Criminal Due Process and Chapter III of the Australian Constitution

Now in its second edition, this book describes the potential of Chapter III of the Australian Constitution to preserve fundamental due process rights, including the presumption of innocence, the right to silence and the right to confront accusers. These are generally regarded as fundamental to a fair criminal process, yet they are not protected by an express national bill of rights.

Criminal Due Process and Chapter III of the Australian Constitution combines two ideas: (a) that Chapter III of the Constitution preserves fundamental characteristics of a judicial process through the prism of judicial independence; and (b) that presumption of innocence, right to silence, right to confront accusers, the right to proportionate sentencing and protection from criminal sanction independent of a finding of criminal guilt are fundamental characteristics of judicial process. Together this means there is, and should be, constitutional protection from laws that undermine these fundamental principles.

The author documents the limited extent to which this potential has been recognised to date, and considers prospects for the future in this regard. The Gageler High Court apparently has a more expansive view of the scope for Chapter III to protect fundamental due process rights than previous courts, making this new edition timely.