Two judges of the High Court have extended the idea of implied rights in the Constitution, by saying the Constitution guaranteed a right to fair trial.
However, five judges shied away from implied rights and decided on other grounds.
Earlier this year six judges ruled that the Constitution carried with it a right to freedom of political discussion. Shortly after that, one judge, Justice Toohey, gave a speech to a conference in Darwin suggesting that a whole raft of human rights could be implied in the Constitution. His reasoning was that when the people approved the Constitution they could not imagine a Parliament taking away fundamental common-law rights, thus there was no need to express them as in America. They were implied.
Those basic common-law rights include a right to trial by jury and legal representation in serious cases, freedom of speech, religion and assembly and freedom from unreasonable search and seizure.
Yesterday the High Court brought down a decision in a case where a man accused of heroin possession sought to quash his conviction because he did not have legal representation. He had no money and was denied legal aid. (Legal aid is not granted by means test alone, the strength of the prosecution case is also considered.)
Two judges dismissed the appeal on the ground that non-representation did not cause any injustice. Of the five who allowed the appeal, three, including Justice Toohey, did not go down the constitutional path. Rather, they said the right to a fair trial was ingrained in the common law. Judges had powers adjourn cases if that was likely. In a complex case like this, non-representation was likely to lead to an injustice so the judge should have adjourned the trial until representation could be found. His refusal to do so made the conviction unsafe.
However, two did. Justice William Deane said that a fair trial (including representation) was entrenched by the Constitution’s requirement of the observance of judicial process and fairness that is implicit in the vesting of the judicial power in Federal courts. He took a natural-law approach saying the court could reassess earlier decisions according to current social standards. It could put aside the usual legal process of inductive and deductive reason and allow some subject values to intrude into the judicial process.
Justice Mary Gaudron, too, said that the requirement of a fair trial was entrenched in the Constitution’s implicit requirement that judicial power be exercised in accordance with the judicial process. For her that meant representation as a right.
It is clear that Justices Deane and Gaudron would strike out as unconstitutional any Commonwealth legislation that attempted to abridge the right to fair trial. It is uncertain what the other judges would do. They might say the Parliament is entitled to change the common law, even in this fundamental way.
It is still open to court to develop implied rights in other areas especially if legislation denies, say, freedom of religion or gives police or some other authority oppressive powers of search and seizure.
The point this case illustrates is that any building up of an implied bill of rights in the Australian Constitution will be a long and uncertain process. It will depend on what sort of cases come up, whether judges can come to a conclusion on non-constitutional grounds and how readily judges will build on earlier reasoning.
The result in this case is that people without money are unlikely ever again to be left without representation in serious cases. As Justice Deane argued, Governments find the money for courts, interpreters, judges and prosecutors, so they can find the money for defenders for people they charge. It could become an interesting tussle between the Executive which controls the money and the Judiciary which demands fair (though more expensive trials).