The federal government has committed to law reform to protect press freedom in police investigations. But what form should this protection take? This article undertakes the first critical, comparative analysis of the protections afforded to the press from search and seizure powers across Australia, Canada and the United Kingdom. It is also informed by developments in the United States and New Zealand. The analysis demonstrates that Australia lags well-behind these comparable nations in providing even a bare minimum of protection for the press. More importantly, it illuminates a workable and appropriate law reform agenda for Australia, capable of achieving law enforcement aims without undue incursion on press freedom.
Australian fair trial scholarship tends to focus on common law or statutory rights,
or indeterminate constitutional implications. However, fair trial principles
originally derive from the inherent jurisdiction of common law courts. There may
be a historic link between the inherent jurisdiction of courts and fair judicial
proceedings, but does this mysterious class of jurisdiction present a valuable
source of fair trial protection today? This article undertakes an original
examination of the protection of the fair trial in Australian courts by operation of
the inherent jurisdiction. It engages with the under-theorised notion of the
inherent jurisdiction in Australia and considers its place in the complex web of
statutory, common law and constitutional fair trial protections. Against this
background, the article engages a case study analysis of the role of the inherent
jurisdiction in matters concerning secret evidence and severe prison conditions.
The inherent jurisdiction emerges as a powerful tool in the protection of fair trial
rights and principles: complementing, bolstering and aligning with other
protections. However, without a deeper understanding of its nature and scope in
the Australian context, the inherent jurisdiction may risk the separation of powers
and rule of law.
National Security is a foundational constitutional value. However, it does not have its roots in the rule of law, human rights or democratic liberal traditions. In fact, a constitutional value of national security is likely to conflict with these notions. Furthermore, when national security has featured in constitutional interpretation, it tends to dominate — if not override — conflicting values. In this chapter, we argue that national security may be conceived of as a hegemonic constitutional value and, as such, it calls for the development of stringent guidelines that operate to restrain its role in the constitutional space.
The Australian federation is built upon an enduring respect for the independence of the judicial arm of government. This is reflected in the principle that the judiciary should be kept separate from the legislature and executive. A practice seemingly at odds with these values is the appointment of senior judges to vice-regal offices. Despite this, the practice has attracted scant academic attention, and has never been challenged in the courts. In this article we examine the conferral of vice-regal roles on serving federal, state and territory judges. We ask, first, whether such appointments ought to continue to be made and, secondly, whether they are constitutionally permissible. The judge, by the way, was the King; and, as he was wearing his crown over the wig … he did not look at all comfortable, and it was certainly not becoming. – Lewis Carroll, ‘Alice's Adventures in Wonderland’. 1
The Australian constitutional framework is grounded in a deep respect for the independence and impartiality of the judiciary. Judicial independence from the executive and legislative arms of government has been called a ‘keystone in the democratic arch’ and the ‘bulwark of the constitution’. Seemingly at odds with this is the longstanding tradition of appointing senior judges to vice-regal roles. In this chapter we argue that this practice risks judicial independence, is obsolete, and ought to be discontinued. Following an outline of the practice of appointing State judges as Lieutenant-Governors, we address the risks that the practice poses to judicial independence. We then consider why the practice was originally employed and whether those reasons are applicable in contemporary Australian society. Finally, we assess developments in South Australia, which demonstrate the existence of an appropriate alternative mechanism whereby leading, non-judicial members of the community are appointed to the position. We conclude that the South Australian approach presents a preferable alternative to the unnecessary practice of appointing serving judges to vice-regal roles.
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