The Dietrich Dilemma

Abstract

In Dietrich, the High Court had regard to the growing body of international human rights law as a legitimate influence in developing the common law right not to be tried unfairly in the absence of legal representation, yet decisions since Dietrich have indicated that the scope of the Australian right to fair trial in this aspect is likely to be narrower than that recognised under the International Covenants or the Constitutional right recognised in the United States and Canada or under the New Zealand Bill of Rights Act 1990. Dietrich has had a fundamental impact on the Australian justice system: an expanding number of decisions have been concerned to work out the detail of the Dietrich criteria in the day-to-day administration of criminal justice; the scope for the application of the principle in both the civil and criminal spheres is only just being resolved; the judicial mandate prioritising criminal legal aid for serious matters, to the detriment of other civil, particularly family, law type funding, has created pressure on, and, in the case of women, unfairness in, the allocation of limited legal aid funds; against which background considerable law reform and research work is being undertaken in straightened circumstances to address and redress some of the intended and unintended consequences of the decision. This article examines these various matters and concludes that the Dietrich touchstone guarantee of fair trial has not been delivered on. Rather, it will be argued, there has been an illogical and unprincipled evolution of the rule that has left all but the criminal litigant on trial for serious offences without representation or remedy