This book articulates the potential of the principle of separation of powers reflected in the structure and text of the Australian Constitution to protect fundamental due process rights. Clearly, the founding fathers did not enact an express bill of rights in the Australian Constitution, and the document contains a limited number of express rights. However, the High Court has accepted as fundamental the doctrine of separation of powers.
While the precise contours of the separation of powers principle are still being drawn, the High Court has found that laws which require, or authorise, a court to exercise power involving a departure from characteristics of traditional judicial process are constitutionally suspect. This is because such a law would undermine a court’s institutional integrity.
While the High Court has been somewhat loath to identify precisely characteristics of traditional judicial process, some indicia – including open courts, ability to review a decision of a lower court for jurisdictional error, the provision of reasons, decisional independence and fairness – have been identified. This book argues that fundamental due process rights in the criminal law area, such as presumption of innocence, the right to silence, the right to confront accusers, open courts, no effective punishment without conviction, and proportionate rather than mandated sentencing, are so fundamental to a criminal procedure that laws which abrogate these rights and expectations are vulnerable to constitutional challenge.
Table of Cases
Table of Statutes
1. Introduction to Human Rights in Australia
2. The Separation of Powers
3. Open Courts, Natural Justice and the Right to Confront Accusers
4. The Right to Silence and the Privilege against Self-Incrimination
5. The Presumption of Innocence
6. Civil Forfeiture
7. Mandatory Sentencing
A distinct aspect of the Australian constitutional order at the federal level is the lack of express constitutional rights that could act as a restraint on the exercise of governmental power. The making and administration of the criminal law – because it is intimately involved with the use of governmental power over those who may have broken the law – may impact adversely on the “rights” of those suspected of criminal offences. And governments may go too far in their attempts to regulate criminal behavior and traverse upon fundamental rights. The issue then arises – what can the High Court do to prevent unnecessary intrusions into the freedoms Australians enjoy?
In this book, the author traces the development of “Chapter III” jurisprudence of the High Court in the context of the development of bodies that now exist outside traditional courts to regulate the conduct of individuals and organisations. “Chapter III” refers to that part of the Commonwealth Constitution that establishes the judicial system and, implicitly, forms the doctrinal and legal basis for the separation of powers. It does so because the High Court may rule invalid laws made and bodies established that infringe that constitutional principle. Bodies that have been established to tackle corruption and serious organised crime such as the Australian Crime Commission often abrogate fundamental rights such as the right to silence. It is these bodies and laws that the work concentrates on.
This work is illuminating in demonstrating how, even in the absence of express constitutional rights, the High Court may intervene to curb the zealous and excessive use of power by governments.
Richard Edney, In_Print, Law Institute Journal Victoria, May 2017
The commendable breadth and depth of Gray’s exploration of each topic gives the book valuable appeal to public lawyers, criminal lawyers and those interested in human rights. Moreover, Gray’s comprehensive and accessible approach recommends the book to non-experts – including students – in these areas. Each chapter in the second half of the book not only outlines the relevant history – often starting with biblical references – and the current Australian position as reflected in relevant case law; but it sets these discussions in their global context, drawing extensively on how these rights are protected in international instruments and comparable jurisdictions. This approach makes sense, despite the High Court’s marked reticence to draw on global experience to interpret the metes and bounds of Ch III. Australian jurisprudence regarding due process as a constitutional concept is in its infancy, but a wealth of international experience and material may be usefully drawn upon.
It cannot be denied that the book advances arguments that many (in some cases, most) public law scholars will dispute. However, whilst the book has considerable value in the breadth, depth and accessibility of its descriptive content, it is Gray’s arguments that promote “Criminal Due Process and Chapter III” as an engaging scholarly work. Read full review..
Rebecca Ananian-Welsh, Australian Law Journal, 2017, 91
Criminal Due Process and Chapter III of the Constitution is a comprehensive discussion of an unsettled area of the law – implied protections of due process in the Constitution. This controversial concept serves to protect certain common law rights where Australia’s key governing document has failed to do so in express terms.
The recent High Court decisions in X7 v Australian Crime Commission and Lee v NSW Crime Commission brought the subject of implied constitutional rights back into the spotlight after remaining relatively dormant since the early 1990s. In this respect, this book is a timely addition to the literature on Chapter III.
The author ultimately argues that legislation which operates to abrogate or to limit some fundamental due process principles, such as the privilege against self-incrimination, may infringe a right to due process which is impliedly protected by the Constitution.
This book offers an introduction to the key concepts surrounding the relationship between due process and the Constitution, including an introduction to human rights in Australia, and the doctrine of the separation of powers. The author also discusses the historical context of the criminal due process elements, and draws comparisons with the fundamental due process rights that exist in other jurisdictions, including the United Kingdom, Europe, and North America. This creates a text that is both detailed enough for experts in the field, whilst also allowing the book to be used as a starting point for those seeking an introduction into this area of the law.
Joshua Favaloro, Ethos, ACT Law Society, December 2016
In the context of the current debate about whether or not a Bill of Rights ought be legislated for, this contribution by Professor Anthony Gray from the University of Southern Queensland is to be particularly welcomed. The book identifies the important impact which Chapter III has had on the rights of Australian citizens as they have been identified and articulated by the High Court in the last quarter of a century. Whilst the Australian Constitution is generally silent on issues of the protection of fundamental rights (there being no Bill of Rights contained in the Constitution) the High Court has accepted that the doctrine of the Separation of Powers is enshrined in it and that, from that source a number of important “due process” protections have sprung. In particular, the Courts have recognised the entrenched rights to open courts, the requirements of independence and fairness and, perhaps importantly in civil law, the right to review decisions of the Executive and of lower courts for jurisdictional error. These identified rights are transposed to the State Courts to the extent to which they are part of the Federal Court structure.
However, it is in the area of Criminal process where the doctrine of the separation of powers has had greatest influence. It is also apparent that the true extent of that influence is not yet fully explored. In his work, Professor Gray seeks to identify those limits and in doing so, argues that there exists a number of areas where laws which interfere with the criminal process are vulnerable to constitutional challenge. They include the areas of the presumption of innocence, the right to silence, the right to confront accusers, open courts and proportionate and not mandated sentencing. He argues that laws which lessen the common law rights in these respects impinge upon the right to due process which is protected in the constitution.
This is a most interesting and thoughtful book which will be of interest to all those interested in criminal and constitutional law.
Queensland Law Reporter – 19 August 2016 –  32 QLR