Andrew Ray and Aaron Bronitt*
In response to the COVID-19 pandemic and its impact on jury trials, states and territories implemented temporary laws allowing for increased use of judge-alone trials. While most jurisdictions implemented laws expanding the use of voluntary judge-alone trials, the ACT Legislative Assembly went a step further and allowed judges to order that accused persons be tried by judge alone, including without the accused’s consent. Section 68BA of the Supreme Court Act 1933 (ACT) allowed judges to order judge-alone trials during the COVID-19 emergency period where such an order would ‘ensure the orderly and expeditious discharge of the business of the court; and is otherwise in the interests of justice’. This represented the first time an Australian jurisdiction had implemented such a law, raising significant constitutional questions around the validity of the law. These issues were raised in a High Court challenge, in which the ACT Director of Public Prosecutions also expressed concern about the proposed order. However, due to the easing of COVID-19 restrictions in the ACT, the case was referred back to the ACT Supreme Court to reconsider the application of s 68BA(3). The provisions have subsequently been repealed by the ACT Legislative Assembly. This means that there has been no firm answer regarding the validity of s 68BA or future laws of a similar nature.
2. Why Jury Trials Matter
The right to trial by jury has long been considered the preferred mode for trying indictable offences. It has been described by legal scholars as a ‘fundamental pillar’ of the common law system which is to be ‘safeguarded to the extent that local circumstances would permit’. The right can be traced back to Ch 29 of Magna Carta (1297) 25 Edw 1 C 29:
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
This chapter has been widely credited with guaranteeing the right to trial by jury because it referred to ‘lawful judgment of his peers’ as a ‘condition of prejudicing a free man in his person or property’.
In the ACT, Magna Carta continues to operate through s 4 of the Seat of the Government (Administration) Act 1910 (Cth)and s 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) emphasises the fundamental importance of the right to trial by jury in the ACT’s criminal jurisdiction. In written submissions to the ACT Supreme Court (made prior to the grant of leave to appeal to the High Court) counsel for UD submitted that the fundamental importance of a jury ‘to the accused, to the community’s involvement in the administration of justice, and as an institutional feature of the ACT Supreme Court’ would have led to significant questions regarding the law’s constitutional basis as it may not have been supported by the Legislative Assembly’s lawmaking power. This will be discussed in more detail below.
Although in recent years Australia has seen an increasing trend towards the use of trials by judge alone, the ACT is the only jurisdiction where it was possible (even for a short period of time) for the Court to order that an accused be deprived of a jury without their consent.
There are also several practical considerations which underline the importance of the right to trial by jury in Australia. The primary purposes of juries are recognised as ensuring representativeness and impartiality. As revealed by studies of the juryless Diplock Courts in Northern Ireland, which were set up to try serious criminal cases alleged to be connected with the Irish Troubles the absence of a jury can allow judges to become ‘case hardened’, or biased against the accused. There are similar concerns that an abrogation of the right to trial by jury may have disproportionate effects upon minority and marginalised groups. This is exacerbated by the lack of diversity within the Australian judiciary.
It is also important to consider acquittal rates when comparing judge alone trials and jury trials. Although members of the judiciary, such as McClellan CJ, have suggested that ‘the statistics show that judge alone trials result in significantly higher rates of acquittal than jury trials’, there are also suggestions that judge-alone trials yield higher rates of convictions. As there is no current publicly accessible ACT data to compare the rates of acquittal among trials by jury and trials by judge-alone, this is an area which requires greater analysis. This should have been subject to special scrutiny before the laws came into effect.
3. Constitutional Concerns Regarding ACT Jury Laws
In addition to the underlying importance of jury trials, and the policy questions this raises regarding the desirability of laws such as s 68BA, there are significant constitutional questions regarding the validity of s 68BA (as it existed at the time). These include the application of the Kable doctrine, the ability for the Legislative Assembly to pass such a law and the potential application of s 80 of the Constitution. Without consideration by the High Court these questions cannot definitively be answered, however overall it is likely that at least one of the questions would have been upheld had the matter been heard by the High Court and as such that s 68BA would have been unconstitutional.
Application of the Kable Doctrine
In Kable, the High Court held that state courts invested with federal jurisdiction cannot be invested with functions that would impair the court’s institutional functions, as this would be incompatible with the court’s ‘role as a repository of federal jurisdiction’. This principle was extended to territory courts by later High Court decisions which confirmed that these courts too exercise federal jurisdiction. While the precise bounds of the Kable doctrine are elusive, it has been held to prevent a legislature from imposing ‘a judicial function or an adjudicative process on a court, whereby it is essentially directed or required to implement a political decision or a government policy without following ordinary judicial processes’.
This raises potential issues for the operation of s 68BA, as arguably the section lacks a clear legal standard to apply and undermines the functions of the Court. In particular, the Court itself can decide that a judge-alone trial is in the interests of justice, against the wishes of the accused (and the DPP). This falls well outside ordinary judicial processes, and is concerning as it limits the ability of the accused or the DPP to argue against the motion. Additional concerns were raised in written submissions to the ACT Supreme Court highlighting the fact that the Court itself was not well placed to evaluate the potential impact or longevity of the COVID-19 pandemic. This, it was suggested, would likely lead the ACT Supreme Court to ruling that the factors required under s 68BA(3) would be met in relation to every case heard during the emergency period. Overall these points suggest that s 68BA may well have contravened the Kable doctrine, and as such would not have been constitutional.
Legislative Power of the Territory
The ACT Legislative Assembly can only enact laws through the grant of power conferred upon it by the Federal Parliament by s 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). If s 22 did not authorise the Territory to enact laws removing the ability for an accused to elect to a trial by jury, then s 68BA would be invalid. While s 22 has not been without its controversies (notably expressly limiting the territories from considering euthanasia laws), the question relating to s 68BA rests on whether the Federal Parliament when passing s 22 intended to allow the Territories to abrogate a common law principle, namely the right to a jury. This issue arises due to the operation of the principle of legality, which is a tool of statutory interpretation used by courts to require that parliaments (when legislating against common law protections) use clear and unambiguous language when doing so. It could therefore be argued that as Federal Parliament did not clearly include within s 22 (or the neighbouring provisions) any reference to the ability for a Territory to deny the right to a jury, they did not intend for s 22 to be used for that purpose.
In North Australian Aboriginal Justice Agency, French CJ, Kiefel and Bell JJ in analysing whether a State Parliament could (through legislative enactment) confer investigative, prosecutorial and punitive functions to a police officer stated:
If such a law were enacted in the Northern Territory the question might arise as to whether the conferring on a police officer of a combination of prosecutorial and judicial powers would offend against fundamental common law principles to such an extent that the grant of legislative power to the Northern Territory should not, in the absence of clear words, be construed as extending that far.
This statement, while not determinative, does indicate that (at least some) members of the High Court are open to the possibility that s 22 would not extend so far as to allow a Territory Assembly to legislate against fundamental common law principles. While this statement is not binding, it could have been persuasive to the Court had they heard the UD appeal.
Application of s 80
Section 80 of the Constitution states that ‘[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury’. The High Court has consistently held that s 80 prevents state laws allowing an accused to elect to be tried by judge alone to be picked up and applied as federal law through the operation of s 68 of the Judiciary Act 1903 (Cth). The consequence of which is that federal offences tried by indictment must be heard by a jury. The interaction between s 80 and territory offences is, however, unclear. The only case considering the issue, R v Bernasconi, held that s 80 did not apply to trials in the Territory of Papua. In doing so the Court in Bernasconi followed previous authority in finding that s 122 was distinct from constitutional limitations contained within other sections of the Constitution. For example, Griffith CJ stated:
Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories.
Bernasconi was, however, decided prior to High Court authority holding that the Constitution created a unified federal system, with Australia having but one common law. Since this decision several decisions have applied parts of Ch III to legislation enacted pursuant to s 122, but no case has expressly discussed the application of s 80. While the outcome to this question is not certain it seems more likely that the High Court would hold that all limitations contained in Ch III apply to s 122 and, as such, s 68BA would be invalid as it applies to indictable offences. This approach has the benefit of consistency, and would prevent a Territory government from being able to exercise a power granted to it by Federal Parliament (pursuant to s 122) that the Federal Parliament itself could not exercise. UD v The Queen would have provided the High Court with the opportunity to clarify the operation of Ch III to the territories.
4. The Resolution of UD?
Ultimately the High Court referred the UD appeal back to the ACT Supreme Court following the announcement that jury trials would recommence. In deciding that there was no legal issue (despite some novel arguments raised by counsel), Justice Gordon considered the ACT Supreme Court media release sufficient to establish that there was insufficient factual certainty that UD would be denied a jury. On referral in UD v The Queen [No 3] Elkaim J reconsidered his earlier decision, and permitted the case to proceed to jury trial. This meant that there was no need for the contentious constitutional questions to be answered, and leaves the validity of the provision unclear.
While the questions regarding the validity of 68BA is now moot, questions remain if laws similar to s 68BA are again considered “necessary”. The ability for any branch of government (including the judiciary) to deny an accused a trial by jury is concerning, particularly in light of the historical and constitutional significance of the right. While it is difficult to predict the implications of the decision, if the High Court decides that other COVID-19 cases (including the border closure challenge) do not raise legal issues due to the reduction in cases then significant government actions may never be subject to appropriate judicial scrutiny.
*Andrew Ray is a final year LLB(Hons)/BSc student studying at the Australian National University, Aaron Bronitt is a 3rd year LLB(Hons)/International Security Studies student. The piece reflects the personal views of the authors. The authors would like to thank Associate Professors Heather Roberts and Matthew Zagor and Senior Lecturer Dilan Thampapillai for their guidance and feedback on this piece.
 See, eg, Criminal Procedure Act 1986 (NSW) s 356.
 Transcript of Proceedings, UD v The Queen  HCATrans 59; Transcript of Proceedings, UD v The Queen  HCATrans 61.
 Transcript of Proceedings, UD v The Queen  HCATrans 61.
 Kingswall v The Queen (1985) 159 CLR 264, .
 Justice Steven Rares, ‘Why Magna Carta Still Matters’ (Speech, Judicial Conference of Australia Colloquium, Adelaide, 9 October 2015) .
 See Eastman v Director of Public Prosecutions (No 2)  ACTSCFC 2, .
 See Jodie O’Leary, ‘Twelve angry peers or one angry judge: An analysis of judge alone trials in Australia’ (2011) 35 Criminal Law Journal 154.
 Victorian Law Reform Commission, Jury Empanelment (Consultation Paper, October 2013) [2.6].
 John Jackson and Sean Doran, Judge Without Jury: Diplock Trials in the Adversary System (Clarendon Press, 1995).
 Australian Bureau of Statistics, Migration, Australia, 2018-19 (Catalogue No 3412.0, 28 April 2020). Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, January 2018).
 Ray Steinwall, ‘Addressing cultural diversity in the Australian judiciary’, Diversity Council of Australia (Blog Post, 30 April 2015) https://www.dca.org.au/blog/addressing-cultural-diversity-australian-judiciary.
 Peter Krisenthal, ‘Judge Alone Trials – Practical Considerations’, Criminal CPD (Seminar Paper, September 2015) https://criminalcpd.net.au/district-and-supreme-courts/.
 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
 Ibid 101-103 (Gaudron J), 114-116 (McHugh J), 138, 143 (Gummow J). See also Attorney-General (NT) v Emmerson (2014) 253 CLR 393, 424 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Emmerson’).
 Ibid; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163  (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
 Emmerson (n 14) .
 Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1A) (applied by s 22).
 North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569.
 Ibid 596-7.
 Brown v The Queen (1986) 160 CLR 171; Alqudsi v The Queen  HCA 24.
 (1915) 19 CLR 629 (’Bernasconi’).
 Buchanan v The Commonwealth (1913) 16 CLR 315.
 Bernasconi (n 21) 635.
 See, eg, Kable (n 13).
 See, eg, Northern Territory v GPAO (1999) 196 CLR 553.
 For discussion see Stephen McDonald, ‘Territory Courts and Federal Jurisdiction’ (2005) 33(1) Federal Law Review 57.
 Transcript of Proceedings, UD v The Queen  HCATrans 61.
 R v UD (No 3)  ACTSC 139.
 ACT Supreme Court, Practice Direction 1 of 2020: Special Arrangements in response to COVID 19, 28 May 2020  https://www.courts.act.gov.au/__data/assets/pdf_file/0020/1553132/Covid-Practice-Directon-1-of-2020-May.pdf. See further ACT Law Society, ‘Law Society welcomes repeal of law removing right to trial by jury’ (Media Release, 2 July 2020) https://www.actlawsociety.asn.au/article/law-society-welcomes-repeal-of-law-removing-right-to-trial-by-jury.