Express Guarantees: Trial by Jury and Freedom of Religion

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This topic is within Federal Constitutional Law.


Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014) pp.1156-67;1173-83.


The Constitution does not expressly guarantee many human rights. However, it does make express reference to the right to trial by jury, and freedom of religion.

Trial by jury

Section 80 of the Constitution provides a right to a trial by jury, but only where there is a ‘trial by indictment’. The High Court has repeatedly asserted that this is wholly within the discretion of the Commonwealth parliament to decide to determine when creating an offence when it will be summary or on indictment.

  • Thus, s 80 really means that there will be a trial by jury when the law says there will be a trial by jury.
  • Parliament has the power to make an offence a summary offence and thus circumvent the 'guarantee'.

'On indictment' debate

A debate emerged as to what 'on indictment' meant. A very literal understanding would be that the Parliament has the power to categorize offences as either summary or indictable, while a more broad understanding would mean that offences on indictment entail 'serious' offences or something along those lines (ie, not a mere matter for Parliament to determine).

The current position was first established in R v Bernsconi, where Issacs J said that if a given offence is not made triable on indictment by Parliament, then s 80 doesn’t apply. It was also discussed in R v Archdall & Roskruge; Ex parte Carrigan and Brown:

  • Four judges (out of 6) said to give words their plain meaning. Narrow interpretation.
  • Parliament alone has the power to determine whether an offence is summary or on indictment.
  • Effectively condemns s 80 to having no real effect.

A wider interpretation was argued by for Dixon and Evatt JJ (in dissent) in R v Federal Court of Bankruptcy; Ex parte Lowenstein:

  • The Constitution is not to be mocked - s 80 has to have been put in for some purpose and not just to provide an illusory right.
  • Section 80 has to have some kind of meaning, purpose and effect beyond its literal meaning
  • Thought ‘trial by indictment’ has the following characteristics which apply to ‘serious’ offences:
    • That some authority constituted under the law to represent the public interest has taken the responsibility to put the accused on trial.
    • The criminal liability faced by the accused includes prison or a graver punishment
  • Irrespective of what Parliament says, if the punishment attached to the crime is of this serious kind, s 80 is triggered.

However, the narrow view of s 80 has repeatedly been treated as settled - an offence in 'on indictment' only if Parliament has specified that it is.

Case law

Some relevant cases to the above settled law include Kingswell v The Queen:

  • Facts: the serious offence of drug importation was classified as a summary offence.
  • Held: s 80 does not give a right to a trial by jury for serious offences, but only for indictable offences. It is up to parliament to specify which offences are indictable and which can be tried summarily - this is settled. The seriousness of the offence is irrelevant (Gibbs CJ, Wilson and Dawson JJ).
    • Dissent: serious offences should be classified as indictable offences. Defined 'serious' as more than one year (which was different to the definition proposed by Dixon and Evatt in Lowenstein)

And Cheng v The Queen:

  • Facts: the defendants were tried summarily for drug importation offences. Defendants sought to overturn the narrow interpretation of s 80.
  • Held: the narrow interpretation of s 80 is upheld since any proposed formulation of a broader view is unsatisfactory, uncertain or indeterminate. It is too hard for the court to determine what constitutes a 'serious' offence because there would be too many borderline cases where it would be reasonable for opinions to differ. Thus, it is left to Parliament.
    • Kirby and Gaudron dissented.

Unlimited power

The line of authority suggests that Parliament essentially has an unrestricted discretion to classify offences as indictable or summary, and as a result, whether there is a right to trial by jury or not.

  • Thackeray (legal commentator) asserts that the High Court, if so pushed, may find a limit on this power (for example, the power cannot be used arbitrarily).

What is a trial by jury

The idea of a 'trial by jury' can be understood in accordance with the common law history of criminal trial at the time of federation, modified where necessary to accommodate contemporary standards ‘and to bring about a situation which is more truly representative of the community’: Cheatle v the Queen.

  • This means a trial by jury is a flexible concept, and some undesirable aspects of the early jury trials (eg, no females, property qualifications) can be excluded without depriving the right.

A trial by jury must maintain certain 'essential features':

  • Unanimous verdict
  • Independent, randomly and impartially selected jury which is a representation of the community.
  • Not necessarily twelve jurors, but at some point, a jury may become too small to be truly representative of the community: Brownlee v R.
  • No prosecutorial intervention in jury selection: Katsuno v The Queen.


The waiver of the right to a trial by jury was discussed in R v Brown:

  • Where a trial by jury is mandated by s 80, it cannot be 'waived' by the accused. This is due to the mandatory phrasing of the section (‘shall be by jury’).
  • Trial by jury is not a privilege, its a part of the governmental structure of Australia.
    • This was dissented to by Kirby J in Brownlee v R.

Freedom of religion

Section 116 of the Constitution provides for freedom of religion. More specifically, it contains four different restrictions against Parliament making laws that:

  1. Establish a religion;
  2. Impose religious observance;
  3. Prohibit free exercise of religion; and
  4. Require a religious test for a public office.

Note that this section does not apply to state laws. A critical reading of the section reveals that it does not in fact confer a right to freedom of religion, but merely limits the Commonwealth from legislating with respect to certain areas. The section also applies to atheists and agnostics: Jehovah’s Witness Case (Latham CJ).

The section is said to be a bit of a failed provision as it only prohibits laws for one of the prescribed purposes and those purposes themselves are interpreted narrowly.

Definition of religion

The courts have generally favoured a broad and flexible approach to the meaning of religion: Jehovah’s Witnesses Case.

The court set out various criteria for the definition of religion in Church of the New Faith, which can be roughly distilled as follows:

  • adherents have beliefs in the supernatural, the ideas relate to an individual’s nature and place in the universe, there are codes of conduct with supernatural significance, and the adherents constitute an identifiable group.

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Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

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