Thursday, 2 July 2020

Law Society welcomes repeal of law removing right to trial by jury

The ACT Law Society today welcomed the repeal of legislation that removed a defendant's right to a fair trial. The Society had previously condemned the introduction of this law.

The Government has repealed a law that removed the right of an accused to a jury trial. Originally enacted as part of the COVID-19 emergency response, the legislation empowered judges to order a trial to proceed by judge alone if they determined it was in the interests of justice, having heard from the parties, with the Court's decision to be final.

During the period this law was in force, several orders were made forcing judge alone trials on individuals who wished to exercise their right to a jury trial, resulting in a High Court challenge. However, due to the easing of COVID-19 restrictions, no forced judge alone trial proceeded, and the High Court challenge did not require determination.

“The Society welcomes the winding back of this legislation,” said Michael Kukulies-Smith, Chair of the Society’s Criminal Law Committee.

"The right to trial by jury is a significant, longstanding right in our legal system, and a fundamental tenet of the rule of law.

"The Government's approach was fundamentally unsound and misguided. Disposing of the right to trial by jury against the wishes of an accused was unnecessary and unjust.”

The Society acknowledged that COVID-19 restrictions prompted a need for legal process reform to allow the continued functioning of the courts. However, a more measured response, such as that implemented in NSW, would have been more appropriate.

President of the ACT Law Society, Chris Donohue, said “It is of critical importance that governments seek and listen to specialist advice from stakeholders when decisions may impact on the fundamental rights of their constituents. Failure to do so can, as in this case, result in bad law.”