Page 1604 - Week 04 - Thursday, 7 April 2011
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It—
the ACT Consultative Committee on the Human Rights Act—
appears clearly enough to have acknowledged that such a right would be of ‘a set of rights that would be particularly relevant to the ACT community’. But the report’s authors recommended against this course of action—
that is, enshrining in the Human Rights Act a right to a jury trial—
on the basis that there would be fewer objections to the enactment of a Territory law were it to be limited to the implementation of human rights treaties to which Australia was already a party.
The scrutiny of bills committee in its report No 32 also made lengthy historical reference to the thread and history of trials by jury, which, as those of us who care about these things know, stretch back in black-letter law to 1297. The committee noted:
It is clear that a right to trial by jury in any serious criminal matter is deeply rooted in the Anglo-Australian legal and political tradition.
The committee noted the comments of Justice Deane in the case of Kingswell and the Crown, in which His Honour noted:
It is, however, clear enough that the right to trial by jury in criminal matters was, by the fourteenth century, seen in England as an “ancient” right. In the centuries that followed, there was consistent reiteration, by those who developed, pronounced, recorded and systematized the common law of England, of the fundamental importance of trial by jury to the liberty of the subject under the rule of law.
Gee, I wish I had said that. The scrutiny committee also noted that section 80 of the Australian constitution acknowledges the importance of jury trials. It says:
The trial on indictment of any offence under any law of the Commonwealth shall be by jury.
As I said, the right to a trial by jury stretches back to 1297 and to that year’s version of the Magna Carta. ACT law, through the Legislation Act, adopts chapter 29 of that version of the Magna Carta. The committee noted that, in part, chapter 29 provides—and once again I quote:
Nor will we pass upon him nor condemn him, but by lawful judgement of his peers or by the law of the land.
The committee concludes by saying:
This proposed reduction in the availability of trial by jury of a criminal charge would bring about a substantial change to the constitutional arrangements of the Territory concerning the administration of justice.
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