Arrogant ACT government subject to legal challenge for breach of constitutional powers


In what is alarming but sadly unsurprising news, it was revealed in Estimates Hearings today that several ACT Supreme Court judge-alone trials took place during the Covid-19 pandemic without the consent of the accused with at least one case currently on appeal.

In April 2020, the ACT government legislated to remove the fundamental right of the accused to a trial by jury, replaced by a judge-only trial, citing COVID-19 safety restrictions.

The ACT Law Society and the Law Council of Australia condemned these changes, calling them 'fundamentally unsound and misguided' and warned that they could be illegal, opening them up to legal challenges.

The Canberra Liberals raised alarm at the time and moved amendments that would preserve this fundamental human right whilst taking measures to protect the safety of court officials, lawyers, and jurors. Labor and Greens voted down these amendments.

In July 2020, these laws were repealed with the lifting of some restrictions.

Significant concerns were raised again in a paper published in the ‘Current Issues in Criminal Justice’ which found that the ACT government likely breached its constitutional power and raised alarm at the risk of legislative overreach which can jeopardise the integrity and independence of the court.

“This is an arrogant government that has wilfully ignored the advice from the legal profession and unilaterally removed a fundamental human right,” Leader of the Opposition and Shadow Attorney-General Elizabeth Lee said.

“As Chair of the ACT Law Society’s Criminal Law Committee, Michael Kukulies-Smith said at the time, ‘the right to trial by jury is a significant, longstanding right in our legal system that has been consistently observed by the High Court of Australia’.

“This government has demonstrated its clear disrespect for the rule of law and the fundamental protection of human rights despite strong condemnation from the legal profession at the time these laws were being debated.

“This is yet another example of Labor and Greens making policy on the run without any real consultation with the legal profession and thinking they know best; showing a complete lack of respect for the rule of law and for the people of the ACT,” Ms Lee concluded.