The legal community has condemned the ACT government's decision to deprive Canberrans of the right to a trial by jury during the coronavirus pandemic.
Justice minister Shane Rattenbury on Thursday told the Legislative Assembly he had "listened to the views" of local legal groups ahead of Supreme Court judges being allowed to put accused criminals on trial without a jury, and without their consent.
But on Friday, both the ACT Law Society and the ACT Bar Association said they weren't properly consulted before the COVID-19 Emergency Response Bill 2020 was passed. Instead, they said they were told about the new provision at short notice.
Bar Association president Steven Whybrow said: "There was notional fait accompli consultation and none of the suggestions by us, the Law Society, Legal Aid or the [ACT] Human Rights Commission were seemingly considered at all.
"[The minister's comments are] misleading because [they] suggest that somehow we have contributed in some positive way to this law.
"We were asked about it and we said, 'It's a terrible idea'. That's not consultation."
The chair of the Law Society's criminal law committee, Michael Kukulies-Smith, on Thursday described the removal of the right to a trial by jury during the coronavirus "emergency period" as "fundamentally unsound and misguided".
Other legal practitioners expressed the same sentiment on Friday. Solicitor and adjunct assistant professor at the University of Canberra, David Healey, said the change was inconsistent with the interests of justice.
"[Jury trials] are supposed to be a reflection of community values, morals and standards," Mr Healey said.
"If you're going to stop them, you're going to stop the community having input into what they envisage or see as correct justice for people who [are accused of] committing crimes."
Mr Healey said the new legislation meant there was a "real danger" people would appeal judges' decisions in the future if judge-alone trials were ordered without their consent.
"It's dangerous to leave this amount of discretion in the hands of one judge, noting the various levels of discretion available in the criminal justice system [already]," he said.
"We're doing everything remotely anyway.
"I don't know why they couldn't provide a setting where they use [software] to still run a jury trial."
Barrister and associate professor at the Australian National University, Anthony Hopkins, agreed with the Law Society that the ACT should have adopted the NSW approach to trials during the coronavirus pandemic.
The state has temporarily changed who can and can't have a judge-alone trial, but has ensured "no judge-alone trial can occur unless the accused agrees to proceed by judge-alone".
Under the new ACT legislation, Supreme Court judges can order a judge-alone trial regardless of whether an accused person agrees to it - as long as it ensures "the orderly and expeditious discharge" of the court's business, and is otherwise in the interests of justice.
People can also invite a judge to proceed with a judge-alone trial if they're accused of offences that would normally rule out the option, like murder and sexual intercourse without consent.
Mr Hopkins said: "Whilst I accept that this is a time in which many of our freedoms must be compromised for the good of the community, it seems to me that it is always a question of whether the compromise is proportionate as a response to the emergency or to the situation.
"It seems to me that [the NSW approach] was one of the options that should have been considered.
"Introducing a change without consulting is deeply problematic and there is no reason why consultation couldn't have been engaged in with the Law Society and the Bar Association to determine what the most appropriate [and] proportionate response would be."
In a letter addressed to Attorney-General Gordon Ramsay, Legal Aid ACT's chief executive officer, Dr John Boersig, said it was "imperative" accused people could choose whether or not to have a judge-alone trial.
"Trial by jury is a fundamental right of an accused person and it is for the accused person to waive this right," Dr Boersig.
On Thursday, Mr Ramsay told the Legislative Assembly the interim change would allow trials to continue to be heard without putting jurors, court staff, and legal practitioners at unnecessary risk.
He said "justice delayed is justice denied", and noted that delayed trials could prolong victims' trauma.
The new legislation applies to trials between March 19, 2020 and December 31 unless another end date is chosen.