8.30 The Australian Constitution does not expressly provide that criminal trials must be ‘fair’, nor does it set out the elements of a fair trial, but it does protect many attributes of a fair trial and may by implication be found to protect other attributes.
8.31 Chapter III of the Constitution and its judicial interpretations provide a range of assurances that a person charged with a criminal offence under federal law is tried by a competent, independent and impartial tribunal. Section 71 vests the judicial power of the Commonwealth exclusively in the High Court, other federal courts created by Parliament and state courts in which Parliament invests federal jurisdiction. Section 72 protects judicial tenure, including the remuneration of federal judges during their tenure.
8.32 The High Court has determined that courts exercising federal judicial power must be courts in the strict sense of the term. Judicial power in Ch III of the Constitution is not power to resolve a controversy in any manner, but rather to determine it by the curial mode of decision making. In Polyukhovich v Commonwealth, Deane J said that the provisions of Ch III were based ‘on the assumption of traditional judicial procedures, remedies and methodology’ and that the Constitution’s‘intent and meaning were that judicial power would be exercised by those courts acting as courts with all that notion essentially requires’.
8.33 Moreover, under the Kable doctrine, state courts cannot be vested with powers that are incompatible with their role as courts exercising federal judicial power. Trials of people charged for crimes under federal law falls within federal judicial power by the classic definition of that power. According to the rule in the Boilermakers’ Case, Parliament cannot vest this federal judicial power in non-judicial bodies. The independence of the federal judicature is further assured by prohibiting non-judicial powers from being vested in federal courts.
8.34 The text and structure of Ch III of the Constitution has been found to imply that Parliament cannot make a law which ‘requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power’. In Nicholas v The Queen, Gaudron J quoted this passage and then said:
In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.
8.35 However, the regulation by Parliament of judicial processes (for example, the power to exclude evidence) is considered permissible, and is not an incursion on the judicial power of the Commonwealth.
8.36 The High Court may have moved towards—but stopped short of—entrenching procedural fairness as a constitutional right. If procedural fairness were considered an essential characteristic of a court, this might have the potential, among other things, to constitutionalise:
the presumption of innocence, the ‘beyond reasonable doubt’ standard of proof in criminal proceedings, the privilege against self-incrimination, limitations on the use of secret evidence, limitations on ex parte proceedings, limitations on any power to continue proceedings in the face of an unrepresented party, limitations on courts’ jurisdiction to make an adverse finding on law or fact that has not been put to the parties, and limitations on the power of a court or a judge to proceed where proceedings may be affected by actual or apprehended bias.
8.37 In Pompano, Gageler J said that Ch III of the Constitution ‘mandates the observance of procedural fairness as an immutable characteristic of a Supreme Court and of every other court in Australia’. His Honour went on to say:
Procedural fairness has a variable content but admits of no exceptions. A court cannot be required by statute to adopt a procedure that is unfair. A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right or legally protected interest of a person without affording that person a fair opportunity to respond to evidence on which that order might be made.
8.38 It remains to be seen whether this will become settled doctrine in the Court.
8.39 Trial by jury is commonly considered a feature of a fair trial, and s 80 of the Constitution provides a limited guarantee: ‘the trial on indictment of any offence against any law of the Commonwealth shall be by jury’. However, the High Court has interpreted the words ‘trial on indictment’ to mean that Parliament may determine whether a trial is to be on indictment, and thus, whether the requirement for a trial by jury applies. This has been said to mean that s 80 provides ‘no meaningful guarantee or restriction on Commonwealth power’.
8.40 The right to appeal against a conviction is also a recognised fair trial right, and is protected by s 73 of the Constitution, which gives the High Court extensive jurisdiction to hear and determine appeals. Parties aggrieved by judgments or sentences have, by implication, a right of appeal to the High Court.
Principle of legality
8.41 The principle of legality may provide some protection to fair trials. When interpreting a statute, courts will presume that Parliament did not intend to interfere with fundamental principles of a fair trial, unless this intention was made unambiguously clear.
8.42 Discussing the principle of legality in Malika Holdings v Stretton, McHugh J said it is a fundamental legal principle that ‘a civil or criminal trial is to be a fair trial’, and that ‘clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend’ this and other fundamental principles.
8.43 The right to a fair trial is ‘perhaps the best established example of a presumption that is appropriately characterised as part of a common law bill of rights’.
Australian law is virtually indistinguishable from the case law with respect to a right of fair trial in those jurisdictions which have adopted a human rights instrument all of which contain a provision to that effect.
8.44 The right to a fair trial is recognised in international law. Article 14 of the ICCPR is a key provision and has been set out above. As discussed later in this chapter, fair trial is considered a ‘strong right’, but some limits on fair trial rights are also recognised in international law.
8.45 International instruments, such as the ICCPR, cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.
Bills of rights
8.46 In other jurisdictions, bills of rights or human rights statutes provide some protection to fair trial rights. Principles of a fair trial are set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).
8.47 Bills of rights and human rights statutes also protect the right to a fair trial in the United States, the United Kingdom, Canada and New Zealand. The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Eg, Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434.
Polyukhovich v Commonwealth (1991) 172 CLR 501, 607.
Kable v DPP (NSW) (1996) 189 CLR 51.
‘There has never been any doubt that “convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to [judicial power]”. There has equally never been any doubt that the separation of the judicial power of the Commonwealth by Ch III of the Constitution renders those matters capable of resolution only by a court’: Magaming v The Queen (2013) 252 CLR 381,  (Gageler J).
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ) (emphasis added).
Nicholas v The Queen (1998) 193 CLR 173, 208–9.
Nicholas v The Queen (1998) 193 CLR 173. For example, in Hogan v Hinch, French CJ stated that an ‘essential characteristic of courts is that they sit in public’, but nevertheless ‘it lies within the power of parliaments, by statute, to authorise courts to exclude the public from some part of a hearing or to make orders preventing or restricting publication of parts of the proceeding or of the evidence adduced’: Hogan v Hinch (2011) 243 CLR 506, , . See also Suri Ratnapala and Jonathan Crowe, ‘Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power’ (2012) 36 Melbourne University Law Review 175.
George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 375.
Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38, .
Although this is the subject of some debate. Some scholars argue that the jury system can in fact be harmful to fair trial. See Australian Law Reform Commission; New South Wales Law Reform Commission; Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102 (2006) ch 18.
R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128, 139–40; R v Bernasconi (1915) 19 CLR 629, 637; Kingswell v The Queen (1985) 159 CLR 264, 276–7; Zarb v Kennedy (1968) 121 CLR 283.
Williams and Hume, above n 43, 355. See also R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 58 CLR 556, 581–2 (Dixon and Evatt JJ).
This was affirmed by the High Court in Cockle v Isaksen (1957) 99 CLR 155.
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 2. The application of the principle of legality to particular fair trial rights is discussed further below and in other chapters of this report dealing with fair trial rights.
Other cases identifying the right to a fair trial as a fundamental right: R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518, 541–2; R v Lord Chancellor; Ex parte Witham  QB 575, 585.
Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290,  (McHugh J, in a passage discussing why ‘care needs to be taken in declaring a principle to be fundamental’).
Spigelman, above n 26, 25.
Minister for Immigration v B (2004) 219 CLR 365,  (Kirby J).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 2.
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–25; Human Rights Act 2004 (ACT) ss 21–22.
United States Constitution amend VI.
Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 6.
Canada Act 1982 (UK) c 11, Sch B Pt 1 (Canadian Charter of Rights and Freedoms) s 11, 14.
New Zealand Bill of Rights Act 1990 (NZ) ss 24, 25.