Fair and Public Hearing

Section 21 of the Human Rights Act 2004 says that:

Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
However, the press and public may be excluded from all or part of a trial—
1. to protect morals, public order or national security in a democratic society; or
2. if the interest of the private lives of the parties require the exclusion; or
3. if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.
But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

Section 21 is based on article 14(1) of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party.

Scope of the right

The right to a fair hearing under section 21 of the Human Rights Act applies in both criminal and civil cases. Whether a person is a defendant in a criminal trial or a party to civil proceedings (for example, the plaintiff or defendant in a case about the breach of a contract, negligence or defamation), they have the right to a fair hearing before a competent, independent and impartial court or tribunal established by law.

Section 21 also provides that hearings and judgments must be public, other than in limited circumstances. These circumstances are specified in paragraphs (2) and (3) of the section. For example, paragraph (3) permits keeping a judgment confidential to protect a child.

Section 22 sets out more specific minimum guarantees in criminal trials.

A “competent” court or tribunal for the purpose of the right to a fair hearing is one with jurisdiction, or in other words, the legal power, to hear and decide the case.

The United Nations (UN) Human Rights Committee has explained that:

“fair” proceedings involve the absence of any direct or indirect influence, pressure or intimidation or intrusion, from whatever side and for whatever motive;
to be “independent”, a court or tribunal must be free from political interference by the executive branch of the government and legislature. “Independence” also encompasses the procedure and qualifications for the appointment of judges, guarantees relating to their security of tenure, and the conditions governing their promotion, transfer, suspension and cessation of functions;
to be “impartial”, a judge must not be influenced by personal bias or prejudice, harbour preconceptions about the case before them or improperly promote the interests of one party to the detriment of another. They must also appear to a reasonable observer to be impartial

(Human Rights Committee General Comment 32.)

Both the UN Human Rights Committee and Australian courts have confirmed that the right to a fair hearing, including in civil cases, requires that there be no unreasonable delays in the conduct of the case. The Human Rights Act also states specifically that criminal defendants have the right to be tried without delay, in section 22(2)(c).

When could this right be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 21 may be relevant to:

creating or restricting appeals processes or processes for review of administrative decisions;
creating courts and tribunals or appointing judges;
regulating procedures for challenging the impartiality and independence of courts and tribunals;
regulating the way witnesses give evidence in a court or tribunal, or when a judge can order that the hearing of a matter is closed to the public;
regulating the way the media may report on proceedings;
laws that reverse the onus of proof.

Cases

The right to a fair hearing has been raised in diverse contexts, both in the courts of the ACT and in other jurisdictions. The following are just a few examples.

No human right to a judge-alone trial in criminal cases

In R v Girvan [2012] ACTSC 142, the ACT Supreme Court confirmed that the entitlement, or “right”, of a person accused of a crime to elect to be tried by a judge alone, rather than a jury, is not part of the human right to a fair trial within section 21 of the Human Rights Act. Moreover, the Court said, given the restrictions on jury membership, it is likely that in most cases of jury trial in Australia, such a trial will not result in an unfair hearing. However, a jury that has an appearance of bias will not provide a human rights-compliant trial.

Delay in civil cases

The Victorian case of Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 provides an example of unreasonable delay in civil proceedings. Mr Kracke was undergoing medical treatment for mental illness without his consent and had applied for the treatment orders to be reviewed. Among other delays, it took over two years for one of the orders to be reviewed. The main cause of delay was the Review Board’s administrative failings.

The Victorian Civil and Administrative Tribunal noted that the right to a fair hearing, in Victoria’s equivalent of the Human Rights Act, implicitly requires that a hearing be conducted without unreasonable delay. It found that whether a delay is unreasonable will depend on the circumstances of each case, including the case’s complexity and the behaviour of the parties. It concluded that the delays in Mr Kracke’s case were, indeed, unreasonable, breaching his right to a fair hearing. The Tribunal also found that this did not make the treatment orders invalid (as Mr Kracke had claimed), but left open the possibility that an unreasonable delay could cause an order or decision made in a civil legal process to be invalid “in appropriate cases”.

Another example of a delay that violated a person’s right to a fair hearing in a civil matter arose in UN Human Rights Committee case Z v Australia (Communication No. 2279/2013). Mr Z was a Poland-based dual Australian-Polish citizen whose wife had taken their son to live in Australia without his consent. The Committee concluded that his proceedings in Australia seeking access to his son were “plagued by undue delays”, violating his right to a fair hearing. These delays included the Australian authority responsible for complaints about access to children under an international agreement – the Hague Convention on the Civil Aspects of International Child Abduction – taking 19 months to file Mr Z’s access application under that Convention with the relevant Western Australian court.

Proceedings on disciplinary measures in prison

In Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33, the ACT Supreme Court found that a person in prison was denied his right to a fair hearing when he was disciplined for such actions as building structures in and not cleaning up his cell. The Court based this conclusion on five factors:

(1) the person was in a vulnerable position because he was in prison; (2) the ACT’s statutory scheme on disciplinary measures against detained people was set up with the human right to a fair hearing “very much in consideration”; (3) the disciplinary measures taken in this case, namely confinement separately from other detainees and loss of privileges, were serious; (4) the person was given no hearing at all, let alone a procedurally flawed one; and (5) this was done to him seven times in one year – suggesting a systemic problem.

Access of an accused person to relevant evidence

In R v NS [2016] ACTSC 346, the ACT Supreme Court found that protected confidences must be disclosed to a person accused of a sexual offence in the interests of a fair trial. “Protected confidences” are made in the context of counselling the alleged victim of a sexual offence. The Evidence (Miscellaneous Provisions) Act 1991 allows the Court to permit their disclosure in a criminal case only if satisfied that the public interest in ensuring that an accused person receives a fair trial outweighs the public interest in preserving confidentiality.

The Court observed that the right to a fair trial is a fundamental right under both the common law and the Human Rights Act, and that “a fair trial would ordinarily be one where the accused has access to, and can use, all relevant evidence”. It found that in this case, the documents containing protected confidences were relevant and potentially significant to the outcome of the trial. Accordingly, the public interest in ensuring the trial’s fairness outweighed the public interest in confidentiality and the material must be disclosed.

Self-representation

In Matsoukatidou v Yarra Ranges Council [2017] VSC 61, the Victorian Supreme Court considered the right to a fair hearing of two self-represented litigants. A mother and her daughter had appealed a court decision that fined them and convicted the daughter for offences against Victoria’s Building Act. English was not their first language and the daughter had a disability. A judge had dismissed their appeal without explaining to them the procedure that would be followed or the legal test that would be applied.

The Supreme Court found that the right to a fair hearing encompasses the principle of “equality of arms”, which requires giving each party a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent. It also found that this right requires ensuring all parties’ effective participation.

Where parties are self-represented, the Supreme Court said, there is a serious risk of unfairness, which is exacerbated if the party has a disability that makes them vulnerable to discrimination. A court is obliged to make “reasonable and available accommodations” to ensure self-represented parties’ equality of arms and effective participation. The Court decided that on this occasion, the judge had breached the self-represented parties’ right to a fair hearing by failing to provide the advice and assistance needed to put them in an equal position to that of the other party – a Council that, unlike them, was represented by lawyers – and allow them to effectively participate in the hearing.

Similarly, the UN Human Rights Committee has found that, among other human rights breaches, Australia violated the right to a fair hearing of self-represented members of an indigenous group, the Wunna Nyiyaparli, by failing to take measures to ensure that they understood the implications of proceedings and could effectively participate in them. The Committee also found specifically that Federal Court decisions not to allow the Wunna Nyiyaparli to present evidence, nor to adjourn the proceedings, violated the principles of fair trial and equality of arms.

The proceedings were being held to determine the Wunna Nyiyaparli’s relationship to another Nyiyaparli clan and had significant implications for a native title claim. While the other party to the case had legal representation, the Wunna Nyiyaparli had none; had difficulty accessing the Internet; had limited time (two weeks) to prepare for the hearing; and, the Committee concluded, were confused about the case. (UN Human Rights Committee, Roy v Australia (Communication No. 3585/2019).)

Appointment of intermediaries in criminal cases

The ACT Supreme Court considered the implications for the fairness of a criminal trial of appointing an intermediary for a young witness, in R v QX (No 2) [2021] ACTSC 244. The defendant in that case was accused of committing sexual offences against the young person. The Court found that intermediaries provide impartial assistance to those involved in the court process. After considering the right to a fair trial under both the common law and section 21 of the Human Rights Act, the Court concluded that appointing an intermediary, in and of itself, does not affect this right.

As discussed in the Commission’s section 22 factsheet, the Court also concluded that a provision of ACT law that required an intermediary to be appointed in certain cases did not breach section 22(2)(g) of the Human Rights Act. (Section 22(2)(g) gives a person accused of a crime specific rights related to the questioning of witnesses.)

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.