Section 80 of the Australian Constitution has spent a majority of its time in operation being interpreted narrowly by the High Court of Australia1. Recent decisions have seen slight yet meaningful breadth given to the scope of the nature of the trial it protects, but dissenting voices nonetheless see much room for extension or adaptation of this function2.
None of the Australian states or territories have afforded protection to the right to trial by jury within their own constitutions.3 Each parliament has instead separately provided for jury trials under state and territory legislation.4 We will see that this was a conscious decision at the time of federation, which has subsequently resulted in a divergence in practice between state and federal levels.
The provision itself reads:
“The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes”5
In short, section 80 protects a certain variety of trial by jury, the precise nature of which is to be uncovered by reference to four key criterion: (1) trials on indictment, (2) of any offence against any law of the Commonwealth, (3) shall be, (4) by jury. 6
(1) - ‘Trial on Indictment’
Initial opinions of the role that the phrase ‘on indictment’ was to play construed the term as requiring a trial to be identifiable as indictable before any guarantee of trial by jury under section 80 would come into effect.
As considered by Isaacs (Vic) in the Convention Debates,7 a “man is entitled to have a jury in a case”, but Federal Parliament would not be fettered in creating offences not to be prosecuted by indictment.8
Isaacs, who later articulated this position in the case of R v Bernasconi,9 again had opportunity to express this view in the case of R v Archdall and Roskruge; ex parte Corrigan and Brown,10 wherein the court was to consider whether the accused, tried summarily according to then federal law, claimed such trial was ultra vires of Parliament by virtue of the section 80 guarantee11. The majority dismissed the appeal, holding that the proposition Parliament would be fettered by the section was without foundation – “and its rejection needs no exposition”.12
This narrow construction meant that section 80 does not award an immediate protection or right to jury without the prerequisite of offences being of an indictable nature. This construction dominated the High Court’s reasoning for over 50 years.13 The position has not been without its critics. In R v Federal Court of Bankruptcy; Ex parte Lowenstein14 the joint dissent of Dixon and Evatt JJ insisted upon a construction of the provision that “produce(d) some real operative effect”15.
The dissenting decisions of both Deane J, (and to a lesser extent, Brennan J), in R v Kingswell16 marked a broadening in the High Court’s approach. The appellant was accused of conspiracy to import narcotics, for which the legislature had allowed the trial be summarily decided17. It was the seriousness of the penalties involved that prompted the dissent of Deane J and his alternative construction of the application of section 80. To use the majority construction would result in the consequence of section 80 containing “no effective guarantee of trial by jury” – a position Deane J lamented as essentially “mocking” the Constitution18. He affirmed that s80 ought be construed “by reference to substance rather than mere procedure”19. Section 80 therefore ought be seen as applicable to more serious offences – rather than those which carry a minimum sentence20, this seriousness is determined by reference to whether the case is appropriate to be dealt with by justices or magistrates alone21.
Kirby J too (albeit many years later) characterized the narrow construction of Chapter III provisions as “dark days” of constitutional interpretation.22 Such broadening of the scope captured by the guarantee has been characterized as “consistent with the trend” in the High Court’s evolving constitutional interpretation toward implicating fundamental rights and freedoms as captured by otherwise expressly absent guarantees.23
(2) ‘Any offence against any law of the Commonwealth’
Explicitly, the protection afforded by section 80 extends only to federal offences.24 The reasoning behind extending the protection only to such offences may easily be traced to principles of a federation in allowing the states to determine their own administrative judicial matters; but it is nonetheless particularly noteworthy when considering that the Commonwealth Parliament itself lacks the capacity to legislate generally on the criminal law.25 Indeed the broad reading of section 80 as articulated in the dissenting judgments above has been considered justified on the grounds that it was, at the time, a reflection of state values in the new federation.26 The significance of the development of state jury trials as contrasted with that of the Commonwealth will be explored further in turn.
(3) ‘Shall be’
The case of Brown v R27 confirmed that inclusion of the term “shall” allocated an obligation (incapable of being waived) on the part of the courts to hold such trials by way of jury28.
(4) ‘By jury’
In the case of Cheatle v R29 the accused were convicted based on a majority verdict pursuant to the Juries Act 1927 (SA).30 The appellants sought to overturn the decision on the basis that reference in section 80 to a “trial … by jury” was reference to the common law institution requiring a unanimous decision.31 The High Court agreed that “the common law’s unwavering insistence upon the requirement since the fourteenth century has endowed it with the authority of settled doctrine”.32
Since this decision, where the right to a trial by jury is established, the nature of such a jury must be consistent with the “essential” characteristics of the institution. That is to say, not each and every attribute that juries once held was to carry over, but those attributes appropriately identifiable as “essential” would be protected by section 80.33 Indeed, the historically significant attributes of the jury as comprised of property owners and males are no longer justified or essential to modern times.34
These “essential” attributes continued being refined in the case of Brownlee v R.35 Here, the case at trial extended beyond the expected time frame and as a result, two of the twelve jurors were allowed to leave for legitimate personal reasons36. The court observed that, given the increasingly lengthy nature of trials and crowded court lists, it was inappropriate to swear a fresh jury where a juror died, became ill, or otherwise required such dismissal, as was oftentimes the case under the common law.37 Even with diminished numbers, it remains essential that the jury be randomly or impartially selected, as opposed to chosen by the prosecution or the state.38 Although continued isolation was historically characteristic of jury trials, it was no longer to be considered essential.39
It is often argued by appellants that reference to a ‘representative’ jury required peers of the accused in literal terms.40 The case of R v Walker41 involved an Aboriginal accused insisting upon a construction of the term “peers” to negate the representativeness of a mixed race jury, and instead claimed a right to a jury consisting of his fellow Aboriginal peers.42 The court, however, determined that in contemporary Australia, all individuals are formally equal before the law and thus a mixed race jury was satisfactorily representative. 43
Section 80 not limit the legislative power of the States to prescribe, vary or withdraw the ‘right’ to trial by jury in any way they so choose.44 Indeed it is strange that the guarantee in section 80 was restricted only to federal offences, given that crime was an area that the Constitution itself indicated the states would possess the most power.45
The drafting of section 80 was done in light of the colonies’ long struggle to obtain the right to have criminal matters heard by juries.46 At the time of federation, trial by jury had been acquired by all colonies for the trial of serious criminal offences.47
Learned academic Gray suggests that the founding fathers knew that states would be predominantly in control of crimes, and “assumed that the right of the accused to trial by jury in serious cases would continue”.48 As such, in drafting section 80 they actually sought to reflect the states’ position and mirror these values and obligations onto the newly formed federal government.49 They were so influenced by the Diceyan approach that during Convention Debates, Cockburn himself expressly doubted inclusion of protective measures for the states – to do so would render them “petty things”.50 Thus, that a jury trial was firmly entrenched in the common law at the time of federation was protection enough in the eyes of most draftsmen.51
Significance of the Magna Carta on States
Many hopeful applicants to appellant courts have seen as significant the incorporation by most states52 of Article 29 of the Magna Carta, worded:
“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land”53
Putting aside the absence of any recognizable ‘jury trial’ existing at the time of the Magna Carta’s inception, 54 litigants so inclined to challenge the lawfulness of summary trial on the basis of their ‘Magna Carta rights’ have found their claims fall flat.55 As ordinary statute of the states, the Magna Carta may be overridden or superseded by subsequent legislation.56
Effect on State Jury Trials
Despite lacking an equivalent ‘constitutional protection’, trial by jury at the state level is wider in several respects: for example, the state right encompasses many civil offences in addition to criminal trials; secondly, under state legislation, the right to a jury may be waived by the accused57. Jury trials at a state level have in many ways experienced an evolution and capacity to change in ways that the section 80 guarantee has not58.
Significance of the Protection of Trial by Jury
The consistency of the law across state and federal jurisdictions is desirable in order to avoid different ‘grades of justice’ being instituted within the federal system.59 Some may argue that in a federation it may be expected that inconsistencies across state boundaries – nonetheless, the High Court has considered it undesirable.60
Retaining public respect for the judicial process and the judiciary is enhanced “by placing the determination of criminal guilt in the hands of ordinary members of the community”. 61 The jury trial, according to Deane J “finds a solid basis in an understanding of the history and functioning of the common law as a bulwark against the tyranny of arbitrary punishment”.62 Lord Devlin saw the mode of trial as “the lamp that shows that freedom lives”.63 What may be altered in majority rulings is “that they have a sense that justice has been administered”.64
The constitutional entrenchment of section 80 has thus provided for a selective application to persons on trial for serious offences. The provision as it stands leaves entirely to Parliament what crimes warrant explicit inclusion as indictable offences; an abhorrent notion to those who considered the institution a substantive rather than procedural right. That our forefathers, when drafting said clause, were drawing from the experience of the states as if it were similarly an entrenched process leaves a large gap in the application of the ‘right’ to a trial by jury across the state and federal jurisdictions. Whether such inconsistency ultimately diminishes the public faith in the judicature at large, or even in jury trials as democratic process is of great importance if we seek to uphold and maintain an institution that has been at the forefront of the commoner’s resistance to tyranny.
R v Badenoch  VSCA 95
Brown v R (1986) 160 CLR 171
Brownlee v R (2001) 207 CLR 278
Byrnes v R (1999) 199 CLR 1
Cheatle v R (1993) 177 CLR 541
Cheng v R (2000) 203 CLR 248
Chia Gee v Martin (1905) 3 CLR 649
R v Archdall and Roskruge; ex parte Corrigan and Brown (1928) 41 CLR 128
R v Bernasconi (1915) 19 CLR 629
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556
R v Grant & Lovett  VR 423
R v Kingswell (1985) 159 CLR 264
R v Walker (1988) 38 A Crim R 150
Zarb v Kennedy (1968) 121 CLR 283
Commonwealth Constitution Criminal Procedure Act 2004 (WA); Juries Act 1927 (SA);
Juries Act 1957 (WA);
Juries Act 1967 (ACT);
Juries Act 1963 (NT).
Juries Act 2000 (Vic);
Juries Act 2003 (Tas);
Jury Act 1977 (NSW);
Jury Act 1995 (Qld);
Imperial Acts Application Act 1969 (NSW); Imperial Acts Application Act 1980 (Vic); Imperial Acts Application Act 1984 (Qld);
Lord Devlin, 1966, Trial by Jury, Stevens and Sons Ltd, Great Britain
Hon Justice Virginia Bell, ‘Section 80 – The Great Constitutional Tautology’ (2014) 40 Monash University Law Review 7
Alex Castles, ‘The Reception and Status of English Law in Australia’, (1963) 2(1)
Adelaide Law Review 1
David Clark ‘The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law’ (2000) 24(3) Melbourne University Law Review 866
David Clark, ‘Magna Carta in Australia 1803-2015: The Power of a Myth and an Idea’ (Speech delivered at the State Library of New South Wales, 7th May 2015) <http://www.magnacarta.org.au/wp-content/uploads/2015/06/MC-David-Clark.pdf>
Gray, Anthony ‘Mockery and the Right to Trial by Jury’ (2006) 6(1) Queensland University of Technology Law and Justice Journal 66
Anthony Gray, ‘A guaranteed right to trial by jury at state level?’ (2009) Volume 15(1) Australian Journal of Human Rights 98
Nemeth (1977) ‘Interactions between jurors as a function of majority v unanimity decision rules’ 7 Journal of Applied Social Psychology 38
Christine Parker, ‘Protection of Judicial Process as an Implied Constitutional Principle’, (1994) 16 Adelaide Law Review 341
Graham Fricke, ‘Trial by Jury’, (Research Paper No.11, Parliamentary Library, Australia, 1996-1997)
Convention Debates (Melbourne, 1898, vol 1)