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

5. Reasons to make juries more inclusive

5.1 This chapter examines why reform to law and practice is necessary. A jury should be representative of the community including people who are deaf, hard or hearing, blind or who have low vision. The law should be modernised to keep pace with contemporary views about equal participation in civic life and to comply with international legal standards.

The jury should be representative of the community

5.2 Key purposes of the Juries Act 2000 (Vic) section 1 include:

• equitably spread[ing] the obligation of jury service amongst the community and 

• make[ing] juries more representative of the community.^[1]

5.3 Key benefits of a representative jury are that:

• it contributes to the legitimacy of jury decisions by enabling the community to participate in the administration of justice

• it increases impartiality by bringing a diverse range of views to the case, which balances out any individual bias.^[2]

5.4 There is debate about what it means for a jury to be representative.^[3] There are limits to achieving fully representative juries. In its 2014 report, Jury Empanelment, the Commission adopted the Parliamentary Law Reform Committee’s articulation of the representative principle that juries should be:

an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, age, gender, occupation, socio-economic status.^[4]

5.5 Representativeness is sought through random selection of jury members, via the electoral roll and subsequent balloting of the jury pool and panel.^[5] Rules and practices in the jury selection and empanelment process then filter out certain groups of people. The use of peremptory challenges may impact on representativeness, with some groups more likely to be challenged than others.^[6]

5.6 Representativeness is linked to the notion of a ‘trial by one’s peers’.^[7] Disability rights organisations have observed that defendants with disability are denied the right to a trial by a jury of their peers as the ‘experience of disability is not available for jury consideration during trials’.^[8] People with disability may bring an important perspective into deliberations, as many defendants, witnesses and victims experience disability. In the United States case of Peters v Kiff, the court observed:

When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.^[9]

5.7 The right of a blind person to serve as a juror was upheld in the recent United States case of Commonwealth v Heywood. Justice Budd held that including jurors with disabilities is an essential part of the jury selection process.^[10] The court confirmed:

A cross section of the community necessarily includes, among others, citizens with disabilities, the defendant’s right to a fair trial and the protection against discrimination in jury selection works in tandem.^[11]

5.8 People who are blind, have low vision, deaf or are hard of hearing are part of the community and should therefore be represented in juries alongside other Victorians. Enhancing participation of members of the subject groups means that jurors will reflect broader life experiences. Mr Phillips, a deaf man who in 2014 was not allowed to serve in Victoria with an Auslan interpreter, noted:

Deaf people come from all walks of life: professionals, managers, lawyers, tradesmen, parents, and contribute to society as much as anyone else … We should be given the opportunity to serve on juries, particularly if deaf people who are on trial are tried by a panel of non-deaf people.^[12]

5.9 Better decision making through diversity benefits the broader justice system and society as a whole. Research on racial diversity from the United States which involved mock juries found that diverse groups perform better than homogenous groups when making decisions.^[13] Similar findings on the benefits of diversity have been made in the corporate context.^[14]

Changed views about participation in civic life

5.10 The composition of juries has changed over time, as society has changed and the definition of a citizen has expanded. It is timely that law and practice evolve again to better reflect our modern community.

5.11 In colonial times in Australia, there was no right to a jury trial until 1823, and subsequently only commissioned military officers could serve on juries.^[15] In 1851, following the introduction of responsible government in Victoria, legislation was passed to formalise jury trials in the state.^[16]

5.12 Initially, only propertied men could serve on juries.^[17] Women were excluded from jury service until 1964, when legislation was passed to enable all ‘persons’ to serve on juries, rather than just ‘men’. However, women could still be exempted on the basis of gender alone. There was no positive obligation to include women and they could be excluded if ‘adequate amenities’ could not be provided.^[18] In 1975 these two caveats were removed, and the automatic exemption was replaced with exemptions for pregnant women and carers.^[19]

5.13 Aboriginal and Torres Strait Islander people were only included on juries in the 1960s. Changes to federal and state voting laws resulted in Aboriginal and Torres Strait Islander people being included on electoral rolls for the first time.^[20]

5.14 The exclusion of deaf and blind jurors is sourced in early Christian canon law, which excluded witness testimony from ‘blind, deaf and dumb’ people.^[21] This found its way into English law and was applied to automatically exclude jurors with those disabilities.^[22] Budworth et al observed that ‘as with other exclusions from full citizenship … this is a historical contingency, rather than a result of reasonableness of logic’.^[23]

5.15 As far back as 1984, the New York Supreme Court recognised that there is no longer a social or legal justification for excluding people who are deaf on juries:

The Deaf are not poor creatures to be patronized by us, congratulated on their individual efforts to overcome their handicaps and summarily brushed aside … the Deaf are part of our community and must be considered, evaluated and finally either accepted or rejected for service as individuals just as any other citizen. The grounds for exempting the Deaf from jury service have vanished.^[24]

5.16 The continuing exclusion of people in the subject groups relies on outdated ideas about their ability to comprehend evidence and is out of step with community expectations. Victorian society has become more inclusive and has recognised and codified the rights of people with disability into law and policy.

5.17 Communication tools for people in the subject groups are increasingly visible in our everyday lives. In 2020, for example, daily government briefings about the coronavirus (COVID-19) pandemic and bushfires have improved community understanding and familiarity with Auslan interpretation.^[25] This public exposure to Auslan has coincided with a dramatic increase in enrolment in Auslan courses, indicating that positive public diversity measures often have flow-on effects.^[26] Auslan is increasingly taught in schools^[27] and preschools.^[28] Audio Description (AD) is now available for many television programs on free-to-air and pay TV.^[29]

5.18 Participation in jury service is an important civic duty associated with active citizenship.^[30] People who are deaf, hard of hearing, blind or who have low vision should be able to participate in civic life in Victoria on equal terms with others.

5.19 Not being able to serve conveys the wrong message about who is considered a full and equal citizen in the eyes of the community and the state. As Emery has observed:

The notion of ‘citizenship’ is based on the social construct of individuals that can hear and speak, and therefore social policies are constructed in such a way as to exclude deaf people from civic participation.^[31]

5.20 The experience of exclusion from community life can have debilitating effects on people with disabilities, affecting their self-worth and compounding feelings of isolation.^[32] Exclusion from juries may also reinforce misconceptions that people in the subject groups lack capacity to serve, that a trial will be too complex or too onerous for them to participate in. On the other hand, the inclusion of deaf and blind jurors may have a positive educative function for other jurors, court participants and legal professionals, with flow-on effects for the treatment of people with disabilities in Victorian society.

Compliance with international and domestic standards

5.21 Current Victorian legislation and practice lags behind other comparative common law jurisdictions and has been found to be contrary to Australia’s obligations under international law.

5.22 Australia is a signatory of the United Nations Convention on the Rights of Persons with Disability (UNCRPD), which is designed to protect the rights and dignity of individuals with disability and reflects international consensus and standards.^[33]

5.23 The UNCRPD Committee has held that people who are deaf should have the right to participate as jurors and that Australian courts should make reasonable adjustments to enable this to occur. In Beasley v Australia the UNCRPD Committee ruled on the case of a deaf woman named Gemma Beasley who had been excluded from jury service in New South Wales [see 4.10-4.13]. ^[34] Ms Beasley’s request for an Auslan interpreter was denied because of the 13th person rule, and she was informed that an Auslan interpreter could not be provided by the court under the current legislation.^[35] She was also told that real-time captioning was not available. Real-time captioning would have allowed her to read spoken word almost instantly.^[36]

5.24 Similarly, in Lockrey v Australia, the UNCRPD Committee ruled on the case of Mr Lockrey, a deaf man, who required real time steno-captioning to serve. He was informed that the device was not available when summoned for jury duty on three separate occasions.^[37]

5.25 In Beasley the UNCRPD Committee held as follows.

• The refusal to provide an Auslan interpreter was discriminatory as it was a denial of reasonable accommodation in violation of article 5(1), and it denied equal protection and benefit of the law contrary to article 5(3).^[38]

• Article 9(1) was also breached. It requires States to take appropriate measures to ‘enable persons with disabilities to live independently and participate fully in all aspects of life’. The Committee noted that jury duty is ‘an important aspect of civic life within the meaning of Article 9(1) as it constitutes a manifestation of active citizenship’.^[39]

• Australia had failed to uphold article 21(b) which protects freedom of expression and access to information, including in ‘official interactions’ because Ms Beasley was not provided with ‘the format of communication she needs to enable her to perform jury duty and therefore to express herself in official interactions’.^[40]

• This also amounted to a denial of access to justice (article 13) in conjunction with the right to participation in public life (article 29(b)). The Committee took a broad view of access to justice, considering it to encompass all participants, rather than solely claimants, victims or defendants.^[41]

5.26 The UNCRPD Committee recommended that Australia enable participation in jury duty by providing ‘reasonable accommodations in the form of Auslan interpretation in a manner that respects the confidentiality of proceedings.’^[42] Additionally, the following steps were required:

Ensuring that every time a person with disabilities is summoned to perform jury duty, a thorough, objective and comprehensive assessment of his/her request for adjustment is carried out and all reasonable accommodation is duly provided to enable his/her full participation;

Adopting the necessary amendments to the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organizations;

Ensuring that appropriate and regular training on the scope of the Convention and its Optional Protocol, including on accessibility for persons with disabilities, is provided to local authorities, such as the Sheriff, and the judicial officers and staff involved in facilitating the work of the judiciary.^[43]

5.27 Similar findings were made in Lockrey v Australia.^[44]

5.28 Disability groups in Australia and overseas have long advocated for law reform to create inclusive juries, in alignment with international human rights standards.^[45]

5.29 The Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter)^[46] integrates international human rights standards into Victorian law and encourages a broader commitment to a human rights culture.^[47] Public authorities have a statutory obligation to comply with the Charter.^[48] This includes the right to equality before the law and protection from discrimination, including on the basis of disability.^[49] It is arguable that the Charter places an obligation on Juries Victoria and the Juries Commissioner as public authorities to enable the subject groups to serve where possible, by providing supports and avoiding blanket exclusions. The Charter also applies to the courts when acting in an administrative capacity.^[50]

5.30 The Australian Capital Territory has already implemented changes to enable people who are deaf or blind to serve on juries (see Chapter 4).^[51] Its new laws and processes better align with the rights contained in the UNCRPD.

The impact of modern technology

5.31 As technology has improved, supports have become more sophisticated, reducing physical and communication barriers to participation. Costs associated with providing supports have also reduced. Moreover, in 2020 courts have had to adapt swiftly to new technologies following coronavirus (COVID-19) restrictions. Parallel adjustments for people with disabilities (who are reliant on similar technologies) have become more achievable. Chapter 8 explores the supports available to assist people in the subject groups to communicate.

5.32 Given that there are deaf and blind judges, magistrates and lawyers,^[52] and many people who are deaf and blind hold prominent positions within the Victorian community, there is logical inconsistency to the continued exclusion of these groups from jury service. Many people may be surprised that the law does not impose any positive obligation on the court to consider supports for jury service. 

1. Juries Act 2000 (Vic) s 1.

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2. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 32 <https://www.lawreform.vic.gov.au>, citing Mark Findlay, ‘Juries Reborn’ [2007] (90) Reform 9, 3, 7, 10.

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3. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 9 <https://www.lawreform.vic.gov.au> It has been argued in some cases that it can be interpreted to mean that the jury should represent the accused’s own community: R v Grant & Lovett [1972] VR 423; R v Badenoch [2004] VSCA 95 (27 May 2004). The Irish Law Reform Commission has clarified that representativeness means that the panel of potential jurors from which a jury is selected should reflect the composition of society, but it does not mean that the resulting jury actually chosen for a specific case will do so: Irish Law Reform Commission, Jury Service (Report No 107, April 2013) 13 <https://www.lawreform.ie/_fileupload/Reports/r107.pdf>.

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4. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, December 1997) vol 3, 7 [1.20] <https://www.parliament.vic.gov.au/315-lawreform/inquiry-template-sp-996>; Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 9 <https://www.lawreform.vic.gov.au>.

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5. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 32 <https://www.lawreform.vic.gov.au>.

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6. For example, women are more likely to be challenged in criminal trials: Jacqueline Horan, Juries in the 21st Century (Federation Press, 2013) 42–3; Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 33 <https://www.lawreform.vic.gov.au>.

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7. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) [3.83] <https://www.lawreform.vic.gov.au>.

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8. Civil Society Report Project Group, Disability Rights Now: Australian Civil Society Shadow Report on CPRD (Report, August 2012) 81 <https://pwd.org.au/our-work/policy-areas/human-rights-campaigns/united-nations-convention-on-the-rights-of-persons-with-disabilities/crpd-civil-society-shadow-report/>.

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9. 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, 36 citing, Peters v Kiff, 407 US 493 (1972) 506.

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10. Commonwealth v Heywood, 484 Mass 43 (2020).

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11. Ibid 1025.

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12. Sylvia Varnham O’Regan, ‘Deaf Victorian Man Denied from Serving on Jury Calls for “Discriminatory” Law to Be Changed’, SBS News (online, 24 November 2014) <https://www.sbs.com.au/news/>.

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13. ‘Racial Diversity Improves Group Decision Making in Unexpected Ways, According to Tufts University Research’, ScienceDaily (Web Page, April 2006) <https://www.sciencedaily.com/releases/2006/04/060410162259.htm>.

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14. David Rock and Heidi Grant, ‘Why Diverse Teams Are Smarter’, Harvard Business Review (online, 4 November 2016) <https://hbr.org/2016/11/why-diverse-teams-are-smarter>.

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15. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, December 1997) vol 3, [1.82] <https://www.parliament.vic.gov.au/315-lawreform/inquiry-template-sp-996>.

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16. Ibid [1.91].

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17. 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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18. 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) Bill 1964 (Vic).

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19. Ibid [3.27].

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20. 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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21. 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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22. 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; Mansell v The Queen (1857) 120 ER 20.

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23. 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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24. People v Guzman, 478 NYS 2d (1984) 474 (Goodman J).

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25. 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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26. Amanda Hooton, ‘Sign of the Times? More People Put Their Hands up to Learn Auslan’, The Sydney Morning Herald (online, 31 July 2020) <https://www.smh.com.au/national/sign-of-the-times-more-people-put-their-hands-up-to-learn-auslan-20200626-p556hg.html>; Rochelle Hunt and Warwick Long, ‘Auslan Enrolments Have “Skyrocketed”’, The Conversation Hour (ABC Radio, 31 July 2020)
    
    <https://www.abc.net.au/radio/melbourne/programs/theconversationhour/the-conversation-hour/12494634>.

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27. ‘Auslan’, Victorian Curriculum and Assessment Authority (Web Page) <https://www.vcaa.vic.edu.au/curriculum/foundation-10/resources/languages/auslan/Pages/default.aspx>.

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28. Phillippa Carisbrooke, ‘Sign Language to Be Taught to Victorian Four-Year-Olds’, SBS News (online, 18 November 2018) <https://www.sbs.com.au/news/sign-language-to-be-taught-to-victorian-four-year-olds>; ‘Early Childhood Language Program’, Department of Education (Web Page) <https://www.education.vic.gov.au:443/about/programs/Pages/eclanguageprograms.aspx>.

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29. Gwyneth Peaty and Katie Ellis, ‘Audio Description Finally Comes to ABC and SBS’, The Conversation (Web Page, 29 June 2020)
    
    <http://theconversation.com/audio-description-finally-comes-to-abc-and-sbs-141276>.

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30. Lockrey v Australia, UN Doc CRPD/C/a5/D/13/2013 (30 May 2016); New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 11 <https://www.lawreform.justice.nsw.gov.au>.

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31. Steven D Emery, ‘In Space No One Can See You Waving Your Hands: Making Citizenship Meaningful to Deaf Worlds’ (2009) 13(1) Citizenship Studies 31; Jemina Napier et al, ‘Changing the International Justice Landscape: Perspectives on Deaf Citizenship and Jury Service’ (2018) 19(2) Sign Language Studies 240, 241.

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32. National People with Disabilities and Carer Council, Shut Out: The Experience of People with Disabilities and Their Families in Australia (Report, 2009) 52 <https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia>.

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33. United Nations Convention on the Rights of Persons with Disabilities, GA Res 61/106, UN Doc A/RES/61/106 (24 January 2007).

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34. 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) (‘Beasley v Australia’) 

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35. Ibid [2.2].

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36. Ibid.

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37. 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) [2.2] (‘Lockrey v Australia’).

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38. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016) [8.3-8.4]. A ‘reasonable accommodation’ means ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’: United Nations Convention on the Rights of Persons with Disabilities, GA Res 61/106, UN Doc A/RES/61/106 (24 January 2007) article 2.

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39. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016) [8.6].

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40. Ibid [8.8].

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41. Ibid [8.9].

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42. Ibid [9].

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43. Ibid.

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44. Lockrey v Australia, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) [2.1].

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45. See, eg, Dan Hayes, ‘Law: Not Fit for Jury Service’, The Independent (online, 21 December 1999) <https://www.independent.co.uk/arts-entertainment/law-not-fit-for-jury-service-1133906.html>; ‘Deaf Campaigner Takes Court Action over BSL Jury Ban’, Disability News Service (Web Page, 23 August 2018) <https://www.disabilitynewsservice.com/deaf-campaigner-takes-court-action-over-bsl-jury-ban/>; ‘In Search of Justice’, British Deaf Association (Web Page, 18 September 2015) <https://bda.org.uk/in-search-of-justice/>; National Federation of the Blind, National Federation of the Blind of Massachusetts and Disability Law Centre, ‘The Right of Blind People to Serve on Juries Comes to the Court’ [2019] Braille Monitor <https://www.nfb.org/images/nfb/publications/bm/bm19/bm1909/bm190912.htm>; Deaf Australia, ‘Home’, Jury Rights for All: Fundraising Initiative (Web Page) <https://juryrightsforall.org.au/>.

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46. Charter of Human Rights and Responsibilities Act 2006 (VIC).

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47. ‘Human Rights Culture’, Victorian Equal Opportunity and Human Rights Commission (Web Page) <https://www.humanrights.vic.gov.au/for-public-sector/human-rights-culture/>.

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48. Charter of Human Rights and Responsibilities Act 2006 (VIC) s 38(1); Equal Opportunity Act 2010 (Vic).

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

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50. There are limited cases where the Charter directly applies to the courts in a judicial capacity through s6(2)(b): Judicial College of Victoria, Charter of Human Rights Bench Book (Online Manual, 1 September 2017) [2.5] <http://www.judicialcollege.vic.edu.au/eManuals/CHRBB/index.htm#57305.htm>.

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51. Courts and Other Legislation Amendment Bill 2018 (ACT).

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52. Doron Dorfman, ‘The Blind Justice Paradox: Judges with Visual Impairments and the Disability Metaphor’ (2017) 5(2) Cambridge Journal of International and Comparative Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2935540>; Colby Itkowitz, ‘Supreme Court Chief Justice Learned Sign Language to Swear in Deaf Lawyers’, Washington Post (online, 19 April 2016) <https://www.washingtonpost.com/news/inspired-life/wp/2016/04/19/supreme-court-chief-justice-learned-sign-language-to-swear-in-deaf-attorneys/>; KTUU News, ‘How a Deaf Judge Runs a Rural Alaska Courtroom’, YouTube (Web Page, 26 September 2014) <https://www.youtube.com/watch?v=-fTFDEUM4tY>; Barbara Slavin, ‘A Judge of Character : Although He’s Blind, David Tatel Skis, Runs and Climbs Mountains. By Summer’s End, He May Be a Top Jurist Too’, Los Angeles Times (online, 28 July 1994) <https://www.latimes.com/archives/la-xpm-1994-07-28-ls-21024-story.html>; The Associated Press, ‘Richard Conway Casey, 74, Blind Federal Judge, Dies’, The New York Times (online, 24 March 2007) <https://www.nytimes.com/2007/03/24/obituaries/24casey.html>.

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