Alqudsi v The Queen [2016] HCATrans 13 (10 February 2016)

Last Updated: 10 February 2016

[2016] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S279 of 2015

B e t w e e n -

HAMDI ALQUDSI

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 FEBRUARY 2016, AT 10.15 AM

Copyright in the High Court of Australia

FRENCH CJ: Before we commence today, I would like to welcome Justice Robert Ribeiro of the Hong Kong Court of Final Appeal who joins us on the Bench to observe some of this morning’s proceedings. Please call the matter for hearing.

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friends, MR G. J. WILLIAMS and MR D.P. HUME, for the applicant on the motion. (instructed by Zali Burrows Lawyers)

MR R.J. BROMWICH, SC: May it please the Court, I appear with my learned friend, MS A.M. MITCHELMORE, for the respondent. (instructed by Director of Public Prosecutions (Cth))

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR C.P. O’DONNELL and MR J.S. STELLIOS, for the Attorney-General of the Commonwealth of Australia, intervening. (instructed by Australian Government Solicitor)

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MR A.D. KEYES, for the Attorney-General of the State of Queensland, intervening. (instructed by Crown Solicitor (Qld))

MR M.E. O’FARRELL, SC, Solicitor-General for the State of Tasmania: May it please the Court, I appear with my learned friend, MR S.K. KAY, for the Attorney-General for the State of Tasmania, intervening. (instructed by Solicitor-General (Tas))

MR R.M. NIALL, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR F.I. GORDON, for the Attorney-General for the State of Victoria, intervening. (instructed by Victorian Government Solicitor)

MR M.G. EVANS, QC: May it please the Court, I appear with MS F.J. McDONALD, for the Attorney-General for the State of South Australia, intervening. (instructed by Crown Solicitor (SA))

FRENCH CJ: Thank you. Yes, Mr Kirk.

MR KIRK: Your Honours should have our outline of oral propositions.

FRENCH CJ: Yes.

MR KIRK: First, your Honours, I will seek simply to place the matter in its immediate context. Without taking your Honours to it, your Honours will have seen the indictment against my client on seven charges of the cause removed book pages 1 to 5. In relation to the provisions under which my client is charged, if your Honours go to the Commonwealth’s written submissions, annexure A immediately behind their primary submissions, it contains sections 6 and 7 of the Commonwealth Act under which my client is charged. Without getting bogged in detail, specifically he is charged with an offence under section 7(1)(e) of the Act which itself picks up aspects of section 6. Your Honours will also note, of course, section 9A of that Act, that subject to subsection (2) which is not currently material:

a prosecution for an offence against this Act shall be on indictment.

Indeed, that was the way the matter is proceeding, as seen in the cause removed book. In relation to the other relevant statutory provisions, if your Honours go to our primary written submissions at page 18, your Honours will find the familiar terms, first of section 68(1) and (2) of the Judiciary Act – going briefly through the key points there – subsection (1):

The laws of a State or Territory respecting –

certain matters including the procedure for, and your Honours will note, particularly (b) and (c) – it is an issue about bail:

shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth –

The language of “so far as they are applicable” would only pick up and apply State and Territory law to the extent not inconsistent with the Constitution but, in any event, that is made express in subsection (2) that:

The several Courts of a State or Territory exercising jurisdiction with respect to –

and your Honours will note, particularly subsections (b) and (c), and then over the page, the fourth line:

shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

So that is a grant of jurisdiction but expressly subject to section 80 of the Constitution. The issue raised by the question stated for the Court is ultimately one of the application of section 68 – whether it is capable of picking up section 132(1) to (6) of the Criminal Procedure Act (NSW) but that question falls to be resolved by reference to an understanding of the requirements of section 80 of the Constitution.

Before I come to section 80, at page 19 of our written submissions your Honours will find extracted the whole of section 132 of the Criminal Procedure Act (NSW), as it currently stands. To briefly go through the scheme there provided for, subsection (1) simply indicates that:

An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for . . . (a trial by judge order).

Subsection (2) is one of the three routes provided for such an order being made in this section, that the court has a duty and is empowered to make such an order if both the accused and the prosecutor agree. Subsection (3) is a protection of the accused in that, subject to one exception I will come to:

If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

Subsection (4) is the second pathway and the one which we seek to give primary emphasis to in our submissions:

If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

So it is a discretionary power vested in the Court, guided by the criterion, a familiar one, for the interests of justice.

FRENCH CJ: The prosecutor referred to in that section is, I think, defined in section 3 by reference to the Director of Public Prosecutions and I think you read that with the Interpretation Act (NSW), it refers to obviously an office holder in New South Wales, but you say that function is also picked up through 68?

MR KIRK: Yes, to be meaningful it must be the prosecutor with carriage of the case.

FRENCH CJ: Yes.

MR KIRK: It would not otherwise make sense. Subsection (5) articulates some relevant considerations in a non-exhaustive way, guiding the discretion in subsection (4). Subsection (6) is another protection for the accused, namely, that the court must be satisfied on either of the two routes dealt with to date, that he or she has sought and received legal advice.

Subsection (7), which is not raised by the question before the Court but is of course necessary context, is the third pathway, namely that the court may make such an order despite any other provision of this section, and that would override subsection (2), so the consent of the accused is not needed in this third pathway for reasons which are obvious, the criteria being a substantial risk of acts constituting an offence under the particular division of the Crimes Act, that division being entitled “Interference with judicial officers, witnesses, jurors, etc” and where:

the risk of those acts occurring may not reasonably be mitigated by other means.

For completeness, 132A is a timing provision that one must apply not less than 28 days before the date fixed for trial. Subsection (2) deals with joint trials. Section 133 deals with the effect and nature of a verdict of a single judge and of course this Court has recently considered that provision in Filippou v The Queen (2015) 323 ALR 33.

GAGELER J: Mr Kirk, does your argument go so far as to say that section 132 is compatible with section 80 of the Constitution, insofar as it gives the Court what you say is a discretion in subsection (4) to order trial by judge alone on the application of the prosecutor?

MR KIRK: Yes, but of course that is subject to subsection (2) that the – sorry, subsection (3) I should have said, which protects the position of the accused. So ultimately an order for a trial by judge alone cannot be made unless the accused consents, with the exception of the third pathway which is not raised in the materials before the Court. So, yes is the answer to your Honour’s question, but it is fundamental that it cannot be done without the accused’s consent.

FRENCH CJ: The questions on which you address us come through the vehicle of section 68, picking up a State law, but are they in substance significantly different from the questions that would arise if you had a Commonwealth law in terms of section 132 in its relevant aspects?

MR KIRK: No, and no part of this argument depends on any Kable issue or anything like that. It is just a direct issue of compatibility.

FRENCH CJ: It is really a question about the limits upon Commonwealth legislative power imposed by section 80 and in the light of which the application of section 68 in this particular case must be seen.

MR KIRK: Yes. The proposition for which we contend can be put in different ways, but we have sought to summarise it at paragraph 2 of our outline, namely that section 80 of the Constitution does not preclude trials on indictment proceedings by judge alone in exceptional cases of the kind provided for in section 132(1) to (6), where to require otherwise would be to defeat or undermine the purposes served by the guarantee.

In terms of the structure of my submissions, I propose to deal first with text, secondly with context and purpose, and then finally with Brown, and I note that I propose to leave matters of history and also the United States cases to my learned friend, the Solicitor for the Commonwealth.

In relation to text, we have quoted at paragraph 3 of our outline the full text of section 80, so it is before us all. Let me accept immediately that the text is against us; on its face invites plain words. It says:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury –

and obviously the plain meaning, the ordinary meaning of those words, is “shall be by jury” means shall be by jury. It makes no express provision for exceptions or flexibility. Reliance on the ordinary meaning of the words is the main argument that the Crown puts against us in this case, but it is fundamental, in our respectful submission, that the meaning and effect of any constitutional provision, but particularly a constitutional guarantee, is to be understood in significant part by reference to the purposes sought to be achieved and by reference to the context.

That that is so has been given great emphasis, with respect, in the last 30 years since Brown was decided by a series of decisions of this Court dealing with, and in many instances changing the approach to, a series of constitutional guarantees.

We have gathered the relevant references in our primary submissions at paragraphs 56 to 60, but briefly to summarise the familiar high points of the last 30 years of jurisprudence on this issue, it started really with section 92 and Cole v Whitfield in 1988, two years after Brown, which of course re-construed the operation of section 92, despite the language in section 92. I think the Court in Cole referred to it being emphatic language of “shall be absolutely free”, so double force in a sense “shall” and the language of “absolutely free”.

Furthermore, in the subsequent cases to Cole – Castlemaine Tooheys, Betfair v Western Australia and the subsequent two racing cases, this Court has accepted the possibility of some burden being placed on interstate trade where that is reasonably necessary to achieve some other legitimate end.

In relation to section 90 in Ha v New South Wales in 1997, both the majority and the minority looked at the purposes of section 90 and the core of the disagreement related to the purpose attributed, but both dealt with it as a matter of purpose and as a matter of substance and the majority, of course, overruled the earlier decision – perhaps, strictly, set aside the earlier decision in Dennis Hotels reflecting a new approach to section 90.

In relation to section 117, which also uses emphatic language of “shall not be subject” relevantly to any disability or discrimination, again a new approach was taken by this Court in Street v Queensland Bar Association in 1989. It looked at it as a matter of substance. It took a purposive approach and through the remit of the notion of discrimination that guarantee too has been taken to permit a flexibility in exceptions where directed to certain legitimate ends.

Of course, in that case the Court’s earlier decision in Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482 was overruled. Sections 7 and 24 also use the word “shall” – the two Houses “shall be composed of senators” or members “directly chosen by the people” of the State or Commonwealth. Two overlapping but distinguishable aspects of that have been developed in recent times in case law of this Court. Firstly, of course, came the recognition of the implied freedom of political communication, with which your Honours are well familiar - though built fundamentally on those sections and some related sections and recognising that some freedom of communication is essential to that direct choice by the people still permits of some flexibility and some exceptions – see most recently McCloy.

In Roach and Rowe another aspect was recognised. In a sense, moving on from the Court’s decision in McKinlay in 1975, in that a majority of the Court in those two cases recognised that implicit within 7 and 24, is requirement of universal adult suffrage – “shall be composed of senators” – members “directly chosen by the people” but again, permitting of some conceivable flexibility or exceptions where those are reasonably appropriate and adapted to serve an end compatible with the Constitution of prescribed system of government.

All of those constitutional guarantees or the implied guarantees based on 7 and 24 have undergone a major revision in approach since Brown was decided and, in many ways Brown is from – if I might respectfully put it this way – a somewhat earlier era of this Court’s approach to construction and application of constitutional guarantees.

KIEFEL J: In that context, you do not rely upon section 80 as providing a right or privilege?

MR KIRK: One can always apply, almost as a label of conclusion, that type of language but it is not fundamental. It is not even a part of our argument to do so. We prefer to found it on a purposive approach as to the purposes of the guarantee and as put in the formulation we have in paragraph 2 of our outline the way we seek to found the case we put is ultimately on not impeding the purposes but, in many ways, fulfilling the purposes of section 80 and strewed more broadly as part of the purposes of Chapter III in exceptional cases.

KIEFEL J: Does your argument also accept that the constitutional guarantees which are provided are not usually taken to be referable to individual rights, liberties or freedoms?

MR KIRK: Yes, it is not a necessary part of our argument; it is not part of the way we put it to characterise section 80 as a personal right, to pick up the language familiar from freedom of political communication cases. That was, seemingly, the sort of way it was put in argument in Brown and it was that argument which was rejected. We do not seek to put it in that way.

FRENCH CJ: Do you argue that a beneficial or protective purpose limiting Commonwealth legislative power is consistent with a waiver provision?

MR KIRK: Yes, precisely so, and also consistent – and I will come to this shortly – with the broader purposes that also can be recognised in section 80. One of the other differences between the argument we put and that put in Brown is that it was very much focused on a kind of all or nothing approach. It is for individual benefit and ignores the community benefit – it was more of a majority approach and I hope I am not being unfair – whereas the majority tend to give great emphasis to the community or broader public benefits at the cost, we would respectfully submit, of the protective aspect for individuals. That is not to characterise it as a personal right, but it is to recognise the purpose is fundamentally about putting a barrier between the State and the accused for the benefit of accuseds generally.

I will come to those purposes just momentarily if I can make one more point about the Court’s approach to constitutional guarantees. Every guarantee or constitutional requirement within the Constitution has to be seen in the same context of course. But for each guarantee, including ones I have not mentioned, such as 51(xxxi), the case law of the Court has permitted flexibility.

It has permitted of exceptions in a range of different ways, whether it is through discrimination - 92 and 117, through 51(xxxi) - it is through the various strands of case law, inherent susceptibility to change, incongruence, the Nintendo notion of adjustable – Mutual Pools notion of adjustment of rights and the common interest all allow some flexibility. Section 80, as construed by Brown, stands very much by itself now, in our respectful submission, as a very rigid approach, quite disconsonant with other constitutional guarantees.

GAGELER J: Mr Kirk, in the case of the other constitutional guarantees, to which you have referred, the flexibility on an orthodox understanding, comes from the nature of the norm which is required - absolute freedom involves absolute freedom from something and what that was was the subject matter of Cole v Whitfield. Does anything in any of those cases to which you have referred suggest that the word “shall” involves some notion of flexibility?

MR KIRK: Not expressly, but since your Honour has mentioned Cole v Whitfield [1988] HCA 18; 165 CLR 360, can I go briefly to it. Just to pick up one aspect of the argument, and I do recognise of course that section 92 very much has to be seen in its own context but your Honours will recall that one aspect of the reasoning, found at page 403 of the joint unanimous judgments at point 5 - so that is page 403, point 5 – is that:

The second major reason for rejecting the doctrine –

and I pause there to note that is a criterion of operation and doctrine –

as an acceptable interpretation of s. 92 is that it fails to make any accommodation for the need for laws genuinely regulating intrastate and interstate trade.

So that was a fundamental step in the reasoning of the Court. It is not quite an answer to your Honour’s question about the word “shall” but it is in the context of the very emphatic language of “shall be absolutely free”.

BELL J: But it leaves free from what as a rather pointed distinction when one comes to consider section 8.

MR KIRK: I do accept that and that was also part of Cole v Whitfield to deal with “free from what” but that part of the reasoning I have just taken your Honours to was an additional part. Earlier in the judgment they had spoken about “free from what - - -

KIEFEL J: But both section 92 cases and the implied freedom cases proceed upon the basis that no freedom can be regarded as absolute. Now, that does not really apply to section 80.

MR KIRK: Well, perhaps not directly but in a sense that recognition of not being absolute itself manifests an understanding that those constitutional guarantees must be construed purposively and in context where the context includes a range of other provisions about powers and so forth. Both sections 117 and 92 must accommodate some notion of regulatory power of the States and of the Commonwealth, but also recognise a principle, we would suggest, that no provision pursues its purpose at all costs, in general.

Now, that is a statement which has been put by this Court in relation to statutory construction - and I am not suggesting this is a simple statute by any means - put very clearly, with respect, by Chief Justice Gleeson in Carr v Western Australia, picked up in Mammoet a couple of years ago.

But that notion is also applicable here, in our respectful submission, to suggest that, yes, this is a fundamentally important aspect of the constitutional structure. It pursues very important purposes but not necessarily at all costs, including where the costs may be defeating the very purposes underlying the guarantee which then brings me, if I may, to what those purposes have been identified as being.

In our written submissions at paragraph 37 we seek to summarise them, and it is a summary in a bifurcated way, recognising there is a big overlap here as well, the first being the advancement of the liberty of an accused, in particular from governmental oppression; the second being broader objectives relating to the proper administration of criminal justice, and so forth.

Now, I recognise there are a number of aspects to that and those aspects, with respect, are brought out clearly in Justice Gaudron’s judgment in Cheng, to which I will come in due course, building on indeed Justice Deane’s dissenting judgment in Kingswell.

KIEFEL J: In relation to (a), is it your case that the framers of the Constitution actually had that in mind, that that is a philosophical point of view that would have been held at that time?

MR KIRK: If I might say so, with great respect to all members of the Court, past and present, to attribute purposes to section 80 can tend to be the label given to the conclusion of one’s argument because, as your Honours would well appreciate, it is very difficult to discern what the actual purposes of the framers were in fact in relation to section 80.

My learned friend, Mr Gleeson, is going to deal with history, but can I make one point about it? The issue is brought home very clearly in the debate – I think it was on 31 January 1898 – where Mr Glynn and Mr Higgins said we should get rid of this because it restricts flexibility for the Parliament and, yes, it is very important but we want to allow flexibility.

There were two responses which are antithetical. The first by Mr Wise was this is a fundamental protection of liberty, so we must keep it. The second by Mr Isaacs, reflecting his consistent theme, was, “You don’t need to worry about it because it’s only going to apply when there’s an indictment”. Which of those two strands of antithetical reasoning moved the majority to reject the amendment, we simply do not know.

When I speak of purpose, therefore, I do recognise that we are not really speaking of the purposes of the framers, but I am picking up attribution of purpose that has been given by various members of the Court at various times to section 80.

Now, the way I might seek to bring out that attribution is by going to two relatively recent cases of the Court. First, if I can take your Honours to Brownlee v The Queen (2001) 207 CLR 278. The issue in this case, or the issues, were about New South Wales provisions which allowed a trial to continue if the jury drops from 12 down to 10, and also a provision allowing the jury to not be sequestered after they had retired to start their deliberations, and those provisions were upheld, including as being compatible with section 80.

One reason I need to draw this case to your Honours’ attention is that the Commonwealth did seek leave in this case to overturn Brown v The Queen, but it arose in a slightly different way. If your Honours go to the argument at page 281, the last five lines of the summary of Mr Bennett’s submissions for the Commonwealth Attorney, Mr Bennett put the submission and his Honour the Chief Justice indicated at least the majority was of the view that leave should not be given.

The circumstances in which the waiver issue arose were quite different to the current circumstances. Without taking your Honours to it, they are explained by Justice Kirby at paragraph 77, page 305. The context was that the DPP argued that, well, these arguments now raised by the appellant were not raised at first instance and so the constitutional objection was waived, so he should not be able to raise them now. That gave Mr Bennett the opportunity to seek to reopen. Leave was refused. Justice Kirby would have given the leave and went on to address the issue. In the plurality judgment of Justices – I should say the second plurality judgment of Justices Gaudron, Gummow and Hayne at page 295, paragraph 48, the issue is addressed.

So, in substance, their Honours indicated well, it does not arise in this case unless the applicant wins on his other arguments, and he did not, so it was in the context that leave was not given. So we would submit this case does not stand in our way, but there are some relevant passages worth noting. In the first plurality judgment of Chief Justice Gleeson and Justice McHugh, if I could turn to page 284, first, paragraph 6, in the last six lines:

Yet trial by jury, as a mode of criminal procedure, has changed substantially over the centuries and continues to change –

and down to the end of the paragraph. So it is very much an evolutionary – a dynamic notion.

BELL J: The concept of what amounts to trial by jury is recognised to be one that has changed over the course of the last century or more, but that is not a matter with which we are concerned in this argument.

MR KIRK: I accept that as a partial answer, but with this partial response, if I may. It is true that our argument goes further necessarily than saying this is some different form of jury trial because, let us be frank, it is no jury trial – I accept that. But we still would seek to place it within the dynamic course of evolution of the notion of jury trial because it is not, in our respectful submission, a substantial departure from the system of jury trial - - -

BELL J: To not have a jury trial?

MR KIRK: To not have a jury trial. It is only in exceptional cases where the interests of justice would indicate that it is more in the interests of justice not to have a jury trial in this particular case, so it is very much an evolution in the sense of accepting with the benefit of 2016 eyes – actually, in some instances in 2016 to have a jury trial tends against achieving the purpose of section 80.

KIEFEL J: How can you say the interests of justice are served when section 132(2) applies, which obliges the Court to make a trial by judge order if the accused and the prosecutor agree?

MR KIRK: For our part, for the applicant, we accept that that is harder to justify than section 132(4). I say for our part – of course, the Crown, I think it says very much in the alternative, would prefer to support 132(2) over 132(4). That said, we still do seek to support 132(2), albeit our primary case is directed to (4).

KEANE J: But section 132 is a package, surely? You cannot pick and choose. It must operate as a package.

MR KIRK: We would respectfully submit not, your Honour, because there are those three different pathways and they are quite different routes and they can operate independently. In fact, the very premise of the 132(4) pathway is that the prosecutor has not agreed, which would be the 132(2) pathway. Of course, the third pathway, which is not directly before the Court, does not depend on the consent of either party, so it is not the consent of the accused because implicitly it may be the conduct of the accused which leads to the concern about there being a jury trial in his or her associates.

To come back to your Honour Justice Kiefel’s question, we do seek to support the 132(2) route, taking account of the fact that there is an opposing interest to that of the accused. It is not simply a waiver – that opposing interest is the prosecutor. That prosecutor represents the State or community interest in prosecuting the offence and, furthermore, the prosecutor owes duties of fairness, a point given some emphasis by the plurality in Emmerson, and we have given a reference to that in our submissions, at paragraph 52.

We also draw to account that there is some ultimate executive accountability for such decisions. So taking all that into account we respectfully submit there is sufficient protection of all interests and purposes sought to be achieved by section 80 with that route, but we still recognise that it is a little more out on the spectrum than the 132(4) route.

GORDON J: But can you just explain one matter to me? The proposition you have at paragraph 2 talks about “exceptional cases.” What does that mean?

MR KIRK: It recognises that the possibilities opened up by section 132 are meant to be exceptional. As to where one draws the line on that – and there is obviously no clear, simple dividing point – the cases that have dealt with the application of these provisions in New South Wales, Western Australia particularly and also Queensland, which all have the interests of justice criterion, do build in a recognition that the starting point is a jury trial and persuasion is needed to the contrary.

GORDON J: The problem with that submission is that it is tied back to the interests of justice. It does not answer the other provisions within 132 that extend beyond that concept.

MR KIRK: Well, in a sense, that comes back to the submission I was just seeking to make that the primary route we seek to support is the interests of justice route, via 132(4). We also seek to support subsection (2), but we recognise that is a little bit further out on the spectrum, if I can put it that way, your Honour. Coming back to Brownlee - - -

FRENCH CJ: I am sorry, before you begin, can you just explore a little further the criterion of exception to the “shall be by jury” and so forth. One can imagine a sort of cascading set of alternatives in the Commonwealth law. One might be waiver by the accused and be sufficient to authorise trial without a jury. Another might be waiver by the accused, with the agreement of the prosecution. Another might be waiver by the accused or application by the accused, for that matter, with the agreement of the prosecution and/or the approval of the court. Do you say that any of those alternatives fit within or are capable of being fitted within the class of exception that you have in mind?

MR KIRK: We respectfully submit that the latter two can, they being the two that are in issue before the Court.

FRENCH CJ: If the latter two, why not the first?

MR KIRK: I hold no brief either way, for or against the first - - -

FRENCH CJ: I am just looking at the logical implications of the criterion you are applying to say the latter two are all right.

MR KIRK: No, no. I accept that and I am seeking to deal with that. The obvious issue or difficulty with the first of your Honour’s options, being section 7 of the South Australian Act as considered in Brown, is that it leaves it entirely within the remit of the accused who may be presumed, particularly if legally advised, to know his or her own interests best - no doubt about that. But it does not take account, as the majority indicated, of the broader – let us call them public and community interests, structural interests in having a jury trial. That, in a sense, is the fundamental difficulty with that first route.

FRENCH CJ: Does this involve some sort of implicit balancing?

MR KIRK: I am not sure it quite involves balancing but the mechanisms provided for in section 132, particularly the subsection (4) one, ensure that it is only in exceptional cases that the issue is dealt with and ensure that it is only after persuasion that all relevant considerations, including the broader public and community interests in a jury trial, are duly taken into account. Does that involve balancing? I suppose, perhaps, insofar as any assessment of the interest of justice requires taking account of a whole range of factors.

FRENCH CJ: I suppose I am not balancing in the actual decision-making process but implicit in the design, if you like, of the legal – of the statutory criterion for trial without a jury, a mechanism for – does it have to involve a mechanism which recognises both the individual and the public dimension.

MR KIRK: I think the answer to that is yes. There is such a mechanism, or two such mechanisms here recognising what I have said about one perhaps being stronger than the other. That, as I have said, is a key distinguishing feature from what was considered in Brown. Brown, of course, considered section 7 which was introduced in 1984 and that was the first – the South Australian provision was the first such provision to allow it in Australia in modern times and that was followed by New South Wales in 1990 with a slightly different model and this model has been in place since 2010.

BELL J: The dissentients in Brown identified this as a guarantee of a nature that was personal to the accused for the reason that you suggest in your paragraph 37(a). So that was the purpose that the dissentients saw. Taking that into account, and viewing it as a purely personal guarantee, it was open in what I might describe respectfully as conventional reasoning to say waiver can apply. You do not embrace that.

So you do not embrace the reasoning of the dissentients. You accept that informing the purpose for this guarantee is also consideration of little (b) – the structural community interest, if I can put it that way. Accepting that that informs section 80, you then have a guarantee cast, on the face of it, in clear terms of section 80 that a judge measuring notions of the interests of justice in an individual case can say is put at nought.

MR KIRK: No, your Honour, not put at nought, but not applied in the particular case. If I could step aside from Brownlee – I will come back to it – but take your Honours to page 5 of our written submissions, paragraph 22 of our primary submissions, we have sought to draw out factors that have been taken into account, particularly in New South Wales and Western Australia, in exercising this power and they are ones that will not surprise your Honours.

So, first, “adverse prejudicial pre-trial publicity”, which no doubt would also pick up general issues of prejudice; “the value of reasons for judgment in ensuring fairness and facilitating an appeal”; “whether the case involves complex expert evidence”; “the likely length of the trial”, and that is important because it is - and Chief Judge McClellan made clear in Belghar, if I recall correctly, it was not because it was a concern about saving pennies, nor was it concern about administrative efficiency. It was because the longer the trial, one gets into issues of juror frustration and disengagement, which itself is antithetical to the administration of justification.

Over the page, “the inherent value of trial by jury” is taken into account, and that would be particularly so if it was a Commonwealth offence where section 80 applied where the constitutional context would have to be taken into account in making the assessment. “Issues of credibility” militate against a judge alone trial; and in g. we note the Western Australia Court of Appeal has spoken more generally about receiving “a fair trial according to law”.

We note in our reply in paragraph 2, and we have provided to your Honours the extract, a Western Australian Law Reform Commission discussion paper which assessed all cases in Western Australia in 2008 for what they call the superior courts which picks up the Supreme Court and the District Court, I believe, in Western Australia, and of the 579 criminal cases which went to trial in those two courts in 2008, 11 were the subject of judge alone trial following an exercise of power. So, in the way it has been applied even in the State sphere without the significant weight of section 80, is to treat it as exceptional and we would not suggest anything less in relation to being picked up - - -

BELL J: But the point I am raising with you is that once one moves from a notion of the capacity to waive a personal right, albeit a constitutional one, on what basis does – I withdraw that. You then face a difficulty in terms of the text. You substitute for the mandatory terms of the text the judge assessing in the interests of justice on this occasion there should be no jury trial, notwithstanding your argument accepts the structural reasons as informing the guarantee. That is a recognition that there is seen to be a public value in the contribution of the jury, regardless of the wishes of the accused, to the administration of justice.

MR KIRK: It is true that then stands in the face of the text, but no more so than does an interstate truck driver who is required to comply with Queensland law when he or she drives in from New South Wales and says, “But hang on, what about absolutely free?” and that may be, even though it imposes some kind of a prima facie discriminatory burden of a protectionist kind, but is sufficiently justified to achieve some environmental or so forth end. So the text is not an ultimate answer.

As to the circumstances justifying the departure, we do seek to put it very much in terms of where to require a jury trial would be to tend to defeat and undermine the very purposes which section 80, construed in broader context, seeks to achieve and I might use that to take me back to Brownlee, if I may, just picking up on some of the key points.

Page 288, so this is in 207 CLR 278, your Honours, paragraph 21, still in the first plurality judgment, there is a reference to the function of jury trial and adopting a functional approach which we understand to be a purposive approach and then their Honours quote from Justice White in an American decision and your Honours will note that first six lines about preventing oppression, although then also picking up community participation and then over the page at paragraph 22, it is plain their Honours accept that as giving some guidance to the Australian context.

So it is not just, for example, the dissentients in Brown who give emphasis to the liberty interests, as we have called them at section 80. Paragraph 27 on page 290, their Honours refer to the importance of being capable of adapting to new circumstances and:

varying social conditions and methods of communication -

which takes me back to a point I made earlier about dealing with that matter from 2016 eyes, at least in significant part, not just from 1900 eyes.

The second plurality judgment of Justices Gaudron, Gummow and Hayne commences the next page 291. At paragraph 34 their Honours quote from Professor Scott, writing in 1918 in the Harvard Law Review - we quoted this in our written submissions, but it makes the point powerfully about the constant evolution of the jury trial. Professor Scott goes on to say, in I think the last sentence or two of his article, and we have quoted it at paragraph 50 of our submissions, your Honours need not go to it, that if the:

institution of trial by jury is to survive . . . it must be capable of adaptation to the needs of the present and of the future.

We would embrace that statement. Also in the second plurality at page 298, your Honours, paragraph 54, first sentence after referring to American case law, their Honours say:

This distinction between the essential and the inessential has been drawn by Cheatle into the constitutional doctrine respecting s 80 of the Constitution . . . Classification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves.

Just coming away from Brownlee for a moment, there is a statement later in Ng’s Case which we pick up in our written submissions at paragraph 38 on page 10 where five members of this Court in Ng’s Case in 2003 indicated the essential features of the section 80 requirement:

are to be discerned with regard to the purpose which s 80 was intended to serve and to the constant evolution, before and since federation, of the characteristics and incidents of jury trial -

Coming back to Brownlee at paragraph 55, there is another extract from Professor Scott in terms consistent with what I have already put. Then, if your Honours jump to page 303, paragraph 69 – this is kind of a side point for the purpose of our argument but worth noting – fourth line:

It may be accepted, as was urged by the Attorney-General of the Commonwealth, that trials in the nineteenth century tended to be much shorter that is so today. This reflects not only the increased complexity of the substantive issues to be tried but the expansion of procedural rights favouring the accused. If, in the circumstances under consideration, a fresh jury must be empanelled, this has consequences not only for the public purse, but also for the individuals involved.

That leads back to the point – not the public purse point – but the danger of long trials leading to jurors simply becoming overwhelmed or disinterested in what is going on.

GAGELER J: Mr Kirk, is it an unfair characterisation of your argument to say that it goes something like this? The purpose of section 80 is to promote the public interest in the administration of justice. It has no operation in circumstances where a judge can determine that its operation would not be in the interests of justice.

MR KIRK: I would add a little to that – if I can go back to your Honour’s first premise. The purposes of section 80 are to help achieve the liberty, act as a protection of the liberty of the accused by interposing citizens – I use the term loosely – between government and the accused and to serve the interests of the administration of justice in a range of particular ways.

Where the accused considers it is not in his or her interests for a jury trial and may indeed be prejudicial to his interests and where, in particular, a court has determined that, yes, the interests of justice would not be served by a jury trial, in this particular case, in light of the facts presented to me, then the purposes of section 80 do not require a jury trial in this case and construed in the broader context of Chapter III, it would be antithetical to Chapter III to require – even given the clear words of section 80 – a jury trial – where it defeats the fundamental underlying objective of Chapter III to facilitate the achievement of justice by exercise of the judicial power of the Commonwealth.

GAGELER J: While I have detained you, your argument, understandably, focuses on the first clause of section 80. How does it apply to the second?

MR KIRK: I am only focused on the first clause of section 80. I recognise the second clause and, I think, the third uses the word “shall”. But different purposive considerations arise here. I know that is setting to put aside but I do have some good authority to assist me there. Your Honours will recall in Cole v Whitfield another part of the steps in reasoning was to say, the intercourse aspect of the guarantee raises different considerations even though it is actually part of the same phrase and we need not let that deter us from reconstruing the trade and commerce aspect of the guarantee. So the simple way is to say a whole range of other issues arise there and they are not before the Court.

KEANE J: So that the effect of what you are saying is that section 80 should be understood as providing that there shall be trial by jury, except where a judge decides there shall not.

MR KIRK: Except where to require trial by jury would be antithetical to the interests of the administration of justice, as determined by a judge.

KEANE J: As determined by a judge. What section 80 does do is indicate that the Parliament can decide that there will not be a trial by jury. So there is, within section 80 itself, the recognition of the possibility of a guarantee not applying and the decision whether or not the community, via the jury, be involved in the trial is a matter for the democratic arm of government. Why would one not accept that that is deliberate and exhausted?

MR KIRK: Can I make a few submissions drawing upon that, and your Honour is bringing now into discussion of course what might be called the Isaacs’ view or the Archdall view, repeatedly reaffirmed by this Court, namely, that when section 80 says there shall be a trial by jury on indictment, it means if there is an indictment it does not require there be an indictment even for serious offences and so forth. You will know there are some notable dissentients to that view.

First, in relation to the democratic points your Honour has made, as captured in my exchange with your Honour the Chief Justice near the beginning, in effect, we could be talking here about a Commonwealth law. As it happens we are talking about a State law but one the Commonwealth Parliament has facilitated, subject to this argument being picked up. So it does not matter if it is Commonwealth or State. That is an expression of democratic choice. That is the first answer to your Honour.

The second answer is that it is, in our respectful submission, a very strange result, bearing in mind that section 80 does have the structural community side but also, fundamentally, is driven by being a protection for the accused. It is a strange result, in our submission, that the Parliament can determine whether or not it is tried by indictment or not; that Parliament can give the discretion to the prosecutor; the Parliament could give the discretion, as it has done, in effect, to a combination of the prosecutor and the defence because the indictable offences can be tried summarily or not. The Parliament could conceivably give the choice to the defendant to say well, let us say the process is started by – let us call it a court attendance notice - and then you have a pre-trial directions meeting before the judge at which the accused says, “Well, I opt to go for an indictment route, that way, or stick with a court attendance route, that way.”

All of that indicates the guarantee is turning on matters of form and that is fundamentally inconsistent, in our respectful submission, with the approach of this Court in the last 30 years since Brown. It is a very odd result, in our respectful submission. So we do rely on that aspect of – let us call it the Isaacs’ proposition.

My argument does not, however, depend as a necessary step on acceptance of the Isaacs’ proposition. Indeed, if the contrary view is adopted – and I am not, at least not currently, holding any brief for that – that too would support our construction, in our respectful submission, because to adopt the contrary view, however it is put and there are some differences in how it is put, is to accept that this is a fundamental guarantee of individual liberty so important that the Commonwealth cannot circumvent it by drafting techniques, and that is to emphasise the liberty-protecting purpose.

Without taking your Honours to it, it is actually brought home very nicely in a contrast between the way Justice Dawson expressed it in Brown and the dissentients expressed it in Lowenstein. In Brown at page 208, without going to it, Justice Dawson said, consistent with a regular theme of his Honour, the Constitution is not concerned with individual rights or interests in general and this provision, section 80, establishes jury trials as part of the structure of government, and then refers to, well, but there may be other views - see Justices Dixon and Evatt and so forth.

Justices Dixon and Evatt in Lowenstein indicate conversely, yes, the Constitution is largely not concerned with individual freedoms, but there are exceptions and section 80 is prominent amongst them. So, as I say, I am not seeking to put that dissentient view but, even on the dissentient view, it too would support, in our respectful submission, the construction we now seek to put.

KIEFEL J: Justice Dawson perhaps more so than other members of the Court in Brown took the approach – put the case more squarely in the context of Chapter III. Viewed in that light, section 80 could be seen as a reservation from judicial power, could it not?

MR KIRK: It can be. One can express it in different ways as a reservation from judicial power, at least as exercised by judges, of course as a sharing of judicial power. There is no doubt – and I think Justice Gaudron put this in Cheng actually around paragraph 79 or 80 – it is a limitation on judicial power and legislative power. The question - - -

KIEFEL J: I suppose the distinction could be whether that is simply the result or the purpose.

MR KIRK: That is right. The question then is, is it such a restriction on judicial power as to prevent this type of exceptional provision, and that is the issue at the heart here and that comes back to analysis of purposes and context, and so forth. In relation to Brownlee, Justice Kirby would have departed from Brown. I will not take your Honours to it, but that is paragraphs 114 to 120 of his Honour’s judgment. Can I go briefly to the other case I mentioned, Cheng v The Queen?

FRENCH CJ: When you call it a restriction on judicial power that does not involve any suggestion that a jury is exercising judicial power?

MR KIRK: There has been some suggestion in academic writing, I think.

FRENCH CJ: I know.

MR KIRK: But that might be one way of seeing it. It is no part of my argument to make that radical suggestion; put it that way.

FRENCH CJ: Yes.

KEANE J: And Justice Kirby’s dissent is to support the minority view in Brown?

MR KIRK: Yes, your Honour.

KEANE J: Not some broader notion?

MR KIRK: No.

KEANE J: It is very much the American notion of a guaranteed individual right?

MR KIRK: Yes.

GAGELER J: Your argument gets no support, as I understand it, from the American cases.

MR KIRK: My first answer is I am going to leave the American cases to my learned friend, but I will then seek to answer your Honour’s question. No, we do not accept that and, without wanting to – I am very conscious of the time, your Honour, so I do not want to go to them. But as Justice Dawson pointed out in Brown actually, when one reads the American cases, although it is put in terms of an individual right, it is also notable that they do bring out broader structural and community interests and, indeed, that leads the Court in that line of authority to actually have the tripartite aspect that it is the accused, the prosecutor and the court which must consent. So in fact the American case law is not just one-dimensional, as no doubt my learned friend may bring out.

In relation to Cheng, the issue in this case was an attempt to overturn Kingswell, dealing with sections 233B and 235 of the Customs Act – again, a different issue. The finding by five members of the Court, all except Justices Gaudron and Kirby, was that leave to reopen Kingswell should not be given. Her Honour Justice Gaudron would overturn Kingswell. In substance, therefore, her Honour’s judgment is a dissenting one, albeit not strictly dissenting because her Honour was not persuaded it would have made any difference on the facts. Justice Kirby did dissent.

In the plurality judgment of Chief Justice Gleeson, Justices Gummow and Hayne at page 270, I just wanted to draw to attention that paragraph – paragraph 57 – the fourth line on page 270:

If anything, recent developments in relation to criminal trial practice in State jurisdictions which handle the greater part of the administration of criminal justice, might be argued to tend in the other direction.

There is a reference to Brown. Then jumping a sentence:

In a number of State jurisdictions the trend has been to give persons accused of indictable offences the right to elect to be tried by judge alone, at least if the prosecution consents. This is a right of which a significant number of accused people, charged with serious crimes, take advantage. In the area of commercial fraud (an area which would be of particular importance if the regulation of the conduct of those concerned with the management of corporations were to become a matter of Commonwealth law), the capacity to prosecute some serious offences summarily, at least with the agreement of the accused, can contribute, on occasion, to the more effective administration of justice.

This, of course, was written in 2000, a year before the Corporations Act was introduced. If I can come to her Honour Justice Gaudron’s judgment which, as I have indicated, in substance is a dissenting one but which I seek to address as being the high point of the statement of the community and structural interests in relation to section 80 and so it is something I need to grapple with, her Honour’s analysis starts at page 276 – really at 277.

In paragraph 77, her Honour seeks to equate section 80 with sections 92 and 117 as a “constitutional guarantee”. In section 79, her Honour makes the point I made a couple of minutes ago in response to your Honour Justice Kiefel that it is a restriction on the exercise of judicial power. Section 80 - her Honour then deals with the purposes. The first sentence is the first of the purposes we have articulated. Her Honour then goes on to articulate the community or structural interests, importance to the rule of law, enhances respect for the judicial process and the judiciary:

if the determination of criminal guilt is left in the hands of ordinary citizens –

and not potentially remote judges:

The participation of the people . . . provides a basis for community acceptance of verdicts in criminal trials and, more broadly, an understanding of the judicial processes -

and then picks up on a point made by Justice Deane in Kingswell about if you are required to explain it to 12 lay people, it is a stick to try to make the law and its application comprehensible both to the accused and to the broader public.

Now, as I have put already, we do not seek to deny that these purposes may be also attributed to section 80, but most of them will not be achieved but will be impeded – not necessarily all of them, but most of them will be impeded if, in the particular case, in the particular facts, to require a jury trial would be antithetical to the interests of justice. It does not serve the rule of law. It does not ensure respect for the judiciary. It will not make any significant difference to the design features of the criminal law having to be explained to the public because the law will still be designed with the jury system in mind.

It is true that it does mean the citizens are not involved in the determination of the particular facts in the particular case – I, of course, accept that. But that also has to be seen in a context that the great majority of criminal disputed cases are not determined by juries in Australia, they are determined by magistrates in local courts. So, whilst that is not to undermine the significance of, to some extent, involving citizens – to a significant extent, particularly for serious matters – it cannot be said it is the general regime in this country and nor has been for a long time. In paragraph 82 her Honour refers to:

The importance of jury trial to the individual and to the judicial system renders it imperative, in my view, that s 80 be approached in the same manner as . . . recognised - - -

for other guarantees. Her Honour was not, obviously, directed to the argument I am putting but we would embrace that very notion as relevant to what we do put. As I have sought to articulate already, I think, the consequence of the majority decision in Brown is actually to prioritise the community interest over the individual interest where even the community interest is not actually going to be achieved in the sorts of circumstances I have outlined but will be impeded.

Over the page, at page 279, last sentence of paragraph 83, her Honour indeed emphasises having gone through those broader community and structural interests, nevertheless it is very much about protecting individuals as well. Justice McHugh took a somewhat difference approach from the plurality in relation to overruling in Kingswell in that he actually reconsidered it and decided he was not persuaded to overrule Kingswell, in contrast to Justice Kirby.

If I can take your Honours briefly to page 291, paragraph 126, his Honour has a heading “The literal meaning of s 80 accords with its purpose”, and here his Honour is directed not to the current issue but to the Kingswell issue about whether if the statute provides for different levels of penalty, depending on quantity of narcotic goods, that factual issue needs to be determined by the jury as part of a different offence. His Honour says:

The literal meaning of s 80 is very clear . . . It is always legitimate to give a constitutional or statutory provision a meaning which will give effect to its purpose even if that requires a departure from its literal meaning. It is legitimate even if it requires giving the provision of strained meaning –

and a reference to his Honour’s judgment in Kingston v Keprose in the New South Wales Court of Appeal. But his Honour says on the particular issue before him he is just not persuaded to depart from the literal meaning. Over at page 298 of his Honour’s judgment, paragraph 149, we draw to attention – not that it is radical at all; it is a very standard aspect of constitutional interpretation – but his Honour says, with respect, correctly:

Unsatisfactory consequences cannot alter constitutional meanings but they should make us hesitate before adopting the meaning of a constitutional provision which is contrary to its text, history and purpose.

Then, at 150, a passage we have referred to, noting, as his Honour concludes over the page:

To some accused, trial by jury is not a boon.

That is all I wanted to say, your Honours, about Cheng. We also, as I have foreshadowed, seek to draw this more broadly into the structure of Chapter III - if I can take your Honours briefly to Hogan v Hinch (2011)
[2011] HCA 4; 243 CLR 506 at 552 in the plurality’s judgment, and if I can draw paragraphs 86 and 87 to your Honours’ attention.

The propositions, relevantly, we seek to draw from those two paragraphs are that the purposes of Chapter III are directed to doing justice. That is not to suggest to you, forget the words and so forth, by reference to some general purpose but nor, in construing the words, do you lose sight of that general purpose.

The Court has recognised in Dupas and in many, many cases that it is possible for the Court’s processes to become instruments of injustice and the Court has means to deal with those – stay, contempt and so forth. We respectfully submit that the exceptional power in 132 is of a kind with those exceptional powers and that one takes significant account of this underlying, motivating principle.

In relation to stays, as your Honours well know, permanent stays in particular, for issues of real prejudice, are very rarely granted. Your Honours would recall that Chief Justice Mason and Justice Toohey in Glennon, referred to in Dupas, spoke about, I think, only extreme and singular cases would justify it.

Glennon, without taking your Honours to it, is also worth revisiting because it illustrates that on appeal where someone complains about serious prejudicial publicity the Court is very reluctant to accept such an argument, unless there is a serious possibility of error. I might actually take your Honours briefly to Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 to 606 to illustrate that point. At the bottom of 605 in this plurality judgment, right at the bottom:

And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial.

Justice Brennan touched upon it also in the majority at page 613, in the paragraph beginning at about point 3, having referred to some earlier formulations. His Honour says:

From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesi there is a real risk of prejudice . . . Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant.

That illustrates, in our respectful submission, first a balancing of relevant interest but at the potential cost of a fair trial as his Honour expressly acknowledges.

FRENCH CJ: What aspects of section 132 add to the characterisation of “exceptional” that you attach to the authority to make laws which provide for trial by judge alone?

MR KIRK: Because it may only be done on the primary route where that is in the interests of justice because that criterion as your Honour actually explained in Hogan v Hinch about an equivalent criterion of public interest, must be construed in the context of the statute and in the context of the Constitution and the context of the Constitution starts with section 80 and no departure from section 80 could likely be accepted because the prima facie position is that the interests of justice require a trial by jury.

GAGELER J: Why did you take us to Glennon?

MR KIRK: Because in part the Crown puts against us, look, in cases of serious prejudice and so forth, there can be a permanent stay. We say the analysis in Glennon which is referred to in Dupas and many subsequent cases, illustrates that it is no panacea; that a stay is very rarely granted, then in rarely granting those stays we accept that there are risks to fair trials and another way of taking account of and ameliorating those risks in particular circumstances may be the 132 route.

To put it another way, a permanent stay, very rarely granted as they are, is not an alternative means of achieving the purposes upon which we seek to focus, at least not adequately. Furthermore, a permanent stay, as this Court noted in Dupas, picking up on what your Honour Justice Nettle had said in the Court of Appeal, I think – a permanent stay itself comes at the costs of the administration of justice because it frustrates the prosecution of an alleged offence, and so that too has its costs for the administration of justice facilitated by Chapter III.

GAGELER J: So the interests of justice referred to in section 132 involve some sort of lesser threshold than the interests of justice that would support a permanent stay?

MR KIRK: Yes. That said, section 132 can also pick up a range of other interests. It could even – in fact, the New South Wales Parliament has provided what I have identified as the third pathway, namely where there is, inter alia, a risk of jury tampering or there is evidence of jury tampering. But if that had not been provided for, that could have been an example picked up by the interests of justice, and that would be another example where the purposes of section 80, the purposes of Chapter III, would be undermined by strict adherence to the textual direction.

BELL J: That analysis, notwithstanding the apparent guarantee, an accused who sought to be tried by jury but in respect of whom there was a credible allegation that someone had endeavoured to tamper with a jury member, might be tried by judge alone notwithstanding that the accused did not seek that.

MR KIRK: Possibly. That said, that is not before this Court. I have thrown it up as an example, so - - -

BELL J: But your argument embraces that it - - -

MR KIRK: It does. But to also be clear, if I may, your Honour, that would be very much exceptional where the consent of the accused is not needed. It comes back to my answers to your Honour Justice Gageler near the beginning. Under 132 the consent of the accused is needed for the first two pathways. We would also submit it must be there, because otherwise you would not be achieving that first liberty protecting purpose of the guarantee. But this particular third category of exceptional case might be its own exception with its own justifying purposes.

That leads me, having spoken about Chapter III, to mention the significance of this Court’s decision 10 years after Brown and Kable. In our respectful submission, that decision self-evidently has thrown significant new light on the operation of the Constitution relating to courts. Relevantly, and fundamentally, it serves to protect the institutional integrity and independence of State courts, including such that they remain fit repositories for exercise of the judicial power of the Commonwealth.

That being so, if there is to be a judge alone trial there is, if ever there was not, a high degree of confidence that it will be conducted by a person independent of the Executive, which serves all the purposes of section 80 – liberty protecting and the broader - well, perhaps nearly all the - most of the structural aspects.

The Crown raises against us a concern about involving courts in matters of controversy either in deciding the issue of the interests of administration of justice or in determining the facts if they have a judge alone trial. As we have noted in our reply, one of the very purposes – perhaps again a retrospectively attributed purpose – but one of the very purposes of the separation of judicial power is to create an independent judiciary capable of dealing with matters of controversy, whether between subject and subject, government and government or subject and government, as was brought out by the plurality in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, and indeed was referred to in Boilermakers, if I recall correctly.

Further, the submission of the Crown does not accord with the lived experience in Australia where the great majority of disputed criminal matters, as I have already said, are determined by judicial officers. The Crown’s submission fails to take account of the range of ways judges are involved in administration and resolution of criminal matters, determination of issues going to sentencing as upheld in Kingswell and Cheng, sentencing itself, as your Honours well know, often a matter of intense public controversy in Australia, and the Crown has not suggested, and could not suggest, that the fact that five of the eight States and Territories allow judge alone trials for serious matters has undermined the administration of justice.

FRENCH CJ: Your argument though would be no different if we were talking about a Commonwealth law relating to the trial on indictment of these offences in a federal court created by the Parliament.

MR KIRK: I am sorry, your Honour, could you just repeat that for me?

FRENCH CJ: If we were dealing with a federal court, not a State court, and a Commonwealth law rather than in the form of section 132 - - -

MR KIRK: It would make no difference. Yes, that is very much part of the argument. The final issue on which I wanted to touch is Brown, but noting the time and also aware that my learned friend, Mr Gleeson, will also be going through Brown - I had intended to go through Brown but I might now leave that to my learned friend, and the points I wanted to make about Brown, subject to the summary I will shortly give, are very much ones that have been exposed in argument.

I would not want it to be thought, however, I am not paying due respect to a judgment of the Court by not going through it; I am simply recognising my friend will do so. Obviously, however, let me put it this way. Your Honours would appreciate, we respectfully submit the majority decision in Brown is not binding on the issue here.

The issue in Brown, and the question framed for the Court, as removed into the Court, was about the right of the accused to elect simpliciter under section 7 of the Jury Act. It was that issue which was determined, and as In Re Judiciary Act teaches us, new facts, new legislation throws new light on the issues and that is what has happened here, in our respectful submission. That said, we accept majority statements in Brown stand in our way; I do not seek to deny that.

Whether or not thus strictly your Honours treat that as a binding precedent or not, we do respectfully submit that those broader statements of principle should not be followed. As we have set out in our outline, first, we respectfully suggest the majority have taken an unduly literalistic approach, with great respect, which is not consonant with the last 30 years of development in relation to constitutional guarantees, that it does give undue emphasis to the state of legal play as at 1900 where trial by jury has always been a dynamic institution, where the development of Kable has made a very significant difference to the constitutional landscape.

The Brown majority decision does not, with respect, rest on principles worked out in a stream of authority. It was a distinct and new issue raised by the 1984 law reform of South Australia. It was decided by a 3-2 majority of this Court and the reasoning of the majority has somewhat different emphases in different places as to purposes and so forth. It does give rise, in our respectful submission, to potential absurdities and inconvenience, to pick up the language of the cases. I am not seeking to be pejorative.

GAGELER J: What are the absurdities?

MR KIRK: That at least so long as the Isaacs’ Archdall proposition remains good law it (a) treats this issue as very much a matter of form, (b) a matter of form which puts all the power in the Parliament and none of the power or the ability to make relevant decisions in the people who are supposed to be protected by the guarantee – not as the sole purpose but as a fundamental purpose.

BELL J: I am not sure that that argument really, in the first limb – that is, the reference to Archdall and the suggestion that it is a matter of form – really takes account of the observation of Justice Dawson at 215 in Brown where his Honour observes:

There has, however, been nothing in the Australian experience [thus] far which would put the limits –

of the Archdall analysis -

to any severe test.

It is in that context that one might see the operation of the provision, not quite as a matter of form.

MR KIRK: That may be right, your Honour. With any wisdom up that way, the issue will never come before decision in this Court and that wisdom has so far been shown – Lowenstein, perhaps, being arguable, partial exception. In any event, as I have sought to put, I have sought to make clear that although we do draw Archdall in aid as one part of our argument, it is by no means a necessary step in our argument and so, we would respectfully submit, acceptance of our argument does not put a further bit of concrete on the wall of that particular issue.

Next, the sixth point. It is not the case that governments have acted in reliance on the Brown decision in the way that, for example, concerned your Honours Justice Keane and Gageler in the Northern Australian Aboriginal Justice Agency Case about separation of powers in the Territories. On the contrary, the legislative trend has been the other way in the States and Territories.

Finally, for a constitutional guarantee, in particular, this Court should be more ready, in our respectful submission, to look afresh at an issue, particularly taking account of the last 30 years of developments. Unless I can assist your Honours any further, they are our submissions.

FRENCH CJ: Thank you, Mr Kirk. Yes, Mr Solicitor.

MR GLEESON: Your Honours, the structure I proposed for the Attorney-General for the Commonwealth submissions is this. The construction issues have already been outlined. First, I want to deal with whether Brown can properly be distinguished or whether the Court is considering an application for reopening Brown. Then, whichever framework one is under, there are four topics that we wish to raise in respect to our challenge to Brown as a matter of ratio or important statement of principle.

The first topic is an argument which the Court has not yet heard which is a textual argument that the command in section 80 is not triggered unless and until all of the conditions specified by Parliament which bear upon whether there “shall be a jury” have been worked through. If that submission is sound, then the word “shall” has its mandatory force and has the same mandatory force each time it appears in section 80. So I will develop that first, if I might.

Our second submission concerns what should be made of the history, in particular, that there is strong evidence in the United Kingdom and the Australian colonies, as well as the United States prior to and post 1900 of Parliament specifying mechanisms which would see the issues in criminal justice determined without a jury.

We have described them as prescriptive and elective. It is the elective mechanisms which, in particular, bear upon today’s argument because we would wish to submit that section 80 allows for those elective mechanisms and that the current provision section 132 is but a modern example of such an elective mechanism and it is also consistent with section 80.

The third topic which Mr Kirk has made some submissions on is if one treats the world as other than binary and focuses not simply on a rights-based view of section 80 or a pure community-based view but sees section 80 as serving both purposes then does that allow Parliament to designate a provision like section 132, and the final topic are some observations on the US experience which we would submit is relevant and supportive of Parliament’s ability to pass a provision like section 132.

FRENCH CJ: I think you can take it, Mr Solicitor, that we are obviously entertaining argument as to whether Brown should be reopened and overruled and we note your arguments are addressing that question.

MR GLEESON: Thank you, your Honour. I make the argument that it could be distinguished for the reason in paragraph 2 and I move straight to the four substantive challenges. As to the first challenge, could I ask the Court to go to Justice Brennan’s judgment in Brown [1986] HCA 11; 160 CLR 171 at 193 to 194, point 5. This is to identify the common ground in Brown that we seek to put a different perspective on.

What his Honour analysed through the framework of the statutory provisions was that the accused in Brown was charged on an information. He was arraigned before a judge of the court, he pleaded not guilty and at that point under a provision of the South Australian statute, which is the equivalent to section 154 of the current Criminal Procedure Act (NSW), he was taken to have put himself upon the country for trial and the court is to proceed to his trial in the usual manner.

Justice Brennan then referred to section 7 of the Juries Act 1927 (SA), and I might observe the extraordinary breadth of section 7. The effect of it was that an accused could elect in any trial on an indictable offence for judge alone trial with no mechanism for the court or the prosecutor to be heard on the question. The effect of section 7 in South Australia is that the extent to which there will be any trial by jury in criminal matters depends upon the decisions made by accused from time to time with no mechanism to involve the community interest in trial by jury.

Going over the page, at about points 4 to 5, his Honour records the submission of the appellant that he was entitled to waive his right to trial by jury despite section 80 and he had done so and then records:

It is common ground that the trial of the appellant upon his pleading to the information was to be a “trial on indictment of [an] offence against [a] law of the Commonwealth” for the purposes of s. 80 of the Constitution but it is in contest whether the constitutional guarantee of trial by jury could have been waived by the appellant –

Now, that common ground is the position which Mr Bromwich puts before you as the correct starting point in his written submissions, particularly in paragraph 36, and the effect of that is that in the present case once Mr Alqudsi was arraigned the first time before the court and pleaded not guilty and section 154 said what it did, section 80 cut in and assuming the matter proceeded to a trial – that is, assuming issues of fact remained to be determined – they had to be determined by a constitutional jury.

We challenge that common ground on two bases. The first takes up a question which Justice Keane raised with Mr Kirk which is that on accepted authority section 80 permits the Parliament to decide, as your Honour put it, that there should be no trial by jury and in that sense section 80 permits the Parliament to decide whether there shall be community involvement in the fact-finding process of a criminal trial. We accept those two premises of your Honour’s question.

The critical step is really the next one, which is whether section 80 allows Parliament the ability to specify conditions which will determine whether the community is involved, being conditions that apply after the arraignment and the plea of not guilty, as well as before. Now, I put it that way because Mr Bromwich makes no challenge to Parliament’s ability to specify within the summary side of the procedure that a decision will be made for a matter to proceed before judge alone rather than judge and jury. That is clear from his written submissions between paragraphs 20 and 24.

The question is whether that flexibility which Parliament has which will determine whether the community will be involved in the trial, as it were, runs out once the summary side of the procedure is exhausted, or indeed, whether it runs out at the point of arraignment and plea of not guilty.

One could test that by modifying the legislative scheme and to take up your Honour the Chief Justice’s framework of simply a federal statute, if a federal statute provided that where a person is committed for trial before the person is first arraigned and called upon to plead, the person may make an application for a judge alone trial, and the court will determine that under certain conditions, then one would not have in Mr Bromwich’s historical world what appears to be his commencement of the section 80 command, namely the arraignment – the plea of not guilty and a provision like section 154.

Now, we would submit that would give some point to the question and this is, to take your Honour Justice Gageler’s question, the absurdity we attribute to Brown, with respect. It is not quite what Mr Kirk put. If Parliament can specify that the critical decision on whether the community is involved in the trial is made on a discretionary basis, at the summary side of the procedure, why can it not also do so within the process which will lead to the criminal trial.

Now, maybe there is a difference but that difference is really what needs to be explored to see whether there is an underlying logic when Brown is placed together with traditional elective mechanisms and within the ordinary criminal trial side of the procedures, as I say, there is a question whether the mechanism can be used pre-arraignment and plea and/or post, and so they are the issues.

So the first textual submission then is that what section 80 does, when it leaves the critical operative choice to Parliament in determining what is a trial on indictment, it gives Parliament the ability to determine when that decision will finally be made and the conditions upon which it will be made and to determine what elective elements, if any, will be part of that decision and so the present scheme operates consistently with section 80 because section 80 requires attention to the whole of Parliament’s command.

One looks at not just section 154 but section 154 is subject to section 132. What the Parliament has said in effect is, in this category of case, while provisionally there shall be a jury the final decision will be made prior to any jury being empanelled upon the conditions set out in section 132. That is the first strand of this construction argument, that section 80 requires attention to the whole of Parliament’s command and not just to part of the command.

Your Honours, the second and supporting strand is to pay closer attention to when it is, in section 80 terms, that the trial on indictment commences.

BELL J: Can I just understand the first aspect of your argument - under this elective process, before arraignment, the accused signifies the desire for a trial without a jury and the other requirements of section 132 are satisfied, the trial then proceeds without a jury and you say without any conflict with section 80, but it remains, does it not, on that analysis, a trial on indictment?

MR GLEESON: Not a trial on indictment within section 80. Now, it is a prosecution described as on indictment within the language of the Judiciary Act and the Civil Procedure Act but the question is whether the trial on indictment in section 80 terms is a creature which only crystallises after all of the conditions specified by Parliament have been worked through.

BELL J: Necessary to consider what “trial on indictment” means.

MR GLEESON: What “trial on indictment” means, and in that case where it happens pre-indictment, then when the document is presented - the accusation, information, indictment, whatever name it is given, and the accused formally pleads not guilty to that document, the accused is taking up a right to put himself or herself upon the court, as opposed to upon the country in the traditional sense, the very sort of thing that could happen at the summary side of the procedure.

Now, ultimately, although Mr Bromwich does not offer you a reason other than history, what he is really saying is it is okay to allow for an elective mechanism within the summary side of the procedure, but once any such mechanisms have either been worked through or do not exist, as it were, once the indictment is presented and pleaded to, that is what section 80 speaks to. That is one view of understanding how the elective mechanisms sit with section 80.

The broader view that we are urging is that if one looks a little more deeply at why the elective mechanisms can sit with section 80, it is not simply because that is what was there at 1900. They portray a deeper principle which is then the consistency with Archdall that it lies within the ability of Parliament to specify the conditions upon which community involvement is brought into the criminal trial.

BELL J: Trial on indictment has some content and I do not know that one can put entirely to one side history in terms of what it meant, but there is a longstanding distinction between the trial of offences on indictment and the recognition of a summary procedure. We see in the final draft of section 80 a recognition that Parliament’s hands were not to be tied by the adoption of the earlier formulation of the trial of an indictable offence, that is, it was contemplated that some indictable offences might be dealt with summarily. When indictable offences are dealt with summarily, they are not tried on indictment. Mr Solicitor, the reference to elective mechanisms seems - - -

MR GLEESON: Well, if it is not helping your Honour, I will have to come up with a better term, but what I am seeking to get at is this, in substance. We do not run away from history. At 1900 the primary mechanisms by which there was a trial on indictment would be the committal process in the summary court leading to the presentation of the indictment to the superior court, number 1; the ex officio indictment, number 2; potentially some remnant of the Grand Jury in some States. So that is what it looked like.

I use the words “elective mechanisms” to say that within the summary side of the procedure, Parliament could not only say, “This offence shall be heard definitively by magistrates alone”, could do that; but it could also say – and I will come to some of the provisions – in these circumstances whether this matter proceeds through a committal and a formal indictment in a superior court, or is determined by the magistrate, will be a decision made depending upon the accused’s desire and the decision of the magistrate and a discretion of the magistrate, which is an interests of justice discretion, the magistrate deciding whether that matter deserved committal plus matter going to the higher court.

Now, on one view of section 80, which we would submit is too narrow, that is the type of historical procedure which fully explains Parliament’s choices under section 80 and, on that view, if Parliament wants there to be the ability to be judge alone, either absolutely or on discretionary conditions, you know how to do it.

GORDON J: And you have done it, the Commonwealth has done it.

MR GLEESON: And you have done it then and you can do it in various other places. Your Honour is referring perhaps to section 4J of the Crimes Act or like provisions - - -

GORDON J: The Customs Act and the provisions here.

MR GLEESON: - - - in many cases. Now, the element that is important though about having done it is that in those mechanisms, while it may be described as the summary side of the procedure, it is open to Parliament to specify conditions where the final decision will depend upon discretion. That is why we call them elective, because there can be mechanisms where the accused may say I wish to take advantage of my right to trial by jury or to have a summary prosecution, and there can be mechanisms where the court makes the final decision.

Now, to give some context to the history that we are putting before the Court, could I ask the Court to go to the 1883 New South Wales Criminal Law Amendment statute? In that statute, it repays observing that there was a lot of larceny in New South Wales by 1883. Sections 70 through to 149 create indictable offences, which by reason of statutes in New South Wales which we refer to at footnote 32, including the Jurors and Juries Consolidation Act 1847, were to be heard by judge and jury. So that is the indictable offence with a statute saying judge and jury.

The critical provisions then when one comes to sections 150 to 156 create a form of summary procedure, and in section 150, four categories out of the larger universe of larceny are capable of being charged before two justices. So at that point there is a decision by the prosecution whether to bring it under this charge before the justices. That is the prosecution brought into the process by Parliament. Then it says a little further down, if it:

is in their opinion sufficient to put the accused on his trial but it appears to them that the case may properly be disposed of summarily the Justices shall reduce the charge into writing and read it to him and shall ask the accused whether he consents to its being disposed of summarily and if he consents they shall ask him whether he is guilty or not and if the accused pleads guilty the Justices shall pass sentence upon him but if he says that he is not guilty and has a defence they shall proceed to hear the same But where the accused has not consented as aforesaid or the Justices are of opinion that the charge ought to be prosecuted by indictment or they are equally divided in opinion on that point they shall deal with the case as if this section had not been passed.

So within that mechanism or within the summary side of the jurisdiction, the two justices are asking the question firstly of the accused, “Do you desire to take up what would otherwise be your right to trial by jury in the superior court”. They are also asking a question, as it were, irrespective of the accused, “Are we of the opinion that this matter should go on indictment?”

So Parliament there – this is why I come back to your Honour Justice Keane’s question – has drawn the justices into what is a decision being made on the interests of justice whether for this particular accused and this particular offence there should ultimately be trial by jury or not. One sees another example of that under sections 155 and 156 for people who are being nasty to animals. That offence is deemed to be a “misdemeanour”, but on conviction before two justices is liable to imprisonment or a fine. So that is a summary offence, primarily dealt with by the justices. But then one looks at 156: the justices have an ability to commit for trial. Again the Parliament has said the ultimate decision whether there shall be a jury rests in the hands of the justices who are making an interest of justice assessment.

So, I want to come back to your Honour Justice Bell’s expressed scepticism about elective mechanisms. What we seek to get from this - it is a two-step argument. The first step is provisions like sections 150 and 156 and their successors are okay under section 80. That is not directly in challenge in the case.

BELL J: The Convention Debates are redolent with recognition that some indictable offences - and traditionally they were at the lower end of the scale of seriousness - might be tried summarily against a background variously expressed in statutory provisions that a case was fit to be dealt with by the magistrates.

MR GLEESON: But just pausing on that Convention Debate - and as your Honour says were fit, some recognition of fit to be determined by the magistrates - what the language of these provisions shows is that the magistrate is making a judgment on fitness. Is it fit to be determined without a jury? Should it go through the more formal process with a jury?

BELL J: Accepting that, all of this is to simply throw up that there is and was at the time of Federation a recognition of a distinction between offences tried on indictment and offences tried summarily and here we have an offence for which the Parliament has provided that the offence is not only indictable but it is to be tried on indictment.

MR GLEESON: Where I am seeking to differ with your Honour, at least at a proposition, is that it is insufficient to say that at Federation there was a recognition of Parliament’s ability to prescribe indictable or summary. Something extra is going on in these provisions which is Parliament’s ability to say that in certain cases the final decision whether it is indictable or summary will be made by the magistrates and/or the accused, and/or practically the prosecution in some cases, under the conditions we specify. So, the notion that the Court is drawn into the final decision whether there is jury or not is there prior to 1900.

That is the extra element I am trying to get out of these cases. That must be treated to have been within the knowledge of Mr Barton and others in the Convention Debates when they said there is ample evidence of Parliament specifying these procedures around the country. They must be taken to have known it is not just Parliament specifying once and for all, it is Parliament specifying in some cases that the final decision will depend on a judgment based on the circumstances of the case and to that extent not just the category of offence requires jury or judge but that the particular offence as charged against the particular person requires A or B.

BELL J: That is why the adoption of the formula “the trial on indictment” as opposed to “the trial of an indictable offence” was selected.

MR GLEESON: Yes, that is the very reason that is given, that if we say “all indictable offences” we are eliminating these valuable mechanisms. That means – and there is no issue about this with Mr Bromwich – that provisions which give the court of summary jurisdiction, if Parliament is so minded, the ability to control the final decision on judge or jury must be treated as consistent with section 80. The question then is, is that the outer limit, as it were, of the flexibility which the words “trial on indictment” have given the Parliament under section 80. That is why I am putting this as a textual argument that is anterior to any question of waiver.

KIEFEL J: Does your argument go so far as to say that this flexibility means that Parliament could completely determine when a trial is had by jury?

MR GLEESON: It would not go so far to say Parliament could specify there shall never be trial by jury.

KIEFEL J: Why is that not followed from your argument?

MR GLEESON: Because underpinning the argument – and this is where we agree with Mr Kirk – is that section 80 has two valuable co-operative purposes within it. One is the protection of the accused. The second is the community interest in community fact finding in the judicial process.

KIEFEL J: You accept then that it operates to some extent as a restriction on legislative power?

MR GLEESON: It operates as a restriction on legislative power in two ways, and I will just identify them directly. The first is the clearer and the second is the deeper one. The clearer restriction is that when Parliament has specified its conditions for what is to be a section 80 trial on indictment, which triggers community involvement, that community involvement in the fact-finding process can only occur pursuant to a section 80 constitutional jury. Therefore, Parliament cannot choose a military jury – that is an extreme example, but it cannot choose that – and it cannot choose a jury which does not comply with the essential elements of a criminal jury, at 1900.

That is not a meaningless restriction because if one compares the position with civil juries, Parliament is able, and has in various provisions, such as the Judiciary Act, brought in the civil jury as an instrument in the administration of federal justice. But it has that power without the limitation that it must confine itself to the essential elements of a civil jury at 1900. So requirements such as unanimity, 12 persons, area of selection, et cetera – none of those requirements limit Parliament in respect to a civil jury.

In respect to a criminal matter, the first area of limitation of section 80 is that if Parliament chooses to bring community participation into the criminal justice process it must be by and only by a constitutional jury.

GORDON J: Is that what section 9A of the Crimes (Foreign Incursions and Recruitment) Act does? Is that an example of that sort of direction from Parliament?

MR GLEESON: No.

GORDON J: Why not?

MR GLEESON: Because if one is viewing this case at the construction level before one comes to the constitutional level, section 9A is a provision which picks up any Commonwealth laws which govern prosecutions on indictment. So, for example - - -

GORDON J: Under this Act?

MR GLEESON: It picks up and provides a foundation for any other law which governs a prosecution on indictment. For example, if one wishes to know how the indictment is to be preferred against the applicant one would look to the Director of Public Prosecutions Act (Cth) when it speaks of prosecutions on indictment. So it picks up that Act.

It then picks up the Judiciary Act in section 68 and under section 68(1)(c) and section 68(2)(c) it will pick up, subject to section 80, any provisions of the New South Wales law which apply to a proceeding which can properly be described as a trial and conviction on indictment. That takes one to the Civil Procedure Act and you pick up all relevant provisions including, not just section 154, but also section 132.

GAGELER J: So, Mr Solicitor, if I am understanding you correctly, you appear to be saying that the reference to “trial on indictment” in section 68(2)(b) of the Judiciary Act has a different meaning from “trial on indictment” in section 80 of the Constitution.

MR GLEESON: It can.

GAGELER J: If it is the same meaning, and if a trial by judge alone is not a trial on indictment, then you have a jurisdictional problem, do you not?

MR GLEESON: Let me go back a step. If we start with 9A which tells us prosecution on indictment – we then look for provisions on the Commonwealth statute book that tell us how to conduct a prosecution on indictment. The DPP Act tells us how it started. Section 68 tells us that we can pick up the law of the New South Wales, so far as that law falls within the subject matter of the trial and conviction on indictment.

So the construction question, which so far is not raised by Mr Bromwich is, when one looks to the New South Wales statute to see which parts of that statute fall within the subject matter of laws regulating trial and conviction on indictment, do you look, for instance, solely to a provision like section 154 which tells you one rule, namely, ordinarily there shall be a jury, or can you also look at section 132 which says, in these circumstances, your prosecution on indictment within section 68 and within the Civil Procedure Act goes forward by judge alone.

That is a construction argument that section 68, given its ordinary ambulatory meaning, is broad enough to pick up State provisions which may see trial by judge alone, subject to the separate command of section 80. That is the way the case was addressed in Brown by all parties, namely, in Brown the issue was decided not that section 68 was incapable of picking up section 7 of the South Australian Act in its own right, but that would it offend the section 80 command if it were to do so?

GAGELER J: Well, in Brown, the common ground was that there was a trial on indictment, so section 68(2)(b) was engaged subject to section 80.

MR GLEESON: Yes.

GAGELER J: It is not common ground here – in fact, you are arguing that you do not have a trial on indictment.

MR GLEESON: Well, I am arguing – to come back to your Honour’s question – and it is essential to any argument in the case that section 68(1) and (2) are applicable to pick up the provisions in the Criminal Procedure Act (NSW) subject to section 80. For that purpose, this must be jurisdiction with respect to the trial and conviction on indictment within section 68.

NETTLE J: Mr Gleeson, forgive me, I am missing something I think. When the magistrate commits the accused for trial, he or she does so by terms of an order that he or she be committed to trial on indictment. Section 131 would then operate, other things being equal, and say that “such a trial on indictment should be by way of jury”. Section 132, subject to section 80, would then operate to say no, where 132 is engaged, although it is a trial on an indictment, it will be a trial on indictment before judge alone. Is that not the way it works?

MR GLEESON: Yes.

NETTLE J: So, notwithstanding that a State case may come with 132 and attract an order for judge alone trial, it is still a trial on indictment, albeit before judge alone.

MR GLEESON: It is a trial on indictment, albeit before judge alone, within the State Act, and it remains a trial on indictment within the Judiciary Act because otherwise the bridge is not there. The question is then how one reconciles 132 with the concept in section 80. When section 80 gives its command about a trial on indictment, at what point in time is that command finally and irrevocably triggered?

The argument we are seeking to put is that where Parliament has specified an ability such as 132 to end up with a judge alone order, it is not until the whole of the parliamentary command – not just section 131, but 132 - has been worked through that you ultimately understand in a constitutional sense is this one of the cases where the command has cut in.

NETTLE J: Surely whether it is before or after the whole process is worked through, a trial before judge alone under section 132 is a trial on indictment?

MR GLEESON: At the risk of repetition, it is a trial on indictment within the New South Wales statute; I must say that. It is a trial on indictment within section 68 of the Judiciary Act; I must say that. The question is whether the command in section 80 has cut in. So, when section 80 speaks of “the trial on indictment”, at what point in time does the command cut in? There are two reasons I was putting to support this argument. I have put the first, which is look at the whole of Parliament’s intention, not part of it. The second argument is that the trial on indictment within section 80 does not commence until the jury is sworn and the issues are placed before the jury.

NETTLE J: How could it possibly be that the expression “trial on indictment” in section 68 of the Judiciary Act is different to the expression “trial on indictment” in section 80 of the Constitution?

MR GLEESON: Very easily, your Honour, because one is a statutory provision designed to pick up in an ambulatory fashion a range of provisions which may develop under State law from time to time. So it is apt to capture a State variation such as section 132, whereas section 80 is a constitutional guarantee which, because of its mandatory language, will override mere choices of Parliament and so one has to construe it as a constitutional guarantee and see what its limits are; so, they can be different is the proposition. Whether they are, that is the matter I am trying to address.

BELL J: On your analysis, section 80 is the trial on indictment consequent upon the empanelling of a jury against any law of the Commonwealth shall be by jury?

MR GLEESON: Pretty close to that, your Honour, and so then we have to say, well, have we now shot ourselves in the foot because it is tautological and the answer to that is, it is not tautological for the two reasons I was going to put to Justice Kiefel, the first, which is the easy one, which is to say that once all the conditions have been worked through and there is going to be community participation via a jury, it can only take a particular form. It can only take the form of a constitutional jury and that is an important limitation because we know from majority verdicts, where the trial is to be held, the judge cannot withdraw the factual issues from the jury, no matter how simple they look. So that is the first level limitation.

The second, which I said was the potentially deeper one, your Honour the Chief Justice asked, is there any balancing which is involved in or constrains this parliamentary designation and there is, in the sense that ultimately what lies behind this, we accept, are community values and individual accused values and so there are some outer limits upon parliamentary designation whereby - - -

FRENCH CJ: When you talk of community values, you mean, do you, what you earlier described as community involvement in the fact-finding process.

MR GLEESON: Yes, yes, and all that portrays in terms of acceptance of judgments that the community has been involved in it.

FRENCH CJ: Yes.

MR GLEESON: Now, that value is there in section 80 and that is why we go beyond the rights-based focus that was put in Brown. Clearly, there is a rights-based focus there. The person most directly affected by this guarantee is the particular accused but the community has the larger interest in its assurance as to the way the verdict was reached.

So, at that deeper level, there would be some constraints around the ability of parliamentary designation and so that is why we seek to put that really section 80 in its very terse language has three elements working together: one is parliamentary designation, this significant ability to determine when the community is brought into the trial; the second is that community value in being brought into the fact-finding process in appropriate cases; and the third is the protection of the particular accused.

Your Honours, the second strand of what I am seeking to put in this argument as to when the trial commences within section 80 and what your Honour Justice Bell put to me, could I ask the Court to go to Justice Story’s decision - - -

GORDON J: Before you do that, Mr Solicitor, is it the position that when we read section 68(2), which is subject to section 80, to pick up the question from Justice Nettle, that we are to construe “trial on indictment” in different terms?

MR GLEESON: I would not quite put it that way, your Honour. What I would say is that section 68, because of its ambulatory purpose, it is there to pick up State procedures as they may change from time to time. When it speaks of the trial on indictment, it is speaking of it in the broader term so that that can include a trial where a judge alone order is made. That is what section 68 does. It enables that picking up, but subject to whether it has infringed the constitutional guarantee.

Your Honours, the case I wish to go to was a decision of Justice Story in United States v Curtis (1826) 4 Mason 232. Do your Honours have that case in that report, in the 4 Mason 232 version?

FRENCH CJ: Yes.

MR GLEESON: One can pick up on the second page of the reprint numbered 2 at the bottom, in the first column in the first full paragraph, the relevant statute, and under:

the crimes act of 1790 . . . any person who shall be accused and indicted of treason –

was entitled to have –

a copy of the indictment and a list of the jury and witnesses –

and certain details about them –

before he shall be tried for the same –

They are the critical words –

and in other capital offences shall have [those documents] two entire days at least before the trial.

At the foot of that paragraph his Honour Justice Story identified two possible meanings of these words:

‘before he shall be tried,’ and ‘before the trial’ –

The first was that –

the copy shall be delivered two days before the jury is sworn to try the cause upon the issue of fact –

and the second is –

before the party is arraigned on the indictment and put to plead –

Justice Story then stated that the first view was the correct view and in the second column he gave two reasons for that: firstly, that was the natural meaning of the statute; but, secondly this was:

the legal and technical meaning of the word ‘trial,’ in the sense of the common law.

The statute had picked up the technical meaning of “common law”. About a third of the way down he says this:

Now, in the sense of the common law, the arraignment of the prisoner constitutes no part of the trial. It is a preliminary proceeding; and until the party has pleaded, it cannot be ascertained, whether there will be any trial or not.

There is a reference to Blackstone and then he says:

If upon the arraignment the prisoner pleads guilty, there can be no trial at all; for there remains no fact to be tried; the whole charge of the indictment is admitted, and nothing remains but to pass the proper judgment of the law upon the premises. The same may be said as to certain other pleas . . . When the prisoner, upon his arraignment, pleads not guilty, he is then asked, how he will be tried, and the response, in the case of a trial by jury, is that he will be tried by God and his country.

So in the common law meaning, the trial commences at the point when the jury is sworn and the issues of fact are left to the jury. Over on the third page of the report in the second paragraph, Justice Story says:

In short, so far as authorities, or reasoning, or forms go, there can be no legal doubt, that by the term ‘trial,’ is generally intended, in the law, the actual trial of the prisoner by the jury.

Then this is where he picks up the constitutional link:

The constitution of the United States, too, in the sixth amendment, which provides, that the accused shall enjoy the right to a speedy and public trial by jury, manifestly uses the term in the same sense; and indeed it pervades the general structure of our laws.

Now, this is the passage that Quick and Garran picked up in their discussion of section 80 as their understanding of trial on indictment which triggers section 80 and, to come back to your Honour Justice Bell’s question, that is the argument, that the trial on indictment which triggers the command is the trial which commences at the point when the jury is sworn and the issues are left to the jury and, if that is right, it is open to Parliament within the procedure in the superior court, but prior to that point, to specify the conditions which when worked through will determine whether there will ever be such a trial.

The one other authority closer to home and time that we wish to put on that topic is the decision of the Court of Appeal in New South Wales in R v Nicolaidis (1994) 33 NSWLR 364, Chief Justice Gleeson. One can see from the headnote, that was the case which concerned sentence indication procedures which were, by the statute, to take place before the arraignment of the accused and his Honour discussed at page 367, letters D to F, this very question of when the trial commences and discusses the common practice which is now reflected in the Criminal Procedure Act that there may be two or more arraignments. What he indicates is that while there may be an initial arraignment which enables the Court’s jurisdiction to be assumed, the commencement of the trial occurs at the last arraignment.

So, in the present case, if one looks at the Criminal Procedure Act which is consistent with this, under section 129, the indictment is to be presented within four weeks of committal and under section 130(2), that gives the court jurisdiction in the matter and the court has power to make orders, but under section 130(3), although that early part of the proceeding will be deemed to be part of any subsequent trial, the accused is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.

BELL J: Well, now, arraignment when the jury is present precedes the empanelling of the jury.

MR GLEESON: Yes.

BELL J: But your point is that the trial commences when the jury panel is present and the accused is arraigned in their presence. That is the contention.

MR GLEESON: That is the contention. The contention is it commences at one or two of those slightly different dates, either the formal swearing or just before that when the accused is present, arraigned before the people who will be sworn in as the jury.

BELL J: Well, it must be the former, must it not, because that is when the accused puts him or herself on his or her country for trial?

MR GLEESON: Yes, yes. So the argument is that that is the plank of the argument, that that is when the trial, in the common law sense, commences and so - - -

BELL J: That tells us when the trial on indictment commences but it does not usefully, at least for my part, explain why section 80, when it speaks of the trial on indictment, is speaking of some trials on indictment.

MR GLEESON: What it is speaking of, and this is the submission, is that because that is when the trial on indictment commences, that is, as it were – to use crude language – that is the “go/no go” point. That is the point at which the ability for Parliament to specify conditions runs out. So we know Parliament can do it in the summary side – I have submitted Parliament could do it pre-arraignment, that is, pre-first presentation of the indictment to the superior court. You could devise such a statute – it is not this one. I am submitting that there is no difference in principle between doing it pre-arraignment and post-first arraignment, provided all these conditions are being worked through before the actual trial, in the strict sense, commences.

BELL J: But to come back to a simple point, one has in respect of offences against any law of the Commonwealth trials on indictment that are not section 80 trials and trials on indictment that are section 80 trials.

MR GLEESON: That is probably correct, your Honour.

KIEFEL J: So am I mistaken in understanding what you are saying that, ultimately, when a matter comes before a jury on indictment all that is required is that the jury be the jury contemplated by section 80? Is that all that section 80 is really left to do?

MR GLEESON: That is the primary work it does and that is important work because that explains Cheatle. It explains each of the series of cases which says in the criminal area the Parliament cannot do what it can do in the civil area. In the civil area, jury you can fashion it as you wish as an instrument of justice, provided judicial power remains with the court. In the criminal area you can only fashion it, observing the essential elements of the criminal jury – that is the core work it does.

I have also set it at a deeper level because of the balancing that is involved in section 80. There are outer limits upon which parliamentary designation may be constrained if it did not sufficiently reflect the structural values and the individual values that section 80 protects. That is where what Justice Dawson said has a lot of wisdom in it, namely, the theoretical outer limits had not been tested and for good practical reasons are unlikely to be tested.

When one looks at the present provision, if the present provision had said for an offence of 10 years gaol the prosecutor can elect whether there is a jury or not you would have a real problem with those outer limits because that would have given no parliamentary weight to the accused’s liberty interest and would have solely given the decision over to an officer of the Executive.

So that is an example where, in the very extreme cases that one would not even want to think of, section 80 has this further work to do. But in the present case where it says the person who has the primary interest at stake, the accused, where he or she says “My liberty interest, I believe, is better protected without a jury” – so where you have that factor.

Then to come back to the Court’s questions about 132(2) and 132(4), the reason they are both there is 132(2) says the prosecutor may be deemed to be a person who will responsibly bring to account the entirety of the community interest in the given case. So, if Mr Bromwich or a prosecutor were to agree that in a particular case the accused’s preference for judge alone adequately respects every community or structural value in section 80, Parliament says those choices are given effect to.

The role of subsection (4) – and your Honour Justice Keane raised that (4) only really arises when (2) is not satisfied – the role of (4) is to say there can be cases where the accused has valued his liberty interest in one way, the prosecutor has valued the community interest in another way, and the court in judicial power is given an interest of justice criterion by which it makes the ultimate decision, and that is an important further step in parliamentary designation, respecting the values which are in section 80.

So, your Honour Justice Kiefel, in that sense, the parliamentary designation, which has to remain within certain limits of balancing, does provide a second tier of constraint which is in section 80. So when one puts those two tiers together, it is not merely tautological, it is not merely procedural, it is much more than procedural, it is a constitutional guarantee, it does serve the richer purposes which parties seem to agree upon, and it does operate as a limitation upon Commonwealth legislative power.

GAGELER J: How does this construction of the first clause of section 80 accommodate what follows – the geographical part of section 80?

MR GLEESON: As I said, consistently because this tells you when the “shall” is triggered, and once the “shall” is triggered, it is triggered for all purposes, so “shall” then has the same mandatory force in each of its three processes. If after all the conditions set by Parliament have been worked through, before the jury is empanelled, the legal result is there must be a jury, then (a) you know it must be a constitutional jury – that is the first limb; the second limb, you know where that trial must be held; and the third limb tells you where it will be held if there is no such place, namely, where Parliament prescribes.

So it gives work to “shall”, “shall”, “shall”, and what it critically does – and this is why it has a purposive element to it – it says that the sorts of discretions which Parliament was entitled to allocate to the courts of summary jurisdiction can also be allocated to the superior court provided they are exercised prior to the critical date.

If one thinks about that in terms of Chapter III values, we would say all to the better. Where the decision is made by the court of summary jurisdiction whether to commit or not, on traditional analysis that is a decision incidental to judicial power, it is a decision made as part of a single matter which is the criminal offence in question. Your Honours, that is the proposition established by R v Murphy [1985] HCA 50; 158 CLR 596 at 616. So it is a decision incidental to judicial power but as part of a single matter, namely, whether the person is guilty of the criminal offence.

FRENCH CJ: On your construction, am I right that Parliament is unconstrained by section 80 in relation to legislative power to provide for election, waiver, conditional or unconditional, at any point prior to what you call the critical date?

MR GLEESON: Subject to it remaining within outer limits which can be seen to be a parliamentary designation responsive to the two interests behind section 80.

NETTLE J: Would Brown be beyond those?

MR GLEESON: There is a strong argument it would be because the vice in Brown, section 7, is not just that it says Parliament has chosen particular offences where the circumstances are such the accused should have the veto, but it said across the entire statute book of South Australia - - -

NETTLE J: Would 132(7) be beyond those bounds?

MR GLEESON: No, 132(7) would not.

NETTLE J: Even though the accused has no say in it?

MR GLEESON: Section 132(7), as Mr Kirk put, it is a failsafe to deal with a very, very, very particular situation. It is a situation where the threat to the jury is such that, in substance, you cannot have a jury trial because if there truly is a realistic threat of jury tampering or pressure or the like, one will not be able to have the confidence that this is the verdict of 12 persons of the community, the very thing section 80 has guaranteed.

So 7 deals with, as it were, the case where the threat to trial by jury is so imminent, so red hot that the only real choices are either, in effect, that trial must be permanently stayed because one cannot have confidence of a jury trial or one takes the option of trial by judge and in that most extreme case it is actually the community value that has been weighted over the accused value, the community value which is we cannot tolerate verdicts of juries where we know the process has been compromised, has been given weight over the accused’s interests who might say I would still prefer to have a jury.

That is an example, I would say, where within the balancing process, Parliament has made a designation which has respected both sets of values in a way which remains within acceptable limits. The problem with a Brown-type provision is the whole of criminal justice in a State can, depending upon the choices of accuseds, be done without juries. That is a matter for the State. That is fine.

But at a federal level, the effect of that is that for all federal offences in that State, whether there will be any trial by jury and, therefore, any community participation in the fact-finding process, has, as it were, by Parliament been handed over to the choice of individual accuseds creating, potentially, a very great disparity between federal criminal justice in that State and in other States, potentially impairing criminal justice federally as a national scheme, as something the community, the whole country has confidence in.

So the problem with Brown is that it is so far weighted towards one interest - when I say Brown, I mean the Brown statute. It was so persuasive across the whole statute book that it had those threats to what I am putting as the underlying values of section 80. So the argument we are putting does not defend section 7. To defend section 7, you have to have a pure rights-based focus and we have not put such an argument today.

KEANE J: Mr Solicitor, what was the passage in R v Murphy that you wanted us to look at?

MR GLEESON: On page 616, in the main paragraph - commencing with “As we have already mentioned” the point of it was to indicate that when a magistrate is hearing the committal proceedings, traditionally they have been regarded as non-judicial, but they:

have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially and because they affect the interests of the person charged –

The procedure is similar to that in judicial proceedings. It goes on:

Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power - - -

KEANE J: Their Honours go on:

It is inconceivable that, when s. 80 of the Constitution provided for “the trial on indictment of any offence against any law of the Commonwealth [to] be by jury”, the ordinary curial process for bringing an alleged offender to trial was not intended to be followed in the case of federal indictable offences.

MR GLEESON: In the context of the argument being that in a statute which said though shalt not interfere with the course of justice one could dismiss what was occurring in the Magistrates Court as not being part of the course of justice. So what is occurring in the Magistrates Court is, in the broader sense, a part of the course of justice. On that next page, which your Honour refers to, in the second half of the page they make the point I referred to that there is a single matter involved here and the court actually says:

The point to be made is that the Parliament might, if an appropriate State court structure existed, invest in one State court jurisdiction to determine the entire “matter”, consisting of the committal proceedings and the trial for the offence following upon an order for commitment.

So that indicates that whatever is the scope for these, what I call, I will risk it again “elective mechanisms”, they cannot be confined to the court of summary jurisdiction. They could be mechanisms which could be employed within a single court which is dispositive of the whole matter. The issue that we are tendering is that if Parliament can give these choices to the court on the summary side of the procedure and if they are done there incidentally to judicial power would it not be positively advancing of the purposes of Chapter III to say that the same functional choices could be given to a court acting in judicial power which is what section 132 does.

The benefit of section 132 in Chapter III terms is that the decision on the interests of justice, which is made in judicial power, can ultimately come to this Court under section 73 whereas a decision of a magistrate certainly cannot come other than pursuant to such administrative law remedies as may be available.

So, by the modern elective mechanism, we are so bold as to say not only that functionally and substantively the same as this traditional one but it more positively advances Chapter III purposes to have the critical decision made in judicial power as opposed to being made incidental to judicial power. Your Honours, I have a few more things to go - is it possible to do that after lunch?

FRENCH CJ: Yes, we will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Your Honours, could I move to the relevance of the history that we have dealt with in paragraph 5 of the outline and indicate that in my remaining submissions this material supports both the primary construction argument put this morning together with our alternative argument that section 80 allows for a parliamentary sanction to waiver which adequately respects the sets of values protected by section 80 and Chapter III.

So that is both strands of the argument that are in our written submissions at paragraphs 48 through to 55 – both strands, including paragraph 55, which would be closer to Mr Kirk’s conceptual entry point are what I am seeking to advance by the following remaining submissions.

Your Honours, as to the history, if your Honours could go to Brown again, to Justice Brennan at page 195, at about point 8, through to 196. When his Honour rejected the United States cases as being of assistance, it was for two primary reasons of history. The first was that the United States cases on Article III were controlled by the Sixth Amendment which had a rights-based focus which provided a reason to depart from “the primary meaning of the mandatory words in s. 80”. The second was we do not “have a long history of judicially recognized waiver of trial by jury”. His Honour then discusses over the page the common law position in relation to there being no waiver after there was the arraignment and the accused pleaded and put himself on the country.

Now, Professor Griswold’s article that we have referred to has indicated that in fact there is some strain in the earlier English common law of a nolo contendere provision which was a form of waiver at common law, so that slight qualification we would note.

But more importantly what we submit is missing, with respect, in this analysis is that it is only speaking of the common law criminal justice system in the United Kingdom and it is leaving out statute, and statute is critical for two reasons: firstly, that the jury only came to the Australian colonies by statute and, indeed, it came after the military jury in certain places, so the jury has come into our criminal justice system only by statute. It did not come with the common law. The authority for that is Brownlee 207 CLR 278 at paragraph 12. As to what those statutes are, we have given some examples in paragraphs 16 and 17 of our written submissions and footnote 32. That is the first qualification that is needed for this analysis.

The second is that his Honour does not refer to the history of statutes in the 19th century which provided for, as I have indicated this morning, the ability of the court of summary jurisdiction to make a discretionary decision whether there would be a jury, and in assessing the meaning to be given to section 80 we would submit that statutory framework must be brought to account as well as what his Honour says in respect to the common law, and that is clear - - -

BELL J: Why would that be when his Honour’s discussion is of the absence of a right to waive jury trial as - his Honour is not addressing the summary disposition of minor offences that are indictable. This is an analysis of whether or not there was a right to waiver of jury trial.

MR GLEESON: Your Honour, I am trying to be respectful. I am criticising this passage for leaving that out – by focusing only on the common law - - -

BELL J: I understand that, but - - -

MR GLEESON: - - - by focusing only on the common law and not saying - - -

BELL J: Mr Solicitor, in the real world, how does it advance your argument to establish that his Honour did not address the mode of summary disposition of offences in making the obvious point – at Federation there was no provision equivalent to that with which the Court was dealing in Brown?

MR GLEESON: The advance is not just that there were summary offences but that Parliament had the ability, within the summary side of the jurisdiction, to give the magistrate or the justices a discretionary judgment whether there would be a jury or not.

BELL J: I understand that, Mr Solicitor, and my recollection is in England the like provision was available.

MR GLEESON: And, it followed the English model from 1847.

BELL J: Yes.

MR GLEESON: So, any - and this underpins Mr Barton’s view in the Convention Debates – any acceptable view of section 80 must accept that its object included the preservation of at least the forms that were there at the time and those forms included election within the summary side of the procedure.

Now, where it advances the argument is, if one steps back for a moment and looks functionally at the problem we are dealing with, functionally, at least between the parties who have spoken so far, which is not everyone, there are two sets of interests broadly within section 80 and we know what they are.

Those interests may pull in the same direction or they may pull in different directions and a different perspective may be taken on that question, depending upon when you ask it. If you ask the question at the level of the offence, the offence generically, and you look at seriousness and other matters, you might come up with one answer to the question, should there be trial by jury, the most formal type of mode of administration of justice.

If you ask the question in the specific context of the case, that is, in the light of the offender, you may get another answer to that question because the particular offender, as with this applicant, may regard his liberty interest as advanced by trial by judge alone and one is then asking a different question, whereby trial by jury which had at its heart protection of the accused against liberty, in the case of this particular accused, there may be a different appreciation of balancing of those interests.

What we see as critical as occurring prior to 1900, which his Honour has not recognised, not one word of, is that the mechanisms open to Parliament included not just making a once and for all decision, that this offence is less serious and so will be done by the magistrates but this offence needs to be looked at in the particular circumstances that prevail for the particular offender when that offender is charged and Parliament was allowing for that through provisions like section 150 of the 1883 Act.

If I could just finish, your Honour, where we say that goes is the Court really has two choices – and fortunately you will finish hearing from me shortly – but the first choice is to say that section 80 was intended to preserve all the degree of flexibility which was employed in the criminal justice system in 1900, therefore if Parliament wanted to avoid a jury you could do two things: you could say this is summary, once and for all; or you could say we will create a procedure within the summary jurisdiction where the court will make an interests of justice assessment, as I say, an administrative decision which will effectively determine whether, not just looking at the offence as a whole but looking at this offender, the interests of the community and the accused are balanced in a way that there is or is not a jury.

Our proposition reduces to saying if a functional approach is taken to that history - not a formalistic approach but a functional approach – if Parliament had that ability prior to 1900 to tailor a result more nuanced to the particular offence and the offender and not simply the category of offence, the mere fact that it had only used that ability in the summary side of the jurisdiction is not a barrier to new mechanisms which functionally do the same thing within judicial power. That is the argument we are seeking to put, your Honours.

BELL J: On the historical approach and adopting this analysis, what do you make of the circumstance that the draft of section 80 changed to take account of the very phenomenon of which you speak, the capacity to deal with indictable offences summarily? That was taken into account. The words were changed to the present formula. Now, to the extent we are looking through an historical lens, where does your argument go?

MR GLEESON: Yes, thank you for that, your Honour. The change your Honour refers to, it is found, amongst other places, discussed of course by Justice McHugh in Cheng, if I could just go to that so we have the precise change[2000] HCA 53; , 203 CLR 248 commencing at paragraph 130 and, as your Honour notes, it went through three stages. The original one was all crimes, the second one was all indictable offences – that is paragraph 131 – then there is the debate over the page that Mr Kirk referred to, and then there is the change and Mr Barton’s comments at paragraph 136, and the change is to trial on indictment and Mr Barton says:

“There will be numerous Commonwealth enactments which would prescribe, and properly prescribe, punishment, and summary punishment; and if we do not alter the clause in this way they will have to be tried by jury, which would be a cumbrous thing, and would hamper the administration of justice of minor cases entirely.”

So the object of the amendment is to ensure that – and note his Honour is speaking prospectively, “There will be numerous Commonwealth enactments”; that is, in looking to the future the Commonwealth will be doing the sorts of things that have been done in the colonies. Mr Barton must have had in mind provisions like section 150 of the 1883 Act, so he must have recognised that there would be a mechanism for Parliament to tailor the ultimate decision on judge or jury not to simply a once and for all decision at the outset by reference to the offence, but more tailored to the circumstances of the case. Now, the question then is how does one read that with section 80? Is it only - - -

BELL J: One reads it as a recognition that an indictable offence might be made triable summarily and, hence, disavowing the use of indictable offence in the provision and favouring trial on indictment.

MR GLEESON: Or, on the approach we are urging, functionally what is being said here is that the ultimate decision should be able to be tailored in a way which takes into account the interests, underlying section 80, in the context of the particular offender. Traditionally, that is done through the magistrate deciding whether to commit or to decide the matter summarily.

Of course, section 132 did not have a predecessor in the Colonies Act (1900). So the framers were not discussing - are we permitting or not permitting experimentation like section 132. That obviously was not their question. But the choice, as we would pose it, is to say that section 80 leaves Parliament two ways of dealing with what I say is the balancing exercise. One is a once and for all decision. The second is some form of elective mechanism in the court of summary jurisdiction or whether it says, it is open to Parliament to functionally do something which achieves the same result and, indeed, further advances the purposes of section 80 in Chapter III.

The reason, of course, it further advances the purposes of section 80 in Chapter III is that, in a modern provision like section 132, the operative decision is made in judicial power – subject to appeal to this Court – and it is made at a later stage of the matter when the balance of interests may be better preserved. If the Court rules that section 132 is just a bridge too far for section 80 purposes, the consequence is that, as it were, Parliament is left with blunter mechanisms - - -

GORDON J: But it has mechanisms.

MR GLEESON: - - - blunter mechanisms.

GORDON J: But it has mechanisms – two of them, at least.

MR GLEESON: Yes. Two mechanisms and two blunter mechanisms, as I put it – and I do not resile from that – blunter mechanisms because in the case of a person such as the applicant, the choice for the Commonwealth – because it is the Commonwealth’s legislation – the Commonwealth, as your Honour pointed out to me this morning, chose not to give him the benefit of section 4J. So they said that, in general, this category of offences is sufficiently serious and important to the community that you should face the higher penalty and you should not have the ability to go on the summary procedure.

So, that is a decision which can be made, as I say, on a once and for all basis. The mechanism that is denied to the Commonwealth is the ability to tailor a more nuanced regime where, only in the case of applicants who value their liberty interest and see it advanced differently, can the Court make the final decision. If the Court says, well that is just a bridge too far, the language is the language, the argument fails. But the argument depends upon a functional analysis of the flexibility which was there in section 80 and the ability of modern mechanisms to, in fact, advance section 80 purposes and Chapter III purposes better than the former ones.

Mr Bromwich, I think, has made an argument that – perhaps I should take your Honours to it now – which takes up this point. It is the respondent’s submissions at paragraph 24, which is the conclusion to some propositions that start at paragraph 20. If I might just dwell on these paragraphs because they really crystallise the issue between the two arms of the Commonwealth. Starting at 20 but ending at 24; in paragraph 20 Mr Bromwich says:

s 80 leaves to [Parliament] the function of designating the offences which are to be heard on indictment –

and gives three options:

(a) Parliament may provide that [it] . . . is not triable on indictment at all –

We agree –

Instead, the offence may be a summary offence only, which offences are tried and sentenced by magistrates.

We disagree with that last rider. Summary offences – Parliament could designate to be heard by any federal court or any court exercising federal jurisdictions. Magistrates is but an exemplar of that. He then gives option (b) “indictable only”; we agree that is an option. Option (c) they can be “dealt with summarily or on indictment”. We agree with that at a general level but one has to ask what is involved in that. Paragraph 21 is correct, referring to mechanisms such as sections 12 and 12A of the Crimes Act.

Paragraph 22 refers to “election”; that is the sort of election I have been dwelling on too much. We disagree where he says that the “summary disposal” must be “subject to a magistrate’s approval”. That is a limitation not in the Constitution because Parliament could give that, certainly to any court of summary jurisdiction. That is not in dispute but, on our argument, could give it to a court in judicial power. He then says “and with lower maximum penalties applying”. That is an historical observation but not a constitutional limit, we would argue. Paragraph 23 has the error that it talks about it only being the magistrate than can make the decision, and then says if it is:

dealt with on indictment, after committal (unless there is an ex officio indictment) it will be heard by judge, sitting with a jury.

Well, that is the conclusion, not the reasons. Then paragraph 24 we disagree with:

Section 80 accords no role to the judiciary in so far as the constitution of the court for the purposes of a federal trial on indictment is concerned. The anterior question as to how an alleged offence may be dealt with, be that only summarily, by election . . . or strictly on indictment, is left to Parliament.

We disagree with that because in the established cases where the power is given to the court of summary jurisdiction the court may be exercising the election, as I have indicated this morning. That is the position under section 12 and 12A of the Crimes Act 1914, section 4J and 4JA of the current Crimes Act.

Also we might observe, in our supplementary authorities we referred the Court to Lowenstein in order to respond to this paragraph. In Lowenstein [1938] HCA 10; (1938) 59 CLR 556 the relevant provision, section 217 of the Bankruptcy Act, which the Court will find referred to on page 570, was one which allowed the bankruptcy court in the course of exercising federal civil bankruptcy jurisdiction to either commit the bankrupt for trial or try a criminal offence summarily.

So that is an example of a court, a federal court, exercising a power incidental to judicial power which determines whether the accused is tried by judge or jury. We would submit that Lowenstein is good law, as is Archdall, and that shows that the proposition in paragraph 24 is too narrow. Once one accepts that section 80 does allow Parliament to accord to the judiciary a role in the constitution of the court for the purposes of the federal trial on indictment no barrier should be erected to section 132 being picked up.

Your Honours, in our outline you will see, at paragraph 5(g), that we would urge Archdall and Lowenstein express three more fundamental principles. The first is that section 80 leaves it to Parliament to determine the conditions under which a trial of a federal criminal offence shall proceed with or without a jury; the second is Parliament retains flexibility in the manner in which it specifies such conditions that may engage variously the prosecution, the accused and the court; and, thirdly, the court can be engaged in a variety of ways.

In paragraph (j) we would submit there is no principled reason in terms of the purposes of section 80 why Parliament can leave the effective decision over trial by jury to the prosecutor who decides whether to proceed summarily or to the court which decides whether to commit for trial or hear summarily, but not allow a court, after indictment before the jury is empanelled, to make the dispositive decision on section 132 grounds.

Your Honours, the two final matters are - our third challenge was that all judgments in Brown assumed that the answer lay in either a rights-based view of section 80 or a community structural view. As Mr Kirk has submitted, once it is accepted that section 80 is underpinned by both values, the command in section 80 is not infringed by parliamentary designation such as section 132 which respects both sets of values. The more recent developments in Chapter III jurisprudence, including Kable, would indicate that any conception that section 80 is needed to guard against arbitrary judges would be mistaken.

Your Honours, could I just come to the US experience. Your Honour Justice Keane asked a question whether it was of any relevance in the present case. We would submit it is for this reason. In Brown each of the majority Justices drew from the United States jurisprudence that Article III was controlled, as it were, by the Sixth Amendment so that the mandatory language of Article III was controlled by the Sixth Amendment. The Sixth Amendment was rights based, thereby readily leading one down an argument towards judicially sanctioned waiver. We do not have a Sixth Amendment so that was the first reason to put it to one side.

The second reason was, in the passage I have referred to from Justice Brennan, that we do not have a history of judicially sanctioned waiver, whereas in the United States there was a widespread, if not unanimous, tradition to that affect. Can I just deal with both of those propositions and as to the first, we would submit that on a fair reading of the US jurisprudence, as it has developed, Article III reflects both accused values and the community structural view and the type of waiver mechanisms we are defending have been expressly endorsed in that context.

So that the waiver mechanisms in the United States, as the jurisprudence has developed, are not justified primarily or solely as a reflection of an accused right but they are justified on a broader view which is consistent with an Australian approach to section 80.

Now, the case that makes that good is Duncan v Louisiana [1968] USSC 152; 391 US 145 (1968). This was decided just a couple of years after the Supreme Court decided Singer’s Case which affirmed Patton’s Case. The reason that Duncan v Louisiana is so important to our argument is that it was critical to Justice Deane’s argument in Brown. So, if your Honours have Duncan v Louisiana but if I can cross refer to Justice Deane, in Brown at page 201, when Justice Deane explained in such forceful terms that section 80 is not just for the benefit of the accused but is for the benefit of the community as a whole, he says:

The adoption of that institution reflected “a fundamental decision about the exercise of official power” (see Duncan v Louisiana –

and he gives a reference to page 156 of Duncan –

or to repeat the words I used in Kingswell –

and then Justice Deane repeats what he said in Kingswell where he extracted from Duncan v Louisiana at even greater length. So the proposition that section 80 has community values in it is sourced critically, amongst other things, to Duncan v Louisiana.

In that context, if one looks at Duncan v Louisiana, there is a fine history, if I might say so, of trial by jury in the English tradition as it was received into the American colonies and into the American Constitution and States. That is at pages 151, all the way through to page 155 and then the critical passages that Justice Deane placed a great deal of reliance on are at the foot of page 155, over to page 156 and the court there embraces both of the underlying values that Mr Kirk and I have been propounding today for section 80 and they do so in the most general terms. They are:

The guarantees of jury trial in the Federal and State Constitutions -

So it is not just a Sixth Amendment argument –

reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.

So that is the accused focus, and then there is some development of the accused focus over the page which goes down to about line 13, and then there is a return to the community focus where the court says:

the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power –

That is the line Justice Deane has picked up –

a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.

So there one sees at the heart of the US jurisprudence both underlying values and in the course of that exposition, if one goes then just finally to page 158, as it were, anxious to reconcile those statements of principle with the existence of jury waiver, the court said this:

We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated as he would be by a jury. Thus we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial –

footnote Patton –

and prosecuting –

and I observe –

petty crimes without extending a right to jury trial.

That is discussed a little later on. So in the United States jurisprudence, the focus is not simply rights based. Both sets of values are there, and the two mechanisms that we have submitted which are open to Parliament here, that is, prescribing for a waiver of jury trial or prescribing for trials to be prosecuted summarily without any right to jury trial, are seen as being consistent with both of those sets of values.

In a sense it is almost ironic if we wind the clock back to Brown because the section being defended was so extreme, as I indicated to your Honour Justice Nettle, because section 7 was so extreme in its reach and handed over the operative decisions across the whole State to the accused, and the argument had to be rights based, otherwise it could not get off the ground, the American jurisprudence in fact is much more supportive of a provision like section 132 than it would be of a pure accused waiver provision.

So, your Honours, that is one point on the America, and the last point is I had mentioned the Griswold article. Could I just go to that for two purposes? That is reported in the Virginia Law Review 1934, I believe. Firstly, pages 659 to 660 are the evidence of the de facto waiver of jury trial in the English jurisprudence under the plea of nolo contendere.

But secondly, when the American authorities are discussed commencing at page 660, all the way through to 669 – and these are the examples of jury waiver which Professor Griswold found – the Court will note that some of them are like a modern section 132, whereas others are like a traditional Australian elective mechanism.

So, to give an example in the first category on page 661, we see in the trial of Walter Glendall in 1667 under the “Body of Liberties” of 1641 of Massachusetts set out at the top of the page which conferred a right to choose that Walter Glendall was “Indicted by the Grand Jury . . . was brought to the Barr”, and there was a plea and the matter proceeded before the magistrate.

In that case, the waiver is what one might call a true jury waiver. It is occurring after the indictment but before the jury is empanelled – similar to section 132. But, in the other category, if I could just ask the Court to note on page 666 in New Jersey – the 1738 statute authorised:

any two magistrates to try persons charged with larceny –

a certain amount, and the author notes:

The statute was in substance a provision for waiver of trial by jury –

Then section 5 is set out and, effectively, we have section 150 of the 1883 New South Wales Act. When the proposition is put as there being some tradition of waiver of jury trial in the United States which was never present in Australia – and I come back to my answer to your Honour Justice Bell – the analysis that is done in America treats provisions such as our traditional elective mechanisms, or section 132-type mechanisms, as falling within the more generic category of waiver of trial by jury and with some functional substance.

If that approach is taken, one can see that there is evidence in the American colonies, as there was in the Australian colonies, of provisions which functionally are operating as waiver of trial by jury and they help to explain that such provisions can sit with the purposes of Article III or, we would submit, section 80. Your Honours, I think I have put sufficient as to why we say that it is an appropriate case for the Court to reconsider Brown. May it please the Court?

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for Queensland.

MR DUNNING: Thank you, your Honours. Your Honours, we wish to add only very briefly these oral submissions. In relation to the imperative language employed by section 80, in our respectful submission, the most useful comparator is the similarly imperative language used in sections 7 and 24. Without denying they are directed at different things, they bear these similarities. Both are conditioned as “shall”. Both are matters that confer entitlement upon an individual and both – sorry, I am saying “both”, I am speaking of 7 and 24 collectively – both are concerned with the architecture of our system of government.

In those circumstances, in our respectful submission, consideration by this Court of how the expression “shall” has been used in respect of sections 7 and 24 is apposite for the disposition of how it might be used here.

Might I take your Honours to only one case in that regard? Can I ask your Honours, please, to take up Roach v Electoral Commissioner (2007) 233 CLR 162. In the reasons of Justices Gummow, Kirby and Crennan at page 198, paragraph 82, their Honours refer to the Court’s earlier decision in McGinty and, in the third last line of that paragraph, refer to there what is provided as a “constitutional bedrock”.

In 83 they refer to Chief Justice Brennan’s passage in McGinty. We accept it as persuasive and we would particularly draw attention to that quoted passage out of the Chief Justice’s reasons that are set out in the next few lines and obviously, in particular, the words “unless there be substantial reasons for excluding them”. That led, ultimately, their Honours, at paragraph 85, on the next page, to record what they do in, effectively, the first half of that paragraph. Similarly, might we ask your Honours, please, to take up the reasons of Chief Justice Gleeson, at paragraph 4 - - -

GAGELER J: Mr Solicitor, I have a great deal of difficulty with this submission. Are their Honours not simply expounding what is meant by “chosen by the people” and when a mechanism is consistent with that constitutional norm?

MR DUNNING: They are, your Honour.

GAGELER J: They are not talking about a qualification to the mandatory language.

MR DUNNING: Well, ultimately, in our submission, they are because there is an acceptance that the people include those persons who are incarcerated or imprisoned and, therefore, there is a qualification, in our respectful submission, on “chosen by the people” because you are necessarily excluding persons who are imprisoned on the basis of the legislation that is under challenge here – imprisoned at all, or its predecessor provision, imprisoned for a term of greater than three years. So that is the submission we would make about it and why, in our submission, it is analogous.

GAGELER J: Another question – and you may have already answered this in your written submission – why do you choose sections 7 and 24? The word “shall” appears, for example, in section 72. It is a bit closer to 80. Why do you choose these earlier provisions?

MR DUNNING: Your Honour, we have dealt with those in the written submissions and I was not proposing in the oral submissions to deal with all of them. This one seemed to have the connections which I attempted earlier to outline. Can I give your Honours, please, a reference to paragraph 4 in Chief Justice Gleeson’s reasons, which start at the foot of page 172, where his Honour recorded the fact that the Constitution itself does contain certain, albeit limited, guarantees. His Honour then goes on in the ensuing paragraphs to discuss those matters affecting adult suffrage. Then, in paragraph 24, on page 182, his Honour resolves against the validity of the legislation. But, in particular, it is the last three lines we would draw attention to.

In our submission, his Honour is connoting in that case the expression “shall” with constitutional imperative. The submission we would make is that that construction of section 80, for which Queensland contends and for which other interveners and the applicant contend, asks for no different approach ultimately so that that was adopted in Roach and cases like it. Your Honours, might I then - - -

BELL J: Just at a practical level, can I understand how that works. It was necessary to give some content to what “chosen by the people” means and one sees that worked out in a series of cases. Here it is necessary to give content to what the Constitution means when it says that a trial on indictment of offences against Commonwealth law shall be by jury.

MR DUNNING: Yes.

BELL J: How does one, in your submission - if it does not mean what it says, how does one give content to it, leaving it as a guarantee of any character?

MR DUNNING: In our submission, one gives content to it in the way the two concluding passages of each of the judgments I just took your Honours to does, that is, one recognises that it contains a constitutional imperative but it admits of exceptions.

BELL J: To that you apply a proportionality analysis to - - -

MR DUNNING: That would be one descriptor of it, your Honour, yes.

KEANE J: The difficulty with reading any provision of Chapter III in that way is that one thing that we do know about the positive expression “shall” in Chapter III is that it means this way and no other - this way and not qualified in any way. That is the difficulty of reading it as being subject to qualification.

MR DUNNING: Well, Justice Keane, I hope I might answer this by moving on to what is really our second point, and that is that Chapter III is the constitutional entrenchment of the rule of law. Chapter III, to a great extent, focuses upon the creation of the independence of the judiciary to which, we would respectfully submit, the observations your Honour has just made are particularly relevant.

Section 80 is directed at a different aspect of the rule of law, and that is ensuring that there is a fair trial. In our respectful submission, there is no magic in the jury trial. It is not the end. It is the means to the end of a fair trial, because a fair trial for the judgment of criminal guilt is a part of the rule of law and, in our submission, that is the function that Chapter III is directed at and, in our submission, when one sees it in those circumstances, and consistent with the arguments Mr Kirk has advanced about a purposive approach to its construction, the tension your Honour has just identified to me is avoided.

KEANE J: Except the evident intention of section 80 is to include in the actual mechanisms by which fair trials are to be had, the involvement of the country.

MR DUNNING: Yes. But, ultimately, in our submission, just like where “shall” is used elsewhere in the Constitution, one has to ask, does it admit of exceptions? If it admits of exceptions to what is the general proposition, then no violence is done to that, particularly if, in a case like this, it is not directed at taking away that entitlement, but, in fact, better securing the objective of a fair trial and thereby the rule of law. If, ultimately, your Honours take the view that “shall” in this case means that way and no other way in section 80, well, obviously, the submission I have just made cannot change your Honours’ position.

Your Honour, that leads us to the submission we make in paragraph 7 of the document we have handed up this afternoon. As with those who have spoken before me, we accept that it is not a matter of seeing the operation of section 132 solely within the context of an individual right of an accused person. We rather see that it should be identified as a

composite guarantee in the manner that we have expressed there. The third matter that we would call in aid of the construction we urge is that of the State court principle. Given our learned friend, the Solicitor for Victoria is developing that point in a little more detail, we shall leave that to him. Thank you, your Honours.

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for Tasmania.

MR O’FARRELL: May it please the Court. Your Honours, if I could just make a couple of points which, hopefully, will not take very long. The first is that in our conception of this argument, we emphasise the primary right of the accused to a fair trial. So, whatever benefits that the community obtains within the system, they have no purpose and, in fact, they accrue – will spring from the conferral of that right on the accused.

The notion that an accused is due a fair trial is, we say, the motivating force of the community rights or expectations which then spring to life. So, I suppose in the equation, we would submit that while we accept that the argument is not entirely rights based it, nonetheless, has its genesis in an important right. So that is the first point we make. We hope we make that in support of the submissions of the applicant which we respectfully adopt.

The second point - and perhaps taking up on a question that your Honour Justice Keane asked my learned friend, the Solicitor-General for Queensland – the involvement of the country, and just leaving the text aside just for a moment, if the purpose of section 80 is confined to putting an accused on their trial at the behest of the country, then it has also been recognised as an imperfect device. That, as my learned friend submitted, was that device operates in the system of the rule of law which, in my submission, is conceptually, or hypothetically, a perfect system.

So, accepting that imperfection, we then say, on a purpose basis, what could be the harm in – or the violence done to section 80 on the basis of the primary objective to secure a fair trial to allow in rare cases in the interests of justice an accused person to be tried by a judge alone. We submit that that is within proper conceptions of the delivery of justice within those expectations which Chapter III confers for the country.

Now, the last point we would make, your Honours, is simply an issue about Brown’s Case, and recognising what the learned Solicitor-General said in respect of the American jurisprudence. The debate in Brown largely centred around the different views which the majority of judges and the minority judges had about Patton’s Case in the United States. Can I ask your Honours – I will not take you to the full passage of it now, but if your Honours would consider, firstly, the comments of his Honour

Justice Wilson, or the opinion of his Honour Justice Wilson – I will just give you the pages – 185 to 186 and then at pages 190 to 191 of Brown’s Case, and also to the specific passages in Patton on page 297 to page 298.

We simply make the submission, with due respect to those in the majority, that his Honour Justice Wilson was clearly correct about Patton’s Case, that the issue does not depend upon the influence of the Sixth Amendment on Article III, section 2, it depends squarely on the construction of that article. If your Honours please.

FRENCH CJ: Yes, thank you, Mr Solicitor. Solicitor-General for Victoria.

MR NIALL: If the Court pleases, the single additional point that Victoria advances is that the construction of section 80 should be informed by the principle that State Parliaments determine the structure and composition of the courts, including when exercise jurisdiction vested under section 77(iii). The principle which we identify as the State court principle is relevant to the construction of Chapter III as the decision of this Court in the HCF Case establishes. That is [1982] HCA 13; 150 CLR 49 and in particular at page 58 in the judgment of the Chief Justice and 61 to 62 in the judgment of Justice Mason.

Having established the relevance of it, in our submission, it supports a broader construction of section 80 in addition to the reasons that Mr Kirk gave in support of his construction, because it allows the flexibility that the State determines in relation to the composition or constitution of its courts in a particular case.

FRENCH CJ: So the hypothesis of a federal law in the form of section 132 dealing with trials in a federal court created by the Parliament is not an adequate surrogate, as it were, for the argument about the construction of section 80?

MR NIALL: That is so, because of the potential for requiring a trial by jury in circumstances where the State determines in respect of its court that it would, in the circumstances, so prescribe a trial by judge alone. Can I just identify very quickly in Brown how Justice Brennan dealt with the position? At page 198 at point 7, or point 8 at the start of the last paragraph, Justice Brennan identifies the principle. Over on the next page, 199, point 2, his Honour recognises:

the constitutional requirement of a jury relates to the constitution or organization of the court itself.

His Honour then identifies some limitations that imposes for 77(iii) in that paragraph, which I will not read to your Honours. His Honour then applies it in relation to the South Australian Act at the bottom of page 199 where his Honour says:

When a State court may be constituted or organized in more than one way to exercise its ordinary jurisdiction, the Parliament is not constrained when investing the court with federal jurisdiction to follow the State law which prescribes the circumstances –

And this, in our respectful submission, is critical on the top of the next page:

To the extent that State law prescribes those circumstances it is merely procedural, regulating which cases within the court’s ordinary jurisdiction are to be tried in one way and which cases are to be tried in another.

His Honour then picks up the analysis in Thornton’s Case in relation to 39(2)(d). Our points in relation to that are really fourfold. First, section 132 is not merely procedural but it determines – it is a manifestation of the Parliament of New South Wales’ determination as to how its court will be constituted in the interests of justice. It does go to the Constitution of the court of New South Wales in a particular cause. Importantly, Justice Brennan identifies that the Commonwealth does no more than pick up the ordinary jurisdiction but that denies the State Parliament to determine the content of the ordinary jurisdiction and the content of the extraordinary jurisdiction.

In the present case, in our submission, 132 is a manifestation of a capacity to deal with the extraordinary jurisdiction and, in our submission, to preclude entirely the Commonwealth from picking that law up because of a construction of section 80, would be unduly restrictive, would not accommodate the principle, and it provides, at least, some pressure on section 80 to allow a more expansive construction recognising, of course, that at Federation it was entirely contemplated that almost all indictable crimes would be performed in State courts.

FRENCH CJ: What do you say is the principle that would define the scope and limits of laws providing for trial by judge alone?

MR NIALL: In our submission, there will be a limit and one limit is that it is the accused – the accused must have a right to elect a jury. Secondly, section 80 construction must accommodate the public interest, that is, the administration of justice, so it is not sufficient. If a State does not allow of juries or, perhaps, in those cases, then it may not be possible for the

Commonwealth to require a jury in those circumstances and, certainly, Justice Brennan identifies there are maybe limits upon which the Commonwealth could insist on a jury trial in a State court for the reasons for which the principle underpins. We have developed that point in our writing. Unless there are any further questions, we rely on our written submissions.

FRENCH CJ: Thank you, Mr Solicitor.

MR NIALL: If it please the Court?

FRENCH CJ: Yes, Mr Evans.

MR EVANS: Thank you, your Honour. South Australia relies on its written submissions, your Honour.

FRENCH CJ: Thank you. Yes, Mr Bromwich.

MR BROMWICH: Thank you, your Honours. I have provided a short outline. We will adhere to our written submissions and, subject to the curly question, expedient, I intend to be economical and perhaps not even need to go to all of those points.

Our first point deals with history, structure and text. I can, again, be economical. What we say is that the combination of the context of the colonial arrangements for criminal matters at the time of drafting of the Constitution, by which trial by jury was the universal method of trial of serious offences, and that is picked up in Cheatle and in Brownlee and in Brown. That, plus the structure of government reflected in the Constitution and the plain and deliberate language used in section 80, including the extent to which those words did reflect that criminal history and structure and relationships of government, led to the conclusion reached by the majority in Brown that any trial of a federal offence on indictment must always be by jury. What we say about that is that you cannot lightly cast to one side Brown or any of those considerations. The framers were very alive to the US problems that had followed from a universal provision.

They started by having such a universal provision, they then moved to an indictable descriptor and then they deliberately brought in a trial by indictment descriptor and all of those things were very deliberate in arriving at the form of section 80 that we now have, and for all those reasons, in a sense, perhaps adopting the word of Justice Keane, one can comfortably proceed upon the basis that it should be interpreted as meaning, this way and no other.

The view of the Brown majority was consistent with a view expressed in numerous decisions of this Court stretching back to early Federation, essentially that section 80 means precisely what it says in mandating trial by jury and those different decisions in particular are listed in Brown by Justice Deane at 202, point 7 over to 203, point 9 and I will not trouble your Honours with articulating each of them.

Importantly, cases since Brown have accepted that section 80 is mandatory according to its terms as a fundamental law of the Commonwealth and that comes out of both Cheatle and Cheng, particularly Justice McHugh, also the Chief Justice, Justice Gleeson, Gummow and Justice Hayne but also Justice Gaudron in what might be otherwise seen as a dissent.

KIEFEL J: Do you say that there is an accepted purpose and intent given to section 80?

MR BROMWICH: The accepted purpose and intent is that we should maintain what had worked in the colonies at the time of Federation, that the division that had been arrived at, at that time, should be maintained, that you should continue to have trial on indictment by jury, that you should continue to have what was identified by, I think, Mr Barton as being many summary cases and that you should continue to have the mechanism sitting between the two whereby indictable matters could be dealt with summarily. So the purpose was, viewing those arrangements as working well and maintaining them and ensuring in a sense that once the Commonwealth Parliament came to pass criminal laws, that it would pass them by maintaining the same framework and not depart from it.

I do not know if that adequately answers your Honour’s question. The next point which I might also be economical about is making the case for changing the interpretation of section 80. What we say about that is that trial by jury does not just promote the attainment of justice in individual cases but the maintenance of a careful division of powers and responsibilities and we say thus accountability between the different branches of government.

The considerations advanced by the majority in Brown are enduring and have no lesser impact today than they did in 1900 or any time since and what we say, therefore, there is no justification for departing from those plain words, picking up what Justice Dawson said in Brown because theory rather than practice sees weakness in the choice which section 80 offers the Constitution in the mode of prosecution to be adopted or because it is thought that changed circumstances require a different response, is meant to be more enduring than that.

Mandatory trial by jury for federal offences on indictment was not merely a conventional way of doing things at Federation but, as I have already said, an enduring part of the structure and relationships of government. Very importantly and when we talk about different interests and different rights you need to be conscious that interests of justice tends to be a focus on the interests of the individual case and it is not to say that the community’s interest is just the interest in the instant case. The interest of the community is a guarantee of sound administration of criminal justice across the board. So, it is about that, it is about the system as a whole and not just any one case and it is about the constituent of any court exercising jurisdiction to try someone on indictment with a federal offence.

As Justice Dawson pointed out in Brown at 208 and 209, the protection of matters of legitimate public concern rather than just individual rights requires it to be constantly maintained and not relaxed. It is a high standard and it is an entrenched standard for good reason. Of course, trial by jury has been recognised as bringing important practical benefits to the general public and the accused. Some of those were identified in Kingswell and also in Cheng. Justice Gaudron picked up what Justice Deane had to say in Kingswell on that at paragraphs 80 and 81. But, importantly, they include things which the discipline of trial by jury forces upon all the participants, which includes comprehension and community acceptance as well as protection from prejudices and rash judgment.

Those aspects of comprehension and community acceptance are very important, particularly when there is reference to difficulties with difficult cases being run or being understood. If a case cannot be made comprehensible to a jury how can it be necessarily or comfortably made comprehensible to an accused and to the public who must ultimately support the criminal process? If it is incomprehensible, the level of support cannot be as high.

Importantly, trial by jury is of importance to the rule of law, the judicial process and the judiciary itself. We pick that up in part by referring to what Justice Gaudron said at paragraph 80 in Cheng but also more by way of illustration of the debate that took place in the course of the hearing in the Brownlee Case where Justice Gaudron, Justice Hayne and Justice Gummow all had something to say about how section 80 also operated to protect the judiciary from controversy. That level of protection and its need has not fallen. It has risen. The need has risen with the modern media we all encounter and the protections have risen with the greater anonymity of juries, particularly in New South Wales where jurors are identified by number only and various other protections are being put in place.

KIEFEL J: Do you rely, in that respect, on its context in Chapter III?

MR BROMWICH: I beg your pardon, your Honour?

KIEFEL J: Do you rely, in that respect, when you speak of the protection of the judiciary of it being found in Chapter III?

MR BROMWICH: Absolutely, it is part of Chapter III. You could have had it devised differently. It is deliberately part of the components dealing with the judiciary and a decision is made at least for what is expected to be, albeit the Parliament has been trusted and has honoured that trust, but it is expected to be for the most serious offences. It is the most serious offences are likely to be the most controversial offences and that is the area where the judiciary is protected, not just in relation to the decision about which way to go but as to the ultimate verdict.

Very importantly, because I stand here as a prosecutor, it sits on both sides of the ledger. It enables protection of the judiciary from controversy both as to conviction and as to acquittal because the unanimous jury, the 12 citizens, unless it has been reduced somewhat, but at least starting with 12, are much more likely to command community acceptance in a controversial case where the push of the public is one way or the other and the verdict is not so.

Adjusting what are the essential features of a trial by jury so as to make it compatible with contemporary needs is readily accommodated by section 80, although even then you still go back to the situation at Federation and you still go back to what are when you talk about essential features, for example, in Cheatle and in Brownlee where you have a maintenance of unanimous verdicts but a reduction below a starting point of 12 to 10 thus far, when you have permission of separation - and you do not have to go that many years back, at least in New South Wales, where juries were conventionally locked up from the time they retired to consider their verdict until verdict was delivered. Those are all things which still have to fit within enduring frameworks and the most central enduring framework when you go to cases like Cheatle and Brownlee is the representative quality of juries which tells us that it is that sense of community participation that is so vital and so central.

FRENCH CJ: If accused and prosecutor both tell a judge, as they can in New South Wales, that given the nature of the offence and pre-trial publicity and so forth, it is simply the chances of obtaining a fair trial with a jury are reduced, the judge cannot take that into account in the federal jurisdiction.

MR BROMWICH: That is correct, your Honour, and that is because, as I said before, the institution is sought to be protected going beyond the demands of the instant case but to do with the institution and the fabric of the criminal justice system as a whole. So these were not light choices made and Parliament does have left, following Archdall, that as an alternative remedy. To an extent though, you have to be sure that this is not a solution looking for a problem. In the federal sphere at least, it has not been demonstrated to be a problem.

KIEFEL J: But if it were, that might put additional weight on the prospect of a permanent stay being granted.

MR BROMWICH: Yes, and that is an outer limit, it is a rare occurrence, it does happen but it happens very rarely and I have to say it happens very rarely indeed in relation to things like adverse publicity. The more common remedy for those sorts of situations tends to be the vacation of a trial date, a delay in the hearing of the case, often not even turning to the point of a temporary stay, simply a delay until the moment passes because a lot of these matters of prejudice tend to be transient in nature. Not many of these prejudicial issues are of an enduring nature.

In the internet world, perhaps speaking a bit beyond the proper course of a case such as this, but things move on more quickly than they used to. So that what might at one point of time - a cover story in The Sydney Morning Herald as being all embracing, these days everything moves on and permanent stays are not so much needed as a delay until the moment passes. So although I am not saying that they are unimportant or should be disregarded, it has simply not been demonstrated that the current system does not work perfectly well and does anything other than deliver fair justice. The fact that it is not perfect and that trial by jury is not perfect is not a good enough reason to depart from it, for the reasons I have already articulated.

In terms of what has been argued, particularly by the applicant, the attempt by the applicant to find a midway between the majority and minority reasoning in Brown by reliance on what the applicant described in his submissions at paragraph 69 as the “malleable” test in section 132(4) of interests of justice, we say founders because the considerations that apply to any such test do not address, much less overcome, the matters I have already referred to: the historical context, the structural dimension, or the plain words of section 80. But importantly, as I have said already, the interests of justice test inevitably focuses on the case at hand and does not have regard ordinarily to the wider interests articulated particularly by Justices Deane and Dawson in Brown.

Turning then just briefly to the position or the approach – the alternative argument advanced by the Commonwealth Attorney-General to cast section 132 as merely a modern development of the elective options available prior to and since Federation, we say fails to acknowledge that this is not merely a development, even if practically it may have some similarities, but rather a crossing of a deliberate constitutional line drawn at Federation.

Such an election by a court as urged, contrary to the terms of section 80, allows the determination of guilt or otherwise of a federal offence on indictment by a judge exercising federal judicial power and not by a jury who was intended to be the sole source of a verdict, and we rely on Justice Brennan in Brown at page 197, point 3. Again, we say that approach runs up unavoidably to the problems to do with historical context, that structural dimension and the plain words.

The last two points I wanted to briefly refer to is the consistency of mode of trial and the rule of law and I may not even need to go to the other constitutional guarantees in light of how that has been handled today. The respondent’s concern about consistency is not confined to mere variations in procedure. A high level of the application of the rule of law, that is, in the context of trials on indictment against laws of the Commonwealth, is that the same class of cases is dealt with by the same mode of trial nationwide.

Of course, there is some difference for indictable matters dealt with summarily, but that still is a class base distinction ordinarily. So the constitutionally authorised difference is the classification of offences reserved to Parliament and we say beyond that the capacity to change the mode of trial would mean that like cases are not required to be treated alike, and we say that is fundamental as well.

It may be that I do not need to say anything more about the other constitutional guarantees. We simply say that the comparison sought to be made is not well made. The provisions referred to were construed so as to give effect to the scheme of the Constitution and/or the system of government for which the Constitution provides. They were not focusing on the “shall” dimension and, put simply, a change in the interpretation of section 80 has no similar constitutional imperative to reading down the otherwise mandatory and plain language in section 80.

But, secondly, in relation to that, the change in the interpretation sought involves a diminution of section 80’s contribution to the system of government by using the judiciary to remove a limitation on judicial power, and that comes from Cheng at paragraph 79, Justice Gaudron. Unless I can be of any further assistance, they are the only submissions I seek to make today.

FRENCH CJ: Yes, thank you, Mr Bromwich. Yes, Mr Kirk.

MR GLEESON: Your Honours, could I make a short reply before or after Mr Kirk?

FRENCH CJ: Yes.

MR KIRK: Your Honours, one point, if I may, in relation to the Commonwealth’s submissions, which your Honours would have gathered. The primary way in which the Commonwealth puts its case is different from the way that we have sought to put our case. Of course, if your Honours were persuaded by the primary way the Commonwealth puts its case we will happily adopt it in the alternative. But the way we put our case is much more like, I think, the alternative way that the Commonwealth puts it case.

In relation to the submissions of my learned friend for Queensland and some issues raised by your Honours, prompted by what my friend said, your Honour Justice Gageler made the point that the word “shall” is used in many places in the Constitution, including in provisions much closer to section 80. Your Honour Justice Keane raised the point about the separation of judicial power as being relatively rigid, if I might summarise it that way. It is true, of course, with great respect, in both points but it is a statement of the obvious, I suppose, that any use of the word “shall” must be construed in its context.

We have sought to draw analogies with a range of other constitutional guarantees, not that there is some simple box, sticking provisions into what are called constitutional guarantees, but this provision in section 80 is, fundamentally, of a very similar character, at the least, to provisions such as 92 and 117 and what has been drawn from 7 and 24 as, indeed, her Honour Justice Gaudron sought to articulate in Cheng. That is the beginning of an argument, not the end of one. But it is to illustrate that, for those other constitutional guarantees, perhaps fundamentally recognising that provisions do not pursue purposes at all costs, flexibility is allowed in differing ways.

In response to the issue raised by your Honour Justice Keane, it is true, of course, that the separation of judicial power recognised in Alexander’s Case and then in Boilermakers is relatively inflexible. But even that is not completely inflexible, even given the words of section 71, which themselves use the word “shall”:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court –

As I think the Court recognised in Boilermakers, what is sometimes called the Keynesian principle, that there are some types of powers which, depending on their context and their manner of exercise, might be capable of being characterised as either judicial or non-judicial.

So, in Davidson’s Case in 1954 there are some things which might be seen as non-judicial but which a court may still do, a Chapter III court may do. In Albarran, in Alinta, in TodayFM there are other types of provisions which might well be seen as judicial in some context but which can be exercised by a non-judicial body depending on the context and all the circumstances and so forth. Now, it is not a close analogy, I accept that, but it does illustrate that even for that fundamental, structural guarantee of the separation of judicial powers, again the purpose is not pursued at all costs, some room for flexibility at least is permitted.

In relation to the submissions raised by my learned friend, the Director, he referred to the discipline of trial by jury which is one of the points made by Justice Deane in Kingswell and Justice Gaudron in Cheng referring to comprehension and community acceptance. We have accepted that they are parts of the community and broader public purposes of section 80. But my learned friend did not answer our arguments in relation to that, that for most criminal disputes in this country, they are not resolved by jury trials. Yet, that is not seen as undermining those purposes and that the discipline of being comprehensible, which is undoubtedly important, is significantly maintained so long as there is a system of trial by jury required as there would be still on the construction we advocate to your Honours.

My learned friend, the Director, responded to a question from the Court, so yes, of course, it is significant that section 80 is part of Chapter III. We respectfully do not see how that point is against us because it suggests it is part of the structure of government established by Chapter III directed to what ultimately the fair and just administration of the judicial power of Commonwealth in the nation.

If some judicial officer determines, in the particular facts before her or him, that the interests of justice would not be served in this particular case by requiring the jury trial, then it is difficult to see how that might be said to be inconsistent with the Chapter III context.

My learned friend referred to individual cases and this is particularly point 6 of his outline. Taking account of individual cases in the way I have just referred to does not mean prioritising the interests of those individuals above all else. It does not mean that in the myriad of other cases, or types of case, where that sort of criterion is applied. It does not mean that when one seeks to amend a statement of claim in a civil case and where one is guided by the principles articulated by this Court in Aon which include taking account of the interests of other litigants, and so forth, and court lists.

If it does not mean it even there, it certainly does not mean it in the very serious context of a serious criminal matter where a judge and, in a federal context taking account of section 80, would require significant persuasion to say, well, why do the interests of justice require different to what the Constitution provides here.

It is not just about what is in the interests of Mr Alqudsi, or Ms Blogs, or whoever. It would, necessarily, take account of all the interests which are relevant, including the community interests. That is readily accommodated by this notion of the interests of justice. It is the very reason those sorts of criteria, that criteria, in particular, is used, to bring in those broader community, structural, fundamental interests.

My learned friend, the Director, says the current system works perfectly well. Five of the eight jurisdictions in this nation, that is State or Territory jurisdictions, say to the contrary. Eleven cases in Western Australia in 2008 say to the contrary and my learned friend, Mr Gleeson, is right, in our respectful submission, to label other remedies blunt and that includes, of course, a permanent stay.

My friend referred to the consistency of the mode of trial. Section 68, like sections 79 and 80 of the Judiciary Act, permits of variation. That has never been seen as constitutionally objectionable and, indeed, in our written reply submissions we refer to the plurality judgment in Sweedman quoted in paragraph 16 of our reply. There is no general requirement in the Constitution that a federal law such as section 80 of the Judiciary Act have a uniform operation throughout the Commonwealth. The same may be said of section 68 permitting of variation.

Finally, in paragraph 4 of my friend’s outline, he refers by reference to his Honour Justice Dawson in Brown to the high standard for the protection of matters of legitimate public concern rather than only individual rights require section 80 be consistently maintained and not relaxed, even with consent.

With respect, that does not answer our argument that not only the liberty individual interest but the community interests may not only not be advanced but may be impeded in a particular case by requiring a jury trial. How does it serve the structural, broader, long-term community interests in the administration of justice let alone the immediate ones where trials are permitted to go ahead where a judicial officer would otherwise say it is not in the interests of justice for this to be heard by jury. It does not.

Ultimately, the Crown’s position here is one of rigidity. Here, for section 80, unlike for the other constitutional guarantees to which we pointed, one must stick precisely to the words and one ignores underlying purposes and whether or not they are achieved or impeded, one ignores the underlying Chapter III context.

The framers are to be understood as not having permitted the assessment of individual cases and what the interests of justice require to be entrusted to judicial officers. In our respectful submission, section 80 is not by itself in relation to its position in the Constitution as a constitutional guarantee, it is not so rigid. It does permit a limited form of flexibility for which we have advocated. If it please the Court.

FRENCH CJ: Mr Kirk, if the question in the case stated is answered in your favour, the consequential order would be that the motion should be remitted to the Supreme Court of New South Wales. If it is answered adversely to you, I think the consequential order would be simply the motion is dismissed.

MR KIRK: That must be right.

FRENCH CJ: Yes, thank you. Yes, Mr Solicitor.

MR GLEESON: Thank you, your Honours. There are just two points in reply. One is in relation to Victoria, and the submission was adopted quietly by Mr Dunning. The submission is actually we think of quite a radical reach. We have responded to it at the end of our reply. We just did not want it to go without notice that we vigorously oppose that submission.

Its effect seems to be that if a State organises itself to have courts where juries are available as an instrument, as is the case, and if the State passes a law like section 132, then when the Commonwealth chooses to vest jurisdiction in that State, it is bound by that State choice.

So the question whether you end up with a jury in a federal criminal offence, let us say on indictment, the very thing section 80 is designed to guarantee ends up being made by the State and not by the Commonwealth Parliament. Now, that is where he seems to push the State court principle so that it takes - - -

FRENCH CJ: That is sort of implicit in the response to the question I put that a simple federal case is not a surrogate for the argument.

MR GLEESON: Yes, so it has that problem to it and it then produces the result that if the Commonwealth were to decide that a particular offence was to be tried on indictment without qualification, without any ability for

election, and they wished to vest jurisdiction in the Victorian court or some other State court, the Commonwealth cannot do so if there is a State law which is to the contrary. That, we submit, takes that principle too far and what Justice Brennan said rejecting that principle in Brown at the pages cited is correct and should remain good law in the Court.

Your Honours, the only other matter was just on the respondent’s outline. If your Honours could go please to paragraph 12, which is perhaps where the ultimate issue is joined between the Attorney and the respondent, and this relates to a question your Honour Justice Kiefel asked of Mr Bromwich about what he says are the purposes – purpose of section 80, and the answer he gave was to this effect: that the purpose of section 80 was to maintain what had worked in the colonies, to continue with trials on indictment, to allow for summary prosecutions and then critically he said “and to continue to allow for mechanisms between the two whereby indictable offences could be heard summarily”. He said the idea was to maintain the same framework.

So when one asks at paragraph 12 of Mr Bromwich’s outline what is the constitutional line that is being crossed, he is accepting that there was intended to be an ability for there to be mechanisms by which indictable offences could be heard without a jury. One asks then if it is open to Parliament to tailor new and better mechanisms which achieve that very purpose, consistent with section 80, and we submit it is. May it please the Court.

FRENCH CJ: Thank you, Mr Solicitor. The Court will adjourn briefly to consider what course it should take.

AT 3.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.47 PM:

FRENCH CJ: At least a majority of the Court is of the opinion that the following order should be made:

1. The question “Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution”, should be answered “Yes”.
   
2. The motion is dismissed.
   

The reasons of the Court will be published at a later date. The Court will now adjourn until 10.00 o’clock tomorrow morning.

AT 3.48 PM THE MATTER WAS ADJOURNED