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Thursday, 13 May 1965

Senator MURPHY (New South Wales) . - This is a Bill for an Act to exempt certain persons from liability to serve as jurors. It is in the same tenor, broadly speaking, of the Act which has existed for many years, the Jury Exemption Act 1905- 1950. It brings that Act up to date by making certain changes. Those changes are by way of adding to the specific classes of exempted persons and also by dealing with another class of exempt persons in such a way that the content of the class of persons who might be exempted might be varied by regulation. The effect paradoxically, will be that more persons will be liable to jury service because, in the former Act, there was the exemption of the officers of the Public Service of the Commonwealth. Under the Bill which is before the Senate, that will be altered so that regulations may be made in relation to those persons in the Public Service. Some of them may be exempted from jury service and some may not be exempted.

The Bill provides also that the regulations may be applied to persons not in the ordinary concept of a public servant, who are employed under the various enactments which cover bodies such as the Commonwealth Scientific and Industrial Research Organisation. So, this is a valuable Bill because it deals with an important subject. It enables Hie Government by regulation to exempt those carrying out the higher functions of administration and leaves other persons in the Public Service liable and privileged to undertake jury service. It has been explained that the Government will introduce regulations which will widen very much the liability to jury service of persons in the Public Service of the Commonwealth. This is good.

Once upon a time, it was thought that persons employed in the Public Service - that is, employed by the Government - should not be liable to jury service because persons would be brought into the courts who were closely connected with the Government, and they might be subject to influence by the Government. That was in the days when the sphere of government was much more restricted than it is today. But we have now a great fraction of the working community employed in the Public Service. It is only right that those persons should be liable and privileged to undertake their part in the administration of the law. In our system, we do that through the juries.

The Australian Labour Party welcomes this Bill. We do not oppose it. We support the motive which is behind the Bill. We do this because the jury is an integral part of the administration of law in our community. The Bill which seeks to enable the Government to widen the liability to jury service is a good one. The jury system is one of the great things that we have inherited from the British peoples. The common law of the British Isles is the great legacy which the British people have handed to mankind, and mankind will always be grateful for this gift.

We often praise the British people for their achievements in many spheres, such as their great industrial achievements. They were the people who ushered in the Industrial Revolution. We praise them also for their military achievements but, above all, mankind will praise them for that which will endure when other achievements have become obscured by the passage of time - that is, this great legacy of the common law.

The common law is the essence of the wishes of the people, as they change from year to year, enshrined in the rules observed in our community. It is through the jury system that the common law has been able to flower. We in Australia 'have the jury system, although early in our history, of course, we did not have it. At the beginning, in Australia, we had a system of trial by military tribunals, even in civil matters. In criminal and civil matters unconnected with military affairs our citizens, early in our history, were judged by tribunals comprised of military officers, and it was not without considerable struggle that the jury system was established in Australia. It would have been a great tragedy had we not taken and spread the jury system, because it is in the jury system that we find one of the reasons for the high regard which our citizens have for the law. Under this system great numbers of our citizens are able to take an actual and personal part in the administration of the law. They see its operation at close quarters. They become identified with it. They act as judges in a cause between their fellow men or between a fellow man and the Government. This is most desirable because in a democracy such as this we have three great branches of government; the legislature, the executive and judicial branch of government.

So far as the legislature is concerned, democracy is preserved by the electoral method. The citizen takes part in the legislative process by voting for the persons who come to Parliament to make our laws. In the United States of America the citizens also take part in the election of the executive - the presidential elections and similar elections for governors of the various States. We do not have this system in Australia, because our executive is drawn from the legislature, but the elections for the legislature enable the citizens to take part in selecting the members of the executive and, thereby, to influence the executive branch of government.- Additionally, citizens are entitled from day to day to approach the legislators - and the members of the executive - and to ask for things to be done, thus enabling the democratic will to be carried out in both those spheres.

So far as the judicial branch of government is concerned, the jury system is the way in which democracy operates in this community. Citizens are called for jury service and it is they who apply the law in accordance with directions of judges and sometimes not in accordance with directions - and the right to do the latter is also a very valuable part of the jury system as those who have studied our history understand. If you take away the right of citizens to serve on juries and to administer the law you have removed democracy to that extent. This would be a great tragedy, because it, was through the verdicts of juries that many of our great liberties were secured. It is through the verdicts of juries that many of those liberties are maintained to this day, and this applies not merely to the criminal law but also to the civil law. Those who are familiar with the great struggles which took place in the United Kingdom are aware of the way in which juries brought about changes in the law.

If I may refer to the criminal law, Mr. President, those who know the law and the history of prosecutions for .treason in Great Britain are aware of the dramatic way in which juries brought about an amelioration of the criminal law because, for decade after decade, juries refused to find any man guilty of treason while the punishment for that offence was hanging, drawing and quartering. When that punishment was changed juries were prepared to find offenders guilty. Again, when the criminal law was so savage that persons who stole goods or money to the value of 40s. or more were liable to capital punishment the juries, in case after case where they found men guilty of stealing, adopted means of evading the imposition of the death penalty. Even where the amount involved was obviously more than 40s. and the theft was of 100 golden sovereigns, a jury would find a man guilty of stealing 100 golden sovereigns " to the value of 39s." At first this was regarded as perversity on the part of the juries, but the judges came to approve of it. Those who understand this see that what are sometimes erroneously condemned as perverse or foolish verdicts by juries show, if they are consistent, that the community is demanding some change; and it is historically correct to say that juries have brought about such changes. For a long time we have seen, in connection with our road accident laws, justices telling juries that they should not find for an injured person if he has been guilty of some contributory negligence - that is, in States such as New South Wales, where contributory negligence would be a complete defence. Of course juries, using their commonsense, decline to follow such direction unless the negligence on the part of the injured person is so outrageous that he should be deprived of a verdict in his favour.

This might be thought to be wrong and perverse but it is an illustration of the working of a system which has brought most members of the judiciary to the stage of agreeing with the outlook of the jury that the law should not be in this state, that it should be altered and that it should be made to accord with what juries have been applying consistently year after year. The juries have done this in many other fields. When juries depart from the written letter of the law or from what is told them by the judges, and apply a consistent standard, they really are making the law in this community. This has been the way in which our common law has changed. It is not the only way but it is one of them. Then comes the registration, through our legislature, of what the juries have already made the law in our community. The way in which the jury system has worked so that our democratic processes oan operate in the courts of law is admirable. This system should be extended rather than constricted.

There are some who would worry about the cost of jury actions. For myself, I would prefer that there were no costs in litigation and even that there was no counsel in litigation rather than that there should be no juries in our serious civil or criminal actions, because the jury is the instrument of democracy in judicial matters. The jury system has been examined by many of the wise men of the law. Outstanding judges like the late Sir Frederick Jordan and many of the great English jurists have supported the jury system. I think one may say that the vast majority of the great judges have been its supporters. Those who study it and those who understand it know what a magnificant part it has played in the development of liberty in our community.

Senator Wright - Is the honorable senator thinking of civil or criminal litigation?

Senator MURPHY - I am thinking of both. The jury system is one of the great products of British common law. It is no accident that the places to which the British common law has extended, such as the great United States of America, have been the source of the surge to have the rule of law extended throughout the whole world. One of the great revolutions in which we are now engaged is the revolution for justice. The rule of law is being taken throughout the world, lt is being introduced into most of the newly developed countries. The impetus for the acceptance of the rule of law throughout the civilised world has come from the common law countries, and the jury system has been bound up historically with the development of the rule of law.

The jury system has been the bulwark of the citizen in his constant struggles against over-reaching by the executive. It is good to see that in Australian law we are recognising the importance of the jury system and seeking to extend its privileges to a vast body of persons in the Public Service of the Commonwealth who hitherto have been denied the opportunity to take their democratic part in the administration of justice. Our constitution contains a chapter which deals with the judicature. This chapter provides for Federal courts and the jurisdiction that those courts shall exercise. It is to be remembered that a great part of the law which is administered in this community is law in the exercise of Federal jurisdiction, not only in the Federal courts but also in the State courts, being jurisdiction which is conferred on courts by the Judiciary Act. Included in that chapter of the Constitution is section 80 which provides -

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 perscribes

That means that whenever there is an indictment for an offence against the laws of the Commonwealth there must be a jury. Unfortunately, in a much criticised decision of the High Court, that section has been given a restricted interpretation. I trust that in some future case it will be given an interpretation which will enable it to have the operation which no doubt was intended for it by those who included it in the Constitution because, as has been said by that great jurist, Dr. Evatt, and many others, the interpretation which has been given to it renders it really meaningless.

The interpretation of the High Court is to the effect that if the trial is on indictment it is to be by jury, but there is no necessity to have an indictment. The judgment may be smumed up in this way: If you institute a criminal proceeding for trial by jury then the trial must be by jury. This made nonsense of the section. It was intended to provide the safeguard to the citizen of this community that in all serious matters, a trial by jury would be preserved; and that in matters which traditionally had been heard on indictment there should continue to be trial by jury.

Fortunately there is, in fact, trial by jury for most serious offences against the laws of the Commonwealth, but that is provided by statute and by the appropriate ordinances. So it should be, because we would not want in our community any departure from the system which has been the basis upon which our liberties have been built and upon which our democracy works in practice.

Today in this chamber we have heard discussion on the part of honorable senators, including Senator Branson and Senator Wood, about the interpretation of Bills. We have heard the Minister for Defence (Senator Paltridge) say that nobody would prosecute in certain circumstances. In reality a jury, exercising commonsense and the proper standards of the community, would ensure that there would be a conviction only in proper circumstances. That is the great principle upon which we stand. It does not matter what are the words in our laws. The question is: Who is going to apply them? When we have the verdict of a jury as the ultimate determinant we have a system that is conducive to our welfare. It is the system that our citizens want; it is a system that inculcates in them a high regard for the law.

Senator Gorton - Does the honorable senator regard juries as being judges of the law or judges of fact?

Senator MURPHY - I should say that under our system juries have been judges of fact and standards, and that is what traditionally they are told. But throughout history juries have always exercised the function of judges of law in cases where they thought that the law as stated to them by the presiding judge was out of line with the standards of the community. That has been their historical function. Presiding judges tell juries that they must decide only the facts and must take the law from the judge. But I believe that juries - that means the community - have never accepted that view. Whenever the law has been put to juries in such a way that it has been con.pletely opposed to the standards that prevail in this community those juries have declined to accept the judge's direction. That is why changes occur. It means that day after day over the years a subtle process operates which brings about an amelioration of our law, whether in humble road accident cases, cases of libel against individuals or criminal cases where liberty is at stake. Day after day juries, by their verdicts on the facts, are changing the application of the law. They are really changing the common law.

The function of juries does not stop at reaching a. simple decision on the facts as though juries are a machine into which you put a lot of evidence and out of which comes a factual answer. That might be so in theory but it has never been so in practice. The history of the operation of the jury system here, in the United States of America and in every other part where the common law has held sway demonstrates that. May I say further in answer to Senator Gorton that that does not mean that in ordinary cases juries would depart from what the judge told them. Our juries have consistently carried out their duties in a manner that has commanded the respect of the community. They apply themselves to their duty with diligence, fairness and impartiality. But in cases where what has been put to juries by judges as part of the common law seems to the ordinary man to be inconsistent with justice and common sense, then historically juries have taken the stand that they would not be bound by what they have been told. The history of our law shows that this has been an extremely valuable function of the jury system.

It is in this way that our law comes close to what is required by the community. That is why our laws do not get out of step with what is required by the community as they do in countries that do not share this common law tradition. In countries that do not have this tradition the law becomes set and stiff and day after day the community moves away from it, whether it be at the constitutional level or other levels, until the community and the legal structure are so far apart that the only way in which the gap can be bridged is by revolution or some violent upset. The wisdom of our system lies in evolution; changes in our legal structure are achieved day by day in the courts by the decisions and verdicts of juries.

It follows that no significant part of the community ought to be kept outside the operation of the system except for very good reason. The Bill provides for specific exemptions such as the Governor-General, members of the Federal Executive Council, Justices of the High Court and other courts established by the Parliament and members of this legislature. It is only right that those who are part of the Executive or the legislature should not be involved in the administration of justice. But leaving aside those who are at the top of the structure, it is only proper that this Parliament should enable the Government to make regulations, which are subject to the approval of both Houses, to enable the greater part of our Public Service to undertake the obligation and exercise the privilege of temporarily becoming part of the judicial system, thereby adapting it to the wants and needs of our society.

Question resolved in the affirmative.

Bill read a second time.

In Committee.

The Bill.

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