Inclusive Juries—Access for People who are Deaf, Hard of Hearing, Blind or Have Low Vision: Consultation Paper (html)

1. Introduction and list of questions

1.1 In this community law reform project, the Victorian Law Reform Commission considers what changes to legislation and practices should be made to enable people who are deaf, hard of hearing, blind or who have low vision to serve as jurors in Victoria. We refer to people in these groups as the subject groups.

1.2 We are interested in hearing your views about the issues described in this paper. To find out how to share your views, see [1.22]–[1.33] of this paper.

A community law reform project

1.3 As well as inquiring into matters referred to it by the Attorney-General, the Commission may initiate its own inquiries into legal issues of general community concern, which are limited in size and scope.^[1] These community law reform projects are often suggested to the Commission by community members or groups.

1.4 We started this project in response to ongoing advocacy for law reform on this topic and recent challenges to the law.^[2] Other Australian and international law reform agencies and various reports have made recommendations for reform over the last fourteen years.^[3] A review is timely, of significant personal benefit to people in the subject groups and of wider benefit to the community and the justice system.

1.5 The Commission is not considering additional barriers to jury service that might arise for people in the subject groups because of their cultural background, race or religion. The Commission is also not considering whether people who cannot understand or communicate in English at all should be able to serve on juries.

Terms of reference

1.6 The terms of reference define the purpose and scope of this inquiry.

Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision

Terms of reference

Matter initiated by the Commission pursuant to section 5(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic) on 12 March 2020.

The Victorian Law Reform 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 Juries Act 2000 (Vic) provides a list of people who are ineligible to serve as jurors. Among those excluded are persons with ‘a physical disability that renders [them] incapable of performing the duties of jury service’, and those who are ‘unable to communicate in or understand the English language adequately’.

Although people who are deaf, hard or hearing, blind or have low vision are not expressly precluded from jury service, prohibitions on allowing interpreters or communication assistants into the jury room mean that, for many, such service would not be possible.

The project will examine the current legal framework to consider whether legislative change is required, what practical supports would be necessary, and whether there are specific circumstances in which such jury service should be limited.

In conducting this review, the Commission will have regard to:

• Relevant legal and practice developments in domestic and international jurisdictions.

• Current practice and statistics in Victoria relating to excusal and disqualification of people who are deaf, hard or hearing, blind or have low vision as jurors.

• The common law rule prohibiting any non-jurors from being present in jury deliberations (the ‘thirteenth person’ rule).

• The interaction with discrimination law and human rights in Victoria.

• The interaction with peremptory challenges and crown stand-asides.

• The resourcing and training implications for court and jury offices staff and judicial officers.

• The importance of a fair trial and confidence in the jury system.

The Commission will not consider:

• Whether people who cannot understand or communicate in English at all should be able to serve on juries.

Barriers in current law and practice

1.7 Jury trials are a central feature of the justice system in Victoria.

1.8 People who are deaf, hard of hearing, blind or have low vision may be called for jury service along with others in the community but existing law and practice prevent many from serving as jurors. There are concerns that this occurs without sufficient reasons.^[4]

1.9 The Juries Act 2000 (Vic) (the Act) does not specifically exclude people in the subject groups from serving as jurors. The Act says that if a person ‘is unable to communicate in or understand the English language adequately’ or has a ‘physical disability that renders the person incapable of performing the duties of jury service’ they are ineligible to serve.^[5] Many limitations resulting from a person’s disability can be overcome with supports (also described as adjustments or accommodations) but the Act does not mention the provision and consideration of those supports.

1.10 A further legal barrier exists in the old common law rule that no more than 12 jurors may be present in jury deliberations (the jury room). This is known as the ‘13th person rule’, re-affirmed by the High Court in 2016.^[6]

1.11 The combination of the 13th person rule and the lack of guidance about the provision of supports means that jury service is often not possible for people in the subject groups. In practice, it is likely that when people in the subject groups are selected for jury duty they are left with no option other than to seek to be excused or they are deemed ineligible to serve.

1.12 The Commission aims to enhance access for the subject groups. We will examine the current legal framework to consider:

• what legislative change is needed

• what practical supports may be necessary

• whether jury service might not be possible in some circumstances.

Reasons to make juries more inclusive

1.13 Reforming the law would align it with modern community expectations and standards. We discuss reasons for reform in Chapter 5.

1.14 The composition of juries has changed over time as society has changed. It was not until 1964 that women were able to serve^[7] and Indigenous people were only included as jurors in the 1960s as they were added to electoral rolls.^[8] It is again timely to reform the law to ensure that juries are representative of the broader community. The continued practical exclusion of people who are deaf, hard of hearing, blind or who have low vision relies on outdated ideas about their ability to comprehend evidence or participate in trials.

1.15 Participation in jury duty is an important civic duty associated with active citizenship.^[9] People who are deaf, hard of hearing, blind or who have low vision should be able to participate in civic life on equal terms with others. Reform will respond to recent decisions by the United Nations Committee on the Rights of Persons with Disabilities (the UN Committee) calling for change to jury laws in Australia.^[10]

1.16 Reform will also be consistent with the Victorian Charter of Human Rights and Responsibilities, which integrates international human rights standards into Victorian law. It includes the right to equality before the law and protection from discrimination, including on the basis of disability.^[11]

1.17 Overseas jurisdictions in the United States, Canada and New Zealand have facilitated jury service for people in the subject groups with reasonable supports for some time. Supports are provided in England outside of the jury room, where the 13th person rule still applies (see Chapter 4 and Appendix B). In 2018 the Australian Capital Territory (ACT) became the first jurisdiction in Australia to amend its laws to require consideration of reasonable supports and to limit the application of the 13th person rule.^[12]

1.18 As the use of supports for those in the subject groups becomes increasingly visible in our daily lives, for example Auslan translators at coronavirus (COVID-19) and bushfire briefings^[13], many in our community may be surprised to discover that the law does not oblige the courts to consider supports to enable people in the subject groups to serve.

1.19 In developing recommendations for reform, the Commission will be examining options for enabling more representative juries and equality of civic obligations that also enable delivery of a fair trial. Any changes to legislation and practice must ensure that a jury can function effectively, that jurors can adequately perform their duties and that confidence in the jury system is maintained.

Community feedback

1.20 We are keen to hear community views about:

• How to change legislation and practice to ensure that the court considers and assesses reasonable supports for people in the subject groups to allow them to serve.

• Safeguards to ensure that participation of people in the subject groups does not prejudice the fairness of trials. This might include a judicial discretion to exclude a prospective juror where they would not be able to perform their role even with supports because, for example, a particular trial depends on voice or photographic identification evidence.

• How to overcome the prohibition on having thirteen people in a jury room and whether supporters and interpreters should provide an oath to the court affirming that they will maintain confidentiality and not be involved in deliberations.

• Supports that will assist people in the subject groups to serve and processes to ensure that they can tell the court about their needs.

• Whether people in the subject groups should still have the option of being excused from service because of their disability.

• How to overcome common misconceptions and prejudices about the abilities of people in the subject groups to serve as jurors.

1.21 The Commission will consider recent changes to the law in the Australian Capital Territory, reports by other law reform agencies and overseas practice to develop recommendations for reform that will outline how change can be delivered in the Victorian courts and to the jury selection process. We are particularly interested in designing reforms that will work in the context of a busy and demanding court environment with resource constraints.

How to tell us your views

1.22 We are interested in hearing the views of anyone who has professional or personal experience in this area and anyone who has ideas for reform.

1.23 If you want to provide feedback to the questions in this consultation paper you can:

1) make a submission

2) answer our online survey

3) participate in a consultation.

Making a submission

1.24 You can tell us your views by sending us a submission. This paper asks a range of questions to guide you in writing your submission.

1.25 A submission is usually a written response. You can also record your response and send it to us in an audio file such as MP3.

1.26 Information about making a submission is found on pages 7–8. Submissions are due by 28 February 2021.

Answering our online survey

1.27 If you don’t have time to answer the questions in this paper we would still like to hear from you. We have designed a short online survey to help us to understand your experiences and ideas. The summary of the consultation paper available on our website will assist you to answer the survey.

1.28 All are welcome to take the survey at https://lawreform.vic.gov.au/inclusive.

1.29 We may refer to individual survey responses in our reports or publications without identifying the submitter.

1.30 There are Auslan, audio and Word versions of the summary and survey available on our website. You can answer the survey in writing, by sending us an audio file such as an MP3 file, or as a video using Auslan.

Formal consultation

1.31 The Commission will meet with individuals and groups with experience or knowledge of the issues, including:

• members of the community

• advocacy organisations

• support providers/services

• academics

• court officers

• judges

• legal practitioners

• Juries Victoria staff

• interstate and overseas practitioners.

1.32 The Commission may group community consultees together or facilitate consultations with community members with the assistance of advocacy organisations.

1.33 Because of coronavirus (COVID-19) restrictions these consultations are likely to occur online via an electronic platform.

Next steps

1.34 After holding consultation meetings, considering submissions and examining survey results, the Commission will write a report detailing its recommendations for law reform.

1.35 The report will be presented to the Attorney-General for consideration, then tabled in Parliament. The Victorian Government will then consider its response to the report.

Call for submissions

The Victorian Law Reform Commission invites your comments on this consultation paper by

28 February 2021.

What is a submission?

A submission is a response from a person or organisation, stating their views about the law under review. A submission may include personal experiences and ideas about how the law should change.

The Commission wants to hear from anyone who has experience of the issues we are looking at. Any contribution is welcome, large or small.

The details of the project are found in the ‘terms of reference’. You can find the terms of reference on the Commission’s website at www.lawreform.vic.gov.au

It helps to read the consultation paper and questions before making a submission.

How do I make a submission?

You can make a submission in writing in hardcopy or electronically. You can also record your response and send it to us in an audio file such as MP3.

Submissions do not have to follow a particular format. We prefer you to answer the questions we ask in the consultation paper, but you do not have to answer all of them. You can provide as much detail as you like – the more, the better, as long as it is relevant.

Submissions can be made by:

• Email: law.reform@lawreform.vic.gov.au

• Mail: PO Box 4637, GPO Melbourne Vic 3001

Assistance

If you need the help of an interpreter, or other assistance to have your views heard, please contact the Commission.

Public submissions

We refer to submissions in our reports, and we list the names of submitters in an appendix at the back of the report.

The Commission publishes submissions on our website to encourage discussion and to keep the community informed. We remove personal addresses, contact details and other personally identifying information from submissions before they are published.

If you do not want your name used, you can ask that your name be withheld.

The views expressed in submissions are those of the individuals or organisations who submit them. The fact that the Commission publishes a submission does not imply that the Commission accepts or agrees with these views. We will not place on our website submissions that contain offensive or defamatory comments.

We treat all submissions as public unless the submitter asks us to treat it as confidential.

Name Withheld

If you wish to make a submission but do not want your name made public, when we publish your submission, we will note that your name has been withheld. The submission will appear on our website and in our report as: Submission no x (name withheld).

Confidential submissions

The Commission also accepts submissions in which the material is confidential. You can ask us to keep your submission confidential if it includes personal experiences or other sensitive information. We will not publish confidential submissions on the website or elsewhere.

However, we may refer to a confidential submission in our report, without identifying you.

Please note that because of the Commission’s commitment to transparency and openness, we usually prefer to refer to public submissions, not confidential ones, in our reports. This does not mean that the content of a confidential submission will be treated as any less important. It will still be read carefully and used to decide on the recommendations and conclusions in the final report.

Any request by someone outside the Commission for access to a confidential submission will be refused unless a formal freedom of information request has been made. Such a request will be determined in accordance with the Freedom of Information Act 1982 (Vic), which is designed to protect personal information and information given in confidence. Further information can be found at https://ovic.vic.gov.au/freedom-of-information/

Anonymous submissions

Anonymous submissions – where the submitter does not provide a name – are accepted but, like confidential submissions, are less likely to be referred to in our reports for transparency and openness reasons.

Submissions that are late or beyond the scope of the terms of reference

The closing date for submissions is 28 February 2021. This deadline is provided so that we have enough time to properly consider the issues and write the report.

We may not be able to consider a late submission it in as much depth as other submissions.

Submissions must be relevant. The Commission only reviews the matters that are detailed in the terms of reference. We recommend using the consultation paper to help guide your submission.

If you have served on a jury please be aware that section 78 of the Juries Act (Vic) prohibits the publication of ‘statements made, opinions expressed, arguments advanced or votes cast’ in jury deliberations. Deliberation includes any discussion between two or more jurors at any time during a trial about matters relevant to the trial. There are penalties in the Juries Act for failure to comply with this provision.

Do not provide any information in your submission about the deliberations you participated in as a juror. Any information of this kind will be redacted from your submission and we may not be able to accept your submission.

More information

More information about this reference is available on our website: www.lawreform.vic.gov.au.

Question list

Chapter 3 – Current law in Victoria

1 Do you have any experience of not being able to serve as a juror in Victoria because you are deaf, hard of hearing or blind or have low vision? What happened? Did you excuse yourself or were you excused by the Juries Commissioner or the court?

Chapter 5 – Reasons to make juries more inclusive

2 The Commission has identified some of the key reasons underpinning the need for reform. Are there any other reasons you would like to bring to our attention?

Chapter 7 – A system to make juries more inclusive

Provision of reasonable supports

3 Should the Juries Act 2000 (Vic) be amended to specifically require the courts to consider the provision of reasonable supports for people who are deaf, hard of hearing, blind or with low vision?

4 Is the ACT approach appropriate for Victoria?

5 What would be the best way to notify Juries Victoria and the courts that a prospective juror is deaf, hard of hearing, blind or has low vision and of the supports they would need to serve?

Assessment of reasonable supports

6 Should the trial Judge make the final decision about whether or not a person who is deaf, hard of hearing, blind or with low vision can discharge their duties in the circumstances of the particular case?

7 Is a similar process to the ACT appropriate, where the Sheriff makes a preliminary decision and matters only need to go to a hearing if the recommendation is that support cannot be reasonably provided?

8 At what stage of the jury selection process should this assessment occur?

9 What role should the Juries Commissioner or Juries Victoria play in the assessment process? Should anyone else be involved?

10 What sorts of matters should be considered in determining whether it is ‘reasonable’ to provide supports? Is the ACT approach appropriate or should additional factors be listed in legislation?

11 Should prospective jurors be questioned in open court, or in a private hearing?

12 Does the Juries Commissioner need any further powers to allow Juries Victoria to better channel a prospective juror into a more suitable jury pool?

13 Should the Act give a judge a specific power to exclude a prospective juror if it appears that notwithstanding supports, that person could not perform their duty in the circumstances of the particular trial for which the person has been summoned?

14 In what type of situations might it not be appropriate for a person who is deaf, hard of hearing, blind or with low vision to serve even where supports can be provided? Is this likely to occur often?

15 If a juror is excluded from a particular trial should they be returned to the jury pool to serve on a different trial?

Limiting the 13th person rule

16 Should the common law prohibition on supporters or interpreters assisting in the jury room be modified by legislation?

17 Should the supporters or interpreters be required to swear an oath/s or affirmation/s to accurately interpret/support proceedings, maintain the confidentiality and secrecy of deliberations and not disclose any information learnt in the jury room?

18 Do new offences need to be created to deter or punish supporters or interpreters from revealing information about jury deliberations or to stop others from soliciting information from supporters?

19 Should supporters or interpreters be required to complete additional training to assist in jury deliberations and trial proceedings? What should that be?

Eligibility

20 Does Schedule 2 of the Juries Act 2000 (Vic) need to be amended to accommodate people who use Auslan? What form should this amendment take?

Excuse

21 If legislation provides for the consideration of reasonable supports, should a person who is deaf, hard of hearing, blind or with low vision still have the option of being excused from service because of their hearing or vision loss?

Peremptory challenges and stand asides

22 What can be done to reduce the likelihood of a peremptory challenge being used solely on the basis of the prospective juror being deaf, hard of hearing, blind or with low vision?

23 Should there be guidelines for the Victorian Bar outlining that challenges should not be used on discriminatory grounds including on the basis of disability?

24 Should the judge make a statement discouraging the use of challenges on discriminatory grounds?

25 Should the guidelines for stand asides expressly state that disability is not a ground for the exercise of a stand aside?

Chapter 8 – Possible supports to enable inclusive juries

26 What technologies/supports would assist people who are deaf, hard of hearing, blind or who have low vision to serve as jurors?

27 What role could a support person play in assisting people who are blind or who have low vision in court and the jury room? Who is likely to perform this role?

28 How could Auslan interpreters, court reporters and stenographers be booked or arranged in advance to ensure that a prospective juror could be supported to serve?

a. How might a system respond to the unpredictability of the selection process?

b. How might a system respond to the small number of interpreters working in a legal setting?

29 How could supports be provided where courtrooms are not evenly accessible or equipped with aids?

Court familiarisation

30 Should there be an option for a person who is deaf, hard of hearing, blind or with low vision to able to visit court before empanelment to familiarise themselves with the court and explore with court officials what particular supports they might need to serve?

Guidelines for new laws

31 Should guidelines about the operation of new laws be developed by the court and Juries Victoria to accompany reforms to ensure that they operate effectively?

Court room layout and trial adjustments

32 How should court and jury rooms be organised to accommodate a person who is deaf, hard of hearing, blind or with low vision, using supports to serve?

33 What trial adjustments might be needed to accommodate a juror using supports to serve?

34 What is the best way of informing the court and parties about the use of supports in the trial process? When should this occur?

35 How should jurors be informed about how a fellow juror’s supports will work?

36 Does the use of supports raise any questions about the accuracy of a trial record for appellate court consideration?

Costs

37 What are the likely cost implications associated with reforming the law?

38 Do the cost considerations differ in regional areas?

39 How could supports be provided in the most cost-effective way?

Chapter 9 – Creating cultural change for inclusive juries

40 Would Disability Awareness Training for court and Juries Victoria staff be useful to ensure reform is effective?

41 Do you have any suggestions about how to overcome misconceptions about the ability of people who are deaf, hard of hearing, blind or with low vision to serve?

42 Is there anything further that you would like to tell us about what you think would enhance access for people who are deaf, hard of hearing blind or who have low vision who wish to serve on juries in Victoria?

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

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2. Deaf Australia, ‘A Call for Change’, Jury Rights for All (Web Page, 2016) <https://juryrightsforall.org.au/>; ‘Deaf or Blind People Can’t Serve on Juries—Here’s Why the Law Needs to Change’, SBS The Feed (Web Page, 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>; 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>; Lexy Hamilton-Smith, ‘Deaf Woman Takes Queensland Government to High Court over 2012 Exclusion from Jury’, ABC News (online, 25 July 2016) <https://www.abc.net.au/news/2016-07-25/deaf-woman-sues-for-her-right-to-serve-on-a-jury/7652658>; ‘UN Committee Finds Denial of Accommodation for Jury Duty Discriminatory’, International Justice Resource Centre (Web Page, 3 May 2016) ‘UN Committee Finds Denial of Accommodation for Jury Duty Discriminatory’, International Justice Resource Centre (Web Page, 3 May 2016) <ttps://ijrcenter.org>; Jemina Napier, SBS The Feed (online, 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>.

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3. Ruadhan Mac Cormaic, ‘Commission Report Calls for Reform of Jury Service’, The Irish Times (online, 15 April 2013) <https://www.irishtimes.com/news/commission-report-calls-for-reform-of-jury-service-1.1360220>; Department of Justice (WA), Participation of People with a Disability in Jury Service (Discussion Paper, March 2020); Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016); Irish Law Reform Commission, Jury Service (Report No 107, April 2013) <https://www.lawreform.ie/_fileupload/Reports/r107.pdf>; Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors (Report No 99, April 2010); New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) <https://www.lawreform.justice.nsw.gov.au>; Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011); Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014) <https://www.alrc.gov.au/inquiry/equality-capacity-and-disability-in-commonwealth-laws/>; Department of Justice and Regulation (Vic), Equality and Fairness in Jury Selection (Discussion Paper, 2016).

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4. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014) 234 [7.204] <https://www.alrc.gov.au/inquiry/equality-capacity-and-disability-in-commonwealth-laws/>.

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5. Juries Act 2000 (Vic) sch 2 cl 3(a).

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6. Lyons v State of Queensland [2016] HCA 38, [33]; 259 CLR 518.

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7. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, December 1997) vol 3, [3.26] <https://www.parliament.vic.gov.au/315-lawreform/inquiry-template-sp-996>, citing Juries (Women Jurors) Act 1964 (Vic).

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8. Thalia Anthony and Craig Longman, ‘Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds’ (2016) 6(3) International Journal for Crime, Justice and Social Democracy 25, 28.

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9. Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th Session, UN Doc CRPD/C/15/11/2013 (25 April 2016) [8.6] (‘Beasley v Australia’); Committee on the Rights of Persons with Disabilities, Views: Communication No 13/2013, 15th Session, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) [8.6] (‘Lockrey v Australia’).

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10. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016); Lockrey v Australia, UN Doc CRPD/C/a5/D/13/2013 (30 May 2016).

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11. Charter of Human Rights and Responsibilities Act 2006 (VIC) s 8(2), (3).

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12. Juries Act 1967 (ACT) ss 16, 45A, 45B, sch 1.

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13. Holly Tregenza, ‘Coronavirus and Bushfires Have Thrust Sign Language into the Spotlight’, ABC News (online, 10 April 2020)

    <https://www.abc.net.au/news/2020-04-11/coronavirus-bushfires-thrust-auslan-interpreters-into-spotlight/12140824>.

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