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Equality in the Jury Room: A case study

1st Jul 2016

The denial of a deaf person’s right to exercise their citizenship by participating in juries in Australian courts is longstanding. The stereotyped perceptions against deaf jurors being able to perform these duties without undermining the administration of justice are deeply entrenched in Australian society and court systems. Despite the New South Wales Law Reform Commission’s inquiring into this issue in 2006[1] and the recent report from Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, which called for law reform and support to enable deaf persons to participate as jurors,[2] the reality remains that Australian law does not support the participation of deaf jurors. This reality was faced by two individuals in 2012, Gemma Beasley (‘GB’) and Michael Lockrey (‘ML’) who, on separate occasions, were unable to serve as jury members in New South Wales courts on the basis of their disability. As a result, GB and ML took their cases to the Committee on the Rights of Persons with Disabilities (‘Committee’) who made a decision in relation to the complaints in April 2016. Australia is a signatory to the Convention on the Rights of Persons with Disabilities (‘CRPD’),[3] and the Optional Protocol to the CRPD, which gives the Committee competence to hear these complaints.[4] This article examines the human right violations committed by Australia in failing to provide reasonable accommodations to deaf persons to participate as jurors.

The issue was first brought to the Committee’s attention by ‘AM’ who anticipated that he would not be found eligible to be a juror on the basis of his disability but had not been summoned to perform jury service.[5] In 2015, the Committee found that because AM had not been called to perform jury service, there was no ‘victim status’ which rendered the complaint inadmissible and so, the Committee could not determine whether a violation had occurred.[6]

Conversely, both GB, who uses Australian Sign Language (Auslan) to communicate, and ML, who uses steno-captioning to communicate, were summoned to perform jury service. Both complainants were left without effective domestic remedies because, under the Disability Discrimination Act 1992 (Cth) (DDA) and the Anti-Discrimination Act 1977 (NSW), it is not unlawful to discriminate on the basis of disability in the area of civic duties, including jury duty. In any event, the Australian Human Rights Commission does not have power to decide a complaint under the DDA, but can only try to conciliate the parties. [7] On this basis, the Committee heard the merits of the case.

GB and ML were exempted by the Sherriff on the basis of having good cause to do so under s14(4) of the Jury Act 1977 (NSW).[8] Both complainants respectively requested Auslan interpretation or steno-captioning to be provided, but this was rejected due to legislative barriers preventing a person who has not been selected by the random ballot to be present in jury deliberations.[9]

In these two landmark decisions, the Committee has found that deaf persons have the right to participate as jurors in Australian courts and the use of Auslan interpretation and steno-captioning are reasonable accommodations that must be provided. Accordingly, in relation to both GB and ML respectively, Australia failed to fulfil its obligations in relation to ‘articles 5(1) and (3); articles 9(1); 13(1) read alone and in conjunction with articles 3, 5(1) and 29(b) and 21, (b) read alone and in conjunction with articles 2, 4 and 5(1) and (3) of the CRPD’.[10]

Articles 2, 3 and 4: General Provisions

Articles 2, 3 and 4 are general provisions and can be invoked only in conjunction with other substantive rights provided in the CRPD. The provisions do not give rise to free-standing claims. [11] Instead, reference to these provisions can be made to interpret or support claims made in relation to substantive rights in the CRPD. In these complaints, the definitions of ‘discrimination on the basis of disability’, ‘reasonable accommodation’ and ‘communication’ were read in conjunction with the substantive rights claimed by GB and ML.

Articles 5(1) and (3): Equality Before the Law

Australia has an obligation under article 5(1) to ensure their people are equal before the law and are entitled, without any discrimination, to the equal protection of the law. Appropriate steps to ensure that reasonable accommodation is provided to promote equality and eliminate discrimination must be provided in Australia.[12] The refusal to provide Auslan interpretation or steno-captioning, without thoroughly assessing whether it would constitute a disproportionate or undue burden, amounts to disability-based discrimination.[13]

Article 9(1): Participate fully in all aspects of life

Article 9(1) provides that Australia must enable people with disabilities to participate fully in all aspects of life and have access to communication on an equal basis with others. The Committee found that jury duty is an important aspect of civic life within the meaning of article 9(1).[14] The refusal to provide Auslan interpretation or steno-captioning amounted to a failure to take the appropriate measures to enable to the complainants to perform jury duty and, in doing so, their participation in a clear aspect of life. This is a breach of article 9(1) read alone and in conjunction with articles 2, 4 and 5(1) and (3).[15]

Article 21(b): Freedom of expression and opinion

Australia must take all appropriate measures to ensure that people with disabilities can exercise the right to freedom of expression and opinion through all forms of communication of their choice, including by the use of sign language in official interactions.[16] Auslan interpretation and steno-captioning are forms of ‘communication’[17] and interacting with other jurors and judicial officers falls within the meaning of ‘official interactions’ in article 21(b) of the CRPD. The failure to provide Auslan interpretation and steno-captioning is a breach of this right, read alone and in conjunction with articles 2, 4 and 5(1) and (3).[18]

Article 13(1) and Article 29(b): Access to justice and participation in public affairs

Article 13(1) requires ‘…effective access to justice for people with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants…’ The Committee found that jury duty is ‘an integral part of the Australian judicial system’ which constitutes participation in legal proceedings.[19] Further, the right to full participation in public affairs as provided in article 29(b) extends beyond the participation of people with disabilities as claimants, victims and defendants and includes jury service, on an equal basis with others.[20] Accordingly, refusal to provide Auslan interpretation and steno-captioning  services violated article 13(1), read alone and in conjunction with articles 3, 5(1) and 29(b).[21]

In addition to these violations, both complainants argued that the denial of communication to perform jury duty was a denial of their right to legal capacity under article 12 of the CRPD. The Committee rejected this argument because the Sheriff’s refusal to provide Auslan interpretation or steno-captioning was because the introduction of a non-jury person would breach the principle of confidentiality of deliberations, not because there was a question as to the complainants’ legal capacity to perform jury duty.[22]

The Committee made recommendations with respect to both GB and ML’s complaints for the remedy of their respective situations by way of reimbursement for legal costs and compensation and to enable their participation as a juror using Auslan interpretation and steno-captioning. Importantly, recommendations were also made to prevent future violations against deaf persons including objective assessments for reasonable accommodations to be provided, necessary legislative amendments and providing training on accessibility for persons with disabilities to the Sheriff, judicial officers and staff facilitating the work of the judiciary.[23] Australian now has six months to provide a written response to the Committee.

 

Natalie Wade is a solicitor in Adelaide and holds a Masters of Law (Legal Practice) from the Australian National University. Natalie is the Chairperson of Australian Lawyers for Human Rights’ Disability Rights Subcommittee and has a strong background in advocating for the rights of persons with communication disabilities to participate in trials through her published academic work on these topics and submissions to national and state based law reform projects focussing on access to justice for people with disabilities.

 

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Tags: Equality Jury Room Person's Right Natalie Wade