Other laws

10.138         In addition to the laws discussed above, stakeholders commented on other laws that may limit fair trial rights.

Trial by jury

10.139         The Australian Constitution provides that the ‘trial on indictment of any offence against any law of the Commonwealth shall be by jury’.[177] But as discussed above, this has been given a narrow interpretation: Parliament may determine which offences are indictable. Therefore any criminal law that is not indictable may, broadly speaking, be said to deny a jury trial to a person charged with that offence.

10.140         Crimes Act s 4G 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.’

10.141         Crimes Act s 4H 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.’

10.142         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.

10.143         The second situation is perhaps of greater concern. An example is the Customs Act 1901 (Cth) s 232A, 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’.

10.144         Crimes Act s 4J 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

10.145         The use in a trial of evidence obtained by torture or duress would not be fair, whether the torture was conducted in Australia or in another country. This is not because torture is immoral and a breach of a fundamental human right, but because evidence obtained by torture is unreliable.[178]

10.146         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’.[179] 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.[180]

10.147         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.[181]

10.148         The Law Council also submitted that s 27D ‘permits evidence of foreign material and foreign government material obtained indirectly by torture or duress’.[182]

Civil penalty provisions that should be criminal

10.149         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.

10.150         The Parliamentary Joint Committee on Human Rights has published an interim practice note on this topic[183] and has discussed whether civil penalty provisions should instead be characterised as criminal offences in the context of a range of bills.[184]

10.151         The Law Council has expressed concerns about the sometimes ‘punitive’ civil confiscation proceedings provided for in the Bankruptcy Act 1966 (Cth),[185] 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.[186]

10.152         The Human Rights Committee has said that this topic is complex and ‘should be the subject of continuing dialogue with government’.[187]

[177]       Australian Constitution s 80.

[178]       In Montgomery v H M Advocate, Lord Hoffmann observed 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 H M Advocate, Coulter v H M Advocate [2003] 1 AC 641, 649.

[179]       A v Secretary of State for the Home Department [2005] 2 AC 68.

[180]       Ibid [11] (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 [52].

[181]       Australian Lawyers for Human Rights, Submission 43.

[182]       Law Council of Australia, Submission 75 (emphasis added).

[183]       Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Eighth Report of 2013 (June 2013) Appendix 2.

[184]       Eg, the Agricultural and Veterinary Chemicals Legislation Amendment Bill, 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).

[185]       Bankruptcy Act 1966 (Cth) ss 154(6A), 231A(2A).

[186]       Law Council of Australia, Submission 75.

[187]       Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Eighth Report of 2013 (June 2013) Appendix 2.