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

7. Jury selection should meet today’s standards of inclusion

We’re the same as everybody else, we’re human, we have kids, we go to work, we drive cars, we pay mortgages—I was just fuming because I could not have equal access to this.^[1] —Gaye Lyons

Overview

• Reform is needed to align the jury empanelment process with community expectations, laws and policies about non-discrimination and the inclusion of people with disabilities in public life.

• Non-discrimination and inclusion are principles and legal standards that permeate our everyday lives as well as the justice system. Jury service should align with these fundamental principles.

Community expectations

7.1 Many people may be surprised that the law does not oblige the courts or Juries Victoria to provide reasonable adjustments so that people with disabilities can perform jury service. This is out of step with community expectations. Vision Australia observed that:

Over the past 30 years or so a number of factors have combined to reinforce expectations of full, equal, dignified and independent participation by people with disability in every aspect of life, including civic participation such as jury service.^[2]

7.2 Communication tools for people in the subject groups are increasingly visible and familiar in the Victorian community. As technology has improved, accessibility tools have become more sophisticated and the cost of providing them has reduced. With the coronavirus (COVID-19) pandemic we have been making greater use of technology to communicate at work and in our private lives. As Alastair McEwin told us:

Suddenly everyone had to use online services. People with disabilities have been asking for things like flexible learning and work practices for years. Previously it was perceived as all too hard. Now that everyone must face it however, it has been done. This change has been very helpful … What’s good for people with disabilities is often good for everyone. This should be borne in mind when talking about access tools.^[3]

7.3 We are now accustomed to seeing Auslan interpreters at press conferences and public events.^[4] We are familiar with speech-to-text technology and captions on Instagram and Facebook. Audio description is provided regularly in television, film and theatre.^[5] Podcasts and audio books are popular across the community. Theatres now stream captioning to a person’s phone.^[6] Vision Australia explained that it:

provides AD for over 200 live theatre events, including all major dramas, operas and musicals each calendar year across Australia.^[7]

7.4 Television and streaming services are incorporating accessibility tools. Companies like Netflix, SBS and ABC provide audio descriptions^[8] which ‘give more detail about what’s happening on screen, including facial expressions, physical actions, and changes in scene’.^[9] Other accessibility features include brightness controls, font size controls and playback speed controls. Netflix can be navigated with many common screen readers that read text aloud.^[10]

7.5 The benefits of accessibility are also being recognised in the business world.^[11] Industry is increasingly prioritising social responsibility as a business policy^[12] and capturing economic benefits that flow from improved accessibility.^[13]

Equality and non-discrimination in today’s society

7.6 In our report Guardianship (2012) the Commission noted that the social context and community attitudes towards disability have changed. That report and the new laws that followed it recognised the importance of equality and citizenship for people with disabilities:

There is now much greater emphasis upon people with disabilities being supported to be active, participating members of our community. Notions of people with disabilities as passive recipients of services are being replaced with those of people as active citizens of communities, regardless of the nature or extent of their disabilities.^[14]

7.7 People in the subject groups and the broader community expect that the laws and practices that govern jury selection reflect fundamental principles of equality and non-discrimination.

7.8 Exclusion from community life can have a debilitating effect on self-worth and compound feelings of isolation.^[15] Victoria Legal Aid noted:

Through our work responding to disability discrimination, we see the impact on people when they are excluded from participating in community life because adjustments are not made to accommodate their disabilities. Not only does this discrimination have a significant impact on the health and wellbeing of people with disability, it can also impact on their ability to complete their education, maintain their employment and have access to services. Our wider community is also adversely impacted when people with disabilities are denied the ability to fully participate in public life and contribute their diversity of lived experiences to public decision-making processes, including in the justice system.^[16]

7.9 Youth Disability Advocacy Service stated that:

the current exclusion of disabled Australians as jurors further stigmatises disability within both the criminal justice system and society broadly. It is vital that disabled people living in Victoria are not only seen in the roles of claimants, victims or defendants within Australia’s justice system. This perpetuates disability stigma and inequality. Jury service is a vital aspect of civil life and the jury must reflect the society we live in.^[17]

7.10 Whilst there has been some significant progress, the Commission observes that there is a long way to go to achieve equality for people with disabilities. Victoria Legal Aid (VLA) identified that:

Of the discrimination-related inquiries we received, inquiries about disability discrimination are the most common and each year we provide hundreds of instances of legal advice and assistance about this issue. For example, over the past five financial years we gave 345 advices on disability discrimination in education and 1,803 advices on disability discrimination in employment.^[18]

7.11 The latest ‘Australia Talks’ survey also suggests that Australians think the country is doing a poor job of supporting people with disabilities and that significant improvements need to be made.^[19] Importantly, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability reveals the seriousness with which our community is now treating the challenges people with disability face.^[20]

Government inclusion strategies

7.12 At the Commonwealth and state levels, disability action plans outline how government will:

• support people with disabilities to take part in the community

• make it easier for people with disabilities to use community services.^[21]

Commonwealth National Disability Strategy

7.13 The Federal Government’s Australia’s Disability Strategy 2021–2031, released in December 2021, ‘sets out priorities and plans for all governments to work with the community, business and people with disability’ to ensure a more ‘inclusive and accessible Australian society where all people with disability can fulfil their potential as equal members of the community’.^[22] Implementing the strategy will assist governments in meeting their obligations under international and domestic law.^[23]

7.14 The strategy builds on its predecessor, the National Disability Strategy 2010–2020, which marked ‘the first time in Australia’s history that all governments have committed to a unified, national approach to improving the lives of people with disability, their families and carers, and to providing leadership for a community-wide shift in attitudes’.^[24]

Victorian inclusion strategies

7.15 The Victorian Government launched a new state disability plan in March 2022. It stated that the new plan ‘is a key way for the Victorian Government to be accountable for making all parts of the community inclusive and accessible for everyone’.^[25]

7.16 The Victorian Public Sector Commission has developed a disability employment action plan, designed to lift the representation of people with disabilities within the public sector workforce from four per cent to 12 per cent by 2025.^[26]

7.17 Accessibility tools are being embraced in our schools. In 2019, Auslan was one of the most common languages other than English taught in Government primary schools.^[27] In the same year, the Victorian Government invested $20.6 million over five years in an early language program for preschool children in Victoria^[28] which is provided to approximately 6000 children. Auslan is ‘the second-most popular language in the program’.^[29]

Laws about equality and inclusion

7.18 Key laws relevant to equality and inclusion in Victoria are:

• Equal Opportunity Act 2010 (Vic) (EOA)

• Disability Act 2006 (Vic) relating to disability services

• Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter)^[30]

7.19 At the Commonwealth level, key laws are:

• National Disability Insurance Scheme Act 2013 (Cth)^[31]

• Disability Discrimination Act 1992 (Cth)

7.20 State and Commonwealth statutory authorities administer these laws.^[32] The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) is responsible for administering Victoria’s discrimination laws and broader human rights laws, including the Charter.^[33]

The Victorian Equal Opportunity Act

7.21 Victoria’s EOA ‘protects people from discrimination on the basis of their individual attributes in certain areas of public life, and provides redress for people who have been discriminated against’.^[34]

7.22 Disability discrimination is unlawful in employment, education, access to premises used by the public, accommodation, the provision of goods and services and disposal of land, accommodation, clubs and associations, sport, and local government.^[35] Employers and providers of education, goods, services and accommodation have an obligation to make reasonable adjustments for people with a disability, so that they can have equal enjoyment and access to services, accommodation and work.^[36]

Victorian Charter of Human Rights and Responsibilities

7.23 The Charter establishes a legislative framework for the protection and promotion of human rights in Victoria. It gives statutory recognition to civil and political rights and freedoms primarily derived from the International Covenant on Civil and Political Rights.^[37]

7.24 The Charter sets out 20 basic rights which promote and protect the values of freedom, respect, equality and dignity.^[38] Key rights for the purposes of this report include the right to:

• recognition and equality before the law, and protection from discrimination^[39]

• take part in public life^[40]

• a fair hearing.^[41]

7.25 The Charter adopts a ‘dialogue model’ of human rights protection in which the government, courts and parliament are assigned specific roles to ensure that human rights are protected and promoted in Victoria.^[42] It operates in three main ways:

• Public authorities, including local government and Victoria Police, must act in ways that are compatible with human rights and take relevant human rights into account when making decisions.

• Human rights must be taken into account when Parliament makes new laws.

• Courts and tribunals must interpret and apply all laws in a way that is compatible with human rights.^[43]

7.26 Charter rights may be limited pursuant to section 7.^[44]

Human rights law, the Charter and jury selection

7.27 The application of state discrimination and human rights laws to the specific area of jury empanelment is limited and, to some extent, uncertain.

Jury selection falls outside the Equal Opportunity Act

7.28 Jury empanelment is not an area of public life in which discrimination is unlawful under the EOA.^[45] The EOA also provides an exemption to compliance if action is necessary to comply with the provision of another Act or an order of the court.^[46]

The Charter

7.29 The application of the Charter to the jury selection process is not straightforward.

It differs depending on who is exercising power—the Juries Commissioner or the courts—and in what capacity that power is exercised (discussed below).

Does the Charter apply to the Juries Commissioner and Juries Victoria?

7.30 The Juries Commission is a public authority for the purposes of the Charter.^[47] As such, the Juries Commissioner must give proper consideration to human rights and act compatibly with the Charter.^[48]

7.31 Section 38 of the Charter enables a public authority to act in a way that is incompatible with a human right or fails to give proper consideration to a human right if it is giving effect to another law and could not have acted differently or made a different decision.^[49] Part 4 of the Juries Act 2000 (Vic) outlines various roles of the Juries Commissioner. The Juries Commissioner has the statutory authority to determine eligibility for jury duty in accordance with the Act.^[50] Without provisions in the Juries Act to overcome the 13th person rule, potential jurors in the subject groups may lawfully be deemed ineligible to serve.

7.32 However, in England and Wales ‘reasonable accommodations’ to enable jury service have been provided to people in the subject groups for many years. There are protocols in place to accommodate people with disabilities and enable them to serve on juries provided they have not required the assistance of a non-juror in jury deliberations.^[51] This has occurred through a coordinated approach by the Jury Central Summoning Bureau (the equivalent of Victoria’s Juries Commissioner) and the courts. The Equal Treatment Bench Book for judges in the United Kingdom explains that:

It is not a question of being ‘kind and sympathetic’ towards a disabled person. That is patronising. The important point is that disabled litigants, defendants and witnesses (and where appropriate, advocates, jurors and others involved in the court process) are able to participate fully in the process of justice. Making reasonable adjustments or accommodating the needs of disabled people is not a form of favouritism or bias towards them, but part of showing respect for people’s differences and helping to provide a level playing field. The focus should be on actions that remove any unnecessary barriers to participation.^[52]

7.33 We discuss the approach in England and Wales, as well as recent reforms to allow a British Sign Language interpreter into the jury room, in Chapter 10.

Does the Charter apply to the courts?

7.34 The Charter applies to the courts in several ways:^[53]

• when exercising certain functions under the Charter^[54]

• in their capacity as public authorities^[55] but only when acting administratively.^[56]

7.35 There are some examples in the Charter of when the court is acting in an administrative capacity. These include the issuing of warrants, listing cases and adopting practices and procedures.^[57] Case law has addressed the scope of the application of the Charter to the courts^[58] but neither the Charter nor case law clarifies whether or how the Charter applies to a court at the jury selection stage of a trial.

Jury selection should reflect principles of equality and non-discrimination

7.36 The Commission’s view is that even if the Charter and the EOA do not specifically apply to the jury selection process, those processes should still comply with the underlying principles of equality and non-discrimination. The recommendations we make are guided by these principles and are directed at removing barriers that prevent participation of people from the subject groups.

7.37 Participation in jury service is an important aspect of civic life associated with active citizenship.^[59] Blind Citizens Australia observed:

People who are blind or vision impaired have the rights and responsibilities to participate to the fullest extent possible in society. This includes fulfilling civic responsibilities such as voting and jury service. A call to jury service is a civic responsibility for all Australian citizens who are not exempt by law. ^[60]

7.38 Not being able to participate in jury service conveys the wrong message about who is considered a full and equal citizen in the eyes of the community and the state.

7.39 The courts are called upon to uphold the rights of non-discrimination and equality across the community. The Supreme Court identified that ‘the principle of equality before the law and equal access to the Court is foundational to the court’s operations’.^[61]

7.40 Jury service should no longer be kept separate from the operation of these fundamental principles. As Vision Australia observed:

Access to justice—including participation in judicial processes such as jury service—is no longer seen as occupying a separate or privileged place in society that should be sheltered from the impact of evolving expectations.^[62]

7.41 The Castan Centre for Human Rights Law noted:

The issue of inclusive juries touches upon the fundamental values of equality, dignity and democratic participation which underpin the Victorian Charter, as well as the international human rights framework which it incorporates into Australian law. Access to justice includes participation as a juror, which is meant to comprise a group of people which reflect our society.^[63]

7.42 Regarding the application of the Charter, the Castan Centre commented:

provisions of the Charter provide powerful support for the Commission to recommend that potential jurors with physical disabilities are supported through reasonable adjustments and accommodations so that they are capable of performing the duties of jury service.^[64]

7.43 Youth Disability Advocacy Service argued that ‘reforming the law to provide for inclusive juries is a human rights issue’.^[65] Associate Professors Bruce Baer Arnold and Wendy Bonython submitted that:

a more inclusive jury system is a foundation of justice and legitimacy. It is directly consistent with the Victorian Charter of Rights and Responsibilities and, importantly, gives effect to Victoria’s commitment to respect the dignity of all people rather than privilege administrative convenience, a privileging that in practice has served to objectify many people as ‘citizens minus’. ^[66]

7.44 Although the actual number of people who may serve with reasonable adjustments each year may be low, reform is important. The Commission agrees with VLA that providing reasonable adjustments to people in the subject groups to enable them to serve as jurors will also have broader benefits:

It will enhance the participation of jurors who are currently not excluded, but nevertheless have challenges in hearing or seeing the evidence in court. It will improve the participation of people with these impairments in other roles, whether as judges, advocates, witnesses, parties or other stakeholders.^[67]

7.45 In its submission Juries Victoria concluded:

Juries Victoria supports steps towards making juries more inclusive, a position which goes to our very raison d’etre. While the extent to which Juries Victoria can directly influence the broader work required in such an undertaking is limited by the narrow scope of our empowering legislation, we stand prepared to contribute to the discussion and efforts to bring about such changes. ^[68]

7.46 In view of that positive approach, until the law changes, we encourage the Juries Commissioner to explore with people in the subject groups what adjustments will facilitate jury service that do not involve an additional person in the jury room, for example, lip-reading or technological assistance.

7.47 More broadly, it is time for the Victorian courts and Juries Victoria to work together to provide reasonable adjustments to people in the subject groups. We make recommendations for a coordinated approach to law reform for the courts and Juries Victoria in Chapters 11 and 12.

1. Comment made by Gaye Lyons in response to the Queensland Ipswich District Court’s refusal to provide an Auslan interpreter so she could perform jury duty in 2012, cited in Kim Sharnie, ‘Deaf Queensland Woman Gaye Lyons Loses High Court Bid to Become Juror’, ABC News (online, 5 October 2016) <https://www.abc.net.au/news/2016-10-05/deaf-woman-gaye-lyons-loses-high-court-challenge-juror/7904324>.

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2. Submission 10 (Vision Australia).

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3. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

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4. Zach Hope, ‘“But Seriously, I’m Really Nervous”: The Everywhere Faces of Auslan Interpreters and Their Vital Work’, The Age (online, 10 May 2020) <https://www.theage.com.au/national/victoria/but-seriously-i-m-really-nervous-the-everywhere-faces-of-auslan-interpreters-and-their-vital-work-20200509-p54rcu.html>; Holly Tregenza, ‘The Coronavirus Pandemic and Bushfire Emergency Have Thrust Auslan Interpreters into the Spotlight’, ABC News (online, 11 April 2020) <https://www.abc.net.au/news/2020-04-11/coronavirus-bushfires-thrust-auslan-interpreters-into-spotlight/12140824>. See also Millie Roberts, ‘Auslan Interpreters Will No Longer Be a Permanent Part of NSW Press Conferences’, Junkee (Web Page, 12 October 2021)
   
   <https://junkee.com/auslan-interpreters-nsw-press-conference/311556>.

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5. The Australian children’s music band ‘The Wiggles’ is embracing accessibility and improving access for children with disabilities through their music. The Wiggles, ‘Emma’s Sign Language Time’ (YouTube, 16 February 2021) <https://www.youtube.com/playlist?app=desktop&list=PLn4s8r0gyEeu5KI4We5jJNTCrG_EEWm31>. See also Naja Later, ‘From CODA to Hawkeye, the Surge of Sign Languages on Screen is a Sign of Better Things to Come for the Deaf Community’, The Conversation (online, 12 April 2022) <https://theconversation.com/from-coda-to-hawkeye-the-surge-of-sign-languages-on-screen-is-a-sign-of-better-things-to-come-for-the-deaf-community-180304>.

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6. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

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7. Consultation 28 (National Coordinator of Audio Description, Vision Australia). Similarly, the Service Coordinator of Description Victoria told us that the organisation regularly provides AD services to live theatre performances: Consultation 29 (Service Coordinator, Description Victoria).

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8. Netflix, ‘Accessibility on Netflix’, Help Center (Web Page) <https://help.netflix.com/en/node/116022>; Special Broadcasting Service (SBS), ‘SBS and ABC Launch Audio Descriptions to Help Blind or Vision-Impaired Australians Enjoy Television More’, SBS News (online, 23 June 2020) <https://www.sbs.com.au/news/sbs-and-abc-launch-audio-descriptions-to-help-blind-or-vision-impaired-australians-enjoy-television-more>. The Vision Australia submission observes that ‘accessible public ICT procurement requirements of the Rehabilitation Act have been pivotal in improving the accessibility of a wide range of technologies, and have even been identified as the catalyst for companies such as Netflix to introduce audio description to their content’: Submission 10 (Vision Australia). See also: Rehabilitation Act, 29 USC (1973).

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9. Consultation 30 (Lead Policy Advisor, Client Services, Vision Australia).

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10. Netflix, ‘Accessibility on Netflix’, Help Center (Web Page) <https://help.netflix.com/en/node/116022>.

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11. See, eg, the discussion about accessible tourism: ‘Accessible Tourism’, Business Victoria (Web Page, 20 April 2022)
    
    <https://business.vic.gov.au/business-information/tourism-industry-resources/accessible-tourism>.

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12. For example, Apple is committed to accessibility in its designs because inclusion is ‘a human right’: Filipe Espósito, ‘Apple’s Accessibility Director Highlights How the Company Values Inclusion in its Products’, 9to5Mac (Blog Post, 28 July 2020) <https://9to5mac.com/2020/07/27/apples-accessibility-director-highlights-how-the-company-values-inclusion-in-its-products/>.

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13. For example, Moreland City Council’s website notes that ‘Good access is good business. Nearly one in four Moreland residents have a disability. If your premises are not accessible for everyone you may be missing out on significant numbers of potential customers’: ‘Make Your Business Accessible’, Moreland City Council (Web Page) <https://www.moreland.vic.gov.au/building-and-business/business/accessible-business/>.

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14. Victorian Law Reform Commission, Guardianship (Report No 24, 2012) Executive Summary, xxi [14].

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15. Department of Social Services (Cth), SHUT OUT: The Experience of People with Disabilities and Their Families in Australia (Report, 2009) 52.

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16. Submission 8 (Victoria Legal Aid).

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17. Submission 3 (Youth Disability Advocacy Service).

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18. Submission 8 (Victoria Legal Aid).

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19. 82% of Australians think that Australia should do as much as is necessary to ensure that people with disability have the same opportunities as everyone else. The survey reveals that more voters agree than disagree on this issue across the entire political spectrum. Australian Broadcasting Corporation (ABC), ‘Is Enough Being Done in Australia to Support People with Disabilities?’, Australia Talks (ABC News, 1 June 2021) <https://www.abc.net.au/news/2021-06-01/is-enough-being-done-to-support-australians-with-disabilities/13368758>. For more information about this survey: see Australian Broadcasting Corporation (ABC), ‘Where Do You Fit?’, Australia Talks (Web Page) <https://australiatalks.abc.net.au/>.

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20. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability is a royal commission established on 4 April 2019 by the Australian government pursuant to the Royal Commissions Act 1902 (Cth): ‘About the Royal Commission’, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Web Page) <https://disability.royalcommission.gov.au/about-royal-commission>.

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21. Consultation 7 (Vision Australia).

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22. Department of Social Services (Cth), Australia’s Disability Strategy 2021–2031, (Report, December 2021).

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23. Specifically, it will assist governments to meet their obligations under the following laws and policies: Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008); Disability Discrimination Act 1992 (Cth); Disability Services Act 1986 (Cth); National Disability Insurance Scheme Act 2013 (Cth); Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth). See also state and territory legislation, including the Australian Capital Territory and Victorian Charters of Human Rights, and various public service acts.

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24. Council of Australian Governments, National Disability Strategy 2010–2020 (Report, 2011) 3.

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25. Department of Families, Fairness and Housing (Vic), Inclusive Victoria: State Disability Plan 2022–2026 (Report, March 2022) 14.

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26. ‘Getting to Work: Disability Employment Action Plan’, Victorian Public Sector Commission (Web Page, 30 September 2018) <https://vpsc.vic.gov.au/getting-to-work-disability-employment-action-plan/>.

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27. Department of Education and Training (Vic), Languages Provision in Victorian Government Schools, 2019 (Report, 2020) 8.

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28. ‘Early Childhood Language Program’, Department of Education (Web Page, 8 April 2022) <https://www.vic.gov.au/early-childhood-language-program>.

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29. Madeleine Heffernan, ‘Preschools’ Love of Language a Good Sign for Auslan’, The Age (online, 22 November 2021)
    
    <https://www.theage.com.au/national/victoria/preschools-love-of-language-a-good-sign-for-auslan-20211109-p597g6.html>.

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30. Commonwealth laws also protect people’s rights in public life and when dealing with Commonwealth Government departments and agencies: see, eg, Disability Discrimination Act 1992 (Cth); Fair Work Act 2009 (Cth).

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31. In 2013, the Commonwealth Government introduced the National Disability Insurance Scheme (NDIS) pursuant to the National Disability Insurance Scheme Act 2013 (Cth). This was rolled out to all states and territories in 2016 and is Australia’s first national scheme providing funding directly to people with disability. National Disability Insurance Agency, ‘History of the NDIS’, NDIS (Web Page, 30 July 2021) <https://www.ndis.gov.au/about-us/history-ndis>.

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32. Victorian Equal Opportunity and Human Rights Commission, Understand Your Rights (Web Page) <https://www.humanrights.vic.gov.au/>; Australian Human Rights Commission (Web Page, 2021) <https://humanrights.gov.au/>; Fair Work Commission (Web Page) <https://www.fwc.gov.au/>; ‘Welcome to the Fair Work Ombudsman Website’, Fair Work Ombudsman (Web Page) <https://www.fairwork.gov.au/>.

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33. Change or Suppression (Conversion) Practices Prohibition Act 2021 (Vic); Equal Opportunity Act 2010 (Vic); Charter of Human Rights and Responsibilities Act 2006 (Vic); Racial and Religious Tolerance Act 2001 (Vic). The Victorian Disability Worker Commission is another relevant statutory authority. It regulates unregistered disability workers, responds to complaints about disability workers, and has the power to ban unregistered workers from the sector for breaching their code of conduct: see Victorian Disability Worker Commission (VDWC), Victorian Disability Worker Commissioner (Web Page) <https://www.vdwc.vic.gov.au/about/commissioner>.

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34. Department of Justice and Community Safety (Vic), ‘Equal Opportunity’, Victoria State Government (Web Page, 2021)
    
    <https://www.justice.vic.gov.au/equal-opportunity>.

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35. Equal Opportunity Act 2010 (Vic).

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36. Ibid.

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37. Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 1.

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38. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8–27.

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39. Ibid s 8.

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40. Ibid s 18.

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41. Ibid s 24.

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42. Victorian Law Reform Commission, Guardianship (Report No 24, 2012) 44 [4.62].

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43. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32.

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44. The Charter includes a non-exhaustive list of the relevant factors to consider: ibid s 7(2).

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45. Jury service is not included in Part 4 of the Equal Opportunity Act 2010 (Vic), which sets out when discrimination is prohibited.

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46. Ibid ss 75, 76.

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47. See the definition of public authority in Charter of Human Rights and Responsibilities Act 2006 (Vic) s 4. See also Juries Act 2000 (Vic) s 60.

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48. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1).

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49. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(2).

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50. Juries Act 2000 (Vic) s 21, 25.

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51. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 17 August 2020.

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52. Judicial College UK, Equal Treatment Bench Book (Manual, February 2021) <https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf>, 97 [8]-[9].

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53. See generally Judicial College of Victoria, Charter of Human Rights Bench Book (Online Manual, 1 September 2017)
    
    <https://www.judicialcollege.vic.edu.au/eManuals/CHRBB/index.htm#57496.htm>.

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54. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 6(2)(b). Note, under part 3 the court must consider Charter rights when interpretating legislation and part 2 puts a direct obligation on the courts to act compatibly with Charter rights that affect court proceedings.

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55. Ibid s 38.

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56. Ibid s 4(1)(j).

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57. Ibid.

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58. Case law suggests that a court is less likely to be acting administratively if it involves the governance of a trial: Slaveski v The Queen [2012] VSCA 48, (2012) 40 VR 1, [107].

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59. The Convention Committee notes in the cases of Lockrey and Beasley that ‘the performance of jury duty is an important aspect of civic life within the meaning of article 9(1), as it constitutes a manifestation of active citizenship’: 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) [8.6] (‘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) [8.6] (‘Beasley v Australia’). In JH’s case, Australia rejected JH’s assertion that ‘jury duty is everyone’s civic responsibility’. The Committee failed to respond to that comment: 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) [2.3], [4.2] (‘JH v Australia’).

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60. Position Statement 1 (Blind Citizens Australia).

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61. Submission 11 (Supreme Court of Victoria).

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62. Submission 10 (Vision Australia).

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63. Submission 12 (Castan Centre for Human Rights Law, Monash University).

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64. Ibid.

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65. Submission 3 (Youth Disability Advocacy Service).

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66. Submission 4 (Associate Professors Bruce Baer Arnold (University of Canberra) and Wendy Bonython (Bond University)).

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67. Submission 8 (Victoria Legal Aid).

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68. Submission 13 (Juries Victoria).

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