68 In my opinion, when understood in context, the remarks of his Honour should not be taken as an indication that an accused person has (or had) a right to the names of potential jurors, or that the provision of such names is an essential part of an accused's right of challenge.
69 From the above material, I conclude that, historically, at least since the beginning of the 19th century, an accused person has not had a right to the names of the jurors, in England or in Australia. There has, in the past, been a practice of allowing the accused person to inspect the jury panel, but there has not been a right of inspection. Where the names of jurors have been read out, and an error has been made in regard to a juror's name, a mistrial would not necessarily follow (unless what occurred resulted in a non-qualified juror sitting on the jury).
70 Thus, there is nothing in the history of the jury that supports the argument that the provision to the accused of the potential jurors' names is an essential element of the right to challenge and, hence, fundamental to a jury trial.
71 I have not been able to find any authority in support of the submission that an accused person was entitled to be told the occupations of the potential jurors. Mr Richter said in this regard:
"[U]ntil the prohibition his Honour found existed as a result of the 1997 amendment one always knew the name. As to whether or not one always knew the occupation is more debatable because it is said by the Attorney that occupations have not been known since about 1947 in New South Wales and we are not going to quarrel with that but so far as names are concerned right up to 1 July 1998 people were called up by name."
72 I do not think that it is necessary to say more on the question of the occupations of jurors than that, if there is no right to know the names of jurors, there could hardly be a right to know their occupations.
73 In Cheatle v The Queen (1993) 177 CLR 541 the High Court accepted (at 557-558) that there were essential features of trial by jury that were guaranteed by s 80 of the Constitution, but there were non-essential features that, in effect, were not. See also Brownlee v The Queen (at 284, [5] and 288-289, [21] per Gleeson CJ and McHugh J).
74 In Brownlee v The Queen Gaudron, Gummow and Hayne JJ (at 298) referred with approval to an article by Professor A W Scott ("Trial by Jury and the Reform of Civil Procedure" 31 Harv Law Rev 669 (1918)) in which the learned author wrote (at 671):
"Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree. The question, it is submitted, should be approached in a spirit of open mindedness, of readiness to accept any changes which did not impair the fundamentals of trial by jury. It is a question of substance, not of form."