Protections from statutory encroachment

Australian Constitution

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

10.30   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’. 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.[36] This has been said to mean that s 80 provides ‘no meaningful guarantee or restriction on Commonwealth power’.[37]

10.31   The concept of Commonwealth judicial power provides some limited protection to the right to a fair trial. The text and structure of Ch 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’.[38] After quoting this passage, Gaudron J, in Nicholas v The Queen, 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.[39]

10.32   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.[40]

10.33   As noted in Chapter 1, the High Court may have moved towards—but stopped short of—entrenching procedural fairness as a constitutional right.[41] 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.[42]

10.34   In Pompano, Gaegler 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.[43]

10.35   It remains to be seen whether this will become settled doctrine in the Court.

Principle of legality

10.36   The principle of legality may provide some protection to fair trials.[44] 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.

10.37   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’,[45] 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.[46]

10.38   The application of the principle of legality to particular fair trial rights is also discussed further below and in other chapters of this report dealing with fair trial rights.[47]

International law

10.39   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.

10.40   International instruments, such as the ICCPR, cannot be used to ‘override clear and valid provisions of Australian national law’.[48] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[49]

Bills of rights

10.41   In other jurisdictions, bills of rights or human rights statutes provide some protection to fair trial rights. Bills of rights and human rights statutes protect the right to a fair trial in the United States,[50] the United Kingdom,[51] Canada[52] and New Zealand.[53] 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.

10.42   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).[54]

[36]         R v Archdall and Roskruge; Ex pate 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.

[37]         George Williams and David Hume, Human Rights under the Australian Constitution (OUP, 2nd ed, 2013) 355. See also R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 58 CLR 556, 581–2 (Dixon and Evatt JJ).

[38]         Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ) (emphasis added).

[39]         Nicholas v The Queen (1998) 193 CLR 173, 208–9 (Gaudron J).

[40]         Nicholas v The Queen (1998) 193 CLR 173.

[41]         Williams and Hume, above n 37, 375.

[42]         Ibid 376.

[43]         Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38, [177].

[44]         The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.

[45]         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 [1998] QB 575, 585.

[46]         Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, [28] (McHugh J, in a passage discussing why ‘care needs to be taken in declaring a principle to be fundamental’).

[47]         See Chs 9 and 11–14.

[48]         Minister for Immigration v B (2004) 219 CLR 365, [171] (Kirby J).

[49]         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 1.

[50]         United States Constitution amend VI.

[51]         Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 6.

[52]         Canada Act 1982 c 11 ss 11, 14.

[53]         New Zealand Bill of Rights Act 1990 (NZ) ss 24, 25.

[54]         Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–25; Human Rights Act 2004 (ACT) ss 21–22.