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Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

  • Posted on May 16, 2023

1. Introduction

We’re not just at home being mothered; we are mothers ourselves and we are living in the wider hearing community. We go to school, we have children in school, we come from various backgrounds and there is a huge richness to the experiences that we bring—we’re not just simply people who can’t hear.[1]
—Participant in the Deaf Victoria consultation

1.1 This report makes recommendations to remove barriers in current law and practice that prevent Victorians who are deaf, hard of hearing, blind or have low vision from serving as jurors, while ensuring the right to a fair trial.

1.2 We contemplate reform from the start of the jury selection process to the conclusion of the trial. Our key recommendation is to amend the Juries Act 2000 (Vic) (the Act) to require that where a judge considers that reasonable adjustments would enable a person who is deaf, hard of hearing, blind or has low vision to serve as a juror, the judge must direct that they are provided.

1.3 By ‘reasonable adjustments’ we mean modifications that will facilitate access to jury service on equal terms with others, for example an Auslan interpreter or a device with software that converts written text to speech.[2] Other adjustments might involve changing the physical layout of a courtroom or providing a juror with a transcript of proceedings and additional reading time. Some reasonable adjustments that may be needed are considered in Chapter 13.

1.4 For reform to be effective, both legislative and cultural change are necessary. For professionals involved with jury work we recommend disability awareness training and education about new laws and processes and the reasonable adjustments likely to be required. The public needs accessible information about how new laws will operate. Data about the participation of people who are deaf, hard of hearing, blind or have low vision in the jury system should be collected and reported. New laws should be reviewed five years after commencement to assess whether they are meeting their policy objectives.

Our terms of reference

1.5 The inquiry was guided by our terms of reference (see page xiii) which state that the Commission will consider what changes to legislation and practices should be made to enhance access for people who are deaf, hard of hearing, blind or have low vision who wish to serve as jurors in Victoria.

The structure of this report

1.6 Part 1 (Chapters 1-10) explores the current jury selection process in Victoria. We consider the benefits reform will provide and the importance of upholding the right to a fair trial. We also examine overseas practices, where people in the subject groups have already served as jurors for many years.

1.7 Part 2 (Chapters 11–19) contains our recommendations for change to legislation, practice and procedure.

Why are these reforms necessary?

1.8 In developing our recommendations we have been guided by key considerations:

• The United Nations Committee on the Rights of Persons with Disabilities has found that Australia is in breach of its obligations under the Convention on the Rights of Persons with Disabilities (CRPD) by failing to enable people with disabilities to serve on juries with reasonable adjustments.[3] Victoria should urgently reform its laws to comply with the recommendations of the Committee.

• Reform is needed to align jury service with community expectations, laws and policies about equality and the inclusion of people with disabilities in public life. People in the subject groups should have the opportunity to perform their civic responsibility like other members of the community.

• A key purpose of the Act is that juries should be representative of the community.[4] Therefore they should include people in the subject groups. Representativeness ensures that a diverse range of views and experiences are offered in the jury deliberation process. More inclusive juries mean that the obligation of jury duty is shared more broadly across the community.

• Reform should ensure representativeness and inclusivity while upholding fair trial rights.[5] People from the subject groups must be able to perform the duties of a juror and trials involving jurors from the subject groups must not be prejudiced because of their participation. It is possible for people to serve with reasonable adjustments and to maintain a fair trial. Other jurisdictions have successfully achieved this for decades.

• Flexibility will be needed about the provision of reasonable adjustments. People in the subject groups should be consulted about what adjustments are required to enable them to serve. A judge should make the final decision about whether a person from the subject groups can serve as a juror on a particular trial.

Our approach to reform

The social model of disability

1.9 The CRPD adopts a ‘social model’ of disability, which proposes that disability arises from certain barriers in society. The preamble of the CRPD recognises that:

disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.[6]

1.10 In other words, as Victoria’s new State Disability Plan 2022–2026 notes, ‘it is society that places limits on a person, not their disability’.[7] The social model of disability shifts the focus from an individual’s disability to the social environment in which people live. According to this model, disability arises when people encounter physical barriers, digital barriers and barriers of attitudes and communication, which impede their participation in society. By contrast, the medical model looks at disability as ‘a medical condition … for health professionals to treat, fix or cure’.[8]

1.11 Applying this social model to jury duty, the Commission’s reforms focus on the interaction between the potential juror and the demands of the particular trial on which they are called to serve. This approach provides a framework for addressing and removing barriers to participation, while safeguarding the right to a fair trial.

Building on other reform ideas

1.12 This project responds to ongoing calls for change from the community and recent challenges to the law.[9] Other Australian and international law reform agencies and various reports have been calling for change for over 15 years.[10] In 2018 the Australian Capital Territory (ACT) became the first, and only, Australian jurisdiction to implement major reform in this area.

1.13 We have examined the recommendations of other law reform agencies in designing the recommendations in this report. We have also considered what happens in overseas jurisdictions including the United States, England and Wales, and New Zealand, where people with disabilities currently serve as jurors. Our reforms adapt these approaches for a Victorian context.

Working with the existing jury selection process

1.14 The recommendations in this report do not re-imagine the entire jury selection process. Reforms aim to modify existing processes as simply as possible. They ensure that the judge retains flexibility to respond to needs as they arise, and that trials continue to run efficiently and fairly.

1.15 Our recommendations provide a roadmap for Juries Victoria and the courts. The finer details of implementation will need to be settled when it is clear how case management will change in the courts after the coronavirus (COVID-19) pandemic.

A note on language

1.16 Language is a tool that can help improve inclusivity in our community. People with disabilities have worked hard to reframe language to support the protection of their human rights.

1.17 Just as people’s experience of disability differs, their preferences about the way they choose to describe themselves also varies.[11] In this report, we use person-first language (eg ‘person with disabilities’) because it emphasises a person’s right to an identity beyond their disability. Our approach is consistent with the language in the CRPD.

1.18 However, we recognise that some people prefer identity-first language (‘disabled person’) because their disability is an important part of their personal identity. We also note that many people in the Deaf community do not identify as having a disability, and instead identify as a culturally and linguistically distinct group. We acknowledge that the use of language is always evolving.

Terminology we use

1.19 Throughout this report, we refer to people who are deaf, hard of hearing, blind or have low vision as ‘the subject groups’.

1.20 In our consultation paper we used the term ‘reasonable supports’ and ‘Auslan interpreters’ to refer to accessibility tools to enable inclusive juries. While the use of the term ‘supports’ is easy to understand, we have decided to change our approach for this final report to refer to ‘reasonable adjustments’.

1.21 ‘Reasonable adjustments’ is the term used in the Equal Opportunity Act 2010 (Vic).[12] It is also used in the Disability Access Bench Book which ‘provides practical guidance on matters to consider when a party or witness has a disability’[13] so that people with disabilities can ‘participate on an equal basis with others and realise their rights’.[14] Changing this terminology aligns more closely with the approach in the CRPD, which uses the term ‘reasonable accommodations’.[15]

1.22 This change also addresses concerns that an Auslan interpreter should not be viewed as a ‘support’ but instead as an accessibility tool.[16]

Our process

1.23 This is a community law reform project, initiated by the Commission itself. The Commission can initiate its own inquiries into legal issues of general community concern if they are limited in size and scope.[17] Other inquiries are referred to the Commission by the Victorian Attorney-General. (See list on the inside back cover).

1.24 The project commenced in March 2020 and was completed in July 2022.

Our leadership

1.25 The Hon. Anthony North QC was the Commission’s Chair for this project. He established a Division to guide and make decisions about the project. Commissioners on the Division were Liana Buchanan, the Hon. Jennifer Coate AO, Kathleen Foley SC, Bruce Gardner PSM, Gemma Varley PSM and Dr Vivian Waller.

1.26 We appointed Professor Emeritus Ron McCallum AO as a special advisor to the project. Professor McCallum is an Australian legal academic who has been blind since birth. He has been Dean of Sydney University Law School, chaired the United Nations Committee on the Rights of Persons with Disabilities and is a former Special Advisor to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. Professor McCallum provided invaluable guidance and personal insights to the project.

Community responses

1.27 In December 2020 we published a consultation paper explaining the current law in Victoria and examining law and practice interstate and overseas. We asked a range of questions about possible reform directions and invited the community to submit their views. A summary paper was also published, linked to a short online survey. The summary paper and survey were available in Microsoft Word, Auslan and audio formats to ensure broad accessibility. We received 14 written submissions (see Appendix A) and 27 survey responses from community members.

1.28 We held two stages of consultations. First, we held preliminary meetings with people who worked in the justice system, such as Juries Victoria and representatives of the higher courts that run jury trials. We spoke to some disability advocacy organisations and academics who had studied this area. Along with our own research, these meetings helped us develop our consultation paper.

1.29 After the release of the consultation paper, we held a wide range of formal consultations including with:

• disability advocacy organisations

• members of the community

• legal professionals, several judges at the Victorian County and Supreme Courts, the Victorian Criminal Bar Association, the Office of Public Prosecutions Victoria, the Law Institute of Victoria, and the Victorian Equal Opportunity and Human Rights Commission

• Juries Victoria

• jury authorities and courts interstate and overseas

• Auslan service providers and interpreter associations

• academics

• the Victorian Aboriginal Community Controlled Health Organisation.

1.30 Due to coronavirus (COVID-19) restrictions, most of our consultations were undertaken online, including with people from regional Victoria, other parts of Australia and overseas. The seamless nature of these consultations showed us how easily technology can assist with accessibility.

1.31 We held 29 consultations (see Appendix B). We are grateful to the people named in Appendix B for contributing to our project. The Commission is appreciative of their willingness to meet online despite the challenges and to share their experiences and views. Their ideas and voices are reflected in this report. We expect their valuable contributions will shape change that will benefit others.

What was out of scope

1.32 This project is limited in focus to those who are deaf, hard of hearing, blind or have low vision. We do not consider reforms to remove barriers to participation on juries for people with other disabilities. We also have not considered whether a person who cannot understand or speak English should be able to be a juror.

1.33 We recognise that recent reforms in the ACT apply to people who have an insufficient understanding of the English language, as well as anyone who has a mental or physical disability.[18] Although these topics are beyond the scope of this report, many of the Commission’s observations regarding people in the subject groups could be more broadly applied.

Data in our report

1.34 Due to coronavirus (COVID-19), jury trials were significantly disrupted in Victoria in 2020 and 2021. Therefore, we refer to data from 2018 and 2019 for a more typical snapshot of the jury system in Victoria.

Reform in coronavirus (COVID-19) times

1.35 Jury trials were suspended due to lockdowns from March to November 2020, and on and off in 2021. When they recommenced, social distancing requirements meant that Juries Victoria had to adapt its processes and initially manage its empanelment process online. In Melbourne, the County Court jury selection process occurred via remote feeds from the jury pool room to the courtroom. The same occurred in the seven circuit locations where courtrooms had been reconfigured to meet social distancing requirements. This resulted in some larger jury boxes being built and because many existing deliberation rooms could not be reconfigured to meet social distancing requirements, a second courtroom was used as a deliberation room. This meant that often one trial required two courtrooms.[19]

1.36 In the urgent response to the pandemic, the courts and Juries Victoria have demonstrated that they can adapt quickly.[20] Many of the tools that the courts and legal profession have adopted to respond to the challenges of the pandemic have been used by people in the subject groups for some time. The reforms proposed by this report are therefore timely.

1.37 We are aware that a large backlog in jury trials created by the pandemic and competing funding priorities will create challenges post-pandemic. However, this should not slow the implementation of our recommendations. Because only a small number of trials are likely to be impacted, we are confident that reforms can be implemented reasonably easily, without placing a large burden on Juries Victoria or the courts.

  1. Consultation 6 (Deaf Victoria and community participants).

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  2. For a definition of the analogous term ‘reasonable accommodations’ see Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 2.

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  3. Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) (‘Lockrey v Australia’); Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/11/2013 (25 May 2016) (‘Beasley v Australia’); Committee on the Rights of Persons with Disabilities, Views: Communication No 35/2016, 20th sess, UN Doc CRPD/C/20/D/35/2016 (31 August 2018) (‘JH v Australia’). See further discussion about the CRPD and these cases in Chapter 6.

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  4. Juries Act 2000 (Vic) s 1.

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  5. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 11 [1.20].

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  6. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) Preamble (e). Article 1 further recognises that ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.

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  7. Department of Families, Fairness and Housing (Vic), Inclusive Victoria: State Disability Plan 2022–2026 (Report, March 2022) 11.

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  8. See the succinct discussion about the social model of disability in Australian Government, ‘People with Disability’, Style Manual (Web Page, 2022) <https://www.stylemanual.gov.au/format-writing-and-structure/inclusive-language/people-disability>.

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  9. See, eg, Eliza Nugent, Preyasi Domun and De Alwis Winuri, Advancing Jury Inclusivity in Australia (Report, Remedy Australia, Castan Centre for Human Rights Law, Monash University, August 2021); Tammy Mills, ‘Law Reform Needed to Allow Deaf and Blind People on Juries’, The Age (online, 17 January 2021) <https://www.theage.com.au/national/victoria/law-reform-needed-to-allow-deaf-and-blind-people-on-juries-20210115-p56uav.html>; Annie Guest, ‘Deaf Jurors Serve in US and New Zealand, but High Court Blocks Australian Gale Lyons’ Bid’, ABC News (online, 5 October 2016) <https://www.abc.net.au/news/2016-10-05/deaf-jurors-allowed-in-us,-nz/7905810>; Jemina Napier, ‘Deaf or Blind People Can’t Serve on Juries—Here’s Why the Law Needs to Change’, SBS The Feed (online, 25 October 2016) <https://www.sbs.com.au/news/the-feed/deaf-or-blind-people-can-t-serve-on-juries-here-s-why-law-needs-to-change>; Lyons v State of Queensland [2016] HCA 38, (2016) 259 CLR 518. There have also been three successful complaints of human rights breaches brought to the UN Convention Committee, as discussed in Chapter 6.

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  10. In chronological order, these reports are: New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006); Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors (Final Report Project No 99, April 2010); Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011); Law Reform Commission (Ireland), Jury Service (Report No 107, April 2013); Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014); See also: Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016).Other reports have sought community responses about reform: see Department of Justice (WA), Participation of People with a Disability in Jury Service (Discussion Paper, March 2020); Department of Justice and Regulation (Vic), Equality and Fairness in Jury Selection (Discussion Paper, 2016).

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  11. See, eg, ‘Community and Culture’, National Association of the Deaf (Web Page) <https://www.nad.org/resources/american-sign-language/community-and-culture-frequently-asked-questions/>.

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  12. Equal Opportunity Act 2010 (Vic).

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  13. Judicial College of Victoria, ‘1.1 Background’, Disability Access Bench Book (Online Manual, 1 December 2016)

    <https://www.judicialcollege.vic.edu.au/eManuals/DABB/index.htm#59523.htm>.

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  14. Ibid.

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  15. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 2.

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  16. Concern was raised in consultations: see, eg, Consultation 6 (Deaf Victoria and community participants).

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  17. Victorian Law Reform Commission Act 2000 (Vic) s (5)(1)(b).

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  18. Juries Act 1967 (ACT) s 16.

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  19. Information provided by Juries Victoria to Victorian Law Reform Commission, 20 September 2021.

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  20. See, eg, ‘COVID-19 and the Court’, Supreme Court of Victoria (Web Page, 3 March 2022) <http://www.supremecourt.vic.gov.au/news/covid-19>; ‘Coronavirus (COVID-19) Divisional Responses’, County Court of Victoria (Web Page, 24 November 2021) <https://www.countycourt.vic.gov.au/news-and-media/news-listing/2021-09-16-coronavirus-covid-19-divisional-responses>; ‘Coronavirus and the Courts’, Judicial College of Victoria (Web Page) <https://www.judicialcollege.vic.edu.au/resources/coronavirus-and-courts>; Juries Victoria, ‘Juror Safety during COVID-19’, Juror Portal (Web Page, 16 February 2022)

    <https://www.juriesvictoria.vic.gov.au/juror-safety-during-covid-19>.

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