Section 24 - Fair Hearing

(1) A person charged with a criminal offence or a party to a civil proceeding 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.

 

(2) Despite sub-section (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

Note: For example, section 19 of the Supreme Court Act 1986 sets out the circumstances in which the Supreme Court may close all or part of a proceeding to the public. See also section 80AA of the County Court Act 1958 and section 126 of the Magistrates’ Court Act 1989.

(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

Right to a fair hearing
 

Section 24 guarantees the right to a fair and public hearing.

The right to a fair hearing applies in both civil and criminal proceedings and in courts and tribunals.


This provision should be read together with ss. 25, 26 and 27 of the Charter, which establish various rights of a person in criminal proceedings. For example, many of the minimum entitlements outlined in s. 25 are elaborations of the right to a fair hearing. Note though that the observance of the requirements of s. 25 will not always be sufficient to ensure the fairness of a hearing under s. 24.218

The requirement for a fair hearing applies to all stages in proceedings and applies in relation to proceedings in any Victorian court or tribunal.


What is required for a ‘fair hearing’?


The purpose of the right to a fair hearing is to ensure the proper administration of justice. This right is concerned with procedural fairness (that is, the right of a party to be heard and to respond to any allegations made against him or her, and the requirement that the court or tribunal be unbiased, independent and impartial) rather than the substantive fairness of a decision or judgment of a court or tribunal determined on the merits of the case (that is, the rights or wrongs of the decision).


What constitutes a ‘fair’ hearing will depend on the facts of the case and will require the weighing of a number of public interest factors including the rights of the accused and the victim (in criminal proceedings) or of all parties (in civil proceedings).


It is likely to differ in criminal and civil proceedings.


In the criminal law context, an initial requirement is that there is a clear and publicly accessible legal basis for all criminal prosecutions and penalties, so that the criminal justice system can be said to be operating in a way that is predictable to the defendant. The prohibitions in s. 27 on retrospective criminal laws and retrospective penalties are included in the Charter to help satisfy these requirements. Thereafter, s. 25 of the Charter elaborates on the minimum conditions required to achieve a fair hearing in criminal proceedings.


Beyond these aspects, the elements of the right to a fair hearing in both criminal and civil proceedings revolve around the procedures that are followed during a hearing and the extent to which they protect the rights of the parties and respect the principle of ‘equality of arms’.


The principle of equality of arms means that everyone who is a party to proceedings must have a reasonable opportunity of presenting his or her case to the court under conditions that do not place that party at a substantial disadvantage vis-à-vis his or her opponent. 219


The content of the right to a fair hearing in both criminal and civil proceedings may include a right to an oral hearing unless there are circumstances justifying otherwise.220 This may depend on the particular stage of the proceedings as some preliminary applications are sometimes determined by courts or tribunals ‘on the papers’ and this has been an increasing trend in court management. The right to a fair hearing is unlikely to include a right to access a court given the language expressed in s. 24(1). Access may sometimes depend on jurisdictional requirements or, in the case of leave to appeal from the Victorian Civil and Administrative Tribunal (VCAT), on identifying a question of law.221


What is a ‘competent, independent and impartial’ court or tribunal?

A further element of the right to a fair hearing relates to the character of the court or tribunal before which the hearing takes place. The Charter expressly requires that the court or tribunal is ‘competent, independent and impartial’. These requirements reflect the fundamental notion of the rule of law that a hearing should be conducted by an independent and impartial tribunal that is established by law and jurisdictionally competent to hear the case.

The requirement of a ‘competent, independent and impartial’ court or tribunal applies both to each of the individual members of the court or tribunal and the whole institution of the court or tribunal.

Independence

The institutional design and structure of the court or tribunal must be such as to maintain the independence of the institution and its individual members from government, and to maintain the capacity of the judiciary or tribunal members to act impartially.

The requirement of independence also means that courts and tribunals should have control over internal procedural matters such as allocating cases to be heard by particular judges or tribunal members and control over court or tribunal listings generally. In addition, in any particular case, the judge or tribunal member hearing a matter must be independent and impartial, that is, not influenced by bias in favour of the government.

Impartiality

The requirement of impartiality means that proceedings must be free from bias and the objective perception of bias.

An example of this right in practice is where a complaint was made to the European Court of Human Rights by a person who argued that the trial judge had failed to take action to exclude legitimate doubts that the complainant might be condemned because of his ethnicity.222 Allegations of racism of members of the jury had been publicly reported in the media. The European Court of Human Rights upheld the complaint.223 There have also been concerns raised about the independence and impartiality of acting judges, at least where their tenure is very short and they are subject to reappointment. In most international jurisdictions, appointment of judges by the executive has not, in itself, raised doubts as to independence.224 Note that the High Court of Australia recently upheld the validity of the appointment of acting judges under the New South Wales scheme as not compromising the independence and impartiality of the court or tribunal.225

The Charter requires that a hearing of a criminal offence or a civil proceeding is not only fair but also public. In international human rights law, the right to a fair hearing incorporates a right to a hearing that is held in public.
The rationale for this requirement is the principle of open justice: not only should justice be done, it should be seen to be done. It is also intended to contribute to a fair trial through public scrutiny.


Appellate and first instance decisions are both captured by this provision. However, in international human rights law, reviews of appeals ‘on the papers’ have been considered not to breach the right where the documents on which the court bases its decisions are publicly available and the judgment itself is available.226


Pre-trial decisions made by prosecutors and public authorities (not being the hearing of a criminal charge or the conduct of a civil proceeding) would not be required under s. 24 to be held in public.227


Some methods whereby witnesses give evidence, for example, by video link or when shielded by a screen, may raise issues about whether those parts of the hearing are public and thus whether they comply with s. 24 of the Charter. Such methods of presenting evidence and the circumstances in which they are employed should be assessed under s. 7. For example, given the importance of the objective sought to be achieved by the use of these methods, the methods may be an example of measures that, although they impose a limit on s. 24, should nevertheless be permitted by law and justifiable under s. 7.


The right to a public hearing is expressly limited by s. 24(2). This provision is discussed on page 152.

Right to public pronouncement of judgments and decisions


Section 24(3) of the Charter establishes a right to the public pronouncement of judgments and decisions by a court or tribunal. This means that courts and tribunals must hand down all judgments and decisions in public, subject to reasonable limitations that can be justified under the Charter. The purpose of this provision is also to contribute to a fair trial through public scrutiny.


The scope of this right is limited to judgments and decisions. The right does not require a court or tribunal to publish transcripts of proceedings.

 

 

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218 UN Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc.
HRI/GEN/1/Rev.6 at 135 (2003) [5].

219 Brown v. Stott [2001] 2 WLR 817; Fitt v. United Kingdom (2000) II Eur Court HR 367[44].


220 Fredin v. Sweden (No 2) (1994) 283 Eur Court HR (ser A) [19]; Fischer v. Austria (1995) 312 Eur Court HR (ser A) [43]–[44]; (1995) 20 EHRR 349.


221 Victorian Civil and Administrative Tribunal Act 1998 (VIC) s. 148.

222 Sander v. United Kingdom (2000) v. Eur Court HR 243 [34]; (2001) 31 EHRR 44 [34]–[35].


223 Ibid.


224 Re Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744.


225 Forge v. ASIC (2006) 229 ALR 223.

226 Axen v. Germany (1984) 72 Eur Court HR (ser A) [25]–[26]; (1984) 2 EHRR 195 [31]–[32].


227 See RM v. Finland, Human Rights Committee, Communication No. 301/1988, UN Doc. CCPR/C/35/D/301/1988 (27 March 1989).