Section 68BA of the Supreme Court Act 1933 (ACT), which permitted the court to order trial by judge alone without the accused's consent during the COVID-19 emergency period, is constitutionally valid. Trial by jury is not a defining characteristic of a 'Supreme Court' within the meaning of the Constitution or s 48A of the Self-Government Act. The narrow ratio of Bernasconi — that s 122 is not qualified by s 80 — remains binding, though its broad ratio about Chapter III generally has been overtaken. A discretionary case management power that leaves open the possibility of different outcomes in similar cases does not, by that possibility alone, infringe the Kable doctrine.
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