General

17.1. The aim of the justice system is to ascertain the facts of a matter and to administer justice. The law shall be a secondary consideration in the administration of justice. Precedent shall play no part in matters before the courts except that judges shall be expected to maintain consistency in sentencing and shall be assisted in this with a “Sentencing Code of Practice”.

This means that our courts will operate in an entirely different way. Instead of common law and precedent dominating in our courts; ascertaining the facts of any matter before the court will be the primary focus. This Constitution and Statute Law will form the basis of decisions. In deciding cases before them, judges will ascertain the facts, and make decisions based on delivering justice.

17.2. This Constitution establishes the Basic Laws of Australia in Chapter 1.

17.3. Most crimes against society shall be prosecuted as crimes against this Constitution. Criminal behaviour not foreseen in the Basic Laws of this Constitution shall be included by amending this Constitution.

The idea here is to eliminate reams of statute law that the People have no hope of knowing. The basic laws in this Constitution can be learned and understood by all.

17.4. Statute law shall be used to define criminal behaviour only as an interim measure and when a Constitutional amendment is considered impractical.

Examples of impracticality include laws requiring voluminous caveats or explanations and laws applicable for a limited time.

17.5. Persons violating the laws of Australian society shall be tried in Australian Courts established by this Constitution.

17.6. Penalties shall be imposed according to the dictates of justice and shall range from Admonition to Life in Prison.

17.7. Judges shall take a criminal record into consideration when passing sentence.

17.8. Persons reoffending shall be sentenced to double the normal punishment.

17.9. With this Constitution the People establish a series of Courts, a Judicial Ombudsman, a Judicial Commission and Mediators of the Peace.

The Courts

17.10. The following courts shall be established

a.    Australian Constitutional Court

b.    The Appeal Court

c.    Supreme Court

d.    Corporations Law Court

e.    Industrial Relations Court

f.     Family Law Court

g.    Court of Petty Sessions

h.    Small Claims Court

17.11. All courts except the Constitutional Court and the Appeal Court shall operate on a common set of Standing Orders and there shall be no jurisdictional boundaries. An imbalance of workload shall be corrected by transferring cases to other courts.

17.12. Courts shall deal with all aspects of cases before them regardless of whether National or Regional jurisdiction is involved.

These arrangements are to ensure the expeditious execution of court proceedings.

17.13. Court judgments in criminal cases shall include compensation and restitution for victims as appropriate. The assets of convicted persons shall be used for restitution and compensation whenever possible.

17.14. Legislation shall provide the courts with guidelines for damages, costs and compensation for litigation cases; and with minimum and maximum sentences for criminal cases.

Legislating guidelines for damages, costs and compensation allows the community to exert an influence. For example, fines and prison time could be equated to assets/money stolen or defrauded such that if fifty times Average Weekly Earnings is stolen then fifty weeks prison plus punishment time could be the sentence.

Legislating for minimum and maximum sentences is an improvement on current practice in which only maximum sentences are set. This allows the community to react to prevalent criminal behaviour and send a strong message to potential offenders.

17.15. Judges shall conduct cases before the courts.

This means cases shall not be conducted by barristers as is currently the case.

17.16. There shall be provision for the appointment of up to three judges to hear specific cases.

This is designed to assist with the resolution of complex cases and those involving highly technical information.

17.17. Judges shall direct police investigations, call witnesses, and cross-examine defendants, witnesses, litigants and respondents and seek out the truth in whatever manner deemed appropriate commensurate with the rights of the individual.

17.18. Legal Counsel for the Prosecution, the Defence, litigants, respondents and for victims shall have the right to suggest questions and make submissions to the judge and present witnesses but shall not conduct cross-examination. 

The following story is a light-hearted illustration of what is wrong with barristers conducting cross-examinations.

A farmer named Seamus was in court suing a lorry driver over injuries he received in a vehicle accident.

In court, the lorry company's hotshot barrister was questioning Seamus.

'Didn't you say to the Police at the scene of the accident, “I’m fine"?' asked the barrister.

Seamus responded: 'Well, I'll tell you what happened. I had just loaded my favourite cow, Bessie, into the...'

'I didn't ask for any details', the barrister interrupted. 'Just answer the question. Did you not say, at the scene of the accident,
'I'm fine!'?'

Seamus said, 'Well, I had just got Bessie into the trailer and I was driving down the road....'

The barrister interrupted again and said, 'Your Honour, I am trying to establish the fact that, at the scene of the accident, this man told the policeman on the scene that he was fine. Now several weeks after the accident, he is trying to sue my client. I believe he is a fraud. Please tell him to simply answer the question.'

Under our current system, the Judge would usually tell Seamus to just answer the question. Seamus would admit he told the policeman he was fine and the case would be thrown out. Fortunately in this case the Judge allowed Seamus to finish his story.

Seamus thanked the Judge and proceeded. 'Well as I was saying, I had just
loaded Bessie, my favourite cow, into the trailer and was driving her down
the road when this huge lorry and trailer came through a stop sign and hit
my trailer right in the side. I was thrown into one ditch and Bessie was
thrown into the other. I was hurt, very bad like, and didn't want to move.
However, I could hear old Bessie moaning and groaning. I knew she was in
terrible shape just by her groans. Shortly after the accident, a policeman
on a motorbike turned up. He could hear Bessie moaning and groaning so he
went over to her. After he looked at her, and saw her condition, he took
out his gun and shot her between the eyes.

Then the policeman came across the road, gun still in hand, looked at me, and said, 'How are you feeling?'

'Now what the hell would you say??’

17.19. Prosecutors, Legal Counsel, defendants and litigants shall sign an affidavit when they are ready to proceed on any case. Judges shall grant adjournment only in exceptional circumstances.

This means that litigants cannot impoverish respondents by continually postponing hearings etc.

17.20. An accused person shall be regarded as innocent unless and until judged guilty.

This means that, unless the prosecution can persuade the judge that release of the accused would pose a threat to public safety or the accused is likely to abscond, bail will be granted.

17.21. Citizens shall have the right to represent themselves in any court.

The Judicial Ombudsman

17.22. The President shall appoint a Judicial Ombudsman. 

17.23. The role of the Judicial Ombudsman shall be to investigate and resolve issues raised by Citizens about the administration of justice.

The Judicial Commission

17.24. A Judicial Commission shall be established. It shall be chaired by the Judicial Ombudsman and consist of eight other persons appointed by the President. Four of these shall be persons recommended by the Society of Judges and four shall be lay members of society recommended by Non-Government Organisations.

17.25. The Judicial Commission shall make recommendations to the President on Judicial appointments and Dismissal of Judges.

Appointment of Judges

17.26. The President shall appoint judges in consultation with the Judicial Commission. Such appointments shall be subject to veto by the Parliament and Regional Assemblies in the case of Regional Courts. Any Member of Parliament or Regional Assembly may initiate such a veto. 

17.27. Judges for Small Claims Courts shall be appointed from the ranks of law graduates who have specialised in judicial studies. In deciding such appointments the President shall be guided by Law Academies.

This means that, instead of barristers being appointed as judges as at present, judges are trained as judges from a very early stage in their law studies. That is, junior undergraduates showing exceptional aptitude will be given the opportunity to specialise and study as judges and to be appointed as judges on graduation. The training of judges shall include training in the conduct of forensic investigations.

17.28. The President shall appoint Judges to higher courts from the best of the judges in lower courts. 

17.29. Justices of the Constitutional Court, Justices of the Appeal Court and Chief Justices, shall be appointed from the best of the senior judges. The President may also make appointments to the Constitutional Court from the ranks of appropriately qualified and experienced academics.

Termination and Dismissal of Judges

17.30. Judges shall have the right to resign or retire at any time.

17.31. The President shall have the power to dismiss a judge for incompetence, incapability or impropriety on receipt of a petition; or on advice from:

a.    the Parliament,

b.    an Assembly in the case of Regional courts,

c.    the Judicial Commission,

d.    the Judicial Ombudsman, or

e.    the Society of Judges.

Trial by Jury

Democratic government (of the people, by the people, for the people) generally attempts to enact legislation that is approved of by, or is acceptable to, the majority of the population. However, in the real world majority assent of itself does not invest legislation with legitimacy or virtue, regardless of its support.

This is why Trial by Jury is included in our Constitution. Trial by Jury is included in our Constitution not only for the purposes of ascertaining guilt or innocence of the accused. Of more importance, Trial by Jury is included as a barrier to protect the citizenry from crimes of arbitrary government (i.e. unjust laws, corruption, tyranny); and from the prejudices and incompetence of fallible judges. Trial by Jury enables the people in juries to judge what liberties and laws should apply in any particular case, so that the people retain the liberties they wish to enjoy.

Whatever a judge’s motives, a judge shall be wrong not to inform jurors of their Right and Duty to judge both the law as well as the facts. Removal from jurors of their right to assess justice and equity issues transforms trials into unlawful, one-sided, unfair ‘mistrials-by-government-judges’. This is the most prevalent method by which corrupt tyrannies thrive. This system enables and in fact obliges judges to enforce any and every persecution, stealth-tax, oppression, money-motivated subterfuge and injustice a government introduces, and which judges then claim is "the law."

17.32. Juries shall consist of 12 Citizens above the age of 25 years selected at random in open court. Two reserve jurors shall be chosen; they shall sit in the jury box; they shall replace jurors declared incapable for reasons such as ill health or conflict of interest.

17.33. Jury decisions shall be decided by a 75% majority of the jury.

A figure of 75% has been used on numerous occasions in this Constitution as a basis for decision-making. It is considered this is a far better basis than 50% plus one because 75% indicates a reasonable level of agreement. Using 75% agreement in a jury is considered likely to reduce the time spent in jury decisions and avoid the number of “hung” juries when one member of a jury is in disagreement with the majority.

17.34. In deciding their verdict, juries shall concentrate on the overriding requirement for justice and are empowered to take into consideration the adequacy or otherwise of the law in the case before them.

This means that juries are not bound to hand down a guilty verdict simply because a law has been contravened. Instead they are required to deliver a verdict that takes account of the need to administer justice.

17.35. Cases involving values in excess of 52 times AWE and cases with possible penalties of six months or more in prison shall be decided by a jury of 12 Citizens above the age of 25 years selected at random in open court. Two reserve jurors shall be chosen; they shall sit in the jury box; they shall replace jurors declared incapable for reasons such as ill health and conflict of interest.

17.36. Litigation cases between a Citizen and a Government agency or large corporation shall be decided by a jury.

17.37. Litigation cases between a small business and a Government agency or large corporation shall be decided by a jury.

17.38. Accused persons may elect to be tried before a judge alone.

17.39. Judges may approve applications by accused persons for trial by jury in serious cases carrying penalties of less than six months in prison or involving values less than 52 times AWE in cases where the fairness of the law is challenged.

17.40. All citizens over the age of 25 years shall be eligible for jury duty. Judges shall decide applications for exemption from persons selected for jury duty.

17.41. Jurors shall be compensated at the rate of one and one half times AWE for the time spent on jury duty.

The Constitutional Court

Role

17.42. The role of the Constitutional Court is to:

a.    ensure the Constitution remains consistent with the aspirations of the majority of Australian Citizens,

b.    initiate referenda to change the Constitution,

c.    advise the President on the Constitutionality of legislation,

d.    advise Regional Chief Executive Officers on the Constitutionality of ordinances, and

e.    make judgments on Constitutional matters brought before it by the People, by the Parliament, by Regional Assemblies, by the Courts or by the Parliamentary Counsel.

Procedures

17.43. The Constitutional Court shall hand down judgments within three months of instigation.

The Appeal Court

Role

17.44. The Appeal Court shall be the highest Court of Appeal.

17.45. Decisions of the Appeal Court shall be based on justice.

Appeals shall be decided not on points of law or procedure but purely on the question of justice.

17.46. Decisions of the Appeal Court shall be handed down within three months of referral.

The Supreme Court

17.47. A Supreme Court shall be established in every Region.

Role

17.48. The Supreme Court shall provide a forum for litigation and for the investigation and resolution of serious crimes against society. Serious crimes are those carrying a penalty in excess of two years in prison and matters involving values greater than 104 times AWE.

17.49. The Supreme Court shall be the first Court of Appeal for cases referred from Corporations Law Court, Industrial Relations Court, Family Law Court, Court of Petty Sessions and the Small Claims Court.

Procedures

17.50. Legal Counsel is not mandatory. Defendants and litigants shall have the right to conduct their own cases before the Courts.

17.51. All cases shall be heard within 3 months of instigation or shall lapse after that time unless special leave is granted by the Appeal Court.

17.52. Judges shall conduct proceedings, call witnesses, conduct all cross-examinations, and brief juries.

17.53. Legal Counsel shall have the right to present witnesses, suggest questions and lines of inquiry, and make representations to the Judge but may not cross-examine witnesses.

17.54. Accused persons shall be granted bail unless the Prosecution can persuade the Judge that such release would not be in the Public Interest.

Corporations Law Court

17.55. A Corporations Law Court shall be established where and when required.

Role

17.56. The Corporations Law Court shall provide a forum for the investigation of serious crimes against society by corporations. Serious corporate crimes are those carrying a penalty in excess of two years in prison and matters involving values greater than 520 times AWE.

In 2007, 520 times AWE was approximately $520,000.

Procedures

17.57. All trials in Corporations Law Courts shall be heard before juries of 12 Citizens chosen in open court. A 75% majority decision by the jury shall decide the case.

17.58. At appropriate times during the investigation, the judge shall indict those members of the corporation board and those members of the corporation executive he decides should face charges.

17.59. Legal Counsel is not mandatory. Defendants and litigants shall have the right to conduct their own case.

17.60. All cases shall be heard within 6 months of instigation or shall lapse unless special leave is granted by the Appeal Court.

17.61. Judges shall conduct proceedings, call witnesses, conduct all cross-examinations, and brief juries.

17.62. Legal Counsel shall have the right to present witnesses, make representations to the Judge but shall not cross-examine witnesses.

17.63. Accused persons shall be granted bail unless the Prosecution can persuade the Judge that such release would not be in the Public Interest.

Industrial Relations Court

17.64. Industrial Relations Courts shall be established as required.

Role

17.65. The Industrial Relations Court shall provide a forum for the investigation and mediation of serious disputes between employers and employees.

17.66. Judges shall impose penalties and order restitution in cases revealing serious violation of the provisions of this Constitution or Statute Law.

Procedures

17.67. Hearings in the Industrial Relations Court shall be heard before a panel of three judges.

17.68. The Judges shall conduct proceedings, call witnesses and conduct all cross-examinations.

17.69. Parties to the dispute shall have the right to present witnesses and make representation to the judges but shall not use Legal Counsel in the Industrial Relations Court.

17.70. All cases shall be heard within two months of instigation or shall lapse unless special leave is granted by the Appeal Court.

Family Law Court

17.71. Family Law Courts shall be established as required.

Role

17.72. The Family Law Court shall provide a forum for the investigation and mediation of serious disputes within or between families.

17.73. Judges shall impose penalties and order restitution in cases revealing serious violation of the provisions of this Constitution.

17.74. In mediating family breakdown, custody of children shall be decided primarily for the benefit of the children and from a start point assuming equal rights for both parents.

Procedures

17.75. Hearings in the Family Law Court shall be heard before a panel of two judges one of whom shall be female and one of whom shall be male. 

17.76. The Judges shall conduct proceedings, call witnesses and conduct all cross-examinations.

17.77. Parties to the dispute shall have the right to present witnesses and make representation to the judges but shall not use Legal Counsel in the Family Law Court.

17.78. All cases shall be heard within one month of instigation or shall lapse unless special leave is granted by the Appeal Court.

Children’s Court

17.79. Children’s Courts shall be established as required.

17.80. The Children’s Court shall establish the truth and administer justice in cases involving persons under the age of 18 years.

17.81. Judges in the Children’s Court shall conduct proceedings, call witnesses and conduct all cross-examinations.

17.82. The Prosecution and the Defence Legal Counsel shall have the right to present witnesses and make representation to the Judge but shall not conduct cross-examination.

17.83. All cases shall be heard within one month of instigation or shall lapse unless special leave is granted by a Supreme Court.

Court of Petty Sessions

17.84. Courts of Petty Sessions shall be established in all Regions.

Role

17.85. The Court of Petty Sessions shall provide a forum for the investigation and prosecution of crimes against society.

17.86. Crimes carrying penalties of less than two years in prison and those involving values of less than 104 times AWE shall be heard in the Court of Petty Sessions before a Judge. The Judge shall approve the empanelling of a jury of 12 honourable Citizens in serious cases where the fairness or appropriateness of the Law is challenged.

17.87. Judges shall impose penalties and order restitution in cases revealing violation of the provisions of this Constitution or Statute Law.

Procedures

17.88. Judges in Courts of Petty Sessions shall conduct proceedings, call witnesses and conduct all cross-examinations.

17.89. The Prosecution and the Defence Legal Counsel shall have the right to present witnesses and make representation to the Judge but shall not conduct cross-examination.

17.90. All cases shall be heard within two months of instigation or shall lapse unless special leave is granted by a Supreme Court.

Small Claims Court

17.91. Small Claims Courts shall be established in all Regions.

Role

17.92. The Small Claims Court shall provide a forum for the investigation and resolution of less serious disputes between members of society and disputes involving values of less than 25 times AWE.

In 2007, 25 times AWE was approximately $25,000.

17.93. Judges shall impose penalties and order restitution in cases revealing violation of the provisions of this Constitution or Statute Law.

Procedures

17.94. Judges in the Small Claims Court shall conduct proceedings, call witnesses and conduct all cross-examinations.

17.95. Parties to the dispute shall have the right to present witnesses and make representation to the judges but shall not use Legal Counsel in the Small Claims Court.

17.96. All cases shall be heard within one month of instigation or shall lapse unless special leave is granted by a Supreme Court.

Mediators of the Peace

17.97. The President and Chief Executive Officers of Regions shall have the right to appoint persons as Mediators of the Peace (MoP). The role of MoP is to mediate disputes between Citizens. 

17.98. The qualifications, terms of engagement, remuneration, appointment and dismissal of Mediators is detailed in Schedule 4.

17.99. Any Citizen may refer any matter to a MoP. Provided all parties to the dispute agree in writing to accept the findings, the MoP shall have jurisdiction. The findings of MoP are binding on the parties unless a Court of Appeal overturns the decision.

17.100. Matters referred to MoP shall be decided within one month.

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