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Due Process Law in Australia


Conservative and liberal views have always competed for dominance for as long as democracy has been in existence. While conservatives assumed a strict approach to certain social issues, liberals were more flexible and allowed for fairness and consideration of each individual’s perception of an issue. It was from this perspective that the criminal justice system assumed two positions in the administration of justice. According to Cliffsnotes (2009), there exist two models that form the fundamental values within a criminal justice system. These two models include the crime control model and the due process model. These two models, which operate on completely distant principles, have in recent times acted as impediments and a form of black spot in the criminal justice system. The greatest difference in the two approaches is that the crime control model assumes a conservative approach with strict rules that favor a single side of the issue while the due process model assumes liberal values which are aimed at considering both sides of the issue. Like any other criminal justice system in the world, the Australian system has also been a victim of the opposing forces between the two models. The discussion of this paper is aimed at identifying the due process of law in the Australian Justice System. It also identifies how this approach to criminal justice has experienced opposition from the criminal control model and other factors within the Australian criminal justice system.

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Right restricting government violation of powers

In Australia, the fact that the government must respect the law of the land by allowing a person all the legal rights that are due was exhibited through the government’s enacting of the Due Process of the Law Act. This law was aimed at equipping and protecting individuals from government violations through excessive powers. In other definitions, this Law was an enactment that was aimed at, “putting limitations on laws and legal proceedings, in order for judges, instead of legislators to define and guarantee fundamental fairness, justice and liberty.” Due process was therefore a notion whose primary principle was counterbalancing the arresting, prosecuting and sentencing powers of the state (Zehr 2002). It is from this second definition that controversy has erupted causing strife with procedural and natural justice concepts. These controversies arise from the principle that form the basic foundation of the Due Process as universally accepted. These factors include a defendant’s right to be innocent until proved guilty, his right to a fair trial and the right to assistance counsel.

Right to prompt criminal trial

In line with this, the Australian system has also come up with the Due Process of Law Act 1354 28 Edw 3 c 3 which states, “None shall be condemned without due process of law. No person of whatever state or condition shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law” (Australian Capital Territory 2002: 2).

In this system, the major due process rights that exist are the right to a prompt criminal trial, accessibility to a legal representative while under trial and finally, the right to all issues that concern sentencing. According to the traditional approach to criminal justice, it is upon the state to prove that the accused is guilty. This remains a burden that the state must carry until appropriate evidence is found. Prior to the provision of adequate and sufficient evidence, the accused remains innocent. This means that within the Australian criminal justice system, every accused person cannot be treated as a criminal before the State provides sufficient evidence to prove him guilty. This is a fundamental right that the accused possesses under the Due Process of Law Act (Restorative Justice Online 2009).

Right to a fair trail

The accused has the right to undergo a trial that is fair. The accused is supposed to undergo a process that strictly follows the formal process throughout all the trial period. While the third principle that involves the accused right to have a legal representation simply tries to point out that the accused needs to be informed about his legal rights, a step that is extremely essential in his decision making process. To facilitate this, there need to be a legal representative who has the appropriate knowledge about the law of the land (Restorative Justice Online 2009).

Factors That Impede the Criminal Justice System Rights

Restorative justice

However, these rights have been greatly attacked by the critics who cited some factors within the criminal justice system that could not allow for such approaches and principles. Restorative justice proves to be one of the most effective ways of attaining justice. Unfortunately, this is one of the factors in the criminal justice system that acts as an impediment to Due Process of Law Act. In the first case, the decision to use restorative justice clearly undermines the concept of presumption of innocence. This is because the process of restorative justice requires that the accused admits that he or she is guilty. In other cases, the accused is forced not to decline guilt when accused. Further still, some restorative justice processes force the accused to accept some liability. These instances completely go against the Due Process Law principles that allow the accused to be innocent until the State provides adequate evidence against him. In some cases, the accused is also made to waive the right to fair trial in order to facilitate the process of restorative justice.

Incorporation of legal representative

Finally, most of those advocating for restorative justice as a form of attaining justice argue that the availability of a legal representative destroys the whole meaning of this process. They advocate that the accused has to speak on his behalf himself without relying on a third party as a spokesman. According to them, allowing the accused to represent himself provides an opportunity for direct communication between the accused and the victim and hence expression of feelings between the two parties. In addition, resorting to using a legal representative might act as an impediment for a decision making that is proactive and collective. All this makes the whole process that was meant to be informal to become formal again (Zehr 2002).

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The aim of justice

Another clear impediment to the due rights’ principles comes in terms of the main aim of justice as approached from a conservative point of view. Most people who align with the conservative approach purport that the main function of criminal justice is ensuring that crime is repressed. This can be achieved through ensuring that the victims’ rights are vindicated while the defendant’s rights are ignored. By adhering to this approach, crime will be repressed and those who had been victims of crime would feel that justice had been done. As a result, the adherents to this school of thought feel that protecting the rights of a defendant does not offer any essence in the process of attaining justice and repressing crime and hence fails to identify the main purpose of criminal justice (Cliffsnotes 2009).

This approach has a great implication of the Due Process law. It contributes to denying defendants all the rights and hence could result into injustice. A good example was seen on the passage of the Community Protection Bill 1994 in New South Wales, Australia. This Bill gave the judges of the Supreme Court the power to sentence an individual to a period not exceeding two years provided the judges felt that the person was very likely to commit a crime or a serious act of violence if left free. As a result, the Bill led to the infringement of traditional principles like the need to prove beyond doubt, proportionality and the principle that calls for the court to prove that an individual has committed a given crime before being incarcerated (Graycar 2002).

The criminal control model

The criminal control model of criminal justice system offers another impediment in the attaining of due process rights by individuals. This model dictates that the police need to be given room for their operations. In their approach, the advocates of this model argue that the police should be given more power to facilitate their investigating, searching, arresting and convicting processes. They advocate for the removal of all the legal processes that reduce the power of the police to undertake these activities. In addition, they find the long standing tradition of an accused being innocent until proceed guilty unreasonable. After an arrest and filing of charges by the prosecutor, the defendant is supposed to be presumed guilty as the police will have done their fact finding and also the prosecutor’s decision would be enough to show that there is no doubt of the accused being guilty. This is a great contra-approach to the Due Process Act which dictates that an individual must be treated as an innocent person until the State provides adequate evidence of his guilt (Cliffsnotes 2009). By deciding that the police are being stifled in their activities and that they are always right so that their decision to arrest be the marking point of guilt greatly suppresses the rights of the accused. It also undermines the traditional principle of the justice system which calls for the state to imprison an individual only after sufficient evidence of the commission of the crime has been provided.

This impediment was witnessed in Southern Australia where Mike Rann, the Premier and his legislature passed the Serious and Organized Crime Bill which outlawed all forms of unlawful meetings because they could pass for an organization that was planning for crime. This could only be justified if the Attorney General felt that the organization was organizing serious crimes that would pose as a risk to the public. He was allowed to use evidences that were secret and which were not tested to make the decision that would not be appealed even in court (Barns 2009).

According to Barns (2009), the Bill allowed the Police Commissioner to order the court to make an order of control to a person who is believed to be a member of an outlawed organization. The order does not need any notification. The person under the Order will be prohibited from speaking to certain people or coming closer to a certain place where the organization is likely to be. Furthermore, the police were allowed to make a public Safety Order provided that they felt a certain group of people was proving a risk to the public safety. This meant that the police could decide to order even a strike or protest stopped provided that they felt from their own point of view that the organization was a risk and threat to the safety of the public. This Bill shows the impediments to the Due Process Law which is aimed at limiting the powers of the government when dealing with individuals. It also points out that the police will be making decisions of their own, a phenomenon that would result into terrorizing and suppressing innocent individuals from undertaking their daily activities.


In conclusion, it is evident that Australia recognizes and approves the Universal principles of the Due Process Law which tries to limit the power of the government. The government of Australia does this by enacting the Due Process of Law Act which declares that an individual will only be condemned under due process of the law. However, other factors within the criminal justice system act as impediments to the implementation of these rights. These include processes like restorative justice which removes most of these rights from an accused person. In addition, the law experiences opposition from those who advocate for crime control model that purports that the essence of criminal justice is suppressing crime and giving rights to the victims. It advocates for the strengthening of the government so that crime can be suppressed. As a result the issue of Due Process Law will continue to experience impediments until the two approaches are merged and the existing differences straightened out.

Reference List

Hyman, A 2005,”The Little Word ‘Due”. Akron Law Review 38: 1.

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“Australian Capital Territory” 2002. Due Process of Law Act 1354 28 Edw 3 c 3. Web.

Barns, G 2009, “Imaginary Bikie Threat and Due Process in South Australia”. Institute of Public Affairs Review. Web.

Breyer, S 2005, Active Liberty: Interpreting Our Democratic Constitution, Knopf, New York.

Cliffsnotes 2009, “Which Model? Crime Control or Due Process?” Web.

“Crime Control or Due Process n.d”.  Web.

Friendly PM, Henry J, 1975 “Some Kind of Hearing” University of Pennsylvania Law Review, vol.123, no.6, pp.1267–1317.

Garkawe, S. 1997, “Human Rights in the Administration of Justice”.Australian Journal of Human Rights.

Geoffrey Marshall, 1977, “Due Process in England”, in Nomos XVIII: Due Process, Eds.

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J. Roland Pennock & John W. Chapman, 69-92: New York University Press, New York.

Golbas, M. 1981, “Due Process: The Deaf and Blind as Jurors.” New England Law Review. 119.

Graycar, A. & Peter G, 2002 The Cambridge Handbook of Australian Criminology, Cambridge University Press, London.

Hopkins, B. 2004, Just Schools: A Whole School Approach to Restorative Justice, Jessica Kingsley Publishers New York.

Kadish EM & Sanford H.1957, “Methodology and Criteria in Due Process Adjudication—A Survey and Criticism”. Yale Law Journal, vol.66. no. 3, pp.19–363.

McCold, P. 2003, A survey of assessment research on mediation and Conferencing. In L. Walgrave (Ed.), 2007. Repositioning Restorative Justice (pp. 67–120). Devon, UK: Willan Publishing.

Restorative Justice Online 2009. Due Process of Law. Prison Fellowship International Center for Justice and Reconciliation. Web.

Zehr, Howard. 2002, The Little Book of Restorative Justice Intercourse, PA: Good Books.

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