Last updated 1 December 2020
Section 31 of the Human Rights Act 2019 (Qld) (Human Rights Act) is directed at the procedure of trials for criminal offences and civil proceedings. It protects the right to a fair and public hearing by an impartial decision maker.
Subsection 31(1) provides that a person who is:
- charged with a criminal offence has the right to have the charge decided by a competent, independent and impartial court or tribunal after a fair and public hearing
- party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
What is ‘fair’ will depend on the specific facts of the case, the community interest and the interests of the victim or aggrieved party.
Subsection 31(3) states that all decisions or judgements made by a court or tribunal in a proceeding must be publicly available.
Section 31 contains some internal limitations. Under subs 31(2), the court or tribunal may limit the extent of a ‘public hearing’ by excluding the general media or other persons from the trial if this is considered in the public interest or the interest of justice.
Additionally, whilst judgements and decisions should be made public, it is likely that when subs 31(3) is read in conjunction with subs 31(2) and the general limitation provision in s 13, this right may be limited. A court or tribunal may be permitted to withhold all or part of a judgement from publication, where it is considered in the public interest or the interest of justice (e.g. where there is a need to protect the identity of those involved).
The right to a fair hearing will also will be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to a fair hearing may be engaged:
- where there has been a failure to conduct a hearing within a reasonable time (e.g. the timeframe set under the Mental Health Act 2016 (Qld) for review of a treatment authority)
- when considering applications for non-disclosure of documents, witness names or other confidential material during or at the end of court and tribunal proceedings
- when determining whether a suppression order should be granted (e.g. prohibiting the broadcasting of a television show that may have prejudiced a jury in a criminal trial that the show was based on)
- when making a non-publication order (e.g. where there had been significant delay between the alleged professional misconduct and the Queensland Civil and Administrative Tribunal proceedings or where an applicant has special grounds for seeking the order including mental health)
- in decisions about vexatious litigants, although in Victoria it has been held that the right to access the courts under the equivalent of s 31 of the Human Rights Act is not absolute.
The right to a fair hearing has been raised in a number of Victorian appeals or judicial reviews of decisions in cases brought by self-represented litigants. In Victoria, it has been held that a judge is required to ensure that a trail is fair, by giving self-represented litigants due assistance whilst remaining judicially neutral. The assistance will vary from case to case, but the touchstones are fairness and balance, and extend to both substantive and procedural fairness. Similarly, the Human Rights Act may place a duty on courts and tribunals to ensure the unrepresented litigant knows their rights.
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.