What is the right to a fair trial?

The right to a fair trial is the principle that a person accused of a crime, or party to a civil dispute, is entitled to have their case decided by an independent and impartial court after a hearing that respects the rules of procedural fairness. It is a foundational principle of Australian justice and is protected by common law, by federal and state criminal procedure legislation, and by Australia's commitments under the International Covenant on Civil and Political Rights.

Several elements make up a fair trial. The accused must be informed of the charge in language they understand and given time to prepare a defence. They have the right to legal representation, with Legal Aid available for those who cannot afford a lawyer. They have the right to challenge prosecution evidence, to call witnesses, and to give evidence themselves if they choose. The trial must be heard by an independent judge, with serious criminal cases tried before a jury of twelve in most state and territory courts.

The presumption of innocence operates throughout the trial, with the prosecution carrying the burden of proof beyond reasonable doubt. Hearings must be public except in limited cases involving children, vulnerable witnesses, or national security. The Open Court principle, recognised in cases going back to 1913, holds that justice must not only be done but be seen to be done. Suppression orders are used sparingly and are reviewable by appellate courts.

The right to a fair trial extends beyond the criminal justice system into the broader court system. Family law proceedings involving children, immigration tribunals deciding refugee status, anti-discrimination complaints, and administrative review of government decisions all draw on the same principles of natural justice: the right to be heard, the right to know the case against you, and the right to a decision by an impartial decision-maker. Where these rights are denied, courts can quash the decision and send the matter back for rehearing. The High Court of Australia has expressed the right to a fair trial as a fundamental requirement of the common law, beyond which Parliament cannot lightly intrude.