Protections from statutory encroachment

International law

8.10       Article 14 of the International Covenant on Civil and Political Rights sets out many elements of a fair trial, including the following:

  • the court must be ‘competent, independent and impartial’;
  • the trial should be held in public and judgment given in public;
  • the defendant should be presumed innocent until proved guilty (the prosecution therefore bears the onus of proof and must prove guilt beyond reasonable doubt);[12]
  • the defendant should be informed of the nature and cause of the charge against him—promptly, in detail, and in a language which he understands;
  • the defendant must have time and the facilities to prepare his defence;
  • the defendant must be tried without undue delay;
  • the defendant must be ‘tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it’;
  • the defendant must have the opportunity to ‘examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’;
  • the defendant is entitled to the ‘free assistance of an interpreter if he cannot understand or speak the language used in court’;
  • the defendant ‘is entitled to disclosure of material which is helpful to him because it weakens the prosecution case or strengthens his’; and
  • the defendant has a right not ‘not to be compelled to testify against himself or to confess guilt’.[13]

8.11       International instruments, such as the ICCPR, cannot be used to ‘override clear and valid provisions of Australian national law’.[14] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[15]

Bills of rights

8.12       In other countries, bills of rights or human rights statutes provide some protection to fair trial procedures. Bills of rights and human rights statutes protect the right to a fair trial in the United States,[16] the United Kingdom,[17] Canada[18] and New Zealand.[19] For example, the Sixth Amendment to the US 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.

8.13       Principles of a fair trial are also set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).[20]

Australian Constitution

8.14       The Australian Constitution does not expressly provide that criminal trials must be fair, nor does it set out the elements of a fair trial.

8.15       Trial by jury is commonly considered a feature of a fair trial, and s 80 of the Constitution provides a limited guarantee of a trial by jury:

the trial on indictment of any offence against any law of the Commonwealth shall be by jury.

8.16       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.[21] This has been said to mean that s 80 provides ‘no meaningful guarantee or restriction on Commonwealth power’.[22]

8.17       The concept of Commonwealth judicial power provides some limited protection to the right to a fair trial. The text and structure of Chapter III of the Constitution implies 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’.[23] After quoting this passage, Gaudron J, in Nicholas v The Queen (1998), 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.[24]

8.18       However, regulating judicial processes (for example the power to exclude evidence) is considered permissible, and is not an incursion on the judicial power of the Commonwealth.[25]

Principle of legality

8.19       The principle of legality may provide some protection to fair trials.[26] When interpreting a statute, courts are likely to presume that Parliament did not intend to interfere with fundamental principles of a fair trial, unless this intention was made unambiguously clear.

8.20       Discussing the principle of legality in Malika Holdings v Stretton (2001), Justice McHugh said it is a fundamental legal principle that ‘a civil or criminal trial is to be a fair trial’,[27] 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.[28]