Page 2516 - Week 06 - Thursday, 23 June 2011
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What has been the government’s response to the society’s submission? Nothing.
I also noted the report in the 20 June 2011 edition of the Canberra Times which outlined the view of Chief Justice Terence Higgins, who suggested that the DPP could object to an election by the defence, with the matter then decided by a judge. Again, the government has been mute in relation to this option. Earlier this week, as Mrs Dunne has noted, the human rights commissioner recommended that “a less restrictive approach be taken to allow judge-alone trials to proceed, rather than the blanket approach in the bill”. The government’s response? Nothing.
The scrutiny of bills committee also made comment on this bill and called on the attorney to provide a justification for removing access to judge-alone trials. In its discussion, the committee noted the extrajudicial comment of Chief Justice Higgins that limiting the existing right to choose a judge-alone trial “clearly creates a real risk of offending the Human Rights Act 2004”. In his response, Mr Corbell did little other than to affirm the government’s view that the right to elect a judge-alone trial is not an element of the right to a fair trial—unless you are a terrorist, apparently; then, apparently, the government believes in the right to choose a judge-alone trial.
That is at the heart of the problem with this bill. It just gets it wrong at both ends. What this bill actually says is that it will affirm the right of alleged terrorists to choose absolutely whether they have a judge-alone trial. What will be proposed by Mrs Dunne is the far more sensible way forward. What it is saying is that no-one should have the right to choose a judge-alone trial—no-one in the Supreme Court should have the ability to choose a judge-alone trial. What should happen, though, is that in exceptional circumstances courts should be able to decide that there is a judge-alone trial. What the government is proposing is that the terrorists of the world can choose—that the terrorists can choose a judge-alone trial absolutely with nothing to stop them. For what reason we have not heard. And in the situation where there is serious potential for jury tampering, such as cases that involve organised crime, there can be no protection under this bill. So it gets it wrong at both ends.
In considering the bill, the committee also invited comment from the ANU and the University of Canberra. The ANU supports the government’s bill but suggests that the increased penalties may not go far enough when compared with the commonwealth and other jurisdictions. Mrs Dunne has addressed this issue. UC, however, does not support the removal of the ability to elect judge-alone trials, stating that it does not consider this good policy. Where is the government’s response to these views? Nowhere to be found.
The behaviour of this government in ignoring the views and advice of others, particularly those who use the systems that the government sets up, has become a hallmark of this government’s culture. Is this an example of the new approach to openness in the Gallagher-led government?
Sadly, this bill has not come about to improve the process of justice in the territory. Like so many of the other reforms this government has introduced in the last year or two, the bill has come about simply in an attempt to clear the way for the Supreme
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