Since 1915, the territories have been denied the constitutional right to trial by jury.
A constitution sets out a framework for how the nation will be governed and guarantees civil and democratic rights to citizens. However, our country is moving towards a legal system of parliamentary sovereignty – where the courts place a heavier emphasis on the power of governments to dictate rules and laws through legislation.
Although this is a somewhat recent occurrence in the states and federally, we have to go all the way back to 1915 in R v Bernasconi to find the first example of this happening in relation to territories.
Trial by jury is a crucial element of the rule of law. It allows the community to consider evidence and worldly perspectives on cases, as well as acting as a safeguard against potential corruption.
Section 80 of the Australian Constitution grants this right to all Australians who commit ‘indictable’ offences under Commonwealth legislation. This provision is part of Chapter III, which seeks to prevent the independence of the courts and the rule of law.
Bernasconi, which still stands today, prevents residents of Australian territories from exercising this constitutional right.
In what seems to be unrelated to trial by jury, section 122 of the Australian Constitution allows the Commonwealth to make laws relating to the governance of any territory, therefore vesting complete legislative control over the territories in the Commonwealth Parliament.
However, in R v Bernasconi, the High Court had to reconcile a clash between these two provisions. Its decision, which prioritised section 122 and still stands today, prevents residents of Australian territories from exercising this constitutional right.
The Territory of Papua was an Australian-controlled entity governed under the Papua Act 1905 (Cth). This law was authorised under section 122, meaning all its provisions were valid under the Constitution.
When Bernasconi faced criminal charges, under this law he was only entitled to trial by judge alone.
He argued this was unconstitutional, as the Papua Act was made under Commonwealth jurisdiction. Thus, an offence committed under it should be treated like an offence against other Commonwealth legislation, meaning he would be entitled to a trial by jury under section 80.
Chief Justice Griffith, with whom Justices Gavan Duffy and Rich agreed, dismissed this argument, determining that “Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories.”
He concluded that “I do not think that in this respect the law of a territory can be put on any different footing from that of a law of a state” – meaning territory legislation, regardless of whether it’s Commonwealth initiated or not, can’t be subject to section 80.
In an operational sense, section 80 is seen to be on a “different footing” from section 122. Their purposes differ, which prevents these two sections from impacting each other in any way.
Justice Isaacs differed in his reasoning, believing that “a law made under the authority of sec. 122 … is a law of the Commonwealth.” Despite arguing that the matter did involve Commonwealth legislation, he ultimately decided “if both sec. 80 and sec. 122 be construed, not by themselves alone, but in relation to the rest of the instrument as well as to each other, the contention rested on sec. 80 cannot be sustained.”
Justice Isaacs believed the provisions of the Australian Constitution could not be read in isolation, meaning that when you look at the wider context of the document and its implications, no section, including section 80, could be used to prevent or limit the scope and usage of section 122 in passing laws.
His Honour was of the opinion that the territories were simply not developed enough to attract any constitutional rights, arguing that it was “not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers. It is in a state of dependency or tutelage,” and may not ever be “admitted as a member of the family of States.”
Later, in Spratt v Hermes (1965), the High Court was asked to consider the compatibility of section 122 and section 72, another provision from Chapter III. Section 72 protects the tenure and income of judges, so that judges don’t feel that they have to rule a certain way to keep their job.
Section 72 applies to “courts created by the Parliament.” It was unsuccessfully argued that this applied to the ACT’s Court of Petty Sessions, now the Magistrates Court, which was created under the Seat of Government (Administration) Act 1910 (Cth).
Still, Chief Justice Barwick clarified that certain aspects of Chapter III can coexist in relation to section 122, stating “the mere presence of s. 80 in Chap. III does not, in my respectful opinion, require that it be inapplicable to territories.”
In doing so, Barwick also criticised the application of Bernasconi, by stating “such a conclusion [that Chapter III is inapplicable to territories] does not necessarily follow, in my respectful opinion, from the decision itself in that case.” This wasn’t a formal re-opening of Bernasconi, but it was a strong display of doubt in the logic behind the decision.
He didn’t claim that the outcome of Bernasconi was wrong; rather he questioned the conclusions drawn from the reasonings in Bernasconi, especially from Justice Isaacs’ judgment. He found that, in future situations, constitutional requirements regarding the operation of courts could potentially be determined in relation to territories, despite section 122.
When it comes to human rights, the Commonwealth government has all the power, unlike the cooperative federalism between the Commonwealth and state governments.
Bernasconi lives on, but public opinion is turning more in favour of territory rights, narrowing the use of section 122 by public pressure.
Until the High Court officially overturns Bernasconi, extending constitutional rights will be difficult, but no one has said anything about statutory rights, done through legislation like the Restoring Territory Rights Act 2022 (Cth).
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