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Copyright (c) 2009 Faculty of Law, Sydney University Law School 
The Sydney Law Review

ARTICLE: Procedural Due Process under the Australian Constitution

September 2009

The Sydney Law Review

31 Sydney L. Rev. 411




1. Introduction
It is trite law to say that Chapter III of the Constitution imposes restrictions on the ability of the legislature fundamentally to alter the character, functions and powers of the various courts capable of being invested with Commonwealth judicial power. The outer limits, and conceptual underpinnings, of such restrictions are, however, strongly in dispute. One of the most fraught topics of dispute is the status of 'due process' limitations under Chapter III of the Constitution. Writing extra-curially in 2001 McHugh J foreshadowed the extent of this dispute. His Honour queried:
What of such procedural matters as discovery and interrogatories, the obtaining of particulars and the issuing of subpoenas? What of matters that straddle the borders of substance and procedure such as the right to a fair trial, the presumption of innocence, the right of an accused to refuse to give evidence, the onus and standard of proof in civil and criminal cases and the use of deeming provisions and presumptions of fact? Can the parliament abolish or change these rights and matters? Would legislation purporting to do so be an invalid attempt by parliament to dictate and control the manner of exercising the judicial power of the Commonwealth? 4
McHugh J concluded that passage by observing that, '[g]iven statements made in cases decided in the last 15 years, the power of parliament to affect these procedural and quasi-substantive matters in significant ways is open to serious doubt'. 5 This article investigates the 'doubt' mooted by McHugh ...
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