Thursday, 2 April 2020

Law Society condemns ACT Government’s removal of right to trial by jury

The ACT Law Society today condemned the ACT Government's removal of a defendant's right to a fair trial.

The Government has enacted legislation to remove the right of an accused to a jury trial. Proposed as part of their COVID-19 emergency response, the new provision was passed with the support of the Greens. Under this new legislation, judges will be empowered to order a trial to proceed by judge alone if they determine it is in the interests of justice; having heard from the parties, with the Court's decision to be final.

"The right to trial by Jury is a significant, longstanding right in our legal system that has been consistently observed by the High Court of Australia," said Michael Kukulies-Smith, the chair of the Society’s Criminal Law Committee.

"It is a fundamental tenet of the rule of law, and has been enshrined in legal systems since before Magna Carta.

"The Government's new scheme is fundamentally unsound and misguided."

The Society acknowledges that there is a need to reform existing laws and processes to allow the continued functioning of the courts during the current COVID-19 health emergency.

Other jurisdictions have found ways to manage this without abrogating the rule of law. Last week, the New South Wales Parliament passed emergency legislation that included amendments to the availability of judge alone trials in NSW.

Fundamental to the NSW scheme is that no judge alone trial can occur unless the accused agrees to proceed by judge alone. The NSW legislation ensures that the accused’s right to a trial by jury is protected.

The ACT Government has inexplicably opted to take an approach that is radically different to the NSW solution, despite the Chief Minister repeatedly emphasising the importance of the ACT taking action that is consistent with NSW at this time.

The Law Society is alarmed that the ACT Government has taken this action, when NSW has already proved that legislation like this can be enacted without abrogating rights.

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