Act provides: ‘Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.’ Section 4H of the Crimes Act provides: ‘Offences against a law of the Commonwealth, being offences which: (a) are punishable by imprisonment for a period not exceeding 12 months; or (b) are not punishable by imprisonment; are summary offences, unless the contrary intention appears’.
8.164 Defendants may therefore be denied a jury trial where: (1) an offence is punishable by fine only, or by imprisonment for less than 12 months; and (2) an offence is punishable by a period of more than 12 months, but the statute evinces an intention that the offence be tried summarily.
8.165 The second situation is perhaps of greater concern. An example is s 232A of the Customs Act 1901 (Cth), which concerns rescuing seized goods and assaulting customs officers, and provides that whoever does this: ‘shall be guilty of an offence and shall be liable, upon summary conviction, to a fine not exceeding 5 penalty units or to imprisonment for any period not exceeding 2 years’.
8.166 Section4J of the Crimes Act provides that certain indictable Commonwealth offences may be dealt with summarily, but usually only with the consent of both the prosecutor and the defendant. Section 4JA also provides that certain indictable offences punishable by fine only may be dealt with summarily.
Torture evidence from other countries
8.167 Evidence obtained by torture or duress is unreliable, and its use in a trial would not be fair, whether the torture was conducted in Australia or in another country.
8.168 In a 2005 case concerning ‘third-party torture evidence’, Lord Bingham said ‘the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention’. The common law’s rejection of torture was ‘hailed as a distinguishing feature of the common law’ and the subject of ‘proud claims’ by many English jurists:
In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.
8.169 Australian Lawyers for Human Rights submitted that the exception to admissibility in the Foreign Evidence Act 1994 (Cth)may make it ‘harder for a court to exclude evidence obtained by torture or duress’, because the definition of torture in s 27D(3) is too narrow—it should have been inclusive, rather than exclusive.
8.170 The Law Council also submitted that s 27D ‘permits evidence of foreign material and foreign government material obtained indirectly by torture or duress’.
Civil penalty provisions that should be criminal
8.171 A person may be denied their criminal process rights where a regulatory provision is framed as a civil penalty, when it should—given the nature and severity of the penalty—instead have been framed as a criminal offence.
8.172 The Law Council has expressed concerns about the sometimes ‘punitive’ civil confiscation proceedings provided for in the Bankruptcy Act 1966 (Cth), and suggested that ‘ordinary protections in respect of criminal matters should be applied’:
The involvement of the Commonwealth DPP in the process offers a valuable safeguard and the guarantees that the person who commences and conducts the proceedings is an Officer of the Court and the Crown, with all the duties that entails, and thus has a personal obligation to ensure that the Court’s powers and processes are adhered to in accordance with the right to a fair trial.
8.173 The Parliamentary Joint Committee on Human Rights has discussed whether civil penalty provisions should instead be characterised as criminal offences in the context of a range of bills and has published a valuable guidance note on this topic.
Australian Constitution s 80.
Lord Hoffmann said that ‘an accused who is convicted on evidence obtained from him by torture has not had a fair trial’, not because of the use of torture, which breaches another right, ‘but in the reception of the evidence by the court for the purposes of determining the charge’: Montgomery v HM Advocate, Coulter v H M Advocate  1 AC 641 649. Evidence obtained by torture is not only unreliable, but torture is of course widely recognised as immoral, criminal and a breach of an absolute human right. Freedom from torture is one of only a few absolute rights in the ICCPR: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 4, 7.
A v Secretary of State for the Home Department  2 AC 68.
Ibid  (emphasis added). Lord Bingham later concluded: ‘The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice’: Ibid .
Australian Lawyers for Human Rights, Submission 43.
Law Council of Australia, Submission 75 (emphasis added).
Bankruptcy Act 1966 (Cth) ss 154(6A), 231A(2A).
Law Council of Australia, Submission 75.
Eg, the Agricultural and Veterinary Chemicals Legislation Amendment Bill 2013 (Cth), the Biosecurity Bill 2012 (Cth), the Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures) Bill 2012 (Cth) and the Australian Sports Anti-Doping Authority Amendment Bill 2013 (Cth).
Parliamentary Joint Committee on Human Rights, ‘Offence Provisions, Civil Penalties and Human Rights’ (Guidance Note No 2, Parliament of Australia, 2014) 3–5.