The right to a fair hearing is now enshrined in Queensland domestic legislation under the Human Rights Act 2019 (Qld). Every person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right to a fair trial in other jurisdictions has been interpreted as extending to the investigation and evidence-gathering phases of the criminal process.


What is ‘Fair’?

While what is ‘fair’ will depend entirely on the circumstances of a particular case,[1] there are a number of accepted factors relevant to criminal proceedings such as:[2]

  • A court must be competent, independent and impartial. A court must decide a case according to the law, with no external factors or personal bias affecting the decision. In Queensland, judges and the court system are entirely separate from Parliament and other government bodies to ensure they do operate independently.
  • A person charged with a criminal offence is to be presumed innocent until proven guilty, with the prosecution bearing the onus of proving the offence beyond reasonable doubt.
  • Defendant must be afforded adequate time and resources to prepare for a trial. This includes the ability to access and communicate with a lawyer chosen by them.
  • A trial must proceed without undue delay since the arrest. When considering a delay, the court will have regard to the length and reasons for the delay, as well as whether it prejudiced the defendant.[3]
  • When charged with a criminal offence, unless explicitly electing to be self-represented, a person has the right to engage a lawyer. If they are unable to pay for representation, they will be afforded a legal advice or representation through Legal Aid or a community legal centre.
  • Right to an interpreter if they cannot speak or understand English adequately to understand the charges or proceedings in court.
  • A person charged with a criminal offence has a right not to self-incriminate themselves or confess at all stages throughout police questioning, to the conclusion of the trial. A limited number of exclusions apply to this right.


Disclosure and Evidence

An individual charged with a criminal offence has the right to know the case against them. They must be informed of the charges against them promptly, in a language they understand, and in sufficient detail to enable them to engage a lawyer and defend the charges. An accused must also have access and disclosure of evidence and witnesses to be presented against them. [4] These disclosure obligations seek to address the power imbalance between the resources available to the state, and those available to an individual charged, ensuring they are not at a disadvantage. One important role of a criminal lawyer is to ensure this disclosure occurs, and to review the (often overwhelming) amount of information provided, using this to form a defence.


Public Hearings and Judgements

The right to a fair trial also includes the right for the trial and judgement to be made available to the public. This is internationally recognised as relating to the right to a fair hearing as it facilitates public scrutiny of the criminal justice and court systems, often by publication of information by the press. This safeguards individuals charged against judicial corruption or bias. However, there are exceptions when the right to a fair trial may require the public or media be excluded from the court or judgements not be published. The Human Rights Act 2019 (Qld) allows for these exceptions when it is in the public interest or the interests of justice. In a criminal case, this may include circumstances where:

  • It is required to protect the safety or identity of a witness or any other person; or
  • It is required in the interests of national security; or
  • To avoid undue distress or embarrassment to a witness, particularly a child, in proceedings relating to family and sexual offences; or
  • It is necessary to ensure the defendant is not prejudiced. For example, a jury is not allowed to know a defendant’s criminal history as it may impact their verdict in relation to the current offence they are being tried for. In high profile cases, if this information is widely publicised a mistrial may result wasting time, money and causing undue stress to all involved.


This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!

[1] Dietrich v R (1992) 177 CLR 292.

[2] Australian Law Reform Commission, “Attributes of a Fair Trial” (undated).<>.

[3] Foote v Somes [2012] ACTSC 63.

[4] Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1; R v Falcone (2008) 190 A Crim R 440.