Appeal to test constitutional validity of ACT's judge-alone trials

A matter on the constitutional validity of judge-alone trials has been lodged with the ACT Court of Appeal, an ACT government estimates hearing has heard.

ACT Solicitor-General Peter Garrisson told the standing committee on justice and community safety there was one matter about the constitutional validity of judge-alone trials before the court.

"One of the questions raised in the appeal is the question of constitutional validity," he said.

If the appeal is successful it could potentially impact on the outcomes of other judge-alone trials.

But Attorney-General Shane Rattenbury told estimates Mr Garrisson would appear in the court on behalf of the ACT government to raise matters relevant to the constitution question.

The Legislative Assembly passed the law to allow judge-alone trials in the Supreme Court in April, with the government arguing it would be inappropriate to prolong trials during the pandemic.

The provision allowed Supreme Court judges to order judge-alone trials if it ensured "the orderly and expeditious discharge of the business of the court", and was otherwise in the interests of justice.

Judge-alone trials could go ahead regardless of whether the accused person agreed to it. But parties had to be made aware of the order and were able to make submissions about it in court.

Estimates heard "a number" of trials proceeded without the consent of the accused or the prosecution.

The laws were ditched in June.

Speaking after the hearing, Mr Rattenbury said the territory government had received legal advice prior to implementing the legislation that it was constitutional.

"It's in the ACT's interest to put the argument as to why we believe this particular piece of legislation is constitutional, we received clear advice before putting the legislation through the assembly," he said.

The Canberra Liberals opposed the judge-alone trials and Opposition leader and shadow attorney-general Elizabeth Lee was unsurprised by the challenges and said the rules showed a "lack of respect for the rule of law".

"This is an arrogant government that has wilfully ignored the advice from the legal profession and unilaterally removed a fundamental human right," she said.

"The government has demonstrated its clear disrespect for the rule of law and the fundamental protection of human rights despite strong condemnation from the legal profession at the time these laws were being debated."

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A paper co-authored by staff at Legal Aid ACT, published in the journal Current Issues in Criminal Justice, argued that the move to allow judge-alone trials likely breached the constitutional power of the ACT government.

The paper, published earlier this month, argued the laws contravened the Kable doctrine, established in Kable v Director of Public Prosecutions (NSW), a 1996 High Court case.

The case established state or territory legislation which impaired a court's institutional integrity was constitutionally invalid.

"We believe the ACT government may have transgressed the constitutional limitations of their powers. There are multiple grounds on which the amendment could be challenged," the paper said.

In response, Mr Rattenbury said: "This is clearly a hotly-contested issue and there are strong views on it, as many legal matters do have. You've got good legal minds arguing this case both ways, that's why we have the courts there to determine these matters."