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Law reform needed to facilitate inclusive juries
Governments across the country have been urged to follow the ACT’s lead after the Supreme Court in the state determined that an interpreter could be provided to allow Australian citizens who are hard of hearing or blind to participate on juries.
Lauren Croft
In other Australian states and territories, there are only 12 people allowed in a jury room, meaning that visually impaired or deaf people who need an interpreter are currently excluded from jury duty.
This came after a decision from the Supreme Court in the ACT, whereby it determined that an Auslan interpreting service must be provided for a potential juror during the empanelment process.
According to the judgment, this decision was the first in the ACT, if not Australia. Other states should follow this progression, according to the Australian Lawyers Alliance (ALA).
“I think the community would be surprised to learn that, due to an old common law rule that means there cannot be 13 people in the jury room, people with these disabilities cannot participate in jury duty. This is out of step with community expectations, as well as current discrimination policies and practices,” ALA’s Victorian state president at the time, Lachlan Fitch, said.
“[The VLRC] recommendations are an important step in an ongoing public conversation about how best to facilitate equal access to justice and to the justice system for people living with disabilities.
“We urge the government to accept these recommendations and take action to ensure people living with disabilities are able to participate in this important civic duty.”
Further reform is needed to ensure that there is a commitment to providing the support needed so that people living with a disability can practically participate, added ALA immediate past national president Genevieve Henderson.
“Despite significant amounts of discussion, research and recommendations produced over several years in relation to the question of whether people with a disability should be able to serve on juries, insufficient progress has been made,” she said.
“Inclusivity means that juries will better reflect a broad range of life experiences, and research has shown that diverse groups make better decisions. Having a cross-section of our society serve on juries helps ensure that the application of the law is fair and consistent with community standards. This can only be improved by having juries that more fully reflect the diversity of our community.”
Inclusive juries are also important as Australia’s jury system operates by having 12 people from the community decide if a defendant is guilty or not. This, barrister Sally Flynn KC said, means that juries should represent the widest variety of people they can.
“A jury should comprise the widest possible range of experience and judgment in the terms of age, gender, race and culture with which to evaluate the witnesses and the evidence. Where possible, those who are hard of hearing or blind should have the same opportunity to serve on a jury, just like any other citizen, to ensure juries are representative of society,” she said.
“Having people from all walks of life, with different experience[s] and wisdom, is the great advantage of our jury system. There may be cases, however, where access to justice means it is not appropriate to have a hard of hearing or blind juror to serve on that jury, for example, where visual identification evidence or voice identification is in issue in the trial.”
Increased reforms can — and should — be introduced to allow those who are hard of hearing or blind to serve on a jury, similar to the legislation already in place in the ACT.
“Safeguards such as ensuring that the judge has the overarching power to decide if [it] is appropriate in the particular case for such a juror to serve, and that any additional support persons in the jury room did not in any way participate in the deliberations or discussions would need to form part of the legislative changes to ensure a fair trial,” Ms Flynn added.
This can not only make trials fairer but also increase access to justice, Ms Henderson added.
“Representation on juries from people with diverse life experiences and personal characteristics is an essential element of a fair jury trial. To properly represent our community, it is appropriate that juries are inclusive and that supports are provided to ensure people living with a disability can participate in this important civic duty,” she said.
“Not only is it discriminatory to assume that people living with a disability should be automatically excluded from serving on a jury, but it also means that juries do not accurately represent the diversity of our community.”
Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
