Difference between revisions of "Express Guarantees: Trial by Jury and Freedom of Religion"

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:*:*'''Dissent:''' serious offences should be classified as indictable offences.  
:*:*'''Dissent:''' serious offences should be classified as indictable offences.  
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Revision as of 00:27, 10 September 2014

This topic is within Federal Constitutional Law.


Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014) pp.1156-67;1173-83.


The Constitution does not expressly guarantee many human rights. However, it does make express reference to the right to trial by jury, and freedom of religion.

Trial by jury

Section 80 of the Constitution provides a right to a trial by jury, but only where there is a ‘trial by indictment’. The High Court has repeatedly asserted that this is wholly within the discretion of the Commonwealth parliament to decide to determine when creating an offence when it will be summary or on indictment.

  • Thus, s 80 really means that there will be a trial by jury when the law says there will be a trial by jury.
  • Parliament has the power to make an offence a summary offence and thus circumvent the 'guarantee'.

'On indictment' debate

A debate emerged as to what 'on indictment' meant. A very literal understanding would be that the Parliament has the power to categorize offences as either summary or indictable, while a more broad understanding would mean that offences on indictment entail 'serious' offences or something along those lines (ie, not a mere matter for Parliament to determine).

The current position was first established in R v Bernsconi, where Issacs J said that if a given offence is not made triable on indictment by Parliament, then s 80 doesn’t apply. It was also discussed in R v Archdall & Roskruge; Ex parte Carrigan and Brown:

  • Four judges (out of 6) said to give words their plain meaning. Narrow interpretation.
  • Parliament alone has the power to determine whether an offence is summary or on indictment.
  • Effectively condemns s 80 to having no real effect.

A wider interpretation was argued by for Dixon and Evatt JJ (in dissent) in R v Federal Court of Bankruptcy; Ex parte Lowenstein:

  • The Constitution is not to be mocked - s 80 has to have been put in for some purpose and not just to provide an illusory right.
  • Section 80 has to have some kind of meaning, purpose and effect beyond its literal meaning
  • Thought ‘trial by indictment’ has the following characteristics which apply to ‘serious’ offences:
    • That some authority constituted under the law to represent the public interest has taken the responsibility to put the accused on trial.
    • The criminal liability faced by the accused includes prison or a graver punishment
  • Irrespective of what Parliament says, if the punishment attached to the crime is of this serious kind, s 80 is triggered.

However, the narrow view of s 80 has repeatedly been treated as settled - an offence in 'on indictment' only if Parliament has specified that it is.

Case law

Some relevant cases to the above settled law include Kingswell v The Queen:

  • Facts: the serious offence of drug importation was classified as a summary offence.
  • Held: s 80 does not give a right to a trial by jury for serious offences, but only for indictable offences. It is up to parliament to specify which offences are indictable and which can be tried summarily - this is settled. The seriousness of the offence is irrelevant (Gibbs CJ, Wilson and Dawson JJ).
    • Dissent: serious offences should be classified as indictable offences.

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Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

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