The Inherent Jurisdiction of Courts and the Fair Trial

Abstract

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.