Eager enthusiasm about the opportunity to do one’s civic duty and contribute towards giving a fellow Australian a fair trial is not really the normal response to a jury summons in Australia. Far more likely is that within 24 hours of receiving a jury duty letter, our grandma will die, our leg will get broken, we will stop showering and shaving whilst losing our dress sense, and we will become members of an indispensable profession with a current emergency to deal with.
So when Ms Gaye Lyons from, Queensland, got a letter telling her should could never ever do jury duty, why on earth did she go all the way to Australia’s highest court to challenge it? And why should we care that she lost?
What happened: (for the full judgement look here)
Given the title of this blog, you might have guessed one of the twists in this tale: Ms Lyons is deaf and communicates through an Auslan interpreter.
Ms Lyons was summoned for jury service in Queensland, and she wrote back that she was looking forward to it, and that they could get her an Auslan interpreter through XYZ service. Those in charge had their little panic and wrote back that they were sorry they didn’t realise she was deaf and as a result she couldn’t participate. Ms Lyons immediately “saw red” as she puts it. She claimed that she had been discriminated against in violation of Queensland’s Anti-Discrimination Act, and went through various tribunal and court cases to prove it until she got to the High Court.
Now that we as a society have moved past the idea that only rich white men should run the world, how can we possibly say that traditions which stop certain groups of Australians being part of something important should be implied when the courts interpret the law?
The High Court said they didnt have to worry about discrimination law becauseyou can’t discriminate by not doing something that you have no legal power to do. The Jury Act section 4 says who is and isn’t qualified to be a juror. It says that “The following persons are not eligible for jury service:… a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror.” Next, it gives the sheriff a job of organising for all the people who are allowed to do jury service to come in for possible selection as jurors. The High Court said Ms Lyons fell under the definition of people”incapable of performing the functions of a juror,” and so organising for her to come in simply wasn’t the Sheriff’s job, so it couldn’t be discrimination.
The main reason they gave that she was incapable of performing the functions of juror was that the interpreter would be a thirteenth person in the jury room whilst they were deliberating and this is not allowed. Other concerns were discussed as well. The government argued there would be no way of checking whether the interpreter got it right. The High Court said the law didn’t give any clear directions on how the interpreter thing would work when it comes to things like oaths. But these other concerns were mainly used as proof that when the government changed the law in 1995, they didn’t mean to change the old traditional common law rule that no extra people are allowed in the jury room when they are talking.
Did you get that? The government actually changed the law in 1995. It used to say outright “deaf, dumb and blind” people can’t be on juries. The Queensland government changed the law in 1995 to remove that outright prohibition. In fact, the 1995 Jury Act is now very similar to what was recommended by the New South Wales Law Reform Commission as a way to to ALLOW deaf people onto juries. and the High Court just went right ahead and implied the prohibition on them back in! The High Court took Australia backwards into violation of international human rights law when the government had pulled us out. On what basis were they thinking this was ok?
Why we should care:
Trial by jury is a serious matter. Being a juror is a foundational incident of citizenship enshrined in our constitution, . It is based on the idea that you deserve to be tried by a cross-section of your peers. This means that excluding a person from jury duty on the basis of a disability is a serious statement about whether people with disabilities really are the peers of people without disabilities on the one hand, and on the other it is denying all people with disabilities the right to a proper trial. I am not the only who thinks so. Two other deaf Australia, Gemma Beasely, and Michael Lockrey, were turned down for jury duty. They took their case to the UN and won. We are now in violation of international law.
But there is an even bigger problem. When a court makes a decision like this, it shows its values and attitudes, and claims to speak for the values and attitudes of society as a whole. The way the High Court handled this case is window on the thinking it will bring to other disability cases in the future. Sadly, The lens through which disability issues will be seen in the future is likely to be full of storm clouds.
Failure number one: Valuing Tradition Over Diversity
So the law is the law is the law? Well any lawyer will tell you this is far from true. It might look like it at first, but lets have a look more closely. “incapable of performing the functions of a juror,” is surely open to plenty of interpretation depending on what you mean by “incapable” and by “functions of a juror”.It can’t mean “incapable without any help that could turn out to be faulty” because then everyone who wore glasses would have to take them off for jury duty in case they weren’t working properly. It can’t mean incapable of performing the functions in a way this society considers mainstream and cool, because then only rich white men would be allowed to serve on juries.
Hold on, wait a second…it WAS true that only rich white men were allowed to serve on juries! Until at least the late 1950s in Australia women were considered incapable of performing the functions of jurors properly and weren’t allowed to do so in some parts of Australia, as for “blacks” well they weren’t even voting. Yet the rule about a 13th person in the room with the jury is based upon very old legal tradition that dates back to this kind of pre-diversity era. Remember, the High Court was interpreting what the government DIDN’T say based on the assumption that the traditional rules about juries still applied. Based on these traditions , they said that one of the functions of a juror is to talk to other jurors in the jury room without any other people present. To support this, they quoted old textbooks from 1809 and the like, and only one of the court cases they used to prove the rule was less than fifty years old.
But traditions like this do evolve. There are other important things to take into account. After all, isn’t a far more important the “function of a juror” to be one of twelve unique points of view which act as a check and a balance on all the other points of view ? The idea that a jury should be representative of the community is really at the very heart of the reason why have trial by jury. Secrecy, by contrast, is just something that helps it work. If we wanted a single perfect (*cough*) person who could keep it secret we would have trial by judge.
Now that we as a society have moved past the idea that only rich white men should run the world, how can we possibly say that traditions which stop certain groups of Australians being part of something important should be implied when the courts interpret the law? (Lets remember that indigenous people for whom English is a second or third language are now excluded, as are migrant women who have lived here for decades and been too isolated to learn the language, or persons with physical disabilities in need of a carer.) Now that international human rights law (which incidentally Australian law is supposedly presumed to be compatible with unless something is obviously to the contrary) is on the side of inclusion, why is that tradition still there? Most importantly, why isn’t the accused’s right to a fair trial prejudiced by an unrepresentative jury as much as by the presence of thirteenth person who does nothing?
Most importantly, why isn’t the accused’s right to a fair trial prejudiced by an unrepresentative jury as much as by the presence of an interpreter?
In reality, the law has moved on in other countries with similar traditions to Australia, like the US and New Zealand. In New Zealand, their first deaf juror ended up being jury foreman. In the US, the Court threw out exactly the same thirteenth person argument when someone challenged a deaf juror. But the Australian High Court obviously doesn’t think that the perspective of people with disabilities is an important enough perspective in our community that excluding it prejudices a fair trial.
Failure Number Two: The Awful Search and the Fearful Panic:
Ok now what is probably more important to a lot of lay people: is it fair to allow someone who can’t hear on the jury? What does “incapable” mean? Its important to know that Ms Lyons admitted she would not be suitable for a case that turned on, say, telling different voices apart. Does it mean she had to be perfect in other ways?
This issue actually bothers me a lot, because it is kind of personal. As soon as people realise someone has a disability they start hunting for possible problems and searching their imagination for scenarios where the person with the disability might not function perfectly. When they find them then the response is “Aha! see, you can’t do it!” All you need is one problem, or even one possible problem that someone thinks of (while they are hunting around their head really hard for one) and off everyone runs in a fearful panic.
There is evidence that deaf people with sign language interpreters do just as well as ordinary jurors, and that both of them make mistakes. A key name in the research in Australia is Jemina Napier. There is also a great report by the NSW Law Reform Commmission, although it is a bit old. It commissioned some research and found that deaf and hearing jurors had equal misunderstanding of the law (hmmm ok not that great but that’s why there are twelve ). A lot people also cite the decades of American experience (where judges stood up for deaf people) and in discussing that it helps that, unlike here, jurors can talk about what they did afterwards so they can tell us if the deaf person was a problem . For those interested in knowing more, try here (the author is actually our Disability Discrimination Commissioner now), and here (there is a summary of evidence but you’ll need to scroll a bit).
Everywhere in life, people with a disability are automatically compared to this mythical model of perfection and normality. That DOES NOT EXIST. Able-bodied jurors are not perfect, and able-bodied jurors pose problems the law hasn’t specifically mentioned before. If the legislation provided for every possible scenario then law school would be so tedious and time-consuming our heads would explode (ok i know it already comes close…) Able-bodied jurors fall asleep, lose concentration, notice some things and not others, and are just plain brainless boguns. For heaven’s sake, one famous jury case is about a bunch of jurors who held a seance and tried to bring the murder victim back from the dead. The only reason there was a re-trial was that it happened at the hotel not in the jury room. If it had happened in the jury room nobody would ever have known.
Thus I was bothered by the references to the difficulties with oaths and with organising the practicalities for things which had not been covered specifically in the legislation. And the last straw was the the concern that we can’t check what the interpreter is saying? Seriously!!!? You are right. I can’t believe nobody thought of this before! Every person convicted based on the evidence of a non-English speaker should get the right to appeal! And while we are at it, what about all the other things in the jury room we can’t check? As for oaths, well, as the NSW Law Reform Commission pointed out “At present while not subject to express confidentiality provisions or oaths court reporters are present when evidence of a sensitive nature is given, for example in closed court.” That happens all the time! But one deaf juror is bad.
Everywhere in life, people with a disability are automatically compared to this mythical model of perfection and normality. That DOES NOT EXIST.
Sadly…our High Court fell victim to the double standard again.
So why should we care?
Here was a situation where the Parliament, had actually taken a step forward. It was a matter in which practice had already been adjusted to get rid of discrimination against other groups in the past, and in which it has been adjusted to include persons with disabilities in some countries.
Our High Court had the opportunity to follow America’s lead. They decided instead that disability rights were unimportant compared to their traditions and gave in to fear. Let us remember that this is the same High Court who will have the final say in deciding appeals dealing with what can be funded as “reasonable and necessary supports” for NDIS plans, and who would get to decide an appeal if somebody killed a person with a disability and claimed they were provoked .
Kudos Ms Lyons. You have a fan here. I for one would love to have you on my jury if I was charged with a crime. I know the feature image is a cheap play on your name to get views. But let me finish with a real picture of one of our unsung national heroes, who recently received what she called a “slap in the face” from our High Court.