ACT government reverses ‘misguided’ law

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THE ACT government has reversed a “misguided” law that removed the right of an accused to a jury trial.

The law, which was enacted by the government as part of the COVID-19 emergency response, was quickly condemned by the ACT Law Society, who, at the time, called it an “unsound and misguided” legislative change.

During the period this law was in force, the law society says several orders were made forcing judge alone trials on individuals who wished to exercise their right to a jury trial, resulting in a High Court challenge. But, due to the easing of COVID-19 restrictions, no forced judge alone trial proceeded, and the High Court challenge did not require determination.

“The society welcomes the winding back of this legislation,” says the society’s Criminal Law Committee chairperson Michael Kukulies-Smith.

“The right to trial by jury is a significant, longstanding right in our legal system, and a fundamental tenet of the rule of law.

“The government’s approach was fundamentally unsound and misguided. Disposing of the right to trial by jury against the wishes of an accused was unnecessary and unjust.”

The society acknowledged that COVID-19 restrictions prompted a need for legal process reform to allow the continued functioning of the courts. However, a more measured response, such as that implemented in NSW, would have been more appropriate, it says.

ACT Law Society president Chris Donohue says: “It is of critical importance that governments seek and listen to specialist advice from stakeholders when decisions may impact on the fundamental rights of their constituents. Failure to do so can, as in this case, result in bad law.”

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