Secrecy, procedural fairness and state courts

Abstract

This chapter considers recent constitutional developments in the High Court of Australia, challenging the use of secret ‘criminal intelligence’ evidence in Australian State court proceedings. It considers the degree to which the separation of judicial power derived from Chapter III of the Australian Constitution limits the use of secret evidence in State courts, and critiques the High Court’s approach to resolving the competing interests of secrecy and procedural fairness. Ultimately, the cases provide a degree of proof that the separation of judicial power is an imperfect, even inadequate, tool for the protection of fair process in judicial proceedings.