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

19. Funding reforms and monitoring implementation

We will improve the collection and use of data about people with disability across government to better inform evidence-based policy and programs and strengthened outcomes reporting.^[1]—Victorian State Disability Plan 2022-2026

Overview

• There will be funding costs associated with implementing the recommendations in this report. However, the personal and community benefits that flow from reform outweigh the associated costs.

• Juries Victoria and the courts should collect data about the participation of people from the subject groups in the jury system, both during the selection process and in trials, if they are selected as jurors.

• Subject to juror confidentiality requirements, information should also be collected about the experiences of people from the subject groups.

• This data will assist with the review of new laws, policies and procedures, to check how well they are enabling people in the subject groups to serve as jurors, and to identify where improvements can be made.

• Data should be published in the Supreme Court annual report.

• The new laws should be reviewed after five years of operation, to ensure that they are meeting their policy objectives.

Funding reforms

Adequate funding is critical for success with these reforms.^[2]

—Law Institute of Victoria

Likely costs associated with reform

19.1 Funding will be needed to implement the reforms recommended in this report, especially to:

• provide reasonable adjustments

• provide disability awareness training for the judiciary, Juries Victoria and legal professionals

• prepare training materials about new laws and internal operational guidelines

• update court and Juries Victoria websites with clear information about the operation of new laws for the community

• train new accessibility officers who will provide logistical assistance to jurors from the subject groups

• collect and analyse data about the implementation of new laws

• improve the accessibility of Victorian courtrooms and buildings

• promote new laws amongst the subject groups and the Aboriginal community.

19.2 Juries Victoria and the courts should be funded to provide reasonable adjustments as required. The courts have existing obligations to make reasonable adjustments for anyone in the subject groups who is working in or receiving a service from the court.^[3] The costs to enable inclusive juries should be viewed in the context of those existing obligations.

19.3 It is likely that the highest ongoing costs associated with the provision of adjustments will be for Auslan interpreters, Communication Access Real Time Technology (CART) and stenographers. A minimum of two interpreters will be required for court work and three for a long trial or to cover breaks (any duration longer than one hour will involve interpreters working together in tandem). Complex cases might also require some preparation and briefing time, with associated costs. Additional travel payments may be required for regional cases, non-metropolitan areas, and more outlying metropolitan locations, or cases where an interpreter is located regionally.^[4]

19.4 In Chapter 14 the Commission recommended that the Courts and Juries Victoria pay Auslan interpreters who undertake jury work at a rate that is commensurate with the skill required to perform the role, and at a level that will retain and attract Auslan interpreters to do this type of work.

Concerns expressed about the cost of reform

19.5 The County Court anticipated significant costs associated with reform, noting:

The Court anticipates the need for significant funding for modifications and running costs. The Court is not able to make all necessary accommodations and does not possess the required equipment. Support people will need to be employed, trained, and assessed. Juries Victoria, judicial registrars and court lawyers would need to be supported to allow for assessments and identification of matters suitable or not suitable as accessible trials. There may be other educative costs associated with the training of other court users. … A cost-effective way to achieve this may be to pool resources between the two trial courts … The Court anticipates the costs in regional areas to be greater than in Melbourne.^[5]

19.6 In the case of JH v Australia before the United Nations Committee on the Rights of Persons with Disabilities (Convention Committee), Australia submitted that there would be ‘significant costs’ associated with providing reasonable adjustments for jurors. In making this claim, Australia referred to a 2016 study which examined the use of interpreters in the court system in Monroe County, New York State, and reported ‘significant cost involved in having interpreters (approximately US$300,000 annually, including US$100,000 for ASL interpreting)’.^[6]

19.7 The Commission notes in Chapter 10 that Monroe County in New York State has a large population of American Sign Language users because the National Technical Institute for the Deaf is located in the city of Rochester. Approximately six American Sign Language users are empanelled each year^[7] and the court schedules one deaf juror for jury selection every week, but not all progress to jury service.^[8] The numbers in Victoria are likely to be significantly less, with an estimated population of approximately 30,000 Auslan users in Australia, out of a total population of almost 26 million (of which Victoria has a population of around 6.56 million).^[9]

19.8 The New South Wales Law Reform Commission concluded that the cost of permitting deaf persons to serve on a jury ‘as a proportion of the total cost of court administration is marginal and therefore no cause for concern’.^[10] It further concluded that the costs for enabling blind people to serve would similarly ‘likely be minimal’.^[11]

The benefits outweigh the costs of reform

19.9 Most community responses acknowledged that there would be costs involved with reforms. However, the majority view was that these costs would be outweighed by the benefits to people from the subject groups and to the justice system more broadly.^[12]

19.10 Many noted that the benefits would be shared by all users of the Court and the community. For example, Victoria Legal Aid noted:

While we are not providing specific suggestions or commenting on the costs of the changes, we note the broader need and social benefit of technological enhancements, such as hearing loops. Adjustments are needed and will benefit people who are hearing and vision impaired as well as judges, lawyers, parties to proceedings and witnesses.^[13]

19.11 Similarly, Associate Professors Bruce Baer Arnold and Wendy Bonython commented:

Anxieties about administrative costs or inconvenience are overstated. It is unlikely that insupportable numbers of people who are deaf, hard of hearing, blind or have low vision will seek to participate in juries under the Victorian justice system, but it is important that they are not arbitrarily denied the right to participate fully in public life if they wish to. The costs associated with their inclusion are appropriate costs. They are consistent with public/private sector investment to foster individual and collective flourishing by removing barriers to participation in public life or self-fulfilment, and are comparable with financial obligations imposed by law on private sector actors to protect participation by people with disability in the areas of employment, education, and other aspects of life. […]

We respectfully suggest that a strong focus on the costs associated with reforming the law is inappropriate. Expenditure to facilitate inclusion and to broaden community understanding is a legitimate investment, in the same way that there were costs associated with the reform of law to address gender and other discrimination. Inclusion is a matter of justice, the foundation of the state’s court system. It is also an enabler of increased productivity across the state/national economy.^[14]

19.12 Vision Australia observed that the ‘cost of providing reasonable supports could be minimised by utilising existing employee resources in the court system, supplemented by the provision of additional training’.^[15]

19.13 The Commission agrees that the proposed reforms would deliver substantial benefits which likely outweigh the costs. While the costs are uncertain at present, they are likely to be a small proportion of the total cost of court administration. There will be significant personal benefit to people in the subject groups associated with reform, and the jury system will be more representative, in keeping with the overall purpose of the Juries Act 2000 (Vic).^[16] These are also other important considerations:

If a cost-benefit analysis is even the appropriate yardstick, what is a ‘reasonable accommodation’ must also factor in the non-economic democratic benefits of the jury system.^[17]

19.14 Funding reform will ensure that Victorian laws and practices comply with the recommendations of the Convention Committee and that the jury system is modernised to better reflect community standards and expectations.

Monitoring the implementation of reforms

19.15 It will be important to review the operation of any new laws, policies and procedures to see if they are working to include people from the subject groups on juries. Data collection and analysis will be vital in assessing and improving law and practice.

19.16 Australia has an obligation to monitor its implementation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).^[18] Collecting data about access to jury service would respond to the recommendations of the Convention Committee in its 2019 Concluding Observations on Australia’s compliance (or lack thereof) with the CRPD.^[19]

19.17 Victoria has indicated its commitment to improve the collection of data on accessibility for people with disabilities across government in the new state disability plan.^[20]

Community support for evaluation

19.18 The community supported reviewing the effectiveness of new laws.^[21] Associate Professors Bruce Baer Arnold and Wendy Bonython submitted that:

the Commissioner and Juries Victoria should have a facilitative and oversight role, […] ensuring that there is qualitative and quantitative reporting regarding implementation of the inclusion strategy.^[22]

19.19 They further suggested that:

the Attorney-General and the Justice Department report to Parliament and the community at large on an annual basis using comprehensive statistics on the inclusion in juries of people who are deaf, hard of hearing, blind or with low vision.^[23]

19.20 The recommendation to collect this data was supported by the Castan Centre, which referenced the International Principles and Guidelines on Access to Justice for Persons with Disabilities (see Chapter 6).^[24] Principle 7.1 requires states to ensure that persons with disabilities are able to act as jurors without discrimination. Principle 7.2(e) requires governments and courts to:

Collect disaggregated data on the participation of persons with disabilities in the justice system and, using that data, develop and implement strategies to reform policies, practices and laws to ensure equal access to justice.^[25]

19.21 We were told by the Jury Commissioner, New York State Courts in Rochester, Monroe County, United States, that his office is ‘trying to improve data tracking so that the office records how many people serve with supports’.^[26]

Collecting and publishing data about the operation of new laws

19.22 Juries Victoria is best placed to coordinate the collection of data about the implementation of reform because it is responsible for the administration of the Victorian jury system and is in regular contact with jurors.

19.23 Juries Victoria includes some information about Melbourne and regional Victoria in the Supreme Court annual report, regarding:

• how many people are randomly selected

• how many people are summonsed

• the number of jury trials.^[27]

19.24 The additional information set out in Table 1 should be collected by Juries Victoria or the courts. It should be collated and analysed by Juries Victoria and published with other data about jury selection and jury trials that already appears in the Supreme Court’s annual report.

19.25 This will ensure that information about the implementation of reforms is in the public domain, enabling the community to campaign for further change if needed. Transparency will assist to build public confidence in the justice system.

19.26 Depending on the outcomes of data analysis, further legal or policy reforms may be required. For example, there may be a need for measures to encourage Aboriginal people from the subject groups to serve. This is significant given the additional barriers Aboriginal people may face, as discussed in detail in Chapter 4.^[28]

Table 1: What data about participation on juries by people from the subject groups should be collected?

Juries Victoria should survey jurors about their experiences

19.27 It would also be valuable to collect qualitative data about people’s experiences of the jury selection process and serving as a juror with adjustments.

19.28 The Juries Commissioner has recommended that user satisfaction of the jury system be assessed to complement the courts’ adoption of the ‘International Framework for Court Excellence’, which looks at a range of performance measures, including user satisfaction.^[29]

19.29 We understand that the Juries Commissioner conducted a feedback survey in 2021 regarding user experiences of the online juror orientation program.^[30] The online program was implemented in response to the coronavirus (COVID-19) pandemic and aims to replicate online the in-person orientation normally given to those attending jury service.^[31]

19.30 Subject to considerations about juror obligations of confidentiality,^[32] Juries Victoria should develop a survey to distribute to people from the subject groups, seeking feedback on their experiences.^[33] This feedback could be used to improve laws and procedures and be incorporated into professional and judicial training.

Reviewing new laws after five years of operation

19.31 The Act should include a mechanism that requires the new laws to be reviewed by the Attorney-General after they have been in operation for five years. A report on the outcome of the review should be tabled in each House of Parliament within 12 months of the review.

19.32 A review will ensure that the policy objectives of the new provisions remain valid and that timely amendments can be made to the Juries Act 2000 (Vic) (the Act). It will also provide an opportunity to consider the matters discussed earlier in this report, including:

• whether Juries Victoria and the courts are keeping up with technological advances and whether any other examples of adjustments need to be included in the Act

• whether to expand the application of the Act to include jurors whose primary language is other than English

• whether members of the subject groups are being challenged peremptorily or stood aside and thus being prevented from serving at all

• assessing the implications of significant rulings or appeal judgments arising from the reforms

• whether relevant agencies are complying with their policy and training obligations.

1. Department of Families, Fairness and Housing (Vic), Inclusive Victoria: State Disability Plan 2022–2026 (Report, March 2022) 31.

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2. Consultation 2 (Law Institute of Victoria).

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3. See Judicial College of Victoria, Disability Access Bench Book (Online Manual, 2016) <https://www.judicialcollege.vic.edu.au/eManuals/DABB/index.htm#59523.htm>.

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4. Information provided by Expression Australia to the Victorian Law Reform Commission, 20 October 2020.

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5. Submission 14 (County Court of Victoria).

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6. Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016) 9 [4.1.2]; Committee on the Rights of Persons with Disabilities, Views: Communication No 35/2016, 20th sess, UN Doc CRPD/C/20/D/35/2016 (31 August 2018) [4.7] (‘JH v Australia’). We note that these estimated annual costs are for Monroe County Court, Rochester, New York State: Information provided by Jemina Napier to Victorian Law Reform Commission, 28 June 2022.

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7. Jemina Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022).

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8. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

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9. ‘Disability Statistics’, Australian Network on Disability (Web Page, 15 November 2019) <https://www.and.org.au/resources/disability-statistics/>; ‘National, State and Territory Population’, Australian Bureau of Statistics (Web Page, 28 June 2022)
   
   <https://www.abs.gov.au/statistics/people/population/national-state-and-territory-population/latest-release>. Data correct as at 31 December 2021.

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10. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 36 [2.62], citing an assessment by the organisation People with Disability.

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11. Ibid 54 [3.17].

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12. Submissions 4 (Associate Professors Bruce Baer Arnold (University of Canberra) and Wendy Bonython (Bond University)), 9 (Madison), 10 (Vision Australia); Consultations 2 (Law Institute of Victoria), 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

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13. Submission 8 (Victoria Legal Aid).

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

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15. Submission 10 (Vision Australia).

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16. Juries Act 2000 (Vic) s 1(b).

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17. 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, 35–36.

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18. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 33.

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19. The Committee recommends that the State party, in close consultation with persons with disabilities, through their representative organisations, ensure effective access to justice for persons with disabilities, without any discrimination. It also recommends that the State party ‘(g) Collect data disaggregated by disability, age, gender, location and ethnicity at all stages of the criminal justice system, including on the number of persons unfit to plead who are committed to custody in prison and other facilities’: Committee on the Rights of Persons with Disabilities, Concluding Observations on the Combined Second and Third Periodic Reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) 17 [26](g), art 13.

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

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21. See, eg, Submission 3 (Youth Disability Advocacy Service).

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22. Submission 4 (Baer Arnold & Bonython).

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23. Ibid.

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24. Submission 12 (Castan Centre for Human Rights Law, Monash University); United Nations, International Principles and Guidelines on Access to Justice for Persons with Disabilities (Human Rights Special Procedures, Special Rapporteur on the Rights of Persons with Disabilities, August 2020).

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25. United Nations, International Principles and Guidelines on Access to Justice for Persons with Disabilities (Human Rights Special Procedures, Special Rapporteur on the Rights of Persons with Disabilities, August 2020) 22 [7.1], [7.2](e) Principle 7.

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26. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

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27. Supreme Court of Victoria, Annual Report 2019–2020 (Report, March 2020) 9, 63.

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28. Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011) Recommendation 11–5.

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29. Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust, 2018) 30. See also ‘International Framework for Court Excellence’, International Consortium for Court Excellence (Web Page, 25 May 2020) <https://www.courtexcellence.com>.

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

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31. Ibid.

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32. Juries Act 2000 (Vic) pt 10 s 78.

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33. The power to enable Juries Victoria to do this is contained in: ibid 78(3)(a)(ia).

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