Deaf jurors and discrimination

Next month, the High Court will hear an appeal from the Queensland Court of Appeal concerning a deaf woman who was excluded from jury duty. The woman will argue that her exclusion constituted unlawful discrimination, in breach of Queensland’s Anti-Discrimination Act 1991.

Last month, two deaf people from New South Wales won their appeals to the UN Committee on the Rights of Persons with Disabilities, after arguing that their exclusion under New South Wales’ Jury Act 1977 amounted to a breach of their rights under the Convention on the Rights of Persons with Disabilities.

This article will briefly examine these three case studies, and discuss how they balance two key rule of law issues: equality before the law, and the right of people with disabilities to participate in the legal system, on the one hand, and the right of an accused to a fair trial, and public confidence in the legal system that conducts that trial, on the other hand.

Ms Lyons and the High Court

Ms Gaye Lyons is deaf. She can lip read, but her main method of communication is sign language – Auslan. As a result, when speaking with people who can’t speak Auslan, she requires an interpreter.

Ms Lyons was summoned to the Ipswich Courthouse for jury duty in 2012, but was excluded after she let the Deputy Registrar know that she would require an Auslan interpreter. The Deputy Registrar excluded Ms Lyons under section 4(3)(l) of the Jury Act 1995 (Qld), which provides that:

(3) The following persons are not eligible for jury service—

…

(l) a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror;

The Deputy Registrar, Ms Britton, argued that Ms Lyons’ requirement for an interpreter meant that she was incapable of effectively performing the functions of a juror. Ms Britton also said that there was no provision in the Jury Act to allow an interpreter to swear an oath, like jurors are required to do, and also that it was not possible to have another person in the jury room while the jury was deliberating, because this would undermine the confidentiality of jury deliberations.

Ms Lyons said her exclusion was in breach of Queensland anti-discrimination legislation, which effectively prohibits public officials from discriminating on certain grounds, including deafness.

Ms Lyons appealed Ms Britton’s decision in the Queensland tribunals and courts three times, and lost each time.

The first time, a single member of the Queensland Civil and Administrative Tribunal found that, from the Deputy Registrar’s point of view, Ms Lyons’ deafness had not really been the issue – the point was that her being a juror would require another person to be in the jury room. Thus, the Deputy Registrar had not discriminated against Ms Lyons based on her deafness, but rather had treated her differently based on other grounds, which were not prohibited under Queensland law. Even if the Deputy Registrar was wrong in her interpretation of the law, the single member said, it was not unlawful discrimination under Queensland law.

Ms Lyons appealed to the QCAT Appeal Tribunal.

The Tribunal noted that a subsequent Queensland Supreme Court decision in another similar case had proved the Deputy Registrar’s interpretation of the law was correct – an individual who needed an Auslan interpreter could be excluded from jury service. In all other respects, the Tribunal affirmed the single member’s decision.

Ms Lyons appealed to the Queensland Court of Appeal.

The Court looked at the two administrative decisions, and decided not to grant leave to appeal, because, in the words of Judge of Appeal Holmes:

I do not consider that the applicant’s [Ms Lyons’] proposed appeal has sufficient merit to warrant the granting of leave to appeal.

Ms Lyons having no further avenues of appeal in Queensland sought leave to appeal to the High Court in March this year. Indeed, the State of Queensland – her opponent in the High Court – encouraged the Court to do the same thing to Ms Lyons that the Court of Appeal had done: determine that she did not have reasonable prospects of success, and deny her leave to appeal.

The judges sitting on Ms Lyons’ special leave application – Justices Kiefel and Nettle – thought differently, and granted Ms Lyons leave. Her case will probably be heard in late July.

Ms Beasley and Mr Lockrey

Ms Gemma Beasley and Mr Michael Lockrey are two deaf people from New South Wales. Back in April 2013, both of them appealed separately to the UN Committee on the Rights of Persons with Disabilities (CRPD) on similar grounds to Ms Lyons.

Both Ms Beasley and Mr Lockrey had been summoned for jury duty by the Sheriff of New South Wales at different times. They both informed the Sheriff that they would require assistance – an Auslan interpreter, and real-time steno-captioning – in order to participate. Both were informed that the Sheriff had decided to exclude them under section 14(4) of the Jury Act 1977 (NSW), which provides:

The sheriff may exempt a person from jury service whether or not on the request of the person if the sheriff is of the opinion that there is good cause for the exemption.

Section 14A of the Act sets out what constitutes “good cause”:

For the purposes of this Act, a person has good cause to be exempted or excused from jury service if:

(a) jury service would cause undue hardship or serious inconvenience to the person, the person’s family or the public, or
(b) some disability associated with that person would render him or her, without reasonable accommodation, unsuitable for or incapable of effectively serving as a juror, or
(c) a conflict of interest or some other knowledge, acquaintance or friendship exists that may result in the perception of a lack of impartiality in the juror, or
d) there is some other reason that would affect the person’s ability to perform the functions of a juror.

Both Ms Beasley and Mr Lockrey took their cases to the CRPD, alleging that New South Wales, and, by extension, Australia, was infringing their rights under the Convention on the Rights of Persons with Disabilities, including the right to equality and non-discrimination under Article 5:

1. States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

The CRPD agreed with Ms Beasley and Mr Lockrey, and found that Australia was in breach of its obligations under the Convention. It ordered Australia to take steps to compensate and reimburse Ms Beasley and Mr Lockrey for their legal costs, and also to take steps to permit them to participate in jury duty, and prevent the problem arising again.

The decisions were handed down on 1 April 2016.

Where to from here?

The recommendations of the CRPD are non-binding, which means the Australian government can ignore them. Indeed, the NSW Government did a similar thing in 2006: the New South Wales Law Reform Commission investigated the issue of blind and deaf jurors in 2006, recommending, amongst other things, that:

The Jury Act 1977 (NSW) should be amended to reflect the following:

…

(d) that interpreters and stenographers allowed by the trial judge to assist the deaf or blind juror should swear an oath faithfully to interpret or transcribe the proceedings or jury deliberations;

(e) that interpreters or stenographers allowed by the trial judge to assist the deaf or blind juror should be permitted in the jury room during deliberations without breaching jury secrecy principles, so long as they are subject to and comply with requirements pertaining to the secrecy of jury deliberations;

(f) that offences be created, in similar terms to those arising under s 68A and 68B of the Act, in relation to the soliciting by third parties of interpreters or stenographers for the provision of information about the jury deliberations, and in relation to the disclosure of information by such interpreters or stenographers about the jury deliberations.

However, the New South Wales Government rejected these recommendations.

Similarly, Ms Lyons’ case before the High Court may prove discouraging for disability advocates. The legal question of whether Ms Lyons’ treatment constituted unlawful discrimination under Queensland legislation is a far narrower one than whether, or to what extent, people with disabilities should serve on juries, and what obligations governments around Australia have to facilitate their participation.

Jury participation and the rule of law

The issue of jury participation raises a number of important rule of law considerations.

On the one hand, few rule of law commentators would accept that a society that continues to discriminate on the basis of physical disabilities is a society under the rule of law. Equality before the law – including equality of civic opportunities and obligations – is a fundamental aspect of the rule of law.

On the other hand, the right of an accused to a fair trial, and public confidence in the legal system that conducts that trial, is also fundamental to the rule of law. The extent to which accommodations can be made to facilitate people with physical disabilities participating in juries is a question that will need to be answered on a case-by-case basis. There can be no question that the information conveyed to a hearing juror is different from the information conveyed (through an interpreter or captioning) to a hearing-impaired juror. The question then becomes, to what extent does that difference begin to undermine the fairness of the trial, or public confidence in the system itself.

It is unlikely that the current provisions surrounding exclusion from jury duty in Australia will be seriously modified. They mark an improvement from the days of automatic disqualification for certain categories of people, but were intended to provide sheriffs and registrars with discretion to take into account individuals’ capacities to effectively fulfil the responsibilities of a juror. On the other hand, the legal system is strengthened by the participation of citizens from all walks of life.

The High Court will have many issues to consider when it hears Ms Lyons’ case in late July, and governments around Australia may have some work to do, if the Court decides to follow the CRPD, and demand greater accommodation be made for people who wish to fulfil their civic responsibilities, regardless of ability.

— William Shrubb

Further reading

‘Blind and deaf jurors‘, report by New South Wales Law Reform Commission

‘Blog on two CRPD decisions‘, International Justice Resource Center

‘Decision in Ms Beasley’s case‘, Committee on the Rights of Persons with Disabilities

‘Decision in Mr Lockrey’s case‘, Committee on the Rights of Persons with Disabilties

‘Lyons v Queensland‘, High Court page for Ms Lyon’s case