Page 810 - Week 03 - Thursday, 2 April 2020
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They cite the High Court, which has said that jury trials are “the chief guardian of liberty under law and the community’s guarantee of sound administration of criminal justice”. They cite further the High Court cases to support the doctrine that “trial by jury is a right, and trial by judge alone must be understood as a waiver of that right, that waiver being the right of the accused”. That is the right that is being abandoned today under this bill.
These serve as context for what we are discussing: the removal of a crucially important, fundamental right. We have received communication across the spectrum from legal, human rights and social justice groups. As well as that detailed communication from the Law Society, we have received representations from many parties. The CEO of Legal Aid ACT wrote a letter, and I will quote from it:
Trial by jury is a fundamental right of an accused person, and it is for the accused person to waive this right. Legislation that purports to remove such a fundamental right would need to have reasonable limits that could be demonstrably justified in a free and democratic society.
I note that they support the amendment that has been moved. I have spoken to Mr Stephen Whybrow of the Bar Association, who expressed very similar concerns and supports the amendment. I have spoken to Dr Helen Watchirs, the Human Rights Commissioner, who has expressed the same sentiment. Everybody that I have spoken to—leaders in the legal community, in the human rights community—has expressed the same concerns and supports the amendment that is before us today. When that happens, when all of those bodies together are expressing the same concerns, as an Assembly it behoves us to listen.
Clearly, removing the right to a jury trial raises human rights considerations. Dr Watchirs has personally confirmed this to me. What is critical here are the factors for consideration when the Human Rights Act is engaged. One of the most fundamental factors of the Human Rights Act is that, if a restriction of a human right is applied, as is being proposed here by the government, and that is the right to a jury trial, it would only be compliant if there were no less restrictive means available. If there is another way of doing this that is less restrictive, and if you are not doing that, this is not consistent with the Human Rights Act.
Indeed, there is a less restrictive way, and that is the way that the New South Wales government has dealt with this issue. This is noted by Legal Aid in their correspondence. They state:
The recent amendment to the Criminal Procedure Act 1986 (NSW) provides an example of a less restrictive means, reasonably available to achieve the purpose of the limitation it seeks to achieve.
So there is a less restrictive means of resolving the obvious problems that we are all facing. If there is a less restrictive means, and that is what we are being advised by the Human Rights Commissioner, Legal Aid, the Law Society and the bar, this change cannot be consistent with this Assembly’s legal rights obligations under the Human Rights Act.
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