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Book Cover
Author Gray, Anthony (Law teacher), author

Title Criminal due process and chapter III of the Australian constitution / Professor Anthony Gray
Published Leichhardt, NSW : The Federation Press, 2016


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Description xxi, 312 pages ; 24 cm
Contents 1. Introduction to Human Rights in Australia -- 2. The Separation of Powers -- 3. Open Courts, Natural Justice and the Right to Confront Accusers -- 4. The Right to Silence and the Privilege against Self-Incrimination -- 5. The Presumption of Innocence -- 6. Civil Forfeiture -- 7. Mandatory Sentencing
Summary This book articulates the potential of the principle of separation of powers reflected in the structure and text of the Australian Constitution to protect fundamental due process rights. Clearly, the founding fathers did not enact an express bill of rights in the Australian Constitution, and the document contains a limited number of express rights. However, the High Court has accepted as fundamental the doctrine of separation of powers.While the precise contours of the separation of powers principle are still being drawn, the High Court has found that laws which require, or authorise, a court to exercise power involving a departure from characteristics of traditional judicial process are constitutionally suspect. This is because such a law would undermine a court's institutional integrity.While the High Court has been somewhat loath to identify precisely characteristics of traditional judicial process, some indicia - including open courts, ability to review a decision of a lower court for jurisdictional error, the provision of reasons, decisional independence and fairness - have been identified. This book argues that fundamental due process rights in the criminal law area, such as presumption of innocence, the right to silence, the right to confront accusers, open courts, no effective punishment without conviction, and proportionate rather than mandated sentencing, are so fundamental to a criminal procedure that laws which abrogate these rights and expectations are vulnerable to constitutional challenge. -- The publishers
Analysis Australian
Notes Includes index
Bibliography Includes bibliographical references and index
Subject Constitutional law -- Australia.
Criminal justice, Administration of -- Australia.
Due process of law -- Australia.
Human rights -- Australia.
Separation of powers -- Australia.
ISBN 9781760020767
Other Titles Criminal due process and chapter 3 of the Australian constitution
Criminal due process and chapter three of the Australian constitution