Government says abrogation is crucial to ensure safety; legal bodies say it’s critical to protect administration of justice
Legal bodies have slammed the temporary abrogation of the right to trial by jury in the Australian Capital Territory amid the COVID-19 emergency.
The Law Council of Australia, the ACT Law Society, and the ACT Bar Association have come out against an amendment included in the COVID-19 Emergency Response Bill 2020, which was passed by the ACT Legislative Assembly on Thursday, that allows the conduct of judge-alone trials even without the consent of the accused.
Changes to Supreme Court Act 1933
The legislation, which took effect Friday, contained amendments to 20 acts, including the Supreme Court Act 1933 (SCA).
The bill inserted a new section 6BA into the act, covering specifically criminal proceedings against an accused for offences against territory laws if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period. The period began on 16 March and runs until 31 December in the territory, or as prescribed by subsequent regulation. The new section was set to expire 12 months after the bill’s commencement day.
The new section applies to criminal proceedings “whether or not an election is made by the accused person under section 68B,” including before the bill’s commencement day.
The section said that the court may order judge-alone proceedings if its is satisfied that the order “will ensure the orderly and expeditious discharge of the business of the court” and “is otherwise in the interest of justice.”
It said that before making the order, the court must give the parties to the proceeding written notice of the proposed order, inviting the parties to make submissions about the proposed order within seven days of receipt.
The Law Council said that the legislative change is “a great concern” for the peak legal body.
“We strongly believe that the right to a fair trial by jury must continue to be observed unless the accused consents to a judge-only trial,” said Pauline Wright, Law Council president. “The jury is a fundamental part of the system of criminal justice in this country whereby the community plays an important and direct role in the administration of justice. Jury trials provide a safeguard against the arbitrary or oppressive enforcement of the criminal law by those in authority. They also allow for impartiality to be observed.”
Wright said that while the option to be tried in judge-alone trials for serious criminal offences is available in some Australian jurisdictions, that option is only available where the accused waives the right to a jury trial. Those charged with Commonwealth offences and prosecuted in higher courts must be tried by a jury.
“While we recognise the legitimate role of governments in ensuring public health and safety, in these uncertain times it is more critical than ever that Australia upholds the administration of justice,” she said.
“Fundamentally unsound and misguided”
The ACT Law Society said that it condemns the removal of the right to trial by jury, saying that it is “fundamentally unsound and misguided.”
"The right to trial by jury is a significant, longstanding right in our legal system that has been consistently observed by the High Court of Australia," said Michael Kukulies-Smith, the chair of the ACT Law Society Criminal Law Committee. "It is a fundamental tenet of the rule of law, and has been enshrined in legal systems since before Magna Carta. The government's new scheme is fundamentally unsound and misguided.”
While the law society acknowledges the need for legislative change and procedural adaptation to allow the courts to continue functioning amid the coronavirus pandemic, it pointed out that other jurisdictions have found ways to manage this “without abrogating the rule of law.”
Last week, the New South Wales Parliament passed emergency legislation that included amendments to the availability of judge-alone trials in the jurisdiction, particularly seeking agreement from the accused before a judge-alone trial can proceed. That legislation protects the right of the accused to a trial by jury, the ACT Law Society said.
“The ACT government has inexplicably opted to take an approach that is radically different to the NSW solution, despite the chief minister repeatedly emphasising the importance of the ACT taking action that is consistent with NSW at this time,” the ACT Law Society said. “The ACT Law Society is alarmed that the ACT government has taken this action, when NSW has already proved that legislation like this can be enacted without abrogating rights.”
No constructive dialogue
While “extraordinary measures” have been needed in all jurisdictions to address the crisis, measures are best effected where the executive, the courts, and the legal profession engage in a constructive dialogue, especially on measures that affect the administration of justice, the ACT Bar said.
“To date, this has not occurred and the ACT now finds itself isolated from all other Australian jurisdictions in how it has chosen to deal with the reality that jury trials cannot be held for the foreseeable future,” the legal body said.
ACT Bar President Steve Whybrow said that the jurisdiction’s bar association and law society “strenuously opposed this unnecessary and dangerous precedent.” He also noted that The Legal Aid Office and the Human Rights Commissioner have also voiced their concerns.
“The justifications for this change are said to be the adverse consequences of delays in finalising criminal proceedings. The delays in the ACT are already amongst the shortest in the country. No other jurisdiction in Australia has taken the extraordinary step of revoking an accused person’s right to trial by jury. In circumstances where there will be no shortage of accused who have and likely will consent to trial by judge alone, there is simply no justification for this legislation.”
The ACT Bar also questioned whether the ACT Legislative Assembly even has the power to abrogate the right to trial by jury. The organisation, which had recommended that the jurisdiction follow the approach taken by NSW, said that it expects legal challenges to the legislative change, as well as appeals for any convictions obtained in the circumstances.
“It does nothing to advance the interests of justice or the victims of crime for there to be significant doubt cast over the legitimacy of a trial process or create a real possibility that such trials might be declared invalid. It is to be hoped that such a situation will not arise,” Whybrow said. “I call on the government and the ACT Supreme Court to step back from this extreme law and engage in discussion with the profession as to how the business of the courts is best managed. There are better solutions to the problem that do not result in abandoning fundamental rights.”
In his explanatory statement on the bill, ACT Attorney-General Gordon Ramsay said that the right to a fair trial, which he said is “not absolute,” is concerned with procedural fairness.
Article 4 of the International Covenant on Civil and Political Rights “allow for the derogation of certain obligations, including the right to a fair trial, ‘in the time of a public emergency which threatens the life of the nation and the existence of which is officially proclaimed,’” he said.
The Human Rights Act 2004 (HRA) provides minimum guarantees but section 22 of the HRA “does not explicitly provide a right to trial by jury,” he said. “The right does include the right to have criminal charges decided by a competent, independent and impartial court or tribunal after a fair and public hearing.”
He also said that in R v Girvan  ACTSC 142, it was noted by Justice Richard Refshauge that “the constitution of the tribunal which hears and determines a criminal charge is a matter of significance and importance,” but it is also possible for a jury to not provide a human rights-compatible trial.
“While the right to trial by jury or judge alone are rights when conferred by law, they are not human rights,” he said.
Ramsay said that it is important to note that the discretion to order judge-alone proceedings can only be exercised once the parties to the proceedings have had the opportunity to consider the issue and make any submissions to the court.