8.1        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]

8.2        A fair trial is designed to prevent innocent people from being convicted of crimes. It protects life, liberty, property, reputation and other fundamental rights and interests. Being wrongly convicted of a crime has been called a ‘deep injustice and a substantial moral harm’.[4] Fairness also gives a trial integrity and moral legitimacy or authority,[5] and maintains public confidence in the judicial system.

8.3        This chapter discusses the source and rationale of the right to a fair trial; how the right is protected from statutory encroachment; and when Commonwealth laws that limit accepted principles of a fair trial may be justified. It focuses on some widely recognised components of a fair trial that have been subject to some statutory limits, for example:

  • a trial should be held in public;

  • a defendant has a right to a lawyer; and

  • a defendant has the right to confront the prosecution’s witnesses and test their evidence, and to obtain and adduce their own evidence.

8.4        Other components of a fair trial are discussed elsewhere in this Report.[6]

8.5        The common law and statute both feature some limits on fair trial rights, for example to protect vulnerable witnesses and to protect national security interests. This chapter provides a survey of some of the Commonwealth laws that may be said to affect fair trial rights. Some of these laws are uncontentious, but others may need to be reviewed to ensure they are justified.

8.6        Commonwealth laws that alter fair trial procedures for national security reasons were criticised in a number of submissions to this Inquiry. Some of these laws may be justified, provided that overall the trial remains fair, but they nevertheless warrant ongoing and careful scrutiny.

8.7        A range of other laws that affect fair trial rights are also identified, but relatively few attracted wide criticism. Client legal privilege and the privilege for religious confessions were singled out in one submission. These privileges in the Uniform Evidence Actsprotect communications between lawyer and client and between priest (or other religious confessor) and penitent. Evidence of these communications may sometimes assist a defendant in a criminal trial. Although these privileges are themselves important rights, arguably there should be additional or clearer exceptions to give defendants greater scope to adduce third-party privileged evidence in criminal proceedings.

8.8        Courts have an inherent power to ensure that the overall process of a criminal trial remains fair. This provides considerable protection to fair trial rights in Australia.

8.9        The right to a fair trial ‘extends to the whole course of the criminal process’.[7] Given the practical scope of this Inquiry, this Report does not seek to identify all Commonwealth laws that might affect the fairness of a trial.[8] Rather, this chapter highlights examples of laws that interfere with accepted principles of a fair trial and some of the concerns that have been raised about them.

8.10     Further, because some state and territory courts exercise federal jurisdiction and apply their own state procedures,[9] a comprehensive review of fair trial laws would need to consider all these state laws.

8.11     This chapter and the burden of proof chapter focus on criminal laws, although many of the principles will also be relevant to civil trials. Civil trials must of course also be fair, particularly considering the very serious consequences—including substantial legal costs and penalties—that may follow.[10]