hello everyone my name is renato costa this is zozillo and to and its purpose i hope you enjoyed learning more about the australian constitution if you did click the like button subscribe to our channel and hit the bell icon and i hope to see you again soon until then ciaoday we will talk about another express right today we will look at section 80 of the australian constitution the right to trial by jury [Music] according to section 80 of the australian constitution 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 this provision includes what is considered to be another express right if you are still unsure why i call them express rights or negative vital freedoms then you should click on the card above and watch the video that we did about the express and implied rights in the australian constitution there are three elements that i want to highlight in section 80. trial by indictment offense against any law of the commonwealth and the fact that the trial will be by jury let's find out what this constitutional provision is all about first what's a trial what's an indictment a trial is a judicial proceeding where typically the judge will consider the culpability of an accused person by looking at the evidence and the facts related to the matter at hand an indictment includes an information filled by the attorney general for the prosecution of an offence so an indictable offense is prosecuted in the name of the attorney general following a procedure known as information or indictment i know i know it sounds circular i didn't make the rules but indictment is different from a summary punishment some offenses will be punished in a summary way they are usually less serious so these offenses like property damage or road traffic offenses others however they indictable offenses they will be tried by jury they are typically more serious matters like murder manslaughter or drug drafting however in a case in 1928 it was held that the federal parliament was not required to lay down indictment procedure for all serious offenses in that case the accused was tried summarily for an offense that attracted one-year imprisonment and generally this seems to be the rule when the punishment is more than one year imprisonment then we would have inductable offences however the decision in that case allowed for the commonwealth to say that all offences shall be tried so merely as justice higgins said if there be an indictment there must be a jury but there's nothing to compel procedure by indictment so the trial by jury is only for inductable offences not for all serious matters the guarantee is restricted to those offenses that are tried by indictment according to what parliament decides is an indictable offense this restrictive approach was later on criticized by justice dixon and evitt in a powerful descent in a case called ex-sparta lowenstein from 1938 you should really read that descent if you have the opportunity at on your own time as you know i always leave the links to the cases that are mentioned in my videos in the description of the video until today the high court then adopts this restrictive interpretation of section 80. if the offense is not triable by indictment it does not attract section 80 a trial by jury ultimately parliament will decide if the offense is inductable or tried in a summary way now let's move to the second part where it says that the trial by jury will happen in inductable offenses against any law of the commonwealth an offense is just this broad term that means a public wrong so all kinds of crimes and misdemeanors are included in this expression and particularly here it refers to laws of the commonwealth so included in this expression is not only the constitution but any kind of act enacted by parliament some even argue that it includes common law offenses as well however there's no guarantee of a trial by jury for inductable state offenses section 80 is not applicable to the states this is a huge limit on the efficacy of this provision because the bulk of the criminal law in australia is legislated by the states the most serious offenses are usually not in commonwealth law but in state law by the way section 80 doesn't apply to territories either so yes there is a restriction here for offenses against any law of the commonwealth not of the states but it's important to say that states actually do have their own provisions about that so deductible offenses are usually tried by jury in all of the states okay now what about jury if you've ever watched any american movie or tv series that involves law or trials you definitely know what a jury is article 3 section 2 of the united states constitution says that the trial of all crimes except in cases of impeachment shall be by jury so there's a huge difference here between the two systems right between australia and united states here a trial by jury will only happen for indictable offences against any laws of the commonwealth ok but what is a jury a jury is a body composed of individuals responsible for determining questions of fact and applying the law to those facts in order to reach a verdict final decision about the existence of the offense and the culpability of the accused person to become a juror in australia you need to be selected from a jury row the members of the jury are selected from that role according to the principles of randomness and representativeness that is the jurors are selected from a pool of randomly selected people in a relevant area in brown lee against the queen from 2001 the high court of australia decided that there is no set number of jurors but the number of jurors must be representative of the community and capable of performing the group deliberation there is inherent in a jury trial 12 members is the number of an american jury and this has traditionally been the number of members in a jury in most call of jurisdictions but in australia the high court has upheld the validity of juries with 10 and 15 members for example the high court has also decided that the decisions of the jury must be unanimous this follows the long-established commonwealth tradition that unanimity leads to people only being convicted upon proof beyond reasonable doubt hey are you liking this video if you are don't forget to click the like button and subscribe to our channel that's very helpful and super important for the growth of our channel well now that you've seen what this provision is all about you may be wondering whether this is an actual express right or not again i have to say that this looks much more like a limitation on parliament in on the judiciary rather than an actual individual right in a case called spreading hermes from 1965 chief justice barwick said that what might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision that seems to be true and further in brown the high court of australia decided that a person accused of an indictable offense could not wave his or her right under section 80. so even if it was for the person's benefit it's not possible for the accused to waive this right indeed there's nothing grand about the trial by during section 80. first because the commonwealth does not need to consider all serious offenses as inductable offenses many public wrongs can be dealt summarily and second because it does nothing to positively expand the legal entitlements of an individual it is a procedural provision about how a person ought to be tried let's read the opinion of justice mchugh in chang from 2000 his owner made a summary of how to interpret section 80 of the australian constitution section 80 is not a great guarantee of trial by jury for serious matters it guarantees trial by jury only when the trial is on indictment whether the offence is tried or tribal indictment depends in the first instance on parliament classification of the offense such a conclusion is unlikely to be accepted to many civil libertarians or those who believe that serious criminal offences should be tried by juries but it is what our constitution mandates a contrary result can normally be reached in my respectful opinion by disregarding the plain meaning of section 80 its drafting history