Right to a fair hearing

What the Act says

Section 31 of the Human Rights Act 2019 says that:

(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) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice.

(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be publicly available.

This right is based on Article 14(1) of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.

The right to a fair hearing complements rights in criminal proceedings (section 32).

Scope of the right

The right applies to both criminal and civil cases and covers all stages of proceedings in any Queensland court or tribunal.

Competent, independent and impartial court

In Victoria, where a similar right is protected under the Charter of Human Rights and Responsibilities Act 2006, the following factors are used to assess whether a court or tribunal is competent, independent and impartial:

It is established by law.
It is independent of the executive and legislative branches of government, or has judicial independence in specific areas.
It is free to decide legal and factual issues without interference.
It decides matters based on rules of law and following prescribed proceedings.
It appears independent.
Its officers have security of tenure.

Fair and public hearing and publicly available judgments

The right is focused on procedural fairness. What is required to ensure a fair hearing will depend on the circumstances, but may include ensuring parties have:

a reasonable opportunity to be heard and respond to allegations;
effective access to courts and tribunals, including where necessary access to legal assistance and interpreters;
proceedings heard without unreasonable delay.

The rights in criminal proceedings set out in section 32 help to inform the scope of the right to a fair and public hearing protected by section 31.

Public hearings give effect to the principle of open justice, ensuring accountability and public scrutiny. Subsection (3) requires judgments and decisions of courts and tribunals to be publicly available.

Exception to a public hearing

Subsection (2) allows courts and tribunals to exclude media or the public from hearings if it is in the public interest or the interests of justice.

Reasonable limitation

The right to a fair hearing can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

When this right could be relevant

Section 31 may apply to laws, policies, acts or decisions that:

create or limit the review of administrative decision-making and appeals processes
reverse the onus of proof
regulate the rules of evidence in courts and tribunals
govern procedures for challenging the impartiality and independence of courts and tribunals
impact how witnesses give evidence
regulate media reporting on court or tribunal proceedings.

Case examples

Search cases

Suppression order refused

In responding to this discrimination complaint, Legal Aid Queensland made an application seeking suppression orders, including non-publication of the decision and closure of the Queensland Industrial Relation Commission’s (QIRC) file, citing the right to privacy and reputation of its employees named in the complaint (section 25 of the Human Rights Act).

The QIRC started with the fundamental principle of justice that court proceedings are open. It found there was nothing unlawful or arbitrary about the complainant’s approach to the proceedings and therefore section 25 did not lead to a conclusion that the orders sought should be made. The QIRC was also concerned about the breadth and framing of the orders sought at an early stage of the proceedings, but was open to receiving further applications for suppression orders in relation to particular documents or evidence as they come before the QIRC. The application was dismissed.

Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136 (31 August 2020)

Appointment of litigation guardian necessary for fair hearing

A 14 year old child made a complaint of discrimination which was referred to the tribunal. The lawyers for the child had been taking instructions from his mother. While the tribunal accepted that the complaint had been validly made, it decided a litigation guardian should be appointed for the child for the complaint to proceed. The appointment limited the child’s right to equality, protection of families and children, and fair hearing. However, this limitation was justified because of its purpose to ensure a fair hearing for all parties based on reliable and informed instructions from a party competent to give instructions and the fair administration of justice.

BA, DC, FE v State of Queensland [2022] QCAT 332 (2 September 2022)

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