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Stellios, James --- "The Constitutional Jury - 'A Bulwark of Liberty'?" [2005] SydLawRw 5; (2005) 27(1) Sydney Law Review 113

The Constitutional Jury —
‘A Bulwark of Liberty’?



Despite a string of High Court cases over the last five years considering s80 of the Constitution, a clear statement by a majority of the Court as to the purpose of s80 is yet to emerge. A number of ideas have been put forward suggesting that s80 protects rights, but it is not always clear what it means to say that s80 is rights-protective. This paper considers how the recent High Court cases have affected the main s80 controversies. It then explores more closely the various ideas put forward about s80, the predominant one being rights protection. The paper will then argue that s80 may be explained as a federal provision that is central to the operation of Ch III of the Constitution. Viewed in that way, s80 need not be given a rights-protective explanation.

1. Introduction

The High Court increasingly has had an opportunity to map out the scope and operation of s80 of the Constitution.[1] The decided cases now indicate (albeit incompletely) the circumstances that will trigger its operation and the requirements of the provision once it is enlivened. However, it cannot be said with great confidence that these matters are entirely settled. Indeed, some of the key judgments predate modern approaches to the interpretation of constitutional limitations and are underpinned by unsatisfactory reasoning.

Furthermore, unlike the reworking of constitutional limitations like ss92[1] and 117,[2] a broad cohesive vision of s80 continues to elude the High Court. There has been no clear statement by a majority of the Court as to the purpose of s80. Many judges and commentators have put forward a ‘rights-protective’[3] vision of s80, the assumption apparently being that the only plausible purpose of s80 is to protect rights. However, it is not always clear what it means to say that s80 protects rights, nor has there been a clear and sustained attempt to identify alternative explanations. This paper seeks to explain s80 as a federal provision that is central to the operation of Ch III of the Constitution.

Part 2 of this paper provides an overview of the main s80 controversies: first, the circumstances that enliven s80 (‘the constitutional trigger cases’) and, secondly, the requirements of that provision once triggered (‘the s80 requirements cases’). This overview will provide the background and platform for Parts 3 and 4. In particular, Part 2 will demonstrate three points: first, that many of the important constitutional trigger cases lack a clear doctrinal foundation; secondly, that there is a contrast between the way s80 is applied in relation to constitutional trigger cases when compared with constitutional requirements cases; and, thirdly, that s80 doctrine has not developed by reference to a clearly expressed theory.

Part 3 will examine more closely the various strands of ideas that have been put forward about s80, the predominant idea being one of rights protection. None of these ideas have been explained clearly or applied consistently. It will be argued in Part 4 that much of the uncertainty surrounding s80 results from a failure to differentiate between the purpose of s80 and the function of a jury trial.[4] An alternative view of s80 will then be put forward that integrates it into the broader operation of Ch III of the Constitution. In short, it will be argued that s80 is a provision that facilitates and regulates the exercise of Commonwealth judicial power. Viewed in that way, s80 has a real and substantial constitutional operation, and rights-protective explanations are not necessary to give it life. The paper will conclude by briefly reflecting upon how the suggested interpretation might be applied to the controversies outlined in Part 2.

2. The Section 80 Controversies
A. Constitutional Triggers

In this section, I will outline the main cases dealing with the circumstances that trigger s80. It will be seen that recent cases have not significantly affected existing authority. Under this heading, I will also consider the possibility of waiving s80 juries.

(i) ‘Law of the Commonwealth’ and Territory Laws

On current authority, the expression ‘law of the Commonwealth’ in s80 does not include territory laws. In R v Bernasconi[5] the accused had been tried before a court of what was then the Territory of Papua. A Commonwealth Act provided that trials of persons of European descent for offences — other than those punishable with death — should be without a jury. Delivering the leading judgment, Griffith CJ (with whom Gavan Duffy and Rich JJ agreed) held that s80 did not apply to the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature set up by it.[6] His Honour read the words ‘laws of the Commonwealth’ in a limited way in light of the federal context. Chapter III, his Honour said, ‘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’.[7] Despite criticism in later cases,[8] the decision in Bernasconi remains good law.[9]

(ii) Trial ‘on indictment’ — the Archdall Burden

In what circumstances will an offence be tried ‘on indictment’ for the purposes of s80? This issue (hereafter referred to as the Archdall issue) was first considered in R v Archdall and Roskruge; Ex parte Corrigan and Brown,[10] a case in which the offence in question was punishable either on indictment or on summary conviction. It was argued that the offence was an indictable one at Federation and, thus, could not be prescribed by Parliament to be tried summarily. The joint judgment of Knox CJ, Isaacs, Gavan Duffy and Powers JJ cursorily dismissed the argument without reasoned analysis: ‘[t]he suggestion that the Parliament, by reason of sec 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition’.[11] Higgins J also dismissed the argument in the following terms: ‘if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment’.[12]

These few statements have had a remarkably enduring influence. The Archdall decision gained considerable momentum in Lowenstein;[13] Sachter v Attorney-General for the Commonwealth;[14] Zarb v Kennedy;[15] Rankin[16] and Kingswell v The Queen.[17] In Kingswell, Gibbs CJ, Wilson and Dawson JJ[18] summarised the accepted position:

It has been held that s80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticised, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled ...[19]

Like cases before it, the restatement of the Archdall principle in Kingswell was unsupported by constitutional analysis. Despite a persistent line of dissenting judgments,[20] more recent cases have not significantly affected the majority view in Kingswell. The case of Cheng v The Queen[21] concerned a trial on indictment during which the defendants pleaded guilty and, therefore, a trial by jury was not required by s80.[22] Accordingly, their Honours did not need to consider the correctness of Archdall. Nevertheless, Gleeson CJ, Gummow and Hayne JJ seemed to suggest that the Archdall interpretation was consistent with the Convention debates and contemporary commentary,[23] was supported by precedent and, given the decision in Brown v The Queen[24] (a case discussed further below) that a s80 jury cannot be waived, offered Parliament an alternative mechanism for the ‘effective administration of justice’.[25] McHugh J turned to the Convention debates in some detail, and concluded that the history and purpose of the provision confirmed what the text said: s80 ‘guarantees trial by jury only when the trial is on indictment’.[26] Callinan J also applied Archdall, but with some reservation.[27]

(iii) ‘Offence’ — The Kingswell Problem

The word ‘offence’ in s80 was also considered by the Court in Kingswell. A section of the Customs Act 1901 (Cth) contained a basic offence provision prohibiting the importation of certain narcotics. The penalty to be imposed by a court for a contravention of the prohibition was to be determined according to the presence of certain aggravating factors. It was for the trial judge, and not the jury, to determine whether the aggravating factors were present. The question for the Court (hereafter referred to as the Kingswell issue) was whether Parliament could differentiate between, on the one hand, the elements of the offence — which were to be determined by the jury and, on the other hand, aggravating factors that would determine the penalty — which would be determined by the trial judge.

Gibbs CJ, Wilson and Dawson JJ (with Mason J agreeing)[28] held that it is for Parliament to determine the elements that constitute the offence. In their Honours’ view, there is nothing:

that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstances did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament.[29]

In light of their conclusion on the Archdall issue, their Honours considered that ‘it would serve no useful constitutional purpose’ to read the word ‘offence’ in s80 as requiring certain aggravating factors to be included as elements of the offence.[30] However, their Honours suggested the practice of charging circumstances of aggravation in the indictment, a practice later endorsed by a majority in R v Meaton.[31] In that way, when taking the circumstances of aggravation into account at the sentencing stage, the trial judge would be able to ascertain whether the aggravating factors were accepted by the jury.[32]

Brennan and Deane JJ dissented in Kingswell. Brennan J was of the view that an ‘offence’ in s80 ‘can be identified only in terms of its factual ingredients, or elements, and the criminal penalty which the combination of elements attracts’.[33] Thus, in his Honour’s view, ‘a person should not be held liable to punishment ... unless the jury’s verdict makes him liable to that punishment’.[34]

Again, more recent cases do not take the issue much further. In Cheng, a case involving the same offence provision considered in Kingswell, Gleeson CJ, Gummow and Hayne JJ declined to re-examine Kingswell. Following the practice established in Meaton, the circumstances of aggravation were charged in the indictment, to which the defendants had pleaded guilty. Thus, however the offence was to be defined, the circumstances of aggravation were accepted by the guilty pleas.[35] In separate judgments, McHugh and Callinan JJ accepted the majority view in Kingswell.[36] On the other hand, in separate judgments, Gaudron J[37] and Kirby J[38] rejected the majority view in Kingswell, instead preferring the dissenting judgment of Brennan J.

(iv) Waiver

In Brown, the Court was asked to consider whether an accused person could choose not to be tried by jury when tried on indictment for an offence against a law of the Commonwealth. The appellant had been presented for trial on indictment in the Supreme Court of South Australia for an offence against the Customs Act 1901 (Cth). Prior to a jury being empanelled, the appellant elected to be tried by judge alone pursuant to s7(1) of the Juries Act 1927 (SA). A bare majority of a five member Court (Brennan, Deane and Dawson JJ; Gibbs CJ and Wilson J dissenting) held that s7(1) could not be picked up and applied by the judge because s80 mandated a trial by jury which could not be waived by the accused.[39]

In three separate judgments, the majority relied upon an assortment of arguments denying the possibility of waiver. On the one hand, each judge emphasised the mandatory language of s80,[40] and the lack of supporting authority or common law practice.[41] However, on the other hand, their Honours went on to identify and emphasise to varying degrees different rationales for the operation of s80. There were the familiar ideas of s80 protecting liberty,[42] or facilitating the community’s involvement in the administration of criminal justice.[43] Additionally, there were observations that s80 is concerned with a governmental structure: ‘the constitution or organization’ of a court exercising federal jurisdiction.[44] The dissenting judgments of Gibbs CJ and Wilson J favoured a rights-protective view of s80 that sees it as a personal privilege that can be waived by the accused. Their Honours’ judgments will be discussed further in Part 3.

In Brownlee v The Queen,[45] the Attorney-General for the Commonwealth applied for leave to re-open Brown. Brownlee will be discussed further below. It is sufficient to note for present purposes that only Kirby J considered the issue of whether Brown should be overruled, and held that it should. His Honour relied upon a range of reasons, including the capricious inconsistency that would arise between the ineffectiveness of s80 in other respects (that is, the Archdall and Kingswell issues) to ensure an accused the right to a trial by jury and the insistence of such a trial against the accused’s interests and desires;[46] the inefficiency of jury trials in the context of complex commercial and corporate offences;[47] the availability of a ‘larger effective facility for appeal against the reasoned decision of a judicial officer when compared with the much more limited facilities’[48] available in the case of a jury verdict; and the personal nature of the privilege conferred by s80.[49] Kirby J concluded that the accused could legally waive his trial by jury and, on the facts, held that the accused did in fact waive that right.[50]

(v)Observations on the Constitutional Triggers Cases

The decided cases on the constitutional triggers give rise to the following problems. First, the majority decisions on the meaning of ‘indictment’ and ‘offence’ display little doctrinal foundation, and are not explicitly guided by any view about the purpose of s80. Secondly, the majority judges in Brown reached their conclusion on the basis of a range of arguments, not all of which were common to each judgment. In particular, Deane J’s decision appeared to be more informed by rights protection, and less concerned with the institutional aspects of s80 emphasised by Brennan and Dawson JJ. Thus, again, there is no solid doctrinal foundation for that decision. Thirdly, the constitutional trigger decisions shed very little light on the purpose of s80. As will be developed further below, many of the judges (particularly dissenting judges) put forward rights-protective views of s80 but it is not always clear what these views mean. Nor are they applied in a consistent way. For example, Gibbs CJ and Wilson J in Brown referred to rights-protective purposes of s80, but do not apply those views to the issues in Kingswell. Although McHugh J in Cheng attempted, in some detail, to justify the Archdall line by reference to the text and intention of the framers, his Honour’s conclusion says nothing more than the intended purpose of s80 was to guarantee a jury trial only when the trial was on indictment. Since that purpose could be achieved without constitutional entrenchment, McHugh J’s rationale is less than satisfying.

B. The Requirements of a s80 ‘Trial ... by Jury’
(i) The Nature of a Trial by Jury — A Common Law Institution

In R v Snow,[51] the Court was asked to consider whether it had appellate jurisdiction under s73 of the Constitution to set aside a not guilty verdict. In the course of denying jurisdiction, Griffith CJ famously said that s80 is ‘a fundamental law of the Commonwealth’. His Honour continued:

The history of the law of trial by jury as a British institution ... is, in my judgment, sufficient to show that this provision ought prima facie to be construed as an adoption of the institution of ‘trial by jury’ with all that was connoted by that phrase in constitutional law and in the common law of England.[52]

This passage sets out a number of ideas that have been picked up in subsequent cases. First, s80 is often described as ‘a fundamental law’ or in similarly evocative language. Secondly, the reference to ‘trial ... by jury’ in s80 is a reference to trial by jury as a common law institution. Thirdly, there are some common law features that are beyond legislative modification, including the authority of the jury to determine the verdict of acquittal. However, his Honour gave little guidance as to the way in which we are to identify the features that will be constitutionally protected. His Honour alluded to the familiar connotation/denotation device, however, that does not advance the inquiry significantly. Griffith CJ decided the issue in question by combining the prevailing common law rule at Federation with a negative implication to be read from the Constitution: it was accepted at common law that verdicts of acquittal could not be set aside, the Constitution did not expressly deviate from that position and, therefore, the Constitution must be read subject to that common law rule. However, this technique for interpreting the Constitution does not provide a satisfactory basis in this context to identify the features of a jury trial that are constitutionally protected. If it were to be applied as a guiding principle, then the constitutionally entrenched features of a ‘trial ... by jury’ would be those features that characterised the institution at 1900.

(ii) Cheatle — Essential Features

The High Court revisited the nature of a s80 jury trial in Cheatle v The Queen,[53] where a unanimous Mason Court held that ‘history, principle and authority combine[d] to compel the conclusion’ that s80 requires unanimous guilty verdicts.[54] Thus, s57 of the Juries Act 1927 (SA), that allowed majority guilty verdicts, could not apply to the trial on indictment of an offence against the law of the Commonwealth. The Court made important observations about the requirements of s80. First, the Court re-iterated the view of Griffith CJ in Snow that s80 is ‘a fundamental law’ that ‘guarantees’ a trial by jury in the common law sense. Secondly, the Court introduced the distinction between essential and inessential features, with s80 constitutionally entrenching the former from legislative impairment. Thus, a trial will only be ‘by jury’ in the constitutional sense if the jury exhibits certain essential features.[55] In addition to unanimity being an essential feature, the Court noted that a jury must be representative of the wider community, an essential feature which may require random and impartial selection, rather than selection by the prosecution or the state.[56] Jury selection rules that excluded ‘females and unpropertied persons’ would be inconsistent with such a requirement.[57] Thus, not only does s80 prevent Parliament departing from certain essential jury features, but it can also be used as a basis to challenge the validity of traditional jury practices.

The features of impartiality and random selection were put to the test in Katsuno v The Queen,[58] where the Court held the practice of jury vetting to be compatible with s80 in circumstances where information about juror criminal convictions held by Victorian police had been forwarded to the prosecutor in breach of the Juries Act 1967 (Vic). The information was then used by the prosecutor when making peremptory challenges. In the leading judgment on the point, Gaudron, Gummow and Callinan JJ (with Gleeson CJ[59] and McHugh J[60] agreeing in that respect) held that, despite the breaches of statutory procedure, the panel was still randomly selected and impartial, and the use of the information for peremptory challenge ‘was not such a departure from a mandatory provision relating to the authority and constitution of the jury as to deny the constitutionality of the appellant’s trial’.[61]

(iii)Cheatle and Katsuno Refined — The Emergence in Brownlee of a Framework for the Identification of Functional Attributes

Cheatle and Katsuno made it clear that random selection and impartiality are features essential to a trial by jury for the purposes of s80. However, the cases did not, with sufficient precision, explain the framework or guiding principle for identifying those essential features. In Brownlee, the Court was asked to consider whether two provisions of the Jury Act 1977 (NSW) were compatible with s80 of the Constitution: first, s22(b) which allows for the reduction in the number of jurors from 12 to 10 during the course of the trial; and, secondly, s54(b) which allows the jury to separate at any time after its members retire to consider their verdict. On the facts in the case, during the trial, the jury was reduced from 12 to 10, and the trial continued to conclusion with a jury of 10. Additionally, after the commencement of jury deliberations, the jury was allowed to separate at the end of each day.

In four separate judgments, all members of the Court held that both sections were compatible with s80.[62] A number of interesting points were made about the essential features of a jury trial for the purposes of s80, and the framework for ascertaining those features. In a joint judgment, Gleeson CJ and McHugh J noted the difficulty of identifying essential features for the purposes of s80. The historical development of trial by jury, both before and following Federation, has shown quite clearly ‘that the incidents of the procedure never have been immutable; they are constantly changing’.[63] How does one then identify those features that are constitutionally entrenched? Is the constitutional institution defined by reference to features frozen at 1900?[64]

Gleeson CJ and McHugh J pointed to the ‘functional approach’ applied in the United States for determining the validity of State legislation permitting juries to be reduced below 12. That functional approach involves ascertaining the function performed by a jury and, then, seeing which attributes are essential to the performance of that function. Their Honours then quoted from Williams v Florida:[65]

The purpose of the jury trial ... is to prevent oppression by the Government ... Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen [sic], and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.[66]

In the passages that followed this quote, Gleeson CJ and McHugh J seemed to identify the essential functional attributes of ‘independence, representativeness and randomness of selection’ and ‘the need to maintain the prosecution’s obligation to prove its case beyond reasonable doubt’.[67] The protection of the ‘integrity of the jury’s verdict’[68] was also identified as a positive objective of the jury’s functional attributes.

Gaudron, Gummow and Hayne JJ also focused on functional essential features: ‘[c]lassification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves’.[69] According to their Honours, the function of the jury is to determine guilt according to law, and it would appear that their Honours considered that independent ‘measured group deliberation’ and ‘attention to the evidence’[70] were essential to that function.[71]

Thus, a clear framework emerged for the determination of whether contemporary rules and practices are compatible with the conception of trial by jury provided for in s80 of the Constitution. Those rules and practices will be incompatible with s80 if they are incompatible with the functional attributes of a trial by jury. As to what those functional attributes are, their Honours all seemed to gravitate towards representativeness, impartiality, randomness, measured group deliberation, and the efficient administration of justice.

Applying those essential attributes to the legislative scheme in question, the Court held that the sequestration of the jury for the whole period following retirement for deliberations was not necessary to protect the integrity of the jury’s verdict or to secure that independent deliberative process.[72] As to the number of jurors that is essential to a trial by jury for the purposes of s80, the Court accepted that a jury can start with 12 jurors and be reduced to 10 through the course of the trial.

The Brownlee framework subsequently was given a ringing endorsement by the joint judgments of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Ng and Fittock,[73] cases involving challenges to State statutory systems for supplementary jurors.[74] In Australia, there are essentially two models for the use of supplementary jurors.[75] Broadly speaking, the first involves the use of additional jurors who are then discarded prior to jury deliberation. The second involves the use of reserve jurors. The first of these models was considered in Ng, and the second was considered in Fittock. Challenges to each model, on the basis that they were incompatible with s80, were rejected by the Court.

In Ng, the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said that the constitutionally entrenched essential features ‘are to be discerned with regard to the purpose which s80 was intended to serve and to the constant evolution, before and since Federation, of the characteristics and incidents of jury trial’.[76] Their Honours did not elaborate on what the purpose of s80 is, but they cited[77] passages from Brownlee identifying the function of the jury trial as that described by White J in Williams. Thus, it is clear that the Court has endorsed a functional approach to identifying the essential features of a trial by jury: in light of the way that trial by jury has developed, the Court will ask what features are essential to the function that it performs.[78]

Applying that approach to the schemes in question, their Honours held that the additional juror system did not offend the essential attributes of a trial by jury. The requirement from Cheatle of unanimity is one that applies at the time the verdict is pronounced.[79] There is no incompatibility with this essential attribute when there is a reduction in jurors by reason of death or incapacity. Similarly, their Honours said, there could not be an objection on this basis if a ballot system is used to reduce the number of jurors prior to retirement.[80]

Their Honours also considered that the jury’s independence and randomness of selection are not threatened by a reduction by ballot. As it is compatible with independence and randomness of selection to allow a reduction in number for death or incapacity, then it appears that, similarly, it is compatible with those features to allow a reduction by ballot. In any of those circumstances, their Honours explained, the jury number is being reduced for reasons that are unrelated to the jurors’ views.[81] Thus, when the jury retired to consider its verdict, ‘it claimed the character of a panel randomly or impartially selected rather than one chosen by the prosecution or by the State’.[82]

(iv) Observations on the Court’s Approach to Identifying the Requirements of s80

The cases on the requirements of s80 once enlivened stand in contrast to those on the constitutional triggers. While majority decisions on the meaning of ‘indictment’ and ‘offence’ display a marked reluctance to apply s80 in a rigorous way, the cases on the requirements of s80 describe it as a ‘fundamental law’,[83] a ‘constitutional right’[84] or a ‘constitutional guarantee’ that strictly protects certain essential jury features from legislative interference.[85] This has led commentators to say that to allow the Commonwealth to ‘opt-out’ of s80, but to then require strict adherence to s80 requirements once it is triggered, gives rise to an incongruity.[86]

However, an incongruity only arises on the assumption that s80 has a particular rights-protective operation. There are two responses to that claim. First, although the Court has referred to s80 as a ‘fundamental law’, a ‘constitutional right’ or a ‘constitutional guarantee’, those expressions say nothing about the reasons why s80 is fundamental, what right it confers or what it guarantees.[87] The view that s80 is rights-protective in the senses that will be explained in Part 3 is not one that has been accepted by a majority of the Court. The closest the Court has come to accepting a rights-protective reading was in Ng where Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ linked ‘the purpose which s80 was intended to serve’[88] to a passage in the judgment of Gleeson CJ and McHugh J in Brownlee that cited the discussion of the function of a jury trial as preventing oppression by government. However, the Court in Ng was concerned with the framework for identifying the essential features of a jury trial once the constitutional triggers had been pulled, and the references to Brownlee must be seen in that context. Rather, as will be pursued further in Parts 3 and 4, the passage highlights the Court’s conflation of the purpose of s80 and the function of a jury trial.

Secondly, it is possible for the difference between the Archdall/Kingswell lines and the Cheatle/Brownlee approach to be explained on another basis. The only judge to have attempted to reconcile the ‘incongruity’ is McHugh J, who has said that the purpose of s80 is to guarantee trial by jury when trial is on indictment. However, as indicated earlier, this procedural view of s80 is not an appealing one. In Part 4, I will put forward a view of s80 that would reconcile that difference.

3. Section 80 Theories

The constitutional debates reveal no clear guidance on the broader plan intended for s80.[89] Additionally, as Part 2 demonstrates, a cohesive theory of s80 is yet to emerge from the Court’s jurisprudence. Many of the major doctrinal controversies in relation to both the constitutional triggers and the requirements of s80 have been decided without reference to any view of the purpose of s80. Many judges have put forward their views, but no clear majority view has prevailed as to the intended ‘larger purpose’.[90]

The clearest view put forward about s80 is that it is a ‘rights-protective’ provision. However, the constitutional scheme largely does not show a concern for rights protection.[91] To the contrary, the generally accepted understanding at 1900 was that freedoms were to be protected by the common law and the English institutions of parliamentary supremacy and responsible government.[92] Therefore, a ‘rights-protective’ view needs a convincing foundation.[93] In this section I will explore what might be meant by that idea, and then canvass alternative ideas that have been put forward about the operation of s80.

A. Section 80 and ‘Rights’
(i) ‘Rights’ Terminology

I think it is important at the outset to be precise about the terminology used in this area. Section 80 often is described as a ‘constitutional right’.[94] It also has been seen as a ‘rights-protective’ provision. As I will explain below, the expression ‘rights-protective’ is a shorthand way of describing a range of arguments that see s80 operating as a limitation on legislative and executive power for the purpose of protecting ‘rights’.[95] However, the two are not necessarily co-extensive concepts. Viewing s80 as a ‘constitutional right’ does not necessarily translate into viewing s80 as a constitutional limitation that has as its purpose the protection of rights. Section 80 may be seen as conferring a constitutional right in circumstances where it has been triggered, without it being seen as a rights-protective provision. In that sense, to describe it as a right merely indicates that there is a legal entitlement to have the constitutional requirements of s80 complied with.[96] By analogy, s72 sets out certain requirements for the appointment of Justices of the High Court and federal courts. If Parliament were to appoint Justices in a manner that departed from the requirements of s72, a litigant to a dispute could press a ‘constitutional right’ to have his or her dispute determined by Justices properly appointed in accordance with s72. Section 72, like s80, imposes both a limitation on legislative power and a correlative right to have those limitations enforced. But, the limitation does not necessarily operate for some further rights-protective purpose.

(ii) Rights-protective Views

The advocates of a ‘rights-protective’ view of s80 clearly see it as going beyond this narrower conception. However, within the broad category of ‘rights-protective’ perspectives, it is not always clear what ‘rights’ are said to be protected by s80. At least two possible rights-protective arguments may be discerned from the cases: first, an individual rights view of rights protection; and secondly, a community entitlement to participate in the exercise of judicial power.

The clearest judicial conception put forward by some judges has been that s80 protects the rights of the accused to have a trial by jury. The classic statement that s80 should be given this kind of rights-protective operation was expressed by Dixon and Evatt JJ in their dissenting judgment in Lowenstein.[97] The question considered by their Honours was whether Parliament was able to avoid s80 simply by prescribing that an offence be tried summarily. As to the purpose of s80, their Honours said:

The Commonwealth Constitution contains no guarantee against deprivation of life, liberty or property without due process of law, like the fifth and fourteenth amendments of the United States Constitution. To establish personal liberty by constitutional restrictions upon the exercise of governmental power was not a guiding purpose in framing the Australian instrument, which in this respect departs widely from its American model. It is true that checks against legislative encroachment on individual freedom are not completely absent from the Australian Constitution. There are two or three; and one of them, that contained in sec 80 relating to trial by jury, cannot be dismissed from consideration.[98]

Thus, their Honours conceived of s80 as a provision that secured individual liberty by way of constitutional limitation. This view was also put forward by Gibbs CJ and Wilson J in Brown, where their Honours saw s80 as conferring a personal right or privilege which could be waived. Following a quote from Warren CJ in the United States Supreme Court case of Singer v United States,[99] that Art III of the United States Constitution ‘was clearly intended to protect the accused from oppression by Government ...’, Gibbs CJ concluded that ‘[s80] was inserted for the benefit of persons accused of offences against the law of the Commonwealth and not for any wider public interest.’[100] Similarly, Wilson J saw the legislative purpose expressed in s80 as being ‘wholly directed to effectively securing to an accused person presented for trial on indictment the right to have the general issue between him and the Crown determined by the verdict of a jury’. His Honour could ‘attribute no other sensible purpose to it.’[101] An individual rights concern is also apparent in McHugh J’s recent comments in Fittock that the ‘purpose of s80 is to protect the citizen from the executive and judicial power of the Commonwealth by ensuring that trials on indictment will be determined by representatives of the community who are unanimous in their verdicts’.[102]

Even the identification in these statements of s80 as having an individual rights-protective purpose does not tell us much about the nature of the interest that is being protected. It does not tell us whether s80 is concerned about the protection of a jury trial as a right in itself, or an aspect of a right to a fair trial. Nor does it tell us whether either of these ideas is protected as an end in itself, or as means to protect liberty.

A variation on this individual rights-protective view might see s80 operating as a means by which governmental power is further divided within the judicial branch.[103] Thus, not only is governmental power divided into legislative, executive and judicial power for the purpose of guaranteeing liberty,[104] but within the judicature, it is further divided for the protection of the accused’s liberty. The nearest (although not clear) expression of this view may be seen in the judgment of Kirby J in Cheung. His Honour saw the division of duties between the trial judge and the jury as compatible with the broader constitutional division of governmental power:

The delineation of their respective functions assigns different responsibilities to the legislature (which frames the offence for which the law provides),[105] the executive (which frames the indictment and nominates the specific offence(s) charged), the jury (which decides whether the prosecution has proved the accused guilty of such offence(s)) and the judge (who instructs the jury on the law and, following a guilty verdict and conviction, passes the sentence according to law, subject to appeals provided by the Constitution against ‘all judgments ... orders, and sentences’.[106]

Contrastingly, other judicial statements (including by Kirby J) have focused, at least in part, on the broader protection for the wider community. The protective effect of s80 for the accused is usually conceded, but broader community entitlements and benefits also are emphasised. In many cases, judges refer to both dimensions without differentiating between the two. The nature of this broader protection is not entirely clear, but it appears that what is contemplated is a community entitlement to exercise Commonwealth judicial power and the associated benefits that accrue from that participation. In other words, this broader view seems to entail some sort of democratic participation in the exercise of governmental power. Again, however, judicial statements tend not to identify this idea with any precision, and often run the idea together with an apparent community concern for the protection of the individual and/or the preservation of the integrity of the judicial process. For example, Deane J saw s80 as an ‘important constitutional guarantee against the arbitrary determination of guilt or innocence’ that operates ‘for the benefit of the community as a whole as well as for the benefit of the particular accused’,[107] which reflects ‘a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases’,[108] and which serves the purpose of maintaining public confidence in the administration of justice.[109]

Similarly, Gaudron J referred to this broader rights-protective purpose in Cheng:

Respect for the rule of law and, ultimately, the judicial process and the judiciary is enhanced if the determination of criminal guilt is left in the hands of ordinary citizens who are part of the community, rather than in the hands of judges who are perceived to be, and, sometimes, are, ‘remote from the affairs and concerns of ordinary people’.
The participation of the people of this country in the exercise of judicial power, through their service on juries, provides a basis for community acceptance of verdicts in criminal trials and, more broadly, an understanding of the judicial processes.[110]

While accepting that s80 ‘is a guarantee of individual rights’,[111] Kirby J also has emphasised trial by jury ‘as something of real concern to the community as well as to the accused’;[112] and a mechanism to allow citizens to participate in the exercise of judicial power.[113]

(iii) The Conflation of s80 and Jury Trials

The task of trying to ascertain the nature of the claim that s80 is rights-protective is made more difficult by a tendency for judges to slide from discussing the purpose of s80 to the function of jury trials, without clearly differentiating between the two inquiries. When talking about the function of a jury trial, a similar range of rights-protective ideas have been put forward by judges reflecting either or both the individual rights conception and the broader community-focused conception. In Brown, Gibbs CJ agreed with the description of the jury as a ‘bulwark of liberty, a protection against tyranny and arbitrary oppression, and an important means of securing a fair and impartial trial’.[114] Brennan J in Brown described a jury trial as not only ‘the chief guardian of liberty under the law’, but also as the ‘community’s guarantee of sound administration of criminal justice’.[115] Gleeson CJ and McHugh J in Brownlee also highlighted the prevention of oppression by government as well as ‘community participation and shared responsibility’.[116] In Rankin, Murphy J explained that ‘[t]he jury system is the main social defence against governmental or other oppression, the main instrument for preserving the liberties of the people’.[117] His Honour then quoted from De Tocqueville: ‘[t]he institution of the jury ... places the real direction of society in the hands of the governed, and not in the hands of the government ... He who punishes the criminal is ... the real master of society ...’.[118]

These statements reflect two sources of confusion. First, there has been insufficient attention given to the identification of the ‘rights’ said to be advanced by a trial by jury. Secondly, as I will argue further below, there has been a failure to distinguish between the purpose of s80 and the function of a jury trial.

B. Other Ideas about s80

There is no clear alternative view of the purpose of s80. Certainly, there are judgments that give clues as to alternative explanations, particularly those of Brennan and Dawson JJ in Brown. Viewed in its Ch III context, s80 was said to be ‘part of the structure of government’:[119] a provision that ‘entrenches the jury as an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence’.[120] On this basis, waiver of s80 was not seen as possible. The significance of its location in Ch III was also central to the Court’s decision in Bernasconi, as was the federal context in which Ch III operates. In rejecting the application of s80 to an offence under a territory law, Griffith CJ (with Gavan Duffy and Rich JJ agreeing) said that Ch 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’.[121]

Despite these suggestions, there is not yet a clearly articulated theory to tie these ideas together. In the next section, I will endeavour to develop a conception of s80 that builds upon these ideas.

4. A Federal Vision for Section 80
A. Section 80 Must Do Something

One of the main reasons that a rights-protective interpretation of s80 is so attractive is the absence of a clearly explained alternative. Rights-protective advocates are right when they say that s80 ‘must do something’.[122] If it does not protect rights, what does it do? Surely the answer is not to view s80 as ‘a mere procedural provision’[123] intended ‘to prevent a procedural solecism’.[124] The view that s80 was aimed at avoiding ‘the mischief that would result if Parliament could not determine which offences against the laws of the Commonwealth were to be tried by juries’[125] seems to avoid meeting the anterior questions head on. Nor is it convincing to view s80 as representing ‘the high water mark of uncritical and seemingly senseless copying of inappropriate American precedent’.[126] By providing an alternative explanation of the purpose of s80, I hope to refocus the s80 debate. If the analysis below is accepted, s80 does something. The question will be how much does it do?

The confusion in the way that s80 has been seen to operate, and the confused range of ideas about the purpose of s80, reflect, in my view, two significant problems. First, there has been a failure to differentiate between the purpose of s80 and the function of a jury trial. Secondly, the High Court has had difficulty identifying, with sufficient precision, the function of a jury under our constitutional arrangement. In the next section, I will address the first of these problems by considering a federal purpose of s80, divorced from the function of a jury trial. In the subsequent section, I will address the second problem by exploring the function of a jury under our constitutional arrangement.

B. Federal Purpose of s80

What follows is an explanation of the constitutional meaning or purpose of s80. It is not an attempt to discern the subjective intentions of the framers, as it is accepted that those views are not relevant to the exercise of determining constitutional meaning.[127] Although the objective intentions of the framers has been referred to by some judges as the relevant inquiry for determining constitutional meaning,[128] any reference to the framers’ objectives is misleading in the context of s80.[129] There is no clear understanding in the debates of what purpose s80 was intended to serve and, therefore, the debates shed insufficient light on its meaning.[130] The federal view put forward in this paper is one that derives the constitutional meaning or purpose of s80 from its constitutional context, in particular, its place in Ch III of the Constitution.

It is clear that the Constitution is concerned largely with the creation of a new governmental entity. With the creation of this new body politic, decisions had to be made about the institutions, structures and processes for the exercise of governmental power of the new entity. The framers adopted the separation of powers from the United States Constitution. Thus, the Constitution clearly identifies three separate governmental powers, and the way in which those powers are to be exercised. The Constitution was intended to provide for the institutions of representative and responsible government,[131] and valid laws of the Parliament were intended to be ‘binding on the courts, judges, and people of every State and of every part of the Commonwealth’.[132]

The new Commonwealth entity was not given general legislative power in relation to criminal law but, as Griffith CJ recognised in Bernasconi, the imposition of criminal sanction would be incidental to the exercise of many heads of power.[133] The prosecution of such an offence would be a matter of federal jurisdiction, and the quelling of the justiciable controversy underlying that matter (that is, the ‘adjudgment and punishment of criminal guilt under a law of the Commonwealth’)[134] would involve the exercise of Commonwealth judicial power. As Brennan, Deane and Dawson JJ (with Mason CJ generally agreeing on this point) said in Lim:[135]

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth.[136]

Although the judgment of Brennan, Deane and Dawson JJ has recently come under attack,[137] this statement of principle appears to remain well-accepted doctrine.[138]

Section 71 of the Constitution vests the judicial power of the Commonwealth in certain courts: the High Court, federal courts created by Parliament and ‘in any such courts as it invests with federal jurisdiction’. The autochthonous expedient was to allow Parliament to vest federal jurisdiction in State courts (s77(iii)) — as an alternative to creating its own courts — and, thus, those State courts were to exercise the judicial power of the Commonwealth.

Thus, Ch III of the Constitution creates a federal structure: Commonwealth judicial power to be exercised by the High Court, courts created by Parliament and State courts. The adjudgment and punishment of criminal guilt under a law of the Commonwealth is exclusively an exercise of Commonwealth judicial power and, leaving aside s80, it can be exercised only by a court referred to in s71 of the Constitution.

In vesting federal jurisdiction in State courts, it is well established that the Parliament has no power to alter or affect the constitution of the court or the organisation through which its jurisdiction and powers are exercised.[139] As McHugh J recently said in Fardon, High Court cases ‘have often demonstrated that, subject to the Kable principle, the Parliament of the Commonwealth must take State courts as it finds them’.[140] The expression ‘State courts’, for the purposes of s77(iii), means the institution, rather than the individual members who constitute the court.[141] Thus, it is for the State Parliament to determine the organisation of the court through which that court’s powers (including Commonwealth judicial power) and jurisdiction (including federal jurisdiction) are to be exercised.[142] Instead, if Parliament were to choose to vest federal criminal jurisdiction in federal courts, that jurisdiction must ‘be exercised by a court whose members are judges appointed under s72 of the Constitution’.[143] Therefore, leaving aside s80, in relation to the High Court or courts created by Parliament, the judicial power of the Commonwealth could only be exercised by s72 judges or delegates under their supervision.[144]

It is possible to see s80 as an essential element of that federal structure: a statement about how the judicial power of the Commonwealth is to be exercised in circumstances involving an offence against a law of the Commonwealth. The function of s80 in that federal structure is at least three-fold. First, it qualifies the exclusive power of State Parliaments to determine the constitution of a State court when a trial is on indictment. Where the Commonwealth Parliament prescribes an offence to be tried on indictment, the judicial power of the Commonwealth has to be exercised by a jury. This is particularly important in a system which relies heavily upon State courts to administer Commonwealth criminal law. Thus, as Brennan J said in Brown, provided it is possible for a State court to sit with a jury, the Commonwealth Parliament can require a jury trial. This could not have been done without s80. The significance of this federal aspect may have been enhanced by the decision in Kable. Various statements in Kable suggest that the States must maintain courts that are capable of being repositories of federal criminal jurisdiction. In other words, the States must maintain courts that are capable of exercising criminal jurisdiction in a way required by s80.[145] Applying the reasoning in Kable, it may be said that if a State were free to abolish trial by jury completely, the autochthonous expedient would be frustrated.[146] This proposition does not prevent the States from abolishing jury trials in relation to state offences, but it would require the States to maintain courts that can sit with a jury when Commonwealth offences are tried on indictment. When read with Kable, s80 guarantees to the Commonwealth Parliament a particular vehicle through which Commonwealth judicial power may be exercised. Thus, because of s80, State Parliaments are not free to abolish jury trials completely. Although the Court’s decision in Fardon has limited the effect of Kable in some respects, the aspect of Kable discussed above is unaffected by that decision.[147]

Secondly, when regulating the exercise of federal criminal jurisdiction by the High Court, or when setting up federal courts to exercise that jurisdiction, s80 provides for the exercise of Commonwealth judicial power by a panel of lay people. If not for s80, jury members could not exercise the exclusively judicial power to adjudge guilt. When performing their function, the members of the jury would not be judges appointed under s72, nor would they be exercising judicial power delegated to them by, or under the supervision of, judges. Section 80 provides the Parliament with that facility for the exercise of Commonwealth judicial power. However, s80 also is an exhaustive statement of the alternative ways in which Commonwealth judicial power may be exercised: it limits the alternative form of trial to a ‘trial ... by jury’. As I will explain below, I think it is reasonable to conclude, as the Court has, that the words ‘trial ... by jury’ describe an institution that developed at common law, rather than allowing Parliament to define the institution. Thus, the Commonwealth Parliament could not prescribe, for example, a military tribunal[148] as the method for trial, or a panel of expert assessors, since lay membership of the jury seems to be what is contemplated by the common law institution of ‘trial ... by jury’.

Thirdly, when the Commonwealth Parliament requires a trial by jury, the second limb of s80 provides that the ‘trial shall be held in the State where the offence was committed’. Under current arrangements for the exercise of federal criminal jurisdiction, it is for the State in which the offence was committed to determine the composition of the jury panel. The practical reality of this limb is that the jury will be chosen from the State in which the offence was committed. Thus, while the Constitution allows the Commonwealth Parliament to create criminal offences that would otherwise have been within the plenary power of the Colonies, it ensures that offences under Commonwealth laws, as they would have been under colonial laws prior to Federation, are tried by those selected from the neighbourhood of the offence. Thereby, s80 guarantees a local involvement in the exercise of Commonwealth judicial power in the administration of criminal justice.[149]

Thus, far from being a mere procedural provision or an example of senseless copying from the United States Constitution, s80 is an essential ingredient of the federal structure: it facilitates the exercise of Commonwealth judicial power and strikes a balance between the needs of the federal polity and the concerns and continued involvement of the States in the exercise of criminal justice. Seen in this way, s80 is a fundamental statement about federal institutions and structures: how Commonwealth judicial power is to be exercised where there is an offence against a law of the Commonwealth.

There is thus no necessary reason to give s80 a rights-protective interpretation on the basis of avoiding depriving s80 of an operation. Section 80 already performs an important function. This is not to say that s80 does not have a protective operation for the accused once it is triggered. Once Parliament prescribes the structure of a jury trial through which Commonwealth judicial power is to be exercised, s80 compels the use of that structure.[150] An entitlement to have a jury trial under s80 may be described as a constitutional right, but it is a right to have a constitutional structure complied with, and only arises once the constitutional triggers have been satisfied.

If this federal purpose were accepted as exhausting the operation of s80, the accused’s right to a trial by jury would remain a common law one, the preservation of which rests with the system of representative and responsible government created by the Constitution.[151] Any community entitlement to participate in the exercise of Commonwealth judicial power would be contingent on the legislative judgment of the Commonwealth Parliament. Finally, s80 would not operate to further constitutionally entrench a division of governmental power to protect liberty, unless Parliament specifies an offence is to be tried on indictment. The separation of judicial power from legislative and executive power, and the exclusive exercise by courts of the power to adjudge and punish guilt, would operate as a constitutional protection of liberty.[152] This view of s80 makes no normative judgment about the desirability of jury trials. Instead, it leaves those judgments to the Parliament.

The consequence of this argument is that rights-protective advocates would have to argue that s80 performs an additional function of rights protection. It could no longer be asserted that s80 must be rights-protective in order to give it some work to do. I do not dismiss the possibility of an additional layer of operation for s80, but a persuasive argument for this possibility remains to be provided. It is sufficient to say for present purposes that the normal indicators of constitutional interpretation do not support a rights-protective view. First, the text and structure of s80 do not support such a conception. As Dawson J noted in Brown, it is not expressed in terms of a right in contrast to the Sixth Amendment in the United States.[153] Secondly, as discussed earlier, it is not consistent with the general nature of our constitutional arrangement, nor does it find strong support in the constitutional debates. Additionally, the difficulties in application of s80 encountered in describing a rights-protective view with any clarity,[154] and the difficulties experienced by judges who have adopted a rights-protective view,[155] might suggest that these matters are inherently contestable and, therefore, an interpretation of s80 should be preferred that does not constitutionalise particular rights-protective conceptions, but rather leaves these matters to the legislature.[156]

For the remainder of this paper, I will assume that the federal purpose described above exhausts the operation of s80, and briefly address the consequences of this view for the s80 controversies described in Part 2 of this paper. Before turning to those questions, however, I will deal with the second problem identified earlier; that is, the difficulty experienced by the High Court in identifying the function of the jury under our constitutional arrangement.

C. Function of a Jury

Under the federal vision of s80, only when a trial by jury is prescribed by the Commonwealth Parliament does the constitutional function of the jury become relevant. There has been a confused range of ideas put forward about the function of a jury trial. As indicated earlier, there has been a failure to differentiate between the purpose of s80 and the function of a jury trial, so many statements of jury function have been attributed to s80.

Section 80 jury trials have been described as: ‘a bulwark of liberty, a protection against tyranny and arbitrary oppression, and an important means of securing a fair and impartial trial’;[157] a protection against ‘the corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge’.[158] ‘the main social defence against governmental or other oppression, the main instrument for preserving the liberties of the people’;[159] ‘the chief guardian of liberty’;[160] ‘a guarantee against the arbitrary determination of guilt or innocence’;[161] ‘the protection of the citizen against those who customarily exercise the authority of government’;[162] a protection for ‘the citizen from the executive and judicial power of the Commonwealth’;[163] a protection ‘against oppressive laws and supine judges’;[164] and a prevention of ‘oppression by the Government’.[165]

While many of these statements add colour to the description of the function of a jury, they do not capture precisely the constitutional function. Many of the statements are largely derived from ideas about the role of the jury at some point in English constitutional history, in circumstances where governmental power was exercised according to arrangements that do not reflect our constitutional system of government. It may be accepted that the reference to ‘trial ... by jury’ in s80 is a reference to the English institution of trial by jury.[166] However, English legal and political institutions cannot be viewed in the abstract; they must be viewed in their Australian constitutional context.[167] We should not assume that this range of ideas has been constitutionalised by s80.

The function of a jury, is in my view, is correctly identified by Gaudron, Gummow and Hayne JJ in Brownlee. The jury – being a lay panel exercising the judicial power of the Commonwealth – is interposed between accused and accuser and determines guilt according to law created by Parliament. Thus, its role under our constitutional system is to protect liberty by ensuring that guilt is determined according to the law as required by covering clause 5 to the Constitution. Exercising Commonwealth judicial power together with the trial judge, the jury ensures that the exercise of prosecutorial power by agents of the executive does not result in the deprivation of liberty without legislative authority. Thereby, the function of the jury is to uphold the rule of law. To the extent that the observations listed above about the function of a jury go beyond this rule of law rationale, they do not accurately reflect the constitutional function of a s80 jury.[168] In particular, the function of the jury is not to protect against an exercise of legislative power by Parliament. Its role is to give effect to an exercise of that power.

D. Application of this Federal View to s80 Issues

If it is accepted that the operation of s80 is exhausted by the conception suggested above, the controversies discussed in Part 2 of this paper would be determined in the following way.

(i) Laws for Territories

The Court was correct in Bernasconi to view s80 in a federal context. Chapter III of the Constitution, including s80, is limited to circumstances where Commonwealth judicial power is being exercised. Consequently, whether s80 applies to laws for territories depends upon whether a court will be exercising Commonwealth judicial power when trying the offence. This is a difficult question which is beyond the scope of this paper. However, if Commonwealth judicial power is being exercised, then s80 applies to facilitate the exercise of that power.

(ii) Indictment

If s80 is about federal institutions and structures — that is, the imposition of a constitutional structure on a State court exercising Commonwealth judicial power and the facilitation of the exercise of Commonwealth judicial power by a lay panel in a federal court — there is no reason why the Commonwealth Parliament should not be allowed the discretion to decide whether Commonwealth offences should be tried by judge sitting alone or with a jury.

(iii) Offence

Once the structure of a jury trial has been prescribed, s80 contemplates a division of functions between the trial judge and jury. Both the trial judge and the jury exercise the judicial power of the Commonwealth in relation to the matter before them, but the role of the jury is to decide whether the accused is guilty of an offence. In other words, it is the function of the jury to determine that part of the justiciable controversy that constitutes the offence. However, the justiciable controversy arises only because of the enactment of a criminal offence by Parliament. Thus, the right, duty or liability giving rise to the justiciable controversy and the matter[169] is determined by the legislature. There appears, then, to be no obstacle in the path of the legislature creating the right, duty or obligation in whichever way it wants, provided the judge and jury are not simultaneously exercising judicial power to quell the same aspect of the justiciable controversy.

(iv) Jury Waiver

Once Parliament decides on trial by jury as the particular structure through which Commonwealth judicial power is to be exercised, s80 requires that legislative direction to be complied with. There is no possibility of waiving that constitutional structure.

(v) Nature and Essential Attributes

Once s80 is triggered, questions about what is required by a ‘trial ... by jury’ should be guided by: (i) its nature as a common law institution; and (ii) its constitutional function: namely, the exercise of the judicial power of the Commonwealth to ensure that guilt is determined according to law. In Katsuno, Gaudron, Gummow and Callinan JJ asked whether the jury vetting practice there in question undermined the constitution or authority of the jury. The words constitution and authority probably are a rough approximation for the same inquiry put forward here; however, precision may be lost in the approximation.

Care must be taken not to draw too much from the common law history of jury trials. As the Court highlighted in Brownlee, the institution has evolved and continues to evolve. We should not be too eager to constitutionalise pre-1900 conceptions of juries. What should be constitutionalised are the essential nature and the essential features of a s80 jury. Lay membership is probably enough to identify the essential nature of a jury as a common law institution. A jury of that nature cannot perform its constitutional function unless it is characterised by essential functional attributes. Those essential attributes should not be derived from the common law history of juries, but rather by reference to the constitutional function that is performed. The Court in Brownlee, Ng and Fittock has adopted an appropriate framework for the determination of the essential attributes. However, the inquiry must be undertaken by reference to a clear conception of the jury function that is appropriate to the Australian constitutional arrangement, not one derived from pre-1900 conceptions.

Some of the attributes considered in cases to date are obvious examples that may be derived from the exercise of Commonwealth judicial power: impartiality, randomness and measured group deliberation. Representativeness may also enhance impartiality and randomness. Alternatively, representativeness may reflect the essential nature of the common law institution as comprising lay members. The essential feature that is not entirely convincing is unanimity. Judicial power is not necessarily exercised unanimously by judicial panels (for example, appellate courts). It may be that we cannot place as much faith in lay panels exercising Commonwealth judicial power as we do in judges, and need the safety net of unanimity to preserve the integrity of Commonwealth judicial power. For now, it is sufficient to note that a principled distinction between these cases must be identified so as to justify differential treatment. The matters referred to by the Court in Cheatle — history, principle and authority — may not be sufficient to justify that distinction.

5. Conclusion

Section 80 has had a troubled development. Although some aspects of s80 have now emerged, some uncertainty continues in relation to fundamental questions concerning the circumstances in which s80 is triggered. That uncertainty exists because insufficient attention has been given in majority judgments to developing a solid foundation for the operation of s80. In cases where such an analysis has been attempted, one is left to search individual judgments for common threads.

Of particular importance is a consideration of the vision that underlies s80. The most coherent approach put forward to date relies upon a rights-protective view of the provision. However, the many obstacles in the way of such a vision have resulted in it being relegated to ‘a marginal perspective on the High Court’.[170] The approach discussed in this paper suggests that s80 might be seen in a new light – a view that sees it as central to the federal compact, and to Ch III of the Constitution which sets out the system for the exercise of Commonwealth judicial power. If viewed in this way, s80 performs an important federal purpose, and need not be explained in a rights-protective way.

[*] Lecturer, Faculty of Law, Australian National University. My thanks to Leslie Zines, Robert Burrell, Leighton McDonald, Marita Rendina, Heather Roberts, Amelia Simpson and Adrienne Stone for discussing the paper with me. This paper is a modified version of a paper presented at the 2003 Annual Public Law Weekend, Australian National University and to the Faculty of Law, Australian National University. My thanks to all those who provided feedback at those presentations and to the anonymous referees for their helpful comments. I am very grateful to the Australian National University for funding some of the research for this paper.

[1] Commonwealth of Australia Constitution Act 1900 (Imp) (hereafter the Constitution). ‘Trial by jury – The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes’.

[1] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 (hereafter Cole).

[2] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461.

[3] I use the expression ‘rights-protective’ to cover a range of statements by judges and commentators to the effect that s80 should protect ‘rights’. See further Part 3 below.

[4] Although not uniformly, the cases tend to speak in terms of a s80 purpose on the one hand, and a jury function on the other hand. I have adopted that terminology in this paper.

[5] [1915] HCA 13; (1915) 19 CLR 629 (hereafter Bernasconi).

[6] Id at 635.

[7] Ibid. Isaacs J expressed a similar view id at 637. Although there was no differentiation by their Honours between external and internal territories, the significance of the kind of territory in question was apparent from Isaacs J’s comment at 638 that ‘Parliament’s sense of justice and fair dealing is sufficient to protect them, without fencing them round what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system’. As Nick O’Neill has noted in ‘Constitutional Human Rights in Australia’ (1988) 17 Fed LR 85 at 91: ‘In 1915 in Papua it would have been difficult in many districts to assemble an impartial jury of four Europeans to hear a capital offence. Requirement of regular jury service of the tiny and scattered European population would have been resisted strongly. No one in the colonial administration of the time would have considered Papuans suitable for jury service’.

[8] See the cases compiled by Kirby J in Fittock v The Queen [2003] HCA 19; (2003) 197 ALR 1 (hereafter Fittock) at nn17 and 18; Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528 at 592–593; R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 580–584 (hereafter Lowenstein); Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 (hereafter Spratt); Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 at 598; Li Chia Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182 at 198–202 (herafter Rankin); Gould v Brown (1998) 193 CLR 346; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 380–383; compare to Northern Territory v GPAO (1999) 196 CLR 553 at 650.

[9] In Fittock, above n9, the applicant sought to re-open the decision in Bernasconi, above n6. As will be discussed below, the Court decided the case on other grounds and, therefore, did not need to reconsider Bernasconi, above n6: at 3 (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ), 7 (Kirby J).

[10] [1928] HCA 18; (1928) 41 CLR 128 (hereafter Archdall).

[11] Id at 135 (Knox CJ, Isaacs, Gavan Duffy & Powers JJ).

[12] Id at 139–140 (Higgins J), referring to Isaacs J in Bernasconi, above n6 at 637, who said ‘[i]f a given offence is not made triable on indictment at all, then sec 80 does not apply. If the offence is so tried, then there must be a jury’.

[13] Above n9 where three judges of a six member Court accepted Archdall, above n11 at 570 (Latham CJ; Rich J agreeing), 591 (McTiernan J). Starke J said nothing about the issue. In a joint judgment, Dixon & Evatt JJ at 581–584 wrote a powerful dissent favouring an interpretation of ‘indictment’ as meaning a prosecution of an offence that would result in imprisonment or some graver form of punishment. The dissenting judgment will be discussed further below. Lowenstein was an unfortunate occasion for the consideration of the issue by the Court as it is clear from the report that s80 was not argued by the parties: id at 571 (Latham CJ), 592 (McTiernan J).

[14] [1954] HCA 43; (1954) 94 CLR 86 (The Court). The Court (comprising Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ) declined to reconsider the decision in Archdall, above n11.

[15] [1968] HCA 80; (1968) 121 CLR 283, where the Archdall principle was followed: at 294 (Barwick CJ; Kitto & Taylor JJ agreeing), 297 (McTiernan J), 298–299 (Menzies J), 305 (Windeyer J), 312 (Owen J).

[16] Rankin, above n9 where a majority followed the Archdall line: (Barwick CJ; Mason & Aickin JJ agreeing), 193 (Gibbs J). In a joint judgment, Stephen and Jacobs JJ found s80 to be inapplicable on the facts, and explicitly refused to be drawn into the issue: at 196. Murphy J broke from authority, holding that the words ‘trial on indictment of any offence’ served to exclude petty offences from the protection afforded by s80. However, his Honour considered it unnecessary to determine with any precision the line between petty and serious offences: id at 201–202.

[17] (1985) 159 CLR 264 (hereafter Kingswell). As with many cases that went before it, Kingswell was not an appropriate vehicle to reconsider the established authority on the Archdall issue. The case involved a trial on indictment before a jury and, thus, there was no issue as to whether the appellant was entitled to a jury trial.

[18] In a separate judgment, Mason J agreed generally with Gibbs CJ, Wilson & Dawson JJ on the s80 issues. It is not clear whether his Honour’s agreement extended to what was said in the joint judgment about the Archdall issue. However, given Mason J’s agreement with Barwick CJ in Rankin, above n9 at 196, it reasonably can be concluded that his Honour agreed with the way that Gibbs CJ, Wilson & Dawson JJ determined the Archdall issue.

[19] Kingswell, above n18 at 276–277 (Gibbs CJ, Wilson & Dawson JJ). In a detailed judgment, Deane J rejected the Archdall reasoning, and instead adopted a modified version of Dixon & Evatt JJ’s view. Brennan J did not consider the issue.

[20] Lowenstein, above n9 at 583 (Dixon & Evatt JJ); Rankin, above n9 at 201–202 (Murphy J); Kingswell, above n18 at 319 (Deane J); Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at 422, 426–427 (hereafter Re Colina) (Kirby J).

[21] [2000] HCA 53; (2000) 203 CLR 248 (hereafter Cheng).

[22] As Gleeson CJ, Gummow & Hayne JJ said, ‘[i]n the ordinary case, if, instead of contesting a charge, an accused person, by a plea of guilty, enters a formal admission of the elements of the offence, no jury will be empanelled, for there will be no issue for the jury to try’: id at 266. This has been reaffirmed in Weininger v The Queen (2003) 196 ALR 451 at 453 (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[23] Cheng, above n22 at 268–269 (Gleeson CJ, Gummow & Hayne JJ).

[24] [1986] HCA 11; (1986) 160 CLR 171 (hereafter Brown).

[25] Cheng, above n22 at 270 (Gleeson CJ, Gummow & Hayne JJ). McHugh J also pointed to the difficulties created by Brown that could be overcome by maintaining the view that the Parliament could determine which trials would and would not be by indictment: id at 298.

[26] Id at 295. His Honour had applied Archdall, above n11 in Re Colina, above n21 at 405 (McHugh J).

[27] Id at 344 (Callinan J). His Honour had applied Archdall, above n11, in Re Colina, above n21 at 439 (Callinan J) despite displaying some sympathy for the concerns expressed by Dixon & Evatt JJ in Lowenstein, above n9.

[28] Kingswell, above n18 at 285: ‘[I]t is open to Parliament to define the ingredients of offences and the circumstances to be taken into account in sentencing in whatever way it pleases’.

[29] Id at 276 (Gibbs CJ, Wilson & Dawson JJ; Mason J agreeing).

[30] Id at 277 (Gibbs CJ, Wilson & Dawson JJ; Mason agreeing). Indeed, their Honours said, ‘Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily’: ibid.

[31] [1986] HCA 27; (1986) 160 CLR 359 (hereafter Meaton) (Gibbs CJ, Wilson & Dawson JJ). Brennan & Deane JJ dissented in Meaton, pointing to the incompatibility of the practice with the decision of the majority in Kingswell that the matters of aggravation were for the trial judge: id at 368–369. Mason J earlier had strongly rejected the practice in Kingswell, above n18 at 282–283.

[32] Kingswell, above n18 at 280 (Gibbs CJ, Wilson & Dawson JJ).

[33] Id at 292.

[34] Id at 294 (Brennan J). Deane J reached a similar conclusion that the elements of the offence need to be identified as a matter of substance, and not of mere form: id at 308.

[35] Indeed, as Gleeson CJ, Gummow & Hayne JJ noted, even if there is no plea of guilty, provided the Meaton practice is followed, it is unlikely that the Kingswell issue would arise for consideration as ‘any issue respecting aggravating circumstances ... will be tried by jury’: Cheng, above n22 at 268.

[36] Id at 300–301 (McHugh & Callinan JJ). Although, Callinan J reiterated the point his Honour made earlier in Re Colina, above n21 at 439 that he shared some of the concerns expressed by Brennan J in Kingswell, above n18, but felt compelled to follow authority: Cheng, above n22 at 344–345 (Callinan J).

[37] Id at 282–283 (Gaudron J).

[38] Id at 322 (Kirby J). See also id at 325 (Kirby J).

[39] Section 68(2) of the Judiciary Act 1903 (Cth) could not pick up the provision.

[40] Brown, above n25 at 197 (Brennan J), 201 (Deane J), 209 (Dawson J).

[41] Id at 196 (Brennan J), 203 (Deane J), 211 (Dawson J). Their Honours all rejected the analogy to the position in the United States where jury trials may be waived in accordance with a legislative mechanism to that effect. In their Honours’ views, the United States position is greatly influenced by the presence of the Sixth Amendment which provides for ‘the right to a speedy and public trial, by an impartial jury’: at 194 (Brennan J), 204 (Deane J), 209 (Dawson J).

[42] Id at 197 (Brennan J), 201 (Deane J).

[43] Ibid.

[44] Id at 197 (Brennan J). See also id at 202 (Deane J), 214 (Dawson J).

[45] Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278 (hereafter Brownlee).

[46] Id at 318 (Kirby J).

[47] Id at 319 (Kirby J).

[48] Ibid.

[49] His Honour quoted with approval the decision of Frankfurter J in Adams v United States; Ex rel McCann [1942] USSC 159; 317 US 269 (1942), 280, that to deny the right of waiver would ‘imprison a man in his privileges and call it the Constitution: Brownlee, above n46 at 319 (Kirby J).

[50] In Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 (hereafter Cheung), Kirby J maintained his view that Brown should be overruled, but his Honour did not entertain the waiver argument because Brown was still good law and because on the facts in that case the accused had not consented to that waiver. Similarly, in Ng v The Queen [2003] HCA 20; (2003) 197 ALR 10 at 15 (hereafter Ng), his Honour did not press the issue because there was no indication of waiver on the facts. His Honour stated that ‘[t]he challenge to Brown must therefore await another day’: id at 37 (Kirby J).

[51] [1915] HCA 90; (1915) 20 CLR 315 (hereafter Snow).

[52] Id at 323 (Griffith CJ).

[53] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 (hereafter Cheatle).

[54] Id at 562 (The Court). The Court expressly left open the question of whether s80 precludes legislation allowing for majority acquittals. In Glynn v The Queen [2002] SASC 117; (2002) 82 SASR 426 (Wicks & Gray JJ; Perry J dissenting on the point), a majority of the South Australian Court of Criminal Appeal held that acquittal verdicts must also be unanimous.

[55] Cheatle, above n54 at 557–558 (The Court).

[56] Id at 560 (The Court).

[57] Ibid. As Kirby J said in Brownlee, above n46 at 321, ‘[t]hose provisions reflect the characteristics thought, at the time, to be essential to the type of “right thinking man” who could be trusted with the serious responsibilities of jury service’.

[58] [1999] HCA 50; (1999) 199 CLR 40 (hereafter Katsuno).

[59] Id at 51 (Gleeson CJ).

[60] Id at 65 (McHugh J).

[61] Id at 65 (Gaudron, Gummow & Callinan JJ). Kirby J decided the case in the appellant’s favour on other grounds and, therefore, held that there was no need to consider the s80 argument: id at 97–98.

[62] Brownlee, above n46 at 290 (Gleeson CJ & McHugh J), 295–296 (Gaudron, Gummow & Hayne JJ), 329 (Kirby J), 341–342 (Callinan J).

[63] Id at 286 (Gleeson CJ & McHugh J). Gaudron, Gummow & Hayne JJ made the same point: ‘the constitutional expression identifies a particular legal institution which evolved in England over a long period by a combination of common law and statute and, after some vicissitudes, was adopted and developed in the Australian colonies. That development has continued in the Australian States since Federation’: id at 291 (citations omitted).

[64] To borrow the words of Austin Scott, is the institution ‘suddenly congealed in the form in which it happened to exist at the moment’ the Constitution was adopted? See ‘Trial By Jury and the Reform of Civil Procedure’ (1918) 31 Harv LR 669 at 670, quoted in Brownlee, above n46 at 291–292 (Gaudron, Gummow & Hayne JJ).

[65] [1970] USSC 150; 399 US 78 (1970), 100 (White J) (hereafter Williams).

[66] Brownlee, above n46 at 288. Gaudron, Gummow & Hayne JJ also quoted from this passage at 302, although without any reference to protecting against government oppression.

[67] Id at 289.

[68] Ibid.

[69] Id at 298.

[70] Id at 302 (Gaudron, Gummow & Hayne JJ).

[71] Despite Kirby J’s emphasis at 321 that his approach was different because it sought to give the words in s80 a contemporary meaning, his Honour also adopted a functional approach, and seemed to gravitate towards the core ideas of representativeness, impartiality, randomness, measured group deliberation and efficient administration of justice: id at 332–333. His Honour’s views are, thus, largely consistent with the views of the other judges. Callinan J also appeared to identify as essential attributes: first, a jury size that is more representative of the community: id at 341–342; and, secondly, the independence of the jury from influences: id at 342.

[72]I ndeed, to the contrary, ‘strict confinement may have retarded rather than encouraged measured group deliberation and, in former times, appeared to be calculated to pressure jurors to reach a unanimous verdict and to do so with expedition’: id at 302 (Gaudron, Gummow & Hayne JJ). See also id at 332 (Kirby J).

[73] The applications for special leave to appeal to the High Court in both cases were heard together.

[74] These systems were left untouched by Brownlee: see Brownlee, above n46 at 304 (Gaudron, Gummow & Hayne JJ). Special leave to appeal to the High Court had been refused on an earlier occasion in relation to the reserve juror provisions in Western Australia: see Ah Poh Wai v The Queen (1995) 15 WAR 404 (hereafter Ah Poh Wai); (1996)14 LegRep C24.

[75] Kirby J in Ng, above n51 at 23 described the two models for supplementary jurors adopted in Australia.

[76] Id at 13 (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ) (citations omitted).

[77] See n7 of Ng, above n51 at 13.

[78] Kirby J also has accepted that functional analysis: id at 18.

[79] Id at 13 (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ).

[80] See also id at 26 (Kirby J).

[81] Id at 13. See also id at 25 (Kirby J).

[82] Id at 14 (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ). In Fittock, above n9 at 4, the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ rejected the claim of incompatibility of the reserve juror system with s80 for the same reasons. The Court further highlighted that similar provisions in Western Australian legislation were held to be compatible with s80 in Ah Poh Wai, above n75. Kirby J also rejected the claim by reference to his reasons in Ng, above n51. In a separate judgment, McHugh J rejected the claim of incompatibility: Fittock, above n9 at 5.

[83] Snow, above n52 at 323 (Griffith CJ); Cheatle, above n54 at 549 (The Court); Brownlee, above n46 at 304 (Kirby J).

[84] Katsuno, above n59 at 65 (Gaudron, Gummow & Callinan JJ).

[85] Cheatle, above n54 at 549 (The Court); Brownlee, above n46 at 304 (Kirby J); Re Colina, above n21 at 422 (Kirby J), 438 (Callinan J); Katsuno, above n59 at 69 (Kirby J). There are also statements to this effect in constitutional trigger cases, although only by majority judges in Brown, above n25, or dissenting judges on the meaning of ‘indictment’ or ‘offence’: see Rankin, above n9 at 202 (Murphy J); Brown, above n25 at 201 (Deane J), 214 (Dawson J); Kingswell, above n18 at 312 (Deane J).

[86] Amelia Simpson & Mary Wood, ‘“A Puny Thing Indeed”: Cheng v The Queen and the Constitutional Right to Trial by Jury’ (2001) 29 Fed LR 95. This claim of incongruity would apply particularly to the judgments of Mason CJ, Dawson J & McHugh J, who have upheld the Archdall/Kingswell lines, but who have also adhered to a Cheatle/Brownlee view of the requirements of s80.

[87] For example, in Cheng, above n22 at 340 Callinan J said ‘[i]t is true that both the majority and the minority in Brown recognised the status of s80 as a fundamental constitutional guarantee. The difference between them related to whether the guarantee gave rise to a personal right capable of waiver by the accused, or whether the guarantee looked to, and was a safeguard of, the public interest in the administration of justice’.

[88] See Ng, above n51 at 13.

[89] See the discussion of the debates in Re Colina, above n21 at 409–410 (Kirby J), 438–439 (Callinan J); Cheng, above n22 at 269 (Gleeson CJ, Gummow & Hayne JJ), 293–295 (McHugh J), 321 (Kirby J). With the exception of Kirby J, the judges who have turned to consider the debates have not seen them as displaying a rights-protective intention. Amelia Simpson and Mary Wood have identified an alternative rights-protective reading of the debates to that relied upon by the majority judges in Cheng. However, as those authors have suggested, it probably is the case that ‘the silence of most of the delegates makes confident predictions about the participants’ intentions simply impossible’: Simpson & Wood, above n87 at 110.

[90] Re Colina, above n21 at 419 (Kirby J).

[91] As Dawson J said in Brown, above n25 at 214 the Constitution, ‘with few exceptions and in contrast with its American model, does not seek to establish personal liberty by constitutional restrictions upon the exercise of governmental power’.

[92] See, for example, Jeffrey Goldsworthy, ‘The Constitutional Protection of Rights in Australia’ in Greg Craven (ed), Australian Federation (1992) at 151; Owen Dixon, Jesting Pilate (1965) at 102; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 71–76 (hereafter Kable) (Dawson J); Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 135–136 (Mason CJ), 182 (Dawson J); Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 128 (Mason CJ, Toohey & Gaudron J), 193 (Dawson J); Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 361–362 (Dawson J).

[93] Of course, this may not be the case if a view of constitutional interpretation is taken that seeks to give the Constitution a contemporary meaning that is completely divorced from the framers’ intention. However, that is not an approach favoured by the current Court: see Singh v Commonwealth of Australia [2004] HCA 43; (2004) 209 ALR 355 at 362–364 (Gleeson CJ), 372–373 (McHugh J), 403 (Gummow, Hayne & Heydon JJ), 427 (Kirby J), 436–437 (Callinan J) (hereafter Singh).

[94] See, for example, Katsuno, above n59 at 65 (Gaudron, Gummow & Callinan JJ).

[95] For academic commentary to this effect, see George Williams, Human Rights under the Australian Constitution (1999) at 33–37, 103–110; Peter Bailey, Human Rights: Australia in an International Context (1990) at 92–94; Peter Bailey, ‘“Righting” the Constitution without a Bill of Rights’ (1995) 23 Fed LR 1; Hilary Charlesworth, Writing in Rights: Australia and the Protection of Human Rights (2002) at 20–30; Hilary Charlesworth, ‘Individual Rights and the Australian High Court’ (1986) 4 Law in Context 52; Simpson & Wood, above n87; Nick O’Neill, above n8.

[96] As I will develop in Part 4, it can be seen as an entitlement to have a constitutional structure complied with.

[97] Lowenstein, above n9.

[98] Id at 580 (Dixon & Evatt JJ). It is interesting to contrast this statement with comments made by Dixon J (as he then was) in an address to the American Bar Association in August 1942, where his Honour referred to s116 as the only exception to the framers’ rejection of constitutional guarantees of personal liberty: See Dixon, above n93.

[99] [1965] USSC 34; 380 US 24 (1965), 31 (Warren CJ).

[100] Brown, above n25 at 179 (Gibbs CJ).

[101] Id at 190 (Wilson J).

[102] Fittock, above n9 at 5. By contrast, McHugh J in Cheng, above n22 at 290 implicitly rejected the idea that s80 operated as a limitation on legislative power to protect individual liberty. Instead, his Honour suggested that, in that respect, ‘the section seems to serve little purpose’.

[103] I am grateful to Fiona Wheeler for suggesting this to me.

[104] See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 11 (hereafter Wilson) (Brennan CJ, Dawson, Toohey, McHugh & Gummow JJ).

[105] Of course, this is not entirely accurate as Kirby J would appear to adhere to the view his Honour expressed in Cheng, above n22, that the Court cannot determine for itself how an ‘offence’ is to be defined under the legislation: Cheung, above n51 at 43 (Kirby J).

[106] Cheung, above n51 at 44 (Kirby J) (citations omitted).

[107] Brown, above n25 at 201 (Deane J).

[108] Kingswell, above n18 at 298 (Deane J).

[109] Id at 303 (Deane J). However, having given to s80 a wider purpose, his Honour concluded that ‘the institution of trial by jury remains as important a safeguard of the liberties of free men and women as it ever was’: id at 303 (Deane J).

[110] Cheng, above n22 at 277–279. However, her Honour also described s80 as a ‘constitutional guarantee’ which was ‘designed to protect the individual’: at 279 (Gaudron J).

[111] Cheng, above n22 at 324; Brownlee, above n46 at 330; Ng, above n51 at 17. Allowing waiver in Brownlee is consistent with an accused-centered view of s80.

[112] Re Colina, above n21 at 425 (Kirby J). His Honour also agreed with Murphy J’s characterisation of s80 in Rankin, above n9 as ‘a guarantee of a fundamental right to trial by jury in criminal cases (at least in serious ones)’: Re Colina, above n21 at 420 (Kirby J). See also Cheung, above n51 at 32–33 (Kirby J).

[113] Cheng, above n22 at 328–329, referring, with approval, to the remarks by Scalia J in Apprendi v New Jersey [2000] USSC 57; 530 US 466 (2000). His Honour also has said that ‘being a mode of trial envisaged within Ch III of the Constitution, it is essential that it should continue to hold public confidence and “through the involvement of the public, societal trust in the system as a whole”’: Brownlee, above n46 at 330 (Kirby J).

[114] Brown, above n25 at 179 (Gibbs CJ). Kirby J has also described the jury as ‘a bulwark of liberty’: Cheung, above n51 at 38.

[115] Brown, above n25 at 197 (Brennan J).

[116] Brownlee, above n46 at 288 (Gleeson CJ & McHugh J), quoting from the United States case of Williams, above n66.

[117] Rankin, above n9 at 198 (Murphy J).

[118] Id at 199 (Murphy J).

[119] Brown, above n25 at 214 (Dawson J).

[120] Id at 197 (Brennan J). Other judges also have highlighted the place of s80 in the structure of government and the Ch III context: see Brown, above n25 at 201 (Deane J); Cheng, above n22 at 277 (Gaudron J); Brownlee, above n46 at 330 (Kirby J); Cheung, above n51 at 38 (Kirby J); Ng, above n51 at 17–18 (Kirby J).

[121] Above n6 at 635 (Griffith CJ). Isaacs J expressed a similar view: at 637.

[122] Simpson & Wood, above n87 at 112.

[123] Spratt, above n9 at 244 (Barwick CJ).

[124] Lowenstein, above n9 at 581–582 (Dixon & Evatt JJ).

[125] Cheng, above n22 at 292 (McHugh J).

[126] Clifford Pannam, ‘Trial by Jury and Section 80 of the Australian Constitution[1968] SydLawRw 1; (1968) 6 Syd LR 1 at 24.

[127] See Singh, above n94 at 362 (Gleeson CJ), 372-373 (McHugh J), 403 (Gummow, Hayne & Heydon JJ), 426-427 (Kirby J).

[128] Id at 362 (Gleeson CJ), 372–373 (McHugh J), 436–437 (Callinan J).

[129] See id at 403 (Gummow, Hayne & Heydon JJ): ‘Metaphorical references to “the founders’ intention” are as apt to mislead in the constitutional context as are references to the intentions of the legislature when construing a statute or references to the intentions of the parties to a contract when considering its construction’.

[130] See Simpson & Wood, above n87. Compare the view of Gleeson CJ in Singh, above n94 at 364 that the debates were useful for the resolution of the issue in Cheng, above n22. However, although the statements made during the debates were relevant to the issue in Cheng, they did not illuminate the purpose of s80 unless a procedural view of s80 is assumed.

[131] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 557 (hereafter Lange) (The Court). As the Court said in Lange, ‘[s]ections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government’: at 557.

[132] Constitution, above n1 at covering cl  5.

[133] Above n6 at 635 (Griffith CJ).

[134] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 (hereafter Lim) (Brennan, Deane & Dawson JJ). See also Nicholas v The Queen (1998) 193 CLR at 173 (hereafter Nicholas)

[135] Lim, above n135.

[136] Id at 27. See also Nicholas, above n135 at 187 (Brennan CJ); Kable, above n93 at 107 (Gaudron J); Harris v Caladine [1991] HCA 9; (1990) 172 CLR 84 at 147 (hereafter Harris) (Gaudron J).

[137] Re Kit Woolley; Ex parte Applicants M276/2003 (2004) ALR 369 at 383–386 (McHugh J) (hereafter Woolley).

[138] See H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 at 562 (Gleeson CJ, Gaudron, Gummow, Kirby & Hayne JJ); Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1 at 12, 16 (McHugh, Gummow, Hayne & Heydon JJ), 29 (Kirby J); Woolley, above n138 at 374-375 (Gleeson CJ), 383 (McHugh J), 418 (Kirby J); Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124 at 159-160 (Gummow J), 163 (Kirby J); Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 208 ALR 271 at 277 (Gleeson CJ), 300-301 (Kirby J); Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 210 ALR 50 (hereafter Fardon) at 73 (Gummow J; Hayne J agreeing), 91-92 (Kirby J).

[139] Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481; Brown, above n25 at 198 (Brennan J). The only exception is s79 of the Constitution which provides that ‘[t]he federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes’.

[140] Fardon, above n139 at 63 (McHugh J). See also the cases cited in n48 of his Honour’s judgment.

[141] Commonwealth v The Hospital Contribution Fund of Australia (1982) 150 CLR 49 (hereafter HCF Australia).

[142] Id at 58 (Gibbs CJ; Stephen & Aickin JJ agreeing), 60 (Mason J), 65 (Murphy J), 71–72 (Wilson J).

[143] Leslie Zines, Federal Jurisdiction in Australia (3rd ed, 2002) at 209.

[144] Harris, above n137 at 95 (Mason CJ & Deane J), 122 (Dawson J), 149 (Gaudron J), 160, 164 (McHugh J).

[145] I am indebted to Professor Leslie Zines for discussing these ideas with me.

[146] Kable, above n93 at 101 (Gaudron J), 111 (McHugh J), 142 (Gummow J).

[147] Some statements by McHugh J in Fardon, above n139, seem to be inconsistent with the effect of Kable, above n93, discussed here. His Honour said that a State parliament could ‘abolish criminal juries and require breaches of the criminal law to be determined by non-judicial tribunals’, and that ‘no process or legal or logical reasoning leads to the conclusion that, because the Federal Parliament may invest State courts with federal jurisdiction, the States cannot legislate for the determination of issues of criminal guilt or sentencing by non-judicial tribunals’: Fardon, above n139 at 64 (McHugh J). Although it is not entirely clear, it would appear that, if read consistently with his Honour’s judgment in Kable, above n93, the Fardon comments are probably limited to state criminal offences.

[148] As occurred in colonial times in New South Wales: see generally, for example, Brownlee, above n46 at 338 (Callinan J); Nick O’Neill, above n8 at 89; Herbert Evatt, ‘The Jury System in Australia’ (1936) 10 ALJ (Supp) 49. The exception, of course, is a military trial for a breach of military discipline: see, for example, Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311.

[149] It might be possible to see the preservation of this local involvement as a reflection of a State right or entitlement to retain for the State an involvement in the exercise of federal power.

[150] A useful analogy is to s92 of the Constitution. The rights-protective view of s92 was rejected by the Court in Cole, above n2 at 360. Section 92 was seen as a provision preventing discrimination of a protectionist kind, not to guarantee a right to engage in interstate trade. However, compliance with that provision would have a protective operation for those engaged in interstate trade.

[151] This would be consistent with how the framers generally saw the protection of rights. As a common law right, its curtailment by the Commonwealth Parliament might, in some circumstances, be relevant to the characterisation of a law within power: see Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of The Constitution(2002) 24 Syd LR 141.

[152] There are many High Court cases that emphasise the role of an independent judiciary in the protection of liberty: see, for example, Wilson, above n105 at 11 (Brennan CJ, Dawson, Toohey, McHugh & Gummow JJ); R v Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1 at 11 (Jacobs J; Barwick CJ, Gibbs, Stephen & Mason JJ agreeing); Nicholas, above n135 at 231 (Gummow J), 254 (Kirby J); Harris, above n137 at 159 (McHugh J); Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 at 109-110 (Gibbs J), adopted by a majority of the Court in HCF Australia, above n142 at 49; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357 (Griffith CJ); Fardon, above n139 at 74 (Gummow J; Hayne J agreeing), 91-92 (Kirby J).

[153] Brown, above n25 at 211 (Dawson J).

[154] See above Part 3.

[155] For example, on the meaning of ‘indictment’ see text accompanying nn11–21 in this paper.

[156] See, for example, the arguments put forward by Jeremy Waldron, ‘A Right Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18 at 31–34; and Jeremy Waldron, Law and Disagreement (1999) at 11–12.

[157] Brown, above n25 at 179 (Gibbs CJ). Kirby J has also described the jury as ‘a bulwark of liberty’: Cheung, above n51 at 38.

[158] Brown, above n25 at 179 (Gibbs CJ, quoting from Duncan v Louisiana [1968] USSC 152; 391 US 145 (1968)).

[159] Rankin, above n9 at 198 (Murphy J).

[160] Brown, above n25 at 197 (Brennan J).

[161] Id at 201 (Deane J).

[162] Kingswell, above n18 at 300 (Deane J).

[163] Fittock, above n9 at 5 (McHugh J).

[164] Cheung, above n51 at 38 (Kirby J).

[165] Brownlee, above n46 at 288 (Gleeson CJ & McHugh J, quoting White J of the United States Supreme Court in Williams, above n66 at 100). The passage from Gleeson CJ & McHugh J was referred to by Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ in Ng, above n51 at 13.

[166] Snow, above n52 at 323 (Griffith CJ); Cheatle, above n54.

[167] See, for example, Lange, above n132; Sue v Hill [1999] HCA 30; (1999) 199 CLR 462; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Attorney–General (Western Australia) v Marquet [2003] HCA 67; (2003) 202 ALR 233.

[168] Any further function would require an additional layer of operation to be given to s80.

[169] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265.

[170] Charlesworth, Writing in Rights: Australia and the Protection of Human Rights, above n96 at 28.

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