Banjo, in the event that consensus cannot be reached, then the correct outcome is to retain the current interpretation, which would be correctly applied. I think too much thought is given to find an outcome which happens to help the party seeking a pre-determined outcome contrary to the constitution simply to bolster their agenda or argument, and nothing to do with seeking the truth.

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Dear ALTRAV,

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You wrote :

« … the correct outcome is to retain the current interpretation, which would be correctly applied … »

That’s strange, I understood that you were not happy with “the current interpretation” which allows trials for less serious indictable offences and summary offences to be judged by a single magistrate and only trials for serious offenses to be judged by a jury. I thought you wanted the constitution to be interpreted in the sense that all offenses should be tried by a jury.

The problem is that if the wording of Section 80 of the constitution were applied literally, all “indicted offenses” must be tried by a jury – which means that “non-indicted offenses” do not have to be tried by a jury. And, as there is no obligation in the constitution (or anywhere else) for offenses to be indicted, the Commonwealth could simply stop indicting them, if it wanted to, and try them all by a single judge.

That is why some jurists consider that s80 is a “mockery” and that to accept it “would be akin to suggesting that some of the framers drafted the provision on April Fools' Day, setting out to ensnare the public into the delusion that they had been accorded a protection which they did not in fact enjoy”.

Not only is there absolutely no obligation in the constitution for all offenses to be tried by a jury, but, worse, the Commonwealth is free to choose not to try any offences at all by jury if it wants to. All it has to do is to no longer indict offences.

That is why there is a gaping hole in the constitution that needs to be fixed.

Nobody seems to have explained this to our compatriots and they voted against fixing it in the referendum in 1988.

It was lumped together with other matters that also needed fixing, including freedom of religion. The latter aroused the suspicion of church interests who were concerned about funding of education, and the proposal proved to be quite contentious during the campaign.

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Banjo, I haven't changed my position, I simply see the interpretation as it was intended. To try to interpret it in any other way is only to try and contrive a different outcome, more like the one which would suite the readers agenda. I don't believe there are that many 'holes' in the constitution, unless one is deliberately not trying to understand it by considering the 'intent' of the wording by it's creators of the day.

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Dear ALTRAV,

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You wrote :

« I haven't changed my position, I simply see the interpretation as it was intended »
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Section 80 of the constitution was “intended” exactly as it was written, ALTRAV.

You will recall that I posted on page 7 of this thread, an article by Graham Fricke QC, who was a barrister and trial judge for many years in Victoria. He describes how the final draft of s80 was drawn up (and subsequently approved) :

« A Tasmanian jurist, Andrew Inglis Clark, composed the first draft of what was to become section 80 in 1891. Taking as his precedent Article III, section 2 of the Constitution of the United States of America, he drew a clause providing that the trial of “all crimes cognisable by any Court” shall be by jury. Sir Samuel Griffith altered Inglis Clark's draft to confine the guarantee to “indictable offences cognisable by any court exercising federal jurisdiction”.

Here it is the link once again :

http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11

Sir Samuel Griffith was chief justice and premier of Queensland and became the first chief justice of the High Court of Australia when it was created in 1903. His made a major contribution to the drafting of the Australian constitution :

« His speech at the 1890 Melbourne conference accurately represented him as a cautious lawyer and practical politician. He was particularly influential in the 1891 Sydney convention where he admitted he dominated the discussions: “my work … was very hard, for it fell to my lot to draw the Constitution, after presiding for several days on a Committee, and endeavouring to ascertain the general consensus of opinion”

Australia’s first prime minister, Sir Edmund Barton saw him as “the greatest lawyer in the Commonwealth” »
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As I indicated in a previous post, the final text of the constitution, including s80, “was the best compromise possible when it was established”.

The final “intention” that was adopted, was not to grant "trial by jury" to all offences, but to limit it to “indictable offences”.

No indictments, no juries. A big hole !

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Banjo, as i said before, I care not why the change was made. Obviously it aided the agenda of the changer. My point is it should not have been changed and we would have a much cleaner section 80. Not something which requires debate and manipulation to achieve the outcome being sought by someone to suit them and their agenda.

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Dear ALTRAV,

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You wrote :

« I care not why the change was made. Obviously it aided the agenda of the changer »
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The “changer”, Sir Samuel Griffith, knew that the delegates to the convention for the establishment of the constitution were not in favour of “jury by trial” at the time, and that the proposed wording of s80 would be rejected outright. The “proposer”, the Tasmanian jurist, Andrew Inglis Clark, had simply copied Article III, section 2, clause 3 of the Constitution of the United States of America, which reads as follows :

« The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed »

As Sir Samuel Griffith was an excellent jurist and an astute politician, he modified the clause in order to render it more palatable to even the more recalcitrant delegates, by watering it down so that it only applied to “indicted offenses”. Section 80 then became :

« 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 »

Thanks to Sir Samuel Griffith, the revised version was adopted at the convention. It was a compromise, but it succeeded.

It would be an injustice to the integrity of Sir Samuel Griffith to consider that he did it for his own benefit. He did not need that. He was a man of great stature. He had been chief justice of Queensland and elected twice as premier, before becoming the first chief justice of the High Court of Australia on its creation.

A university adopted his name :

http://en.wikipedia.org/wiki/Griffith_University

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