A move to allow judges to order Supreme Court trials to proceed without a jury while coronavirus public health restrictions were in place likely breached the constitutional power of the ACT government and showed the risk of legislative overreach in a crisis, a new paper argues.
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The paper was co-authored by Jane Campbell, the then deputy chief executive of Legal Aid ACT, who has since been appointed a special magistrate in the territory.
The paper, published in the journal Current Issues in Criminal Justice this month, was co-authored by Ms Campbell before her appointment, Legal Aid ACT chief executive John Boersig and researcher Samuel Carmichael.
The Legislative Assembly passed new laws in April last year to allow for judge-alone trials, with the ACT government arguing at the time it would be inappropriate to prolong time matters were before the courts during the coronavirus pandemic.
The provision allowed Supreme Court judges to order judge-alone trials if it would ensure "the orderly and expeditious discharge of the business of the court", and was otherwise in the interests of justice.
However the authors of the paper argue the laws contravened the Kable doctrine, established in Kable v Director of Public Prosecutions (NSW), a 1996 High Court case.
The case established that state or territory legislation which impairs a court's institutional integrity is constitutionally invalid.
"We believe the ACT Government may have transgressed the constitutional limitations of their powers. There are multiple grounds on which the amendment could be challenged," the paper said.
The paper argued that an order to hold a judge-alone trial without the consent of the accused could violate the Kable doctrine by "fundamentally changing the mode of trial in the Supreme Court".
"This is an unprecedented departure from the processes that characterise the exercise of judicial power in Australia," the paper said.
The effect of the legislation was to enact the ACT government's policy of not having any jury trials for the duration of the COVID-19 emergency period.
"On its face, the Court lacked true discretion in making its orders to proceed to hold trials by judge alone, which is potentially incompatible with constitutional legal doctrine," the paper said.
The powers to order judge-alone trials were ditched in June, when it was determined jury trials could proceed safely as the threat of COVID-19 in Canberra subsided.
Then Attorney-General Gordon Ramsay's spokesman said the cessation of jury trials was to protect the public, court staff and the legal profession.
"The temporary amendments to the Supreme Court Act ensured the administration of justice could continue during the COVID-19 pandemic," the spokesman said.
"The Supreme Court has announced the resumption of some jury trials in mid-June.
"The government commends the work of the court in being able to do this in a way which meets the requirements for their safe operation."
Ms Campbell, Mr Boersig and Mr Carmichael argue that it is vital to scrutinise the laws even though they had been repealed to provide future guidance.
"Ensuring the continued administration of justice while managing the impact of COVID-19 required a delicate balancing act. Undoubtedly, the ACT Legislative Assembly promulgated s 68BA [which allowed for judge-alone trial orders] purposefully, and their efforts to protect victims and ensure the integrity of trials were commendable.
"However, the legal foundation for the amendment was ambiguous and likely breached the Kable Doctrine. Significantly, other jurisdictions were able to address this problem without intruding upon the right of an accused to have their matter heard by a jury of their peers. This amendment evidences the danger of legislative overreach during a crisis."
An ACT government spokesman said the government sought legal advice before proceeding with the powers last year, but as the issue will be considered by the Supreme Court the Attorney-General would not comment.
The ACT Law Society had vocally opposed the laws. The chair of the society's criminal law committee, Michael Kukulies-Smith, said the new provision was "fundamentally unsound and misguided".
"The right to trial by jury is a significant, long-standing right in our legal system that has been consistently observed by the High Court of Australia," Mr Kukulies-Smith said.
Jasper Lindell
Jasper Lindell joined The Canberra Times in 2018. He is a Legislative Assembly reporter, covering ACT politics and government. He also writes about development, transport, heritage, local history, literature and the arts, as well as contributing to the Times' Panorama magazine. He was previously a Sunday Canberra Times reporter.
Jasper Lindell joined The Canberra Times in 2018. He is a Legislative Assembly reporter, covering ACT politics and government. He also writes about development, transport, heritage, local history, literature and the arts, as well as contributing to the Times' Panorama magazine. He was previously a Sunday Canberra Times reporter.
