law

If you have ever been to the Department of Environment, Land, Water and Planning (DWELP) and asked questions, you would be well-aware that the native-animal department has almost no staff, that DWELP does not use the law to protect native animals, but prevents others from using it, due to legal lack of standing.  At the same time, the Agriculture arm of DWELP enthusiastically issues permits to kill kangaroos and other native animals with almost no restriction or inspection, and quasi-imaginary

On the most recent hourly Iranian PressTV news bulletin, it was reported that a  Pakistani supreme court has ruled as unconstitutional Pakistani Prime Minister Imran Khan's order to dissolve parliament and call new elections.

Many Australians think that if they are accused of a crime, they have a right to a trial by jury. They are therefore shocked when they only appear before a judge, and are encouraged to plead guilty/admit to the charges, without the option of a jury. It feels like being rail-roaded. Research indicates that judges who are regularly called upon to hear criminal prosecutions without juries become 'case-hardened' and prosecution-minded, according to "Trial by Jury" by Graham Fricke, of which we reproduce the first part here. As far as we know, not much has changed since this article first appeared in the Australian Parliamentary Library - in 1996, going by this more recent Victorian Law Reform Commission article on the subject.

Trial by Jury - Research Paper 11 1996-97 - by Graham Fricke - Published by the Parliamentary Library of Australia

When federal Parliament creates criminal offences, the question arises as to whether such offences should be tried by judge and jury, or tried summarily by a magistrate. The framers of the Australian Constitution inserted section 80, which appears to confer a right to jury trial.

A difficulty results from the use of the words 'on indictment' in the opening words of section 80. This has at times resulted in a narrow construction of the section, for the High Court has said that it is only when prosecutions are brought 'on indictment' that the right to jury trial arises; where Parliament has authorised summary proceedings, and summary proceedings are brought, the right to jury trial is avoided.

It is contended that there have been three eras of interpretation of section 80:

an initial period in which the section was regarded as laying down a fundamental law of the Commonwealth;
a much longer period in which a narrow, 'procedural' approach was taken; and
the last decade, which reveals a tendency to revert to the broad approach.

The broad approach, which is necessary if citizens facing substantial liability to imprisonment are to enjoy a genuine right to jury trial, was also supported by prominent judges in dissenting judgments during the second period.

The fact that the narrow approach has been taken makes it important for federal parliamentarians to be vigilant in legislating for criminal offences and the mode of trial of such offences. Where offences are made subject to substantial periods of imprisonment, the legislation should make it clear that the trials should take place on indictment. If summary trial is provided for, the accused will be deprived of an important benefit which some, at least, of the framers of the Constitution intended the accused to enjoy.

Many of the sections of the Crimes Act 1914 (Cth) do not make it clear whether the offences it creates are triable by jury or summarily. Guidelines are provided by sections 4G, 4H and 4J. Section 4G, for example, provides that federal offences punishable by imprisonment for a period exceeding 12 months are indictable offences, but it adds the words 'unless the contrary intention appears'. This may leave the situation in an unfortunate state of uncertainty. Other federal legislation authorises summary proceedings even though substantial terms of imprisonment may be imposed.

It is suggested that federal Parliament should enact that the trial of any federal offence providing for punishment in excess of one year's imprisonment shall be on indictment. This enactment, taken in conjunction with section 80 of the Constitution, would result in an effective guarantee of trial by jury for serious offences.

Arguably Parliamentary Committees should play a greater role in scrutinising laws to ensure that summary trial is not available for serious offences.

Stronger protection of a right to trial by jury for serious offences, even if that right could be waived by the accused, would facilitate the democratic participation of the community in the administration of justice. This in turn would strengthen public confidence in the legitimacy of the Australian criminal justice system.

According to the recently publicly released summary of offending, it is still unknown what offences Mr Johns pleaded guilty to, why he was given a term of imprisonment, exactly why the proceedings were conducted entirely in camera, and why even the ACT Attorney-General was never made aware that he was imprisoned in a correctional facility which the Attorney ultimately oversees,” Dr Brasch QC said.

At today’s hearing before the Independent National Security Legislation Monitor (INSLM), the Law Council of Australia emphasised that trials involving national security need to strike a balance between secrecy and open justice.

The hearing forms part of review into the operation of section 22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), as it applies in the ‘Alan Johns’ matter (a pseudonym).

“The Law Council recognises that there may be cases where suppression of information about criminal offending and closure of courts to the public are necessary to protect national security information,” Law Council President, Dr Jacoba Brasch QC, said.

“However, open justice is one of the primary attributes of a fair trial. It is a fundamental rule of the common law that the administration of justice take place in an open court, except in the most exceptional of circumstances.”

“In the example of ‘Alan Johns’, it is hard to see that the extent of the secrecy surrounding the ‘Alan Johns’ case was a proportionate response to the requirements to protect national security.”

“According to the recently publicly released summary of offending, it is still unknown what offences Mr Johns pleaded guilty to, why he was given a term of imprisonment, exactly why the proceedings were conducted entirely in camera, and why even the ACT Attorney-General was never made aware that he was imprisoned in a correctional facility which the Attorney ultimately oversees,” Dr Brasch QC said.

Currently the NSI Act offers accused persons the option of consenting to arrangements and orders under section 22 or enduring a lengthy contested hearing with the aim of securing more appropriate orders under section 31 of the Act.

The difficulty and uneven outcome of this process inherently encourages accused persons to take the option of agreeing to section 22 orders – with likely disproportionate outcomes.

“It appears that the NSI Act requires some reform to recalibrate the balance between the requirements of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security,” Dr Brasch QC said.

“It is concerning that without a change in the law, there is no guarantee that we will not see another secret trial or secret prisoner in Australia.”

For some background on secret trials in Australia see also this article, Kieran Pender,
https://www.smh.com.au/national/australia-takes-china-to-task-for-secret-trials-but-one-could-be-happening-here-right-now-20210605-p57yeh.html, Sydney Morning Herald, June 8, 2021.

The Law Council of Australia has applauded the Australian Government’s confirmation that it intends to ratify the ILO Forced Labour Protocol as a vital development in combating forced labour, trafficking, and slavery-like practices.

The Protocol establishes obligations to prevent forced labour and, importantly, to provide victims with access to remedy. The Protocol reaffirms the importance of prosecuting the perpetrators of forced labour and ending their impunity. It adds new elements to the Forced Labour Convention which Australia ratified in 1932, aimed at tackling the complexities of modern slavery and addressing the root causes of forced labour.

Law Council of Australia President, Fiona McLeod SC, who has long played a prominent role in advocating for a more robust Australian approach to anti-slavery, noted the significance of the confirmation.

“The Australian Government’s move to ratify the ILO Forced Labour Protocol is a crucial step and, on behalf of the Australian legal sector, I congratulate the government for taking it,” Ms McLeod said.

“Tens of millions of people worldwide face slavery like conditions and many thousands in Australia.

“The social, economic, and moral impact of those numbers is staggering, and it is predominantly the world’s most vulnerable people, including women and children, being exploited.

“The Forced Labour Protocol also requires the Australian Government to support due diligence by both the public and private sectors on supply chains.”

Ms McLeod noted the announcement could be added to a number of other significant shifts in 2017, including steps toward the establishment of a Modern Slavery Act, and the Australian Government’s announcement of a Modern Slavery in Supply Chains Reporting Requirement.

Ms McLeod this year chaired the Labour Exploitation Working Group of the National Roundtable on Trafficking, Slavery and Slavery-like Practices. She also participated in the Department of Foreign Affairs and Trade’s Multi-Stakeholder Advisory Group on Implementation of the UN Guiding Principles on Business and Human Rights.

Criticism of some elements of Ms McLeod's statement:

Candobetter.net Editor: Ms McLeod also said, "Australia’s wealth, privilege, and strong rule of law makes it a country well-placed to play a leading role in dealing with this global scourge," but we think this is a questionable assertion, since it ignores the loss of democracy, the rise in homelessness, obesity, the relaxation of labour laws in this country permitting the exploitation of imported cheap labour, and the enormous divisions of wealth in Australia. We also feel that Australia has generally played the role of yes-man to wars and globalisation, and therefore cannot be accurately described as a 'leader'. Australia's 'strong rule of law' might also be questioned on the grounds that most people cannot afford to pursue matters in court or pay the cost of lawyers against corporations.