‘Old Law, New Law’ Episode 7 – Transcript

Inclusive Juries – interview with Professor Ron McCallum

Presenters: Nick Gadd & Gemma Walsh

Guests:

• Professor Ron McCallum AO
• The Hon. Tony North, chairperson, Victorian Law Reform Commission
• Emma Cashen team leader, Inclusive Juries inquiry, Victorian Law Reform Commission

Transcript

[intro music]

Nick: Welcome to ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd.

Gemma: And I’m Gemma Walsh. Today we have a special guest, Professor Ron McCallum AO who is special adviser for the Commission on a community law reform project: Inclusive Juries: Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision. We are joined by the Honourable Tony North, Chair of the VLRC, and Emma Cashen who is team leader of the Inclusive Juries project.

[music]

Nick: Professor Ron McCallum AO is Professor of Law at Sydney University, former Dean of the Law School and the first totally blind person to be appointed to a professorship to any University in Australia. He’s the former chair of the United Nations Committee on the Rights of Persons with a Disability, the 2011 Senior Australian of the Year, a member of the reference group of the NSW Law Reform Commission that considered the participation of people with disability on juries in 2006 and currently a special adviser on the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

So, Ron you became blind soon after you were born, and you grew up in Melbourne in the post-war period when life was very different. What expectations did society have of blind people when you were a child?

Ron: When I was born and a toddler, jobs for blind people were few and far between because the printed word we could not read, and very many blind people worked in sheltered workshops, what we now call Australian Disability Enterprises. There were some in the professions they tended to be persons who had been educated beforehand but injured during the wars, particularly World War 2. In my early days, there weren’t many careers for we blind people. By the time I was a teenager, things were changing in Victoria and indeed the rest of Australia. More and more people were going to universities and we persons with disabilities also found ourselves going to universities. There was a significant number of us, and we created a wave. That’s how I ended up going to Melbourne’s Monash University in its fourth intake for the Law School, a new university then not now and of course now in Victoria we have a number of law schools and time have moved on. I was lucky to be in that vanguard of children with disabilities who were at last given an opportunity of university and TAFE education in the 1960s.

Gemma: As a young person you were a gifted student but being blind you did have to make use of different methods to sighted students. How did you go about studying?

Ron: There were no computers in the 60’s and early ’70s and so the only way I could go about studying was having people read to me, legal decisions from the courts and statutes from the parliament. They either read to me directly or read onto a tape recorder and I could play the tape back. When I became a teacher at Monash University my students read to me. People like the Victorian Ombudsman Deborah Glass when she was a student, she gave up time to read to me. So, many of my students actually read to me because that was the only way I could get through the material.

Gemma: You had to memorize it I would imagine?

Ron: I had to do a lot of memory work because I couldn’t look back at notes, therefore, it didn’t make any difference to me whether exams were open or closed book because I simply had to rely on my memory.

Nick: In your memoir “Born at the Right Time” you describe how advances in technology have helped you to achieve some amazing things in your life. Could you please explain to us Ron some of the important ways that technology has helped you, especially in your professional life?

Ron: Computers have affected all our lives, but I think they have affected we blind, and vision-impaired persons more than the average person in the community. A computer puts up on its screen words and letters and the big breakthrough came in the mid-1980s when programmers were able to develop a program which would read out in synthetic speech what appeared on the computer screen. That developed into a program called Jaws ( job access with speech), which allows a blind computer user like me to listen to what is on the computer screen, that also allows me to download from the internet, and by the mid-1990’s High Court decisions and statutes of the Federal and Victorian parliaments were on the net so I could download them and listen to them using synthetic speech. Another development was done by the MIT professor Ray Kurzweil. He said “Why can’t we have a program that would read out books for blind people?” so, with flatbed CT CD scanners and a speech program the scanner will recognise the letters and words and have them read out in high-quality synthetic speech, so I can also scan the material and have it read back to me or keep the scanned material on my computer. This is quite extraordinary I could not have been the Dean of the Law School, advisor to governments, working on the UN and keeping up family life without these extraordinary advances in technology. Now, most of it is on the iPhone, I do most of my reading on the iPhone, I have a scanner on my iPhone, if you send me an attachment which is in PDF format I can put it through an electronic scanner on my iPhone and read it out in high-quality synthetic speech. When I was a little boy in a segregated school in Prahran Melbourne, right next door to a sheltered workshop where blind people made baskets and brooms, I would never have believed these extraordinary advances in technology which have done so much for we persons with disabilities.

Nick: Isn’t there also a service that helps you with matters such as choosing the right tie to wear, can you tell us about that?

Ron: There are a series of services – the one that I mentioned is Be My Eyes which is a free service, and you have the app on your phone, if you need help you click on it and a volunteer around the world will answer. There are I think a million blind people around the world who can click on needing help and several million volunteers. My wife went out to work and I was going to lunch, I’m a consultant, and I hadn’t asked her about a tie. So, I cleaned up our bedroom and put a whole pile of ties on our bed, then I called Be My Eyes and this woman answered. And I said, “I need the right tie” and I pointed the phone at my suit and shirt. “This is what I’m wearing, and over on the bed I’ve got these ties.” “Move to the left,” she said, “second on the left.” I said, “Can I ask you where you are?” And she said, “Oh, you’re not supposed to.” I said, “Well you can tell me.” “I’m in a Singapore bank, but things are pretty quiet so I thought I could answer and help.”

(Laughter)

Gemma: That’s a game-changer, that means you don’t need a support person helping with those even the reading of PDF’s and all of that sort of thing.

Ron: Now if you want, there’s a service called AIRA  which I am also a member of and you pay a fee and they do more detailed work for you like if your computer doesn’t work you use a program so they can be connected to your computer and help you. I have also used them to ask them about an invoice number on a document because my scanning program sometimes gets the numbers wrong. I will say to the person “Could you email me that invoice number,” and she or he have got my email and will send me back the correct number. It’s all truly amazing.

Nick: Ron can you tell us about your work with the United Nations and what you achieved in that role?

Ron: I was chairing a committee of 18 persons from around the world with different disabilities, blindness, hard of hearing, mobility and also some of my sisters and brothers with psychosocial and related disabilities, and working in five languages I had to learn to be patient, to explain to my committee members that they were no longer advocates, that we were in a semi judicial process of evaluating what each country had done. I found patience was very important to get everybody on side. What did I achieve? I don’t know that I achieved anything as an individual, but I think it was very important to operate with a majority of persons with disabilities on the committee. I meet a lot of ambassadors and government ministers that appeared before us and it was the first time they had ever spoken to a person with disabilities. One ambassador turned to me and said “You know, your colleagues are pretty intelligent” and I said, “Look some of them are professors of sociology, or law or economics” and I said “You must realise we are just as intelligent as any other group in society.” I think it is very important for courts, for juries, for UN committees to be microcosms of society, and to represent all aspects. We forget, I think in Victoria it was only in the late 60’s that  women were allowed on juries. We now think that’s so strange, but it was felt that women were too emotional and how could they handle a rape trial et cetera.

Gemma: Yes, it’s incredible, isn’t it?

Nick: Perhaps that’s a good moment to bring in Tony North, the chair of the Victorian Law Reform Commission. Tony, why has the Commission decided to commence this project Inclusive Juries, Access for People Who Are Deaf, Hard of Hearing or Have Low Vision. What are the key reasons why the law needs to change?

Tony: The law does not directly prevent people who are deaf or hard of hearing, blind or have low vision from serving as jurors, but because the law does not require the state to assist them they are in practice excluded from serving as jurors. So if a deaf person or a person who is hard of hearing needs an Auslan interpreter to follow the evidence in a court case, should the law require the state to provide the interpreter in order to enable that person to serve on that jury? Or if a blind person or a person with low vision needs documents used in a case produced in a form they can read or understand, should the law require the state to provide those means so that the person can serve on a jury? One aspect of the law does directly prevent such people from serving on juries. The common law made by judges over hundreds of years says that no person other than the jurors can be present in the jury room when the jurors are meeting to discuss the case.

Nick: So, no interpreters, nothing like that?

Tony: Yes, that rule prevents a Deaf person from having an Auslan interpreter in the jury room. The Commission is considering whether there should be a law which allows a 13th person in the jury room if it is necessary to allow a person to serve as a juror. So, you can see that as a practical matter such people are presently not able to do something that others in the community can do. That is wrong. Jury service is a duty placed on citizens so the criminal justice system can operate. It is an important function, all citizens with the ability to serve should be able to do so. By preventing blind people, people with low vision, Deaf people or people who are hard of hearing from serving is to discriminate against them.

Gemma: So, Emma as team leader on this inquiry the law doesn’t specifically say that people who are deaf or hard of hearing or are blind or have low vision can’t be on a jury, but because of this rule they’re not able to serve.

Emma: Yes, the practical reality is that for many people in those groups the law provides no real guidance about the provision or assessment of supports for people who are deaf, hard of hearing, blind or have low vision to serve, the law is silent about that, and secondly this old common law rule comes into place so that if you did need support in the jury room to serve, an Auslan interpreter or perhaps a support person if you were blind, then there’s a specific law that says that that’s not possible, you can only have 12 people in the jury room, non-jurors can’t participate. And the reason is, you’re trying to keep that jury deliberation process confidential, uninterrupted by outside sources, and maintain the closedness of that jury room. So, they’re the two pieces of law that are at play.

Gemma: The ACT changed their law in a very practical way recently didn’t they?

Emma: The ACT changed their law in 2018 very recently and those laws now provide guidance about the provision and assessment of reasonable supports. So, in the ACT if the judge thinks that someone needs support to properly discharge their duties as a juror and those supports can be reasonably provided, then they must be. And the law lists factors to be considered in that assessment process. The final decision is up to the judge, but the law maps out a process by which those supports can be provided. It also says in relation to that 13th-person rule that if there is a decision that a person can serve with supports then that rule doesn’t apply, but the supporter who assists must provide an oath to maintain the confidentiality of the jury deliberations and not get involved in that process, so that they are  there specifically to do a very specific job.

Nick: what are some of the other options that the Commission is looking at to support people?

Emma: We’re looking at two key things, the first is how to design a system to make juries more inclusive, so one option as Gemma just touched is to model those laws on reforms that have occurred in the ACT. We are seeking feedback on whether that would work in Victoria. The key there is that there is a legislative obligation to consider the provision of supports and there’s a process mapped out in legislation about how those supports will be considered. The second thing we’re doing is asking the community what possible supports they might need to serve. So give us your ideas of what you think you might need to serve on a jury in Victoria.

Nick: Ron, what do you consider is the importance of this enquiry?

Ron: This enquiry is of central importance to persons who are blind or vision impaired or deaf or hard of hearing in Victoria. It’s part of the democratic process of a society to participate in jury service just as it is to participate in voting and elections. It’s important for persons with disabilities to fully participate in all aspects of society. Juries should have on them men and women as they now do, persons from culturally or linguistically diverse backgrounds, and persons with disabilities, and especially blind and deaf persons with disabilities. Juries need to represent us and ‘us’ means the full spectrum of society in Victoria. Victoria has been amongst the leaders of law reform over the previous decades. It’s my hope that this enquiry will further law reform by enabling deaf, blind, hard of hearing and vision impaired persons to sit on juries and take their place as full participatory democratic systems in the great state of Victoria.

Nick: Can you see any reasons why people who are blind or low vision or deaf or hard of hearing should not serve on a jury?

Ron: There may be some circumstances where it would not be sensible for a person who is blind or vision impaired or deaf or hard of hearing to sit on a jury Let’s take blind people, for example, suppose the trial is for murder and the evidence is identification evidence made up of photographs and identification parades. The question really is, did the person who is identified do or not do the murder. In that circumstance where eyesight identification is central it would make sense for a blind or vision impaired person to be moved onto another jury trial that didn’t have that element in it. There may be issues in other trials of voice identification where it would make sense for a deaf or hard of hearing person to be moved onto another trial. This is just common sense and it shouldn’t prevent persons with these types of disabilities from being involved in jury service.  

Nick: What strengths do you think people who are blind or who have low vision or deaf or hard of hearing would bring to serving on juries?

Ron: They would bring many strengths, in particular, that they are persons with disabilities from that background. All groups bring their strengths, women bring their strengths, men bring their strengths, immigrants bring their strengths, and we persons with disabilities, sensory disabilities, bring our strengths. Blind people for example are very good at listening to voices, listening to hesitations in voices, listening to the timbre of voices. Deaf and hard of hearing persons are very good at looking at faces, lip-reading, looking at the whole profile of the person. We want juries to represent the full microcosm of society, to make it very clear what we mean is trial by our peers, trial by the full gamut of the community.

Nick: Emma, what materials has the Commission published and how can people contribute to this enquiry?

Emma: There are a number of ways to contribute to the project. The first is to provide a submission which is a formal response to the consultation paper and you can address the questions that are set out in the consultation paper some or all of them, submissions are due by the 28th of February. We also produced a summary of that larger consultation paper and a short community survey, they’re available on our website in a number of accessible versions, there is an Auslan version, an audio version and a Word version for screen reading programs, and you can answer that short community survey in that same way. Responses to the community survey are also due by the 28th of February.   

Nick: And what is the process after that, what will the Commission be doing and when will it deliver its final report?

Emma: Well, with the publication of our consultation paper we will embark on formal consultations, so we’ll talk to the community, advocacy organisations, support providers, Juries Commissioner, courts, and academics, both here in Victoria and overseas. We’ll look at what the community has told us and what all those different organisations and people have shared with us, and we will do further research. We will then provide a final report to the Attorney General in about November 2021. The Attorney General will then decide whether to implement the changes that we have recommended in our report.

Nick: You can find the consultation paper, a summary, and the community survey all in a range of accessible formats at the VLRC website. Join us again next time for more ‘Old Law, New Law’.

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