Section 80 — The Great Constitutional Tautology

Section 80 of the Constitution provides for trial by jury on indictment of any offence against the law of the Commonwealth. The orthodox interpretation of s 80 holds that it is a matter for the Parliament to determine whether an offence is tried on indictment. It is an interpretation that has been criticised as failing to give s 80 effect as a guarantee of individual rights. This article reviews the history of the provision, including the convention debates and High Court jurisprudence, and suggests that the conception of s 80 proposed by Gaudron J in Cheng v The Queen (2000) 203 CLR 248 is a satisfying alternative to the rights-protective conception. This alternative conception identifies s 80 as a constitutional limitation on judicial power, preventing the trial of federal offences on indictment by judge alone.