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The Forum > Article Comments > Australia's Constitution: the referenda we need to have > Comments

Australia's Constitution: the referenda we need to have : Comments

By Brendan O'Reilly, published 3/11/2017

Parts of Australia's Constitution clearly are either inappropriate, out-of-date or simply don't work.

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Banjo, I agree with much of what you say. In a perfect world many of these 'safeguards' would not be necessary, unfortunately we do not live in such a world. Your attachment, in part, vindicates me in explaining that the trial by jury is there to ensure that the defendant is not wrongly sentenced due to the emotional state of one man, 'on the day'. I believe the wording and therefore the intent of the constitution was designed to stand as a reference for all time and not be changed. Had we followed it word for word, and policed it, I feel we would be a lot better off today. Like the Roman times. It began with discipline and order. Go forward some years on and we find a disgusting environment of orgies, drunkenness and a society out of control, to the point of it's own ultimate extinction. We are heading down that same path. If we don't follow something which keeps us safe and well. The constitution is such a medium. You mention ambiguities and the like. I say it is quite clear as it is very frugal with words so it is not possible to mis-read it's intent. Unless you are looking for a way around the wording to suite your own agenda. Back to my original point. As I still see no mention of removing a jury from a trial, my point still stands, that the legal system is in breach of the constitution and therefore should be charged accordingly. You see Banjo, if we allow a few people to dictate at their leisure only bad things can come from it. You say it was difficult to have trial by jury today. I would say it was a lot more difficult back then with much fewer people. No lets not try to change things because it doesn't suit us and try to work better with what we have.
Posted by ALTRAV, Tuesday, 7 November 2017 10:26:39 AM
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Dear ALTRAV,

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You wrote :

« As I still see no mention of removing a jury from a trial, my point still stands, that the legal system is in breach of the constitution and therefore should be charged accordingly »
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Fair enough, my friend. The only problem I have with that is the huge burden on the community of co-opting people to sit on juries when, in some cases, the trial may last several days. Jury trials can be expensive and time-consuming, and some have suggested that they are inappropriate in complex fraud cases which some of the members of the jury are incapable of understanding.

I have known people who have been co-opted several times on juries and who have problems with their work because of it. Here are the latest statistics on the total number of court cases and the total number of indictable offenses in Australia for 2015-2016 :

Total court cases : 3029 (page 27, 1st paragraph)

Total indictments : 649 (page 28, Table 5)

The report defines an “indictable offence” as :

« A serious criminal offence that is usually heard in a higher court before a judge and jury. Less serious indictable offences and summary offences, are usually heard in a Local Court » :

http://www.cdpp.gov.au/sites/g/files/net2061/f/0086_2016%20Annual%20report_v29%20web.pdf

Presuming (though most unlikely) that all 649 indictments were jury trials, 7,788 individuals were co-opted to serve on the jury. If all court cases (3029) had been tried by jury, 36,348 individuals would have been co-opted to serve on the jury.

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(Continued …)

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Posted by Banjo Paterson, Wednesday, 8 November 2017 1:05:00 AM
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(Continued …)

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Jurors receive a small payment for each day of attendance. Employers are also required to pay their employees "make-up pay", that is, the usual pay the employee would have earned from working, less the jury duty payment received from the state.

In NSW, for example, the state pays $106.30 a day for the first 10 days, and $ 247.40 a day until the end of the trial.

Quite frankly, ALTRAV, I don’t think the professional magistrates in Australia are so bad as to warrant all the extra hassle for everybody, all the court congestion, cost inflation, etc., to settle the “less serious indictable offenses and summary offenses” by judge and jury.

In my humble opinion, it’s just not worth it. Otherwise, I agree there are advantages in having more than just one person (the judge) deciding whether the accused is guilty or innocent of a crime. However, on the other hand, there is an advantage for the accused, if he is, indeed, guilty, and willing to admit it, in not having his trial publicised by twelve people from the community in which he lives.

From this point of view, trial by jury does not encourage the accused to own-up to his crime. If he does not plead guilty, he can always pretend he was unjustly condemned. Whereas a secret trial, without a jury, encourages the accused to admit his guilt and has the advantage of avoiding undue publicity.

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Posted by Banjo Paterson, Wednesday, 8 November 2017 1:37:56 AM
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Banjo, good points all. I suppose I am coming from a purely legal position. I agree that the cost and inconvenience would be a burden on society, but, I am reminded that this reason in itself does not form any part of law and it's execution. In my opinion the very existence of laws is a nuisance and unnecessary (to me), but the law is set and once gazetted becomes our guide and it does not care how much trouble or expense it may cause us (the public). If it was not written into the constitution I would not make this point, but, because it is there (irrespective of the cost and the trouble), we must abide by it. We cannot simply 'cherry pick' because we don't like one or more parts of the constitution. Just think of the myriad of laws that are costly and a nuisance today, yet we blindly oblige because it is law.
Posted by ALTRAV, Wednesday, 8 November 2017 9:00:16 AM
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Dear ALTRAV,

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You wrote :

« If it was not written into the constitution I would not make this point, but, because it is there (irrespective of the cost and the trouble), we must abide by it. We cannot simply 'cherry pick' because we don't like one or more parts of the constitution »
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Section 80 of the constitution stipulates that :

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury”.

The Commonwealth can determine which offences are “on indictment” and which are not. It can determine that a homicide offence could be tried not “on indictment”, or conversely, that a simple assault could be tried “on indictment”.

Somebody coined the aphorism that: “if there is an indictment, there must be a jury, but there is nothing to compel procedure by indictment”.

Professor La Nauze, in his account of the making of the Constitution, suggested that the lawyers at the convention had been content to let through a provision “so vulnerable” because they had perfect confidence that trial by jury for those categories of cases in which it had been sanctioned by centuries of tradition would not be at risk. They believed that neither the Commonwealth nor the states would seek to evade the use of juries in cases in which trial by jury was “conceived by the electors” as ‘necessary to justice.

The difficulty of giving a fixed meaning to the words “trial on indictment” was recognised by the Judicature Sub-Committee of the Australian Constitutional Convention in 1985-87. The committee was unable to formulate a satisfactory standard to differentiate those offences which might properly be dealt with summarily from those that should be subject to the constitutional guarantee. It noted that one option would be to remove the provision (“trial on indictment”) altogether. But, given the failure rate of referendums in Australia, they recommended leaving the provision in its present form for the time being.

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(Continued …)

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Posted by Banjo Paterson, Thursday, 9 November 2017 1:09:01 AM
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(Continued …)

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Virginia Bell, a justice of the High Court of Australia, observed during her lecture at Monash University on 24 October 2013, that :

« The confidence of the convention delegates [for the establishment of the constitution] that the Parliament would not legislate to provide for the summary trial of serious offences has to date proven not to have been misplaced. Section 80’s work has been to preserve the essential features of the jury trial from legislative modification »

Here is the text of her lecture :

http://www.monash.edu/__data/assets/pdf_file/0007/139498/bell.pdf
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It, nevertheless, rests that the Constitution is flawed (and vulnerable) on this particular point – yet another hole in the rusty old bucket.

The “bucket” is 116 years old now. It has served us well, but it is tired and worn out, rusty and full of holes. We tried to patch it up 44 times but only succeeded 8 times. It’s time we got a new one. But, realistically, that won’t happen until we finally accept to cut the umbilical cord that ties us to the British Crown, and finally complete the long, heart-breaking process of emancipation that commenced 116 years ago, in 1901, at the birth of our nation.

Much to my regret, I doubt that that will happen before we are ready to stand squarely on our own two feet and become a republic.

The representatives of the parliaments of our six states drew-up our federal constitution - not the British Crown or government - or anybody else, for that matter. It is our creation, our constitution. And it is our bounden duty, as the worthy heirs of our noble forefathers, to give it a worthy successor.

I, for one, am confident that we are just as capable as they were, 116 years ago. And I consider it is my duty, as a responsible citizen, to share that confidence with my fellow compatriots.

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Posted by Banjo Paterson, Thursday, 9 November 2017 1:29:59 AM
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