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

5. The slow road to inclusive juries

This meeting is a waste of time … We are not asking for a privilege; we are asking for a very unpleasant right … We think it is work we should be doing and it is our right to do it.^[1] —Comment by a woman to a New South Wales Committee in the 1940s

Overview

• The jury that we are familiar with today has only emerged recently.^[2]

• Who can be a juror has changed over time. Women and Aboriginal people have only gained the right to participate in jury service quite recently.

• For decades there have been calls to enable people in the subject groups to serve as jurors. Parallels can be drawn between the arguments that slowed change for women and those stalling reform for people who are deaf, hard of hearing, blind or have low vision.

• Community responses support reform to remove barriers to jury service for people in the subject groups.

The evolution of the jury

5.1 This chapter provides a brief summary of the evolution of the jury. It is instructive to consider the reforms we are proposing in the light of these historical developments.

5.2 The British Parliament, in formulating the Bill of Rights of 1689, defined the jury as ‘one of the “ancient liberties”, a precondition to a constitutional monarchy’.^[3] However, while the jury is ancient, it has changed enormously over time. As Horan puts it:

the present form of the civil jury bears little resemblance to earlier manifestations. Since the twelfth century the juror has undergone a metamorphosis from representative of the feudal lords, to local community representative, to impartial trier of fact and representative of the general community. Intimacy has been replaced by objectivity. Whilst the image of the jury for contemporary Australians is an image of an institution that has always been there to protect all citizens, the history of the institution shows otherwise.^[4]

5.3 Juries were first introduced to England after the Norman Conquest during the period 1066–1075.^[5] Initially a jury was used for administrative purposes at the request of the king and for the benefit of the Crown.^[6] Only during the 12th century did they come to be used in the administration of justice.^[7]

5.4 Over time, the jury evolved from a body of witnesses who decided cases on the basis of their own observations to a body that ‘exercised independent judgement according to evidence presented in court’.^[8] Juror challenges were introduced to guard against juror bias.^[9] Special juries, consisting of jurors wealthier than common jurors or chosen for their specialist professional knowledge, were also used.^[10]

5.5 Further changes occurred in the 17th century, when jurors were held to be immune from judicial punishment.^[11] Horan observes that ‘as juries became more independent of judges, they became more reflective of the community’s views about justice’.^[12] Today, a jury is regarded as an important check on the power of the state (see Chapter 2). Juries enable the community to participate in the justice system and ensure that justice is administered in line with community standards.

5.6 Eligibility requirements for jurors have also changed over the centuries, though this change has been very slow. Since juries were first introduced to England, the role of a juror has primarily been performed by wealthy white men.

Australia’s first juries

New South Wales

5.7 The introduction of the jury system in Australia ‘did not simply involve the early colonists importing the English system’. It was ‘a gradual process, with many modifications’.^[13]

5.8 Initially, instead of jury trials, serious criminal offences were heard before an inquisitorial tribunal comprising six military or naval officers and a deputy judge advocate.^[14] There was great unease about ‘the advisability of having trial by jury in a colony composed of largely ex convicts’.^[15]

5.9 A campaign by free settlers for the introduction of jury trials gathered momentum gradually during the early 19th century. Campaigners considered jury trials important because of the ‘threat to judicial independence posed by the British government’s power to dismiss colonial judges’ and because of concerns about a lack of impartiality by military officers in cases involving the military.^[16] The call to include free convicts as jurors faced strong opposition from the British government.^[17]

5.10 In 1832, an Act was passed by the Legislative Council of New South Wales prescribing that trials of all civil matters were to be heard before a jury of 12.^[18] The Act also allowed for limited use of trial by jury for criminal trials, essentially to address concerns about impartiality of colonial officials or officers.^[19] Those ‘competent’ for jury duty were:

Every male resident in the County of Cumberland, subject to exemptions, aged between twenty one and sixty having real estate producing income of at least thirty pounds annually, or a personal estate worth three hundred pounds […] Esquires or persons of higher degree, Justices of the Peace, merchants and bank directors were eligible to serve as special jurors.^[20]

5.11 In 1839, legislation abolished military trials and allowed criminal trials on issues of fact to be determined by a jury of 12 men.^[21] In 1847, an Act amending the law relating to juries and jurors in New South Wales^[22] led to jury trials becoming a permanent feature of the administration of justice in New South Wales.^[23]

Victoria

5.12 The Victorian jury evolved from the English jury, modified by early practices in New South Wales. In 1847 the New South Wales juries legislation was applied to the Port Phillip district. It provided for trial by a common jury of 12 free local men. Ordinary jurors were required to have substantial income or property holdings. There was also provision for special juries.^[24]

5.13 In 1850, the Parliament of the United Kingdom passed the Act for the Better Government of Her Majesty’s Australian Colonies, which permitted Victoria to govern itself. In 1851 the State Government of Victoria was established and in 1852 the parliament established the Supreme Court of Victoria.^[25] Victoria subsequently enacted juries legislation similar to that of New South Wales.^[26]

Eligibility to serve on a Victorian jury

5.14 Law makers have either ignored or resisted opportunities to increase the representativeness of juries, particularly in the 19th and 20th centuries. Juries, unlike the broader justice system, seem to have remained shielded from broader social changes.

5.15 For more than a century in Victoria, only men of a certain age who owned a specified amount of property were eligible for jury service. The property ownership requirement was removed in 1956, when jury service was extended to ‘every man residing in Victoria and enrolled as an elector for the Legislative Assembly’.^[27] However, women continued to be excluded from juries, as were Aboriginal people. As Simmonds notes, an ‘institution that was meant to be the democratic voice of a sovereign community was instead one of the most unrepresentative institutions in Australia’.^[28]

The exclusion of Aboriginal people

5.16 Choo and Hunter observe that the failure to provide full voting rights in state and federal elections excluded Aboriginal people from electoral rolls and inclusion on the lists from which jurors were drawn.^[29] In 1962 the Australian Government amended the Commonwealth Electoral Act to give Aboriginal people the right to enrol and vote in federal elections irrespective of their voting rights at the state level.^[30] Only in 1983 was the Electoral Act amended to make enrolling and voting at all elections compulsory for all Australians.^[31] Aboriginal people were finally included as citizens on electoral rolls equally with other electors.^[32]

5.17 Choo and Hunter note that, ‘in theory at least’, the change in 1983 created ‘a base for Indigenous Australians to be fully included in jury lists’.^[33] In Chapter 4 we outlined a range of additional barriers that continue to limit participation on juries by Aboriginal Victorians.^[34] Aboriginal women shared additional barriers with other Victorian women in accessing jury duty. Having fought for the right to be considered citizens, they then had to wait for parliament to be convinced that, as women, they were capable of serving.

A comparable reform: the inclusion of women

5.18 Clear parallels can be seen between the arguments that were raised in relation to the participation of women jurors and those raised about people with disabilities.

5.19 From the time women in Victoria gained the vote in 1908, the issue of their possible participation as jurors was debated at least seven times in Parliament before they finally achieved the right to participate on equal terms with men in 1977.^[35] This pattern was similar in every Australian jurisdiction.^[36] Simmonds points out: ‘By the middle of the twentieth century white Australian women could vote, sit in parliament and practise as barristers and solicitors’ but they could not be jurors.^[37]

5.20 Early progress for women jurors in England and Wales was not mirrored in other common law countries.^[38] Choo and Hunter’s comparative study of 20th century juries in Ireland, Canada, the United States, New Zealand and Australia identifies the ‘widespread and pervasive nature of gender discrimination on common law jury eligibility’.^[39]

5.21 Walker examines the failure of six Bills to provide women with the opportunity to serve on juries in Western Australia from 1898 to 1956.^[40] Her research focuses on why those Bills failed and what arguments were used by politicians to justify their support or opposition to amendments to the Jury Act. Walker identifies four key themes raised in the debates:

• women’s temperament^[41]

• whether women should voluntarily or compulsorily serve^[42]

• property ownership^[43]

• the age of service, with some arguing women should only serve when they turned 30 (unlike men who only needed to turn 21).^[44]

5.22 In Victoria, similar themes were raised when Parliament debated whether to include women as jurors in 1956, 1964, 1967 and 1975.

Generalisations and assumptions about abilities

5.23 The debate about women’s participation was framed around whether they could perform the role. Old-fashioned generalisations were imposed by men on what women could and could not do. It was thought that women’s biology meant that they were not up to serving on juries or were better suited to managing their family responsibilities. Some argued that perhaps this could be corrected with age and experience. Others argued that it was precisely this unique experience that meant that they would make excellent jurors. For example, Mr Cain, Leader of the Opposition, commented in 1956 that:

I have no strong objections to the principle of having women serve on juries. In fact, I believe that there are some women in the community who would probably be equally good as jurors as some men, or even better. There have been some women members of this House who were as capable as the men. In every walk of life there are outstanding women.

… the mere fact that a woman is a mother makes her better than she otherwise would be. Such a person has a keener sense of judgement, more common sense and is more practical than women without children. She has lived the real life.

… But everybody knows that there would be great difficulties in attempting to compel women to serve on juries…

… the vast majority of mothers in the community will not be able, in their most effective years—when they are young, because those are the child-bearing years—to give service on juries.^[45]

5.24 We look back on these generalisations and misconceptions now and consider them nonsense, as did women campaigners at the time. However, they slowed progress for women for most of the 20th century. Today, people with disabilities face similar prejudices, generalisations and misconceptions (see Chapter 9).

‘A lot of rot!’: logistical issues and costs

5.25 Logistical issues with the provision of appropriate facilities for women in the courts were also raised to block women’s attempts to gain equal jury franchise from the 1940s to the 1970s. One of the key arguments against women being able to serve as jurors was that the ‘courts lacked female toilets and it would cost too much money to build them’.^[46] A justice minister commented in 1942: ‘The greatest difficulty in the way of anything being done immediately is the provision of accommodation’.^[47] Simmonds notes that a ‘well-known Labour woman’ responded to the ‘toilet objection’ in a New South Wales deputation in the 1940s stating:

A lot of rot! The minister is only pulling your association’s leg. Accommodation! … the government can put an extra lavatory and a bit of a wooden partition in other departments quick enough, why not in the courts?^[48]

5.26 The Hon. T W Brennan, a staunch supporter of women jurors, commented in parliament in 1956:

why should not this Government show courage and provide at least a few powder rooms in the Supreme Court buildings during the present reconstruction so that women might be enabled to serve on our juries? We have a notable opportunity in this community in these modern days to follow advanced thinking.^[49]

5.27 Concerns about enabling jury service for people with disabilities are reminiscent of objections made about women serving without appropriate facilities in the courts. We have heard that the courts will need time to reorganise, pay for and plan to provide adjustments. In a submission to the New South Wales Law Reform Committee (NSWLRC), Justice Hulme argued that permitting blind or deaf persons to serve on juries ‘would impose a cost on the community vastly out of proportion to any benefit which could be achieved’.^[50]

5.28 In Chapter 6 we discuss how Australia defends its decision not to provide adjustments to deaf prospective jurors in its response to United Nations decisions. It refers to practical concerns about trial delay and added complexity and costs.^[51] While these may be valid issues to work through, they should not preclude reform. In this report we conclude that the benefits, including compliance with Australia’s international human rights obligations, outweigh the costs of reform.

Voluntary or compulsory participation

5.29 Debate about women’s participation also stalled on the issue of whether jury service should be compulsory for all women or remain voluntary because of their other responsibilities at home. In Chapter 16 we consider similar questions in relation to the right to be excused from jury service because of disability: namely, whether the grounds for excuse should be the same as are available to the broader community or whether special considerations should apply.

5.30 In Western Australia, some politicians argued that requiring women to opt in to jury service was wrong. They said it was an ‘obnoxious way of bestowing citizen rights to provide that only those who demand them shall be entitled to them’.^[52] Others championed the view that a woman’s first responsibility was to the home and family. Therefore, ‘it was more straightforward and made more sense administratively if women had to elect to be placed on a jury list’.^[53] Walker identifies that this raised further concerns about the ‘wrong sort of women’ opting in to jury service, namely ‘battle-axes and sticky beaks’.^[54]

5.31 In Victoria in 1964 the Juries (Women Jurors) Bill was presented to amend the Juries Act 1958 (Vic) and the Women’s Qualification Act 1958 (Vic) with respect to jury service by women. The amendments provided that all ‘persons’ were eligible for jury service not just ‘men’. However, women could claim exemption from serving by reason of their sex alone. The Hon. R J Hamer (Minister for Local Government) concluded that the new provisions, including the exemption, represented a compromise because:

it does not put women in exactly the same position as men. I think it is proper to recognize that women have special duties, including responsibilities to young families, which put them in a somewhat special position and for which special provision ought to be made. I commend the Bill to the House.^[55]

5.32 It was not until 1975 that the automatic right of exemption from service was removed.^[56] Only since 1977 have women had the right to participate on juries on an equal footing with men in Victoria.^[57] If there are circumstances that mean they cannot serve, then they can apply to be excused in the same way as men. We might also ask why change has not already occurred to enable people with disabilities to serve.^[58]

5.33 The Commission is aware that even now that women have gained access to juries on an equal footing to men, they are disproportionately challenged as compared to men.^[59] A lower proportion of women on juries was a pattern observed in England prior to the abolition of peremptory challenges.^[60]

The exclusion of people in the subject groups

5.34 Early Christian canon law excluded witness testimony from ‘blind, deaf and dumb’ people.^[61] This found its way into English law and was applied to automatically exclude jurors with those disabilities.^[62] Budworth et al observe that ‘as with other exclusions from full citizenship … this is a historical contingency, rather than the result of reasonableness or logic’.^[63]

5.35 From 1847^[64] any ‘person who is unable adequately to see, hear or speak’ was deemed ineligible to serve as a juror in Victoria.^[65] It was not until 2000 that this wording was removed, when the Juries Act 2000 (Vic) repealed the Juries Act 1967 (Vic). Changes were made following the review and recommendations of the Parliamentary Law Reform Committee report, which noted that:

There is a need to recognise that the ability of persons with certain disabilities to carry out the functions of a juror may be affected by the availability of facilities and support. For example, in relation to deaf persons it has been suggested that they could serve on juries if they were provided with the appropriate support, such as a sign language interpreter, or through the use of recent technological advances … Similar comments have been made in relation to people with a sight impairment …^[66]

5.36 The Committee concluded that:

persons should only be ineligible for jury service if their physical, intellectual or mental disability or disorder makes them incapable of effectively performing the functions of a juror.^[67]

5.37 Despite these reforms in 2000 and the policy underpinning them, reasonable adjustments are still not provided to enable people in the subject groups to serve as jurors, and legislation has not been introduced to overcome the 13th person rule.

Community responses: support for reform

5.38 Responses to the consultation paper were overwhelmingly supportive of reform.^[68] For example, Victoria Legal Aid commented in its submission that it:

welcomes change to better enable people who are vision or hearing impaired to serve on juries, where appropriate supports can facilitate effective participation, and ensure that defendants receive a fair trial.^[69]

5.39 Similarly, Juries Victoria submitted that ‘the jury system and, by extension, the justice system can only be enhanced by more inclusive juries’.^[70]

5.40 The Supreme Court commented that participation ‘where it is consistent with the accused’s right to a fair trial, would advance the representativeness of juries and the community’s confidence in the jury system’.^[71]

5.41 The County Court stated that:

with reasonable accommodations, whilst balancing the rights of the accused and other jurors, and the appropriate funding and resourcing, there may be scope for persons in the subject groups to be able to competently discharge their duties as jurors.^[72]

5.42 People in the subject groups told us that they want the opportunity to exercise their civic duty. Consultation participants from Deaf Victoria told us: 

Nobody is perfect and so why should we aim for a perfect jury? It adds to the richness of a jury that deaf people are able to serve alongside hearing jurors.  

Just like other members of the community, deaf people need to grow and learn. If we don’t have the opportunity to sit on a jury, then we won’t have the opportunity to grow and become more experienced members of civil society. It’s about playing our part in the community. If we’re not seen and not recognised as members of the community, then the community doesn’t know what we can do.  

I would love to be on a jury but at the moment I’m excluded.^[73]  

5.43 Consultation participants from Blind Citizens Australia commented:

As a blind person, you face very low expectations.

We often refer to blindness as an information-based disability.

[Serving on a jury] was something I wanted to do but I didn’t have the opportunity to, because I am blind.

If we want to be regarded as equal citizens, then we should uphold our civic responsibilities.

There is a tendency for the public to think that inclusion is a service provider’s responsibility but actually it’s the whole community’s responsibility to involve us in society.

It is important that we are seen to be doing important work because then people will understand our capabilities more.^[74]

5.44 Daniel Stubbs observed that:

the project is an important opportunity to allow people with disabilities to be involved in and contribute to the community. If more people with disabilities participate and have access to normal community services/life they are more visible in the community and more likely to be safe.^[75]

5.45 The Australian Institute of Interpreters and Translators said:

Just because a person has a disability, it does not mean that they cannot contribute. All people, including those with disabilities, have rights, obligations, and community responsibilities. They should be able to contribute to society.^[76]

5.46 Survey participants agreed:

At the end of the day, we are entitled to serve the same civic duties as everybody else. Why should we pay taxes when we don’t have a voice?^[77]

I was discouraged from joining in the pool of potential jury members and was advised that being blind, I did not have to participate even though I take my community responsibility seriously and was happy to serve.^[78]

Reform is overdue

5.47 As this chapter has explained, the make-up of juries has changed significantly over the years, but often at a glacial pace.

5.48 Change for people in the subject groups has been slow. With the exception of recent changes in the Australian Capital Territory,^[79] progress in Australia seems to have stalled at the point of removing the old blanket exclusion that prevented people with disabilities from serving at all.^[80] As we discussed in Chapter 4, the failure to provide reasonable adjustments or limit the 13th person rule continues to prevent people in the subject groups from serving.

5.49 The same arguments are made today to oppose people with disabilities serving on juries that were previously made about women. They usually focus on the supposed incapacity of the people concerned; logistical challenges such as modifying courtrooms; and the assumed reluctance of people to serve. These arguments are as spurious today as they were in the past.

5.50 Community responses to the consultation paper overwhelmingly supported reform, subject to appropriate fair trial safeguards which we discuss in Chapter 9.

1. Quote by a ‘well-known Labour woman’ to a ‘NSW deputation in the 1940s’, cited in Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>.

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2. The Parliamentary Law Reform Committee outlines the historical evolution of the jury trial in Australia: Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3, 3–36.

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3. Jacqueline Horan, ‘Perceptions of the Civil Jury System’ (2005) 31(1) Monash University Law Review 120, 125.

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4. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 11.

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5. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.29]. See also Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 10,11.

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6. For example, in 1086, William I used the jury system to collect information for the Domesday Book, a survey of wealth and assets across England and parts of Wales: Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.31]–[1.32].

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7. Following Henry II’s Grand Assize of Clarendon, juries were used to try neighbours suspected of committing crimes as well as to resolve land disputes amongst the nobility: John Guinther, The Jury in America and the Civil Juror; A Research Project Sponsored by the Roscoe Pound Foundation (Facts on File Publications, 1988) 11–12, cited in Jacqueline Horan, ‘Perceptions of the Civil Jury System’ (2005) 31(1) Monash University Law Review 120, 123. Trial by jury was fully adopted when Pope Innocent III withdrew support for trial by ordeal in 1215. See Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.35], [1.43], [1.46].

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8. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.47].

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9. Ibid vol 3 [1.50].

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10. Some examples of ‘special juries’ include those made up of merchants, cooks, fishmongers, booksellers, printers, matrons, clerks or attorneys: ibid [1.60]–[1.69]; Juries Act 1825, 6 Geo IV c 50.

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11. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 13, citing Bushell (1670) 124 ER 1006.

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12. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 13.

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13. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.73], citing HV Evatt, ‘The Jury System in Australia’ (1936) 10 Australian Law Journal Supplement 49, 52.

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14. Elise Histed, ‘The Introduction and Use of the Grand Jury in Victoria’ (1987) 8(2) The Journal of Legal History 167, 167. The English jury system was first used in Australia in 1789. A special jury of matrons was used in the case of Ann(e) Davis who claimed to be pregnant and sought to avoid a potential death sentence for theft: Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [174], citing AC Castles, ‘The Unmarked Bicentennial of Jury Usage in Australia and Some Consequences of Its Decline’ (1990) 64 Australian Law Journal 509, 506. In 1823 the New South Wales Act 1823 (UK), 4 Geo IV, c 96 was enacted by the English Parliament. It provided for a ‘judge and jury of seven commissioned officers, nominated by the Governor, to try criminal issues before the Supreme Court: see Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997] vol 3 [1.82].

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15. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.76].

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16. Ibid.

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17. Ibid vol 3 [1.80] referring to a Royal Commission report conducted by John Thomas Bigge in 1823. See also JM Bennett, ‘The Establishment of Jury Trial in New South Wales’ (1961) 3(3) Sydney Law Review 463, 467.

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18. Jury Trials Act 1832 (NSW): see Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.86].

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19. Elise Histed, ‘The Introduction and Use of the Grand Jury in Victoria’ (1987) 8(2) The Journal of Legal History 167, 167.

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20. JM Bennett, ‘The Establishment of Jury Trial in New South Wales’ (1961) 3(3) Sydney Law Review 463, 473–4.

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21. Juries Act 1839 (NSW) cl 2 which amended Jury Trials Act 1832 (NSW). See also Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.88]; JM Bennett, ‘The Establishment of Jury Trial in New South Wales’ (1961) 3(3) Sydney Law Review 463, 476; Elise Histed, ‘The Introduction and Use of the Grand Jury in Victoria’ (1987) 8(2) The Journal of Legal History 167, 167.

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22. Jurors and Juries Consolidation Act 1847 (NSW).

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23. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.90]. The Act rendered all men (subject to exemptions and disqualifications) over the age of 21 resident in the colony and having an annual income of at least 30 pounds or real or personal estate worth 300 pounds liable to serve on civil or criminal juries. A special jury list was retained of people of esquire or higher, Justices of the Peace, bank directors and councillors of the city of Sydney or the town of Melbourne: JM Bennett, ‘The Establishment of Jury Trial in New South Wales’ (1961) 3(3) Sydney Law Review 463, 481.

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24. Jurors and Juries Consolidation Act 1847 (NSW). See also Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.100].

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25. ‘Our History’, Supreme Court of Victoria (Web Page) <https://www.supremecourt.vic.gov.au/about-the-court/our-history>.

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26. Act to Alter the Laws Relative to Jurors and Juries in Certain Districts 1852 (Vic).

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27. Juries Act 1956 (Vic) s 4; Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Issues Paper No 1, November 1994) [2.2.1].

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28. Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>. See also Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 208.

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29. Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 208.

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30. ‘Electoral Milestones for Indigenous Australians’, Australian Electoral Commission (Web Page, 12 November 2020)
    
    <https://www.aec.gov.au/indigenous/milestones.htm>. If Indigenous Australians were enrolled, it was compulsory for them to vote as per non-Indigenous citizens. However, enrolment itself was not compulsory.

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31. Ibid.

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32. Commonwealth Electoral Legislation Amendment Act 1983 (Cth); ‘Electoral Milestones for Indigenous Australians’, Australian Electoral Commission (Web Page, 12 November 2020) <https://www.aec.gov.au/indigenous/milestones.htm>. This followed the 1967 Referendum formally recognising Aboriginal people as Australian citizens: Matthew Thomas, ‘The 1967 Referendum’, Parliament of Australia (Web Page, 25 May 2017) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2017/May/The_1967_Referendum>. See also ‘Indigenous Australians’ Right to Vote’, National Museum of Australia (Web Page) <https://www.nma.gov.au/defining-moments/resources/indigenous-australians-right-to-vote>.

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33. Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 208.

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34. Choo and Hunter refer to other factors, including low literacy, many living without fixed homes and others living in remote communities: ibid 209.

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35. See Women’s Qualification Act 1926 (Vic); Women’s Qualification Act 1928 (Vic); Juries Bill 1956 (Vic); Juries (Women Jurors) Bill 1958 (Vic); Juries (Women Jurors) Act 1964 (Vic); Juries Act 1967 (Vic); Juries Bill 1975 (Vic).

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36. The contrast is particularly stark in South Australia, where women were the first in the world to gain equal rights to vote in 1895 (including Indigenous women) but did not gain equal jury franchise until 1976: see Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 208.

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37. Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>.

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38. The Sex Disqualification (Removal) Act 1919 (UK) 9 & 10 Geo 5, c 71 was the basis for the change to jury franchise for women in England. Section 1 provided that ‘a person shall not be exempted by sex or marriage from the liability to serve as a juror’. Despite these reforms women’s participation in England was restricted by an ongoing property ownership requirement and through peremptory challenges before they were abolished. The property requirement was not removed until 1972 and peremptory challenges were abolished in 1988: see Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 194–198, 204.

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39. Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 193.

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40. Sonia Walker, ‘Battle-Axes and Sticky-Beaks: Women and Jury Service in Western Australia 1898–1957’ (2004) 11(4) Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v11n4/walker114_text.html>. Walker notes that Aboriginal women were not able to serve until 1962 when they were eligible to vote in the Legislative Assembly.

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41. Ibid [6]–[14].

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42. Ibid [15]–[18].

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43. Ibid [20]–[24].

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44. Ibid [25]–[30].

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45. Victoria, Parliamentary Debates, Legislative Assembly, 29 August 1956, 3803 (John Cain, Leader of the Opposition).

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46. Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>. Similarly, in NSW, even by 1977, ‘on the eve of New South Wales women gaining full jury franchise, the failure to provide women’s toilets was still treated as an impediment to women in 8–10 New South Wales Jury Districts’: Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 207, citing New South Wales, Parliamentary Debates, Legislative Assembly, 24 February 1977, 4477 (Francis Walker, Attorney-General). This was despite complaint: see, eg, ‘Judicial Lack of Facilities’, Tribune (Sydney, 3 September 1974) 12.

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47. Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>. Similarly, in Ireland, Choo and Hunter identify that Beatrice Dixon, a member of the Irish Housewives Association, was remarkably included on a jury panel in 1955, despite numerous ‘layers of resistance a woman in 1955 faced when seeking to participate on a jury’. In a letter to the editor of ‘The Irish Times’, Dixon reported being informed that the inadequacy of female toilets for jurors was ‘one of the administrative difficulties of accepting women jurors’: Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 205.

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48. Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>.

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49. Victoria, Parliamentary Debates, Legislative Council, 18 September 1956, 4027 (Thomas William Brennan).

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50. Brock Budworth, Trevor Ryan and Lorana Bartels, ‘Reigniting the Lamp: The Case for Including People Who Are Blind or Deaf as Jurors’ (2017) 42 University of Western Australia Law Review 29, 35, citing Justice Hulme, Supreme Court of New South Wales, Submission to New South Wales Law Reform Commission, Blind or Deaf Jurors (20 May 2004). See also New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 6.

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51. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) [12]; Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) [10].

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52. Sonia Walker, ‘Battle-Axes and Sticky-Beaks: Women and Jury Service in Western Australia 1898–1957’ (2004) 11(4) Murdoch University Electronic Journal of Law [15] <http://www.murdoch.edu.au/elaw/issues/v11n4/walker114_text.html>.

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53. Ibid [16].

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54. Ibid [19].

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55. Victoria, Parliamentary Debates, Legislative Assembly, 18 November 1964, 1549 (Rupert Hamer).

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56. Juries Amendment Act 1975 (VIC) s 6.

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57. Ibid; Equal Opportunity Act 1977 (VIC) s 57. This section removed the discretion of the Chief Electoral Officer not to include women in the jury list.

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58. Walker also suggests that the refusal to accept anything less than equal rights with men may have slowed progress in Western Australia. See Sonia Walker, ‘Battle-Axes and Sticky-Beaks: Women and Jury Service in Western Australia 1898–1957’ (2004) 11(4) Murdoch University Electronic Journal of Law [32] <http://www.murdoch.edu.au/elaw/issues/v11n4/walker114_text.html>. Simmonds also discusses the campaign for equal jury franchise: Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>.

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59. The Juries Commissioner told us that in 2018 and 2019, 69.5% of peremptory challenges were made against women, compared with 30.5% against men, and juries were made up of 46.6% women and 53.4% men: Information provided by Juries Victoria to Victorian Law Reform Commission, 8 September 2021. See also Alecia Simmonds, ‘Friendless in the Courtroom’, Inside Story (Web Page, 14 May 2021) <https://insidestory.org.au/friendless-in-the-courtroom/>. (See Chapter 17).

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60. Andrew LT Choo and Jill Hunter, ‘Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men’ (2018) 22(3) The International Journal of Evidence & Proof 192, 193–198.

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61. Brock Budworth, Trevor Ryan and Lorana Bartels, ‘Reigniting the Lamp: The Case for Including People Who Are Blind or Deaf as Jurors’ (2017) 42 University of Western Australia Law Review 29, 32.

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62. Ibid; Mansell v The Queen (1857) 120 ER 20, 30, (1857) 8 El & Bl 52, 79. Budworth et al note that ‘Well into the 20th and 21st Centuries, Mansell has been cited with approval in courts in Australia and the United Kingdom’: see Vella v State of Western Australia [2007] WASCA 59, (2007) 33 WAR 411, [70]; R v Searle (1993) 2 VR 367 (Marks and McDonald JJ), (Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 24 June 1993); Johns v The Queen (1979) 141 CLR 409, [15] (Gibbs J), (High Court of Australia, Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ, 8 August 1979). See generally R v Ford [1989] 1 QB 868; R v Mason [1980] 3 All ER 777; R v Burns (1883) 9 VLR 191, 193–194 (Supreme Court of Victoria, Stawell CJ, Higginbotham and Holroyd JJ, 6 September 1883). For example, in R v Ford it was noted that ‘At common law a judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury: at 871. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of a judge expressed by Lord Campbell CJ in Mansell v The Queen as a duty “to prevent scandal and the perversion of justice”. A judge must achieve that for example by preventing a juryman from serving who is completely deaf or blind or otherwise incompetent to give a verdict’: at 30, 81. See further discussion in New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 6–9.

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63. Brock Budworth, Trevor Ryan and Lorana Bartels, ‘Reigniting the Lamp: The Case for Including People Who Are Blind or Deaf as Jurors’ (2017) 42 University of Western Australia Law Review 29, 32.

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64. Jurors and Juries Consolidation Act 1847 (NSW) s 8: required people to be removed from the jury list who ‘are disabled by lunacy or imbecility of mind or by deafness blindness or other permanent infirmity of body and also the names of all men of bad fame or of immoral character and repute …’.

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65. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Issues Paper No 1, November 1994) [2.4.12]. The Juries Act 1967 (Vic) sch 3 cl 2 stated ‘Any person who – (a) is unable adequately to see hear or speak’ is a person ineligible to serve as a juror.

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66. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1996) vol 1 [3.134]–[3.135]. Notably, despite the Committee’s reference to the possible use of interpreters, neither their final report nor the Act addressed the 13th person rule.

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67. Ibid [3.140].

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68. We note that the Commission received 27 online survey responses to the consultation paper. Two survey responses were not supportive of reform and two were neutral about it.

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69. Submission 8 (Victoria Legal Aid).

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70. Submission 13 (Juries Victoria).

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71. Submission 11 (Supreme Court of Victoria).

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72. Submission 14 (County Court of Victoria).

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

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74. Consultation 1 (Blind Citizens Australia).

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75. Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity).

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76. Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)).

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77. Online Survey (Response 20).

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78. Online Survey (Response 1).

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79. Juries Act 1967 (ACT) s 16. This section was introduced in 2018.

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80. However, note that in the Northern Territory a person ‘who is blind, deaf or dumb or otherwise incapacitated by disease or infirmity from discharging the duties of a juror’ is exempt from jury service. The name of an exempt person must not be included in the jury list: Juries Act 1962 (NT) s 11, sch 7.

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