User:EdChem/Section 80 of the Australian Constitution

Section 80 of the Australian Constitution is the final section within Chapter III of the Constitution of Australia, which governs the establishment and operation of courts exercising the judicial power of the Commonwealth. The section mandates that a trial on indictment for an offence against any law of the Commonwealth must be a trial by jury. It applies only to offences under Commonwealth law, with laws in each State determining when an accused has the right to a jury trial for crimes under their laws. It came into effect on 1 January 1901 when the founding states federated into the Commonwealth of Australia. Four separate questions were put to a referendum in 1998, one of which would have strengthened the protections in section 80, but none of them passed.

The High Court of Australia has taken different approaches to interpreting section 80 throughout its history. The present view is an expansive one, with the right to a trial by jury apparently applying for crimes where the maximum penalty exceeds one year of imprisonment. Partly because of a lack of cases on point, and partly due to ambiguities in Commonwealth laws, this right is not certain – though the situation would have been clarified had the referendum passed. The narrow interpretation, described by Justices Evatt and Dixon as a "mockery" of the right to a jury trial, has been described as an example of anti-canon in Australian law.

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Section 80 was included in the Constitution of Australia when it was ratified, and stated that:


 * 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.

The interpretation of section 80 has turned almost entirely on the meaning of the phrase "on indictment."

History
The original drafting of section 80 was based on the Constitution of the United States of America in Clause 3 of Article 3, Section 2.

1988 Referendum
The Hawke Government held four constitutional referenda on 3 September 1988. The last of these (the 42nd question to be put to referendum in Australia) dealt with rights and freedoms, with the question asked being:

A Proposed Law: To alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government.

Do you approve this proposed alteration?

The referendum was rejected, with only 30.8% of votes being in favour. The contentious part of this referendum related to religious freedoms. Churches and schools with religious affiliations expressed concerns that changes could force greater separation between churches and church-supported organisations and the state, thereby jeopardising public funding to non-government schools, most of which have religious affiliations. The open-ended and non-descriptive wording in the question was also identified as a factor in the defeat of the referendum.

The Hawke Governments handling of the 1988 referenda has been described as "inept" with the consequence of ministers not aggressively campaigning in support of the referenda being to hand "the initiative to the opposition and to those bodies which used misinformation and fear tactics to oppose." No referendum in Australia has ever passed without bipartisan support