7.146 Trial by jury is an important element of the justice system in Australia. Juries are made up of citizens randomly chosen from the electoral role. They serve as a means for members of the community to participate in the administration of justice, and to ensure that the application of the law is fair and consistent with community standards.
7.147 An essential characteristic of juries, as an institution, is that they be representative of the wider community. Their representative nature depends on all those capable of serving, whatever their individual characteristics, having an opportunity to serve, unless there are defensible reasons for excluding them from jury membership. There are longstanding concerns that, in practice, people with disability are prevented from serving on juries in Australia without sufficient reason:
The exclusion of people with disability from jury service means that juries are not composed of the full diversity of the Australian community. This means that the experience of disability is not available to the jury for consideration during trials, and defendants with disability cannot face a trial by peers.
7.148 State and territory legislation generally refers to disability as a ground for disqualification from serving as a juror; or implies that people with disability may be disqualified on the grounds that they are not capable of performing the duties of a juror.
7.149 These legislative and other barriers to jury service have been examined as part of a number of inquiries, including by the NSWLRC, the Law Reform Commission of Western Australia (LRCWA), and the Queensland Law Reform Commission (QLRC). In South Australia, the Attorney-General has proposed ‘further research and investigation on identifying and overcoming barriers to jury duty for people with disability’.
7.150 Inquiries have recommended various legislative changes to facilitate jury service by people with disability and, in particular, amendments to provisions that implied disqualification on the basis of physical disability. For example:
The NSWLRC recommended that people who are blind or deaf should be qualified to serve on juries, and not prevented from doing so on the basis of that physical disability alone; but that the Court should have power to stand aside a blind or deaf person if the person is unable to discharge the duties of a juror notwithstanding provision of reasonable adjustments.
The LRCWA recommended that a person should not be disqualified from serving on a jury on the basis that he or she suffers from a physical disability; but a physical disability that renders a person unable to discharge the duties of a juror should constitute a sufficient reason to be excused under the Juries Act 1957 (WA).
The QLRC recommended that Jury Act 1995 (Qld) should be amended to remove the ineligibility of persons with a physical disability, and should instead provide that prospective jurors should inform the Sheriff of any physical disabilities and special needs that they have; but that a person who has an intellectual, psychiatric, cognitive, or neurological impairment that makes the person incapable of effectively performing the functions of a juror is ineligible for jury service.
7.151 More recently, Disability Rights Now has recommended to the United Nations that, in Australia, ‘all people with disability be made eligible for jury service’ and an Individual Communication has claimed that law and practice concerning jury qualification constitutes a violation of rights guaranteed under the CRPD, including rights to equal recognition under the law and access to justice.
7.152 Submissions have highlighted this issue as being of continuing concern, and expressed support for earlier law reform commission recommendations for change. The Disability Discrimination Legal Service, for example, stated that:
current national and state jury laws should be reformed to avoid exclusion of people with disabilities from participating in jury duty … the law should allow potential jurors with disabilities to participate in jury duty where such disabilities can be reasonably accommodated. This should replace the current legal position where prospective jurors with auditory and visual disabilities are readily challenged or stood down from a panel.
Juries in the Federal Court
7.153 At the Commonwealth level, only the Federal Court of Australia Act 1976 (Cth) has provisions dealing with jury qualification and membership, and it is the focus of the discussion below.
7.154 Historically, juries have not been constituted in Federal Court proceedings. As discussed above, most federal offenders are tried in state and territory courts, and the Federal Court has not dealt with indictable criminal offences.
7.155 This position changed, however, with the criminalisation of ‘serious cartel conduct’ in 2009, when jurisdiction to try indictable cartel offences by jury was conferred on the Federal Court. A procedural framework for the Federal Court to exercise jurisdiction over indictable offences—including jury provisions—was enacted.
7.156 The Federal Court also has the power, in civil proceedings to direct trial of issues with a jury. However, this would only occur in an exceptional case, because the ordinary mode of trial is by judge alone, and state or territory law relating to the qualification of jurors applies in Federal Court civil proceedings.
7.157 Even though juries remain rare in Federal Court proceedings, the ALRC proposes that reform of jury qualification provisions be modelled in Commonwealth law through amendments to the Federal Court of Australia Act.
Qualification to serve on a jury
Proposal 7–12 The Federal Court of Australia Act 1976 (Cth) should provide that a person is qualified to serve on a jury if the person can, in the circumstances of the trial for which that person is summoned:
(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings and jury deliberations;
(b) retain that information to the extent necessary to make these decisions;
(c) use or weigh that information as part of the jury’s decision-making process; and
(d) communicate the person’s decisions to the other members of the jury and to the court.
Proposal 7–13 The Federal Court of Australia Act 1976 (Cth) should provide that decision-making support should be taken into account in determining whether a person is qualified to serve on a jury.
7.158 Under the Federal Court of Australia Act, the Sheriff must remove a person’s name from the jury list if satisfied that: the person is not qualified to be a juror; or the Sheriff would excuse the person from serving on the jury if the person were a potential juror.
7.159 The Sheriff may, either on application or on his or her own initiative, excuse a potential juror from serving on the jury, if satisfied that they are, ‘in all the circumstances, unable to perform the duties of a juror to a reasonable standard’. In coming to a conclusion about a person’s ability to perform the duties of a juror, the Act requires that the Sheriff must have regard to the Disability Discrimination Act 1992 (Cth).
7.160 On their face, the jury provisions of the Federal Court of Australia Act are an advance on most state and territory legislation because they do not identify disability specifically as a ground for disqualification.
7.161 For example, the Juries Act 2000 (Vic) disqualifies people who are unable to ‘communicate in or understand the English language adequately’ or who have a ‘physical disability that renders the person incapable of performing the duties of jury service’. The Disability Discrimination Legal Service observed that while ‘this is not an express exclusion of persons with sensory disabilities’ there have been no instances of blind or deaf jurors in the history of the Victorian justice system.
7.162 Similarly, under the Jury Act 1977 (NSW) persons who are ineligible to serve as jurors include ‘a person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror’. The practice appears to be that information indicating a potential juror is blind or deaf is considered sufficient to ground a determination that a person is ineligible to serve as a juror. In particular, blind and deaf jurors may be excluded from serving on juries because of concerns about comprehension and the presence of a 13th person in the jury room where an interpreter is used.
7.163 It is not clear whether similar results would occur under the Federal Court of Australia Act. However, the fact that the Act provides little guidance on standards for juror qualification may work against the participation of people with disability. That is, people with disability may still be prevented from serving on a jury, depending upon the Sheriff’s interpretation of the duties of a juror and factors considered in assessing whether these duties can be performed to a ‘reasonable standard’.
7.164 The ALRC recognises there is likely to be ‘some difficulty establishing a more specific objective standard’ for determining juror qualification. However, an approach consistent with the National Decision-Making Principles may facilitate a more inclusive approach to jury service, and help ensure that people with disability are not automatically or inappropriately excluded from serving on a jury. That is, the qualification of jurors should be assessed by reference to a person’s actual decision-making ability. Clearly, there should be no presumption that any particular physical or mental disability should be a disqualifying factor.
7.165 In particular, people who require communication devices or communication support workers to ‘expressively communicate’ may be subject to assumptions about their ability to serve on juries. The Disability Discrimination Legal Service observed:
With today’s technology and continuing product development that addresses or alleviates sensory limitations, it is neither reasonable nor necessary to permit arbitrary exclusion from jury service on grounds of disability, English incapacity, or an imputed inability to discharge their duties as a juror, or satisfaction of the Sheriff.
7.166 At present, the fact that a person may be supported in performing the duties of a juror does not seem to be able to be taken into account in determining whether a person is eligible to serve. The ALRC proposes that the Federal Court of Australia Act—consistently with the National Decision-Making Principles—should expressly provide that qualification to serve as a juror be determined in the context of the available support. Again, the proposal may be criticised on the basis that, unless support is actually available, there will be no change in jury selection practices.
7.167 Nor does the proposal deal with jury challenges on the basis of perceived disability (that is, peremptory challenges and challenges for cause). No reason need be stated for peremptory challenges, and where a person with a disability is challenged because of that disability, this will be subject to a ruling from the judge, who would have regard to the legislative provisions concerning qualification.
Assistance for jurors
Proposal 7–14 The Federal Court of Australia Act 1976 (Cth) should be amended to provide that the trial judge may order that a communication assistant be allowed to assist a juror to understand the proceedings and jury deliberations.
7.168 The National Decision-Making Principles require that people should be provided with the support necessary for them to make, communicate and participate in decision-making. In some cases, this support will include the involvement of an assistant in the courtroom and in the jury room.
7.169 The 2006 recommendations of the NSWLRC referred to ‘interpreters and stenographers’ being allowed to assist a blind or deaf juror, including in the jury room during jury deliberations. ‘Interpreter’ in this context was intended to extend to sign languages, such as AUSLAN, and other communication support, and ‘stenographer’ to include a person providing ‘computer-aided real time transcription’.
7.170 The ALRC’s proposal uses a more open-ended term, introducing the concept of a ‘communication assistant’. The exact parameters of the permissible role of a communication assistant would need to be defined in the Act.
7.171 There is research suggesting that communication assistants would be able to effectively facilitate the participation of some deaf jurors. The NSWLRC and Macquarie University jointly funded a short pilot study to investigate whether people who are deaf could access court proceedings through sign language interpreters. The 2007 report of the study concluded that it had demonstrated that:
legal facts and concepts can be translated into Auslan;
Auslan interpreting can provide effective access to court proceedings for a deaf juror;
hearing people misunderstand court proceedings without being disadvantaged by hearing loss; and
deaf people are willing and able to serve as jurors.
Proposal 7–15 The Federal Court of Australia Act 1976 (Cth) should be amended to provide:
(a) that communication assistants allowed by the trial judge to assist a juror should swear an oath faithfully to communicate the proceedings or jury deliberations;
(b) that communication assistants allowed by the trial judge to assist a 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 for the secrecy of jury deliberations; and
(c) for offences, in similar terms to those arising under ss 58AK and 58AL of the Act, in relation to the soliciting by third parties of communication assistants for the provision of information about the jury deliberations, and the disclosure of information by communication assistants about the jury deliberations.
7.172 A common reason given for excluding people who require support from jury service is that an assistant may be seen as an ‘additional’ or ‘thirteenth’ member of the jury, in breach of the secrecy of jury deliberations.
7.173 The rule of jury secrecy, also known as the exclusionary rule, prohibits a juror from discussing the deliberations in the jury room, based on public policy considerations requiring that the verdict of the jury should be final, ensuring that jurors are not subjected to pressure or harassment. However, the rule is a convention or rule of conduct rather than a rule of law, and it is reinforced by statutory provisions that make it an offence to disclose or solicit information about jury deliberations.
7.174 Although there are concerns about maintaining the secrecy of the jury room and allowing a thirteenth person (that is, a communication assistant) to be present, these concerns can be addressed.
7.175 The NSWLRC recommended new legislative provisions requiring the taking of oaths by interpreters and stenographers, extending duties of secrecy to them, and creating new offences. The ALRC proposal above adapts these recommendations in the context of the Federal Court of Australia Act.
NSW Law Reform Commission, Jury Selection, Report No 117 (2007) 49, citing the High Court in Cheatle v The Queen (1993) 177 CLR 541, 560.
See Ibid 9–10.
Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August, 2012 81.
NSW Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006); Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors, Report No 99 (2010); Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011).
‘Draft Disability Justice Plan 2014-2016’, above n 152, Priority Action 1.5.
NSW Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006) rec 1(a)–(c). These recommendations have not been implemented.
Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors, Report No 99 (2010) rec 56.1. This recommendation has been implemented.
Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011) recs 8–8, 8–9, 8–14. These recommendations have not been implemented.
Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 82.
Alastair McEwin, Individual Communication under the United Nations Convention on the Rights of Persons with Disabilities, Communication to Committee on the Rights of Persons with Disabilities in McEwin v Australia G/SO 214/48 AUS (1) 12/2013. (Referring to CPRD arts 12, 13, 21, 29).
See, eg, Disability Discrimination Legal Service, Submission 55; Qld Law Society, Submission 53; Public Interest Advocacy Centre, Submission 41; Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20; The Illawarra Forum, Submission 19.
Supporting NSWLRC recommendations: Public Interest Advocacy Centre, Submission 41. Supporting consideration of QLRC recommendations: Qld Law Society, Submission 53.
Disability Discrimination Legal Service, Submission 55.
Introduced by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth)— now Competition and Consumer Act 2010 (Cth) pt IV, div 1, subdiv B.
Federal Court of Australia Act 1976 (Cth) pt III, div 1A, subdiv D.
Ibid s 40.
Ibid s 39. The exercise of this power has been considered in Federal Court defamation proceedings: Steven Rares, ‘The Jury in Defamation Trials’ (Paper Presented at the Defamation & Media Law Conference, Sydney, 25 March 2010).
Federal Court of Australia Act 1976 (Cth) s 41(1).
A jury list is prepared for particular proceedings and contains the names and addresses of persons that the Sheriff selects from the jury roll for the applicable jury district, see, eg Federal Court of Australia Act 1976 (Cth) s 23DM.
Ibid s 23DO.
Ibid ss 23DQ, 23DR.
Ibid s 23DQ (Note). See, in particular, Disability Discrimination Act 1992 (Cth) s 29 (Administration of Commonwealth laws and programs).
Juries Act 2000 (Vic) sch 2, cl 3(a),(f).
Disability Discrimination Legal Service, Submission 55.
Jury Act 1977 (NSW) s 6(b), sch 2.
NSW Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006); Alastair McEwin, Individual Communication under the United Nations Convention on the Rights of Persons with Disabilities, Communication to Committee on the Rights of Persons with Disabilities in McEwin v Australia G/SO 214/48 AUS (1) 12/2013.
See, eg, Alastair McEwin, Individual Communication under the United Nations Convention on the Rights of Persons with Disabilities, Communication to Committee on the Rights of Persons with Disabilities in McEwin v Australia G/SO 214/48 AUS (1) 12/2013.
Law Council of Australia, Submission 83.
Disability Discrimination Legal Service, Submission 55.
NSW Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006) rec 1(d)–(e).
The study used a judge’s summing up in a criminal trial to determine the accuracy of the interpretation and the level of comprehension of potential deaf jurors as compared with a control group of hearing jurors: Ibid 14–15.
Jemina Napier, David Spencer and Joseph Sabolec, ‘Deaf Jurors’ Access to Court Proceedings via Sign Language Interpreting: An Investigation’ (Research Report 14, NSWLRC and Macquarie University, 2011) 62.
Deaf Australia referred to a 2013 case in Queensland, in which a deaf person lodged a discrimination complaint against the Queensland Government after being excluded from jury duty. The Queensland Civil and Administrative Tribunal dismissed the complaint because of the ‘thirteenth person’ objection: Deaf Australia, Submission 37.
See R v K (2003) 59 NSWLR 431, . The position is otherwise in the United States: see Peter McClellan ‘Looking Inside the Jury Room’ (Paper Presented at the Law Society of NSW Young Lawyers 2011 Annual Criminal Law Seminar, Sydney, 5 March 2011 ).
Eg, Federal Court of Australia Act 1976 (Cth) ss 58AK, 58AL.
Public Interest Advocacy Centre, Submission 41.