Page 811 - Week 03 - Thursday, 2 April 2020
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Another important point is consistency with New South Wales laws. The Chief Minister has clearly stated that consistency with New South Wales, as we make these changes, is crucially important. I have heard him say that. It is hard to think of a more fundamental inconsistency than the fact that a person will retain a right to trial by jury in New South Wales, in Queanbeyan, but will not have that right here in Canberra. It does not accord with the statements that have been made by this government about consistency with New South Wales.
Lastly, and this is a very important point, this bill risks not doing what it intends to do. The intent is to limit delay. I acknowledge the points that have been made by the Attorney-General, particularly in regard to victims when it comes to legal cases. There is truth in what he says. However, the removal of a jury trial is so fundamental that it is open to appeal. This point has been raised by the Law Society in their letter:
The proposal brings with it the significant likelihood of challenges to the laws on the basis that they are unconstitutional or do not accord with Australia and the ACT’s human rights obligations. Given the fundamental nature of fair trials, it is also likely that individual determinations by judges that a trial ought to proceed by judge alone would be subject to appeals to the ACT Court of Appeals.
I have been advised by members of the legal community that they would appeal these matters. Therefore it may take longer. I understand the Attorney-General’s intent, but the problem is that what will most likely happen is that it will be delayed because you will have a judge-only trial that will subsequently lead to appeal and the whole appeals process; then, quite likely, there will be another trial.
I appeal to members to support this amendment. As I have said, this is a removal of a fundamental right to a trial by jury. There is overwhelming opposition to what is being proposed by the government, from the Law Society, the bar, Legal Aid ACT, the Human Rights Commission and a number of other prominent members of our legal community that have spoken to me. There is an inconsistency with New South Wales that gives their citizens more rights than ACT citizens. There are doubts raised by the legal profession about whether this would be constitutionally valid or certainly whether it is consistent with our Human Rights Act. It creates potentially worse problems of delay because of appeal cases, and there is another way forward, as has been put into the amendment that is before us today, that is consistent with New South Wales.
This is not simple point scoring from the opposition. (Extension of time granted.) These issues have come from the legal community, and I have outlined those concerns. They have not emanated from the opposition, although of course we agree with them, after our own considerations.
I appeal to members to support this. I get the vibe that the amendment will not be supported. I must say I am somewhat disappointed and somewhat surprised, after the very public comments from all of those members of our legal community and the Human Rights Commissioner, that the government and the Greens would not now support this amendment. Regardless, I think this is a misstep. I understand that this is urgent and I understand that there are problems. I understand the grave and dire
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