Nick: Welcome to ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd and today we’re talking about inclusive juries.
Nick: You might be surprised to hear that in Victoria people who are deaf, hard of hearing, blind or have low vision are unable to serve on a jury. The law doesn’t specifically ban them from doing so but in practice there are barriers that make it impossible. The VLRC has just published a report which was tabled in Parliament a few weeks ago titled Inclusive Juries: Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision. I’m here with Emma Cashen, the team leader of the Inclusive Juries project, and Phoebe Lindner, a senior policy and research officer at the VLRC. Phoebe, your report says that there are two main barriers that effectively prevent people from serving. What are those barriers?
Phoebe: Firstly, because there’s no obligation under the Juries Act to require the courts or the Juries Commissioner to provide reasonable adjustments, people with these types of disabilities often ask to be excused. Secondly, an old common law rule called the ‘13th person rule’ aims to maintain confidentiality. So this prevents Auslan interpreters or support persons from entering the jury room.
Nick: And it’s called the ‘13th person rule’ because you normally have 12 people on a jury.
Phoebe: Yeah, that’s right.
Emma: And I think facing those barriers people seek to be excused early or they’re deemed ineligible to serve by Juries Victoria or the courts.
Nick: So that first barrier, when we’re talking about adjustments, Emma, what kind of things do we mean?
Emma: So they might be things like having an Auslan interpreter during the empanelment process and in the jury deliberation room, maybe an iPad with software that converts text to speech, printing out documents in larger font, it could be taking your guide dog into court, courts generally have hearing loops where sound is amplified directly into a hearing aid, it could be using a magnifier, some magnifiers now are electronic magnifiers, perhaps using a stenographer that puts captions on audio, or even something simple like getting assistance in and out of the courtroom.
Nick: So there are lots of things that actually could assist people, but the law doesn’t require courts to actually supply them.
Emma: Yeah that’s right.
Nick: So this was a community law reform project which means it’s a project the VLRC chose for itself as opposed to one that the Attorney-General asked the VLRC to do. Emma, why was this reform necessary?
Emma: Well we initiated this report in response to ongoing advocacy for change from disability advocacy organisations in Australia and overseas, there’d been quite a large campaign for change, and we felt that the law was out of touch with community expectations, laws and policies about non-discrimination and inclusion of people with disability in public life. So as a community now we’re all really familiar with the tools that assist people who are deaf, hard of hearing, blind or with low vision to participate in public life especially post-COVID. We’re used to seeing Auslan interpreters on the news, I saw there was a very cool American Sign Language interpreter at a Rihanna concert, Emma Wiggle does Auslan sign language in her videos often, we’re used to seeing it on the news, our bushfire briefings, we’re also all using captions and listening to podcasts and books, we’re making greater use of captions on our TV shows even if we don’t need them. And we’re using more technology in our working lives. People with disabilities have been using various assistive technologies for a long time and we’re all as a community playing catch up, and I think the logistical barriers to jury service for people with disabilities are falling away and will continue to do so with rapid changes in technology.
Nick: Yeah so why shouldn’t the courts catch up.
Emma: Exactly . And I also think principles of inclusion are a feature of our modern laws. So Victoria has an Equal Opportunity Act, we have a Disability Act, we have a Charter of Human Rights and Responsibilities, and jury duty is an important civic duty associated with active citizenship, so it should include people who are deaf, hard of hearing, blind or have low vision.
Nick: And there’s also the question of representativeness isn’t there, can you say a bit about that?
Emma: Yeah. Reform supports the key purpose of the Juries Act which is to make our juries more representative of the community. So juries are randomly chosen from the electoral roll, they’re not chosen by judges and lawyers, and the key aim there is to prevent bias and ensure that jurors bring different views and experiences when they deliberate. Now those different views and experiences should include the views and experiences of people who are deaf, hard of hearing, blind or with low vision. And the report also notes that there have been some studies overseas that show that diverse juries strengthen decision making. So not only are more views brought to the deliberation process, the whole group itself takes more care to examine, to think critically about the evidence and to reach their decision.
Nick: And as I understand it there have been Australians who want to serve on juries who have taken cases to the United Nations.
Emma: Yeah that’s right and certainly we heard during our consultation process that people who are deaf, hard of hearing, blind or with low vision want the opportunity to serve and to bring their perspectives to jury deliberation. They want the opportunity to discuss with an official what adjustments they might need, and what they can and can’t do. And a number of people who are deaf, who’ve been called up for jury service, and were told they couldn’t serve with an Auslan interpreter, took their cases to the United Nations. So Australia has signed up to the United Nations Convention on the Rights of Persons with Disabilities, and that convention has as its core principle the full and effective participation and inclusion in society of people with disabilities. Now the United Nations decided that Australia should change its laws and practices to ensure that people can serve with reasonable adjustments. Now Australia hasn’t been doing that, and the United Nations is saying that Australia needs to change its law to enable that to happen.
Nick: During your research, Phoebe, and the report Inclusive Juries goes into this in detail you found that there are places in the world where people who are deaf, hard of hearing , blind and have low vision have been serving on juries for quite some time, haven’t they?
Phoebe: Yes absolutely Nick. In the US, for example, deaf and blind people have been serving for over 30 years. In our report we refer to the experience of blind jurors in the US. England saw its first deaf juror serve last year in 2022 with the assistance of a British Sign Language interpreter. And in fact that deaf juror was chosen by other members of the jury to act as the jury foreperson, so they were the spokesperson responsible for announcing the verdict. We’ve also heard stories of blind and deaf jurors serving in New Zealand amongst other places all over the world. So Victoria’s really behind.
Nick: So how did you go about doing the research and consultations for this inquiry, and who did you consult with?
Phoebe: We undertook consultations with 29 organisations, they included advocacy organisations who represented people who were deaf, hard of hearing, blind or have low vision; we talked to the courts, the Juries Commissioner, we talked to legal practitioners and other stakeholders who have an interest in this topic. Professor Emeritus Ron McCallum AO was appointed as a special advisor for this report. He was the first totally blind person appointed as a professor in Australia, and he was the Dean of the Law School at the University of Sydney. He also served as the Chair on the United Nations Committee on the Rights of Persons With Disabilities, so his perspective was really valuable to this report.
Nick: Yes and we interviewed Ron for another episode of this podcast which listeners will be able to find on our website. So the VLRC delivered its report to the Attorney-General and it was tabled in Parliament in May of this year, 2023, and now it’s been published on the VLRC website so everybody can find it there. Can you tell me about the biggest recommendations?
Phoebe: Yes so we recommended a number of changes to the Juries Act as well as to jury processes and policies and our recommendations really aim to provide a roadmap for change from the start of the jury selection process all the way through the trial. Our two main recommendations were: Firstly to require the courts and the Juries Commissioner to provide reasonable adjustments for people who are deaf, hard of hearing, blind or have low vision, and then the second main recommendation was that the Act should limit the operation of that 13th person rule to allow Auslan interpreters and support persons into the jury room. We suggested some safeguards including that the Auslan interpreter or support person must provide an oath to the court not t get involved in jury deliberations, to interpret truthfully and maintain confidentiality.
Nick: OK so dealing with those two big barriers that we talked about before. (That’s right). And so what other things were recommended Emma?
Emma: We also made some other practical suggestions to ensure that the jury system continues to run efficiently. We thought that the Juries Commissioner should coordinate the provision of reasonable adjustments, we suggested changing the jury selection forms so that people can indicate very early on if they need adjustments, and enabling them to come into court to work out what they can and can’t do, look at the courtroom and discus what they might need with a court official. We’ve recommended new powers for the Juries Commissioner to ensure that the JC can defer jury service, to give them time to provide reasonable adjustments; and also perhaps to hold them out of a ballot for a jury if a trial’s going to be held in an inaccessible courtroom, or if it’s likely that the trial won’t be suitable for fair trial reasons. Now if the Juries Commissioner holds someone out of a pool they should go back in the pool for the next ballot. We’ve also suggested developing protocols about where an Auslan interpreter should stand in the courtroom, and how to talk to a juror using an Auslan interpreter.
Nick: So we’d be expecting Auslan interpreters to work with jurors and go into the jury room, are there already any Auslan interpreters working in courts?
Emma: Yeah, Auslan interpreters are already working in the court system, the court has an obligation to provide Auslan interpreters for parties and witnesses, so this role is an extension of that role. But because it’s behind closed doors we are recommending some additional training for Auslan interpreters, and we are suggesting that they sign up to standards of conduct. Auslan is a highly skilled profession that’s tightly regulated by NAATI [the national standards and certifying authority for translators and interpreters in Australia], interpreters are already bound by a code of ethics, they have to undertake regular professional development training, so we are suggesting that they don’t need to jump through lots of hoops in order to do this work but there will be a little bit of extra training in order to do this role.
Nick: So in your report you talk about cultural change and the courts. Do you think that because people in the legal profession may not have had much experience of working with people who are deaf, hard of hearing, blind or have low vision, that it may take some time for the courts to adapt?
Emma: Yeah it may, and to ensure the success of reforms and ensure that change happens smoothly, the Commission is recommending a number of educational reforms and some procedural preparation. The legal profession as you identify may not have a lot of day to day interaction with people with disabilities and they may not understand what adjustments are out there, they might not understand how they work. So we have recommended disability awareness training for lawyers the courts and Juries Commission staff to familiarise themselves with how those adjustments work and interacting with people with disabilities on a daily basis. Certainly when we started this report I didn’t have a lot of experience organising Auslan interpreters, I can now do that, it’s a seamless process but I think that cultural change is important and that’s why we’ve targeted that in some of our recommendations as well.
Nick: And what about the practical aspects of all this, what actually happens in the courtroom, will there be guidelines to help people with that?
Emma: Yes, so the Commission also suggested that the courts and Juries Victoria should develop internal protocols to guide staff in the implementation of those laws. And there is a good guide overseas in England and Wales with their recent reforms. So things like we talked about earlier, where a British Sign Language interpreter should stand in the courtroom, how to talk to a person using a British Sign Language interpreter, and visiting court ahead of time to work out how accessible the courtroom is. And other things like putting printed copies of the juror oath in the jury box, how to configure the courtroom and the jury room accessibly, and also for a potential juror to expect that a judge will make a determination about whether they can serve with reasonable adjustments. So those sorts of procedural protocols are a good model for Victoria.
Nick: And I think there have also been some mock trials in Australia, haven’t there?
Emma: yeah, there’s some academics that did some mock trials in New South Wales, and I think at the conclusion of that trial, it involved a deaf juror and some Auslan interpreters, at the conclusion of that trial; the judge said, it ran no differently to any other trial that he’d been involved in.
Nick: Now one issue that came up in your consultations was with lawyers who raised the very important question of the fair trial. How might these changes impact on the fair trial and what does the VLRC say should be done if that happens?
Emma: Yeah so responses to our consultation paper were overwhelmingly supportive of reform, but it was important that lawyers in particular noted that reform should not happen at the expense of the accused’s right to a fair trial and efficiency of the jury process. Now we think both of those issues can be addressed with safeguards. Now the right to a fair trial is the right to be heard by a competent and impartial tribunal, and for jury service jurors must be able to perceive evidence, comprehend it and follow court proceedings and deliberate with their fellow jurors. And in any trial it’s the job of the trial judge to make sure that the fair trial is being secured for the accused. So in many situations with reasonable adjustments a person should be able to perform jury duty. But in some rare situations even with adjustments it might not be possible for them to do so for fair trial reasons.
Nick: So what if for example you had a case where visual evidence or audio evidence was absolutely central to the trial?
Emma: Yeah look in that situation because a person couldn’t hear or see evidence, they might not be able to be a juror because they might not be able to do what is asked of them in that particular trial. Now that question we think should be determined by a judge as it is in the ACT, and if a judge decides that it’s not possible for a person to serve on a particular trial we recommend that the person is returned to the jury pool to potentially serve on another trial.
Nick: But presumably you don’t often get those kind of trials where all the evidence, the really critical piece of evidence is just one piece of audio or one visual thing.
Emma: No I think that would be unlikely but it may happen. Often in a trial there might be other evidence that goes to identity and so that particular evidence isn’t central to the case. But certainly in some situations this issue may arise. And we’ve also recommended other fair trial safeguards including training and obligations and responsibilities for Auslan interpreters and support persons who assist in that jury deliberation process. And we are confident that with those safeguards people who are deaf, hard of hearing, blind or with low vision can serve and the right to a fair trial can be upheld.
Nick: So given that we have all these supports and adjustments that are available to help people now and given that it’s been happening overseas for quite some time, why has this reform taken so long?
Emma: I think the short answer is that it probably hasn’t been a priority, and we certainly hope it becomes one, and I think the long answer has a little bit to do with the institution of the jury itself. It’s always played catch-up to community standards and has been a bit insulated from the other changes to the courts that are occurring in our laws. It’s been a very slow road to the modern jury system that we know today. So for example since juries were first adopted in Australia, who can be a juror has largely been a white man who owned property. The property ownership requirement was only removed in 1956, women had to wait until 1977 to participate on an equal basis with men. Other research suggests that First Nations people had to wait to obtain the right to vote and then until voting was compulsory to be drawn from the electoral roll. So if you look at that history it’s not a surprise the law and practice is again out of touch with community expectations, but it’s now 2023 and the Commission believes that these reforms are overdue and we hope it becomes a priority.
Nick: The VLRC is recommending some changes to the way courts work and there are going to be some costs involved in this, and on this topic there was an interesting judgment in the Australian Capital Territory recently, Phoebe can you explain what has just happened in the ACT?
Phoebe: So the only place in Australia where people have the right to serve as jurors with reasonable adjustments is in the ACT. Incredibly serendipitously, on the same day as our Inclusive Juries report was tabled in Victoria, the Chief Justice of the ACT Supreme Court passed down a ruling, in which she directed that an Auslan interpreter should be provided to support a deaf juror. In the empanelment process and if selected to serve on the jury. So Justice McCallum was satisfied that the person could effectively serve as a juror, with the support of Auslan interpreters, and in that decision she had regard for the costs that might be involved. So she looked at what the Auslan interpreter fees might be, and said that she was satisfied that that wasn’t a disproportionate cost, in the context of ongoing operational expenses of the court.
Emma: I think the other point to make is that we’re not expecting a large number of trials to be impacted and that those accessibility changes will benefit all court users and we think those benefits at the end of the day outweigh the costs.
Nick: And I think there was a recent case in Ireland wasn’t there where there was a deaf person served on the jury and the judge made a comment that it was better for everybody, can you explain about that?
Phoebe: Yes so in that case the judge asked the jurors to make sure they didn’t talk over each other for the sake of the interpreter, but actually she observed that that was beneficial for all the jurors and everyone in the court.
Nick: So the VLRC’s report Inclusive Juries has been tabled in Parliament and published, so what happens next Emma?
Emma: So it’s now up to government to decide whether to implement our recommendations and how to do this, the Commission doesn’t play a further role after we’ve delivered our report, we do as an organisation have a good track record of our recommendations being implemented, but it can take some time, so we are really hoping to see some change in the future to make our juries more representative, and we think that reform will be of great benefit to people who are deaf, hard of hearing blind or with low vision and to the justice system generally.
Nick: That’s all we’ve got time for, but if you’d like to know more please go to the VLRC website where you can find the Inclusive Juries report as well as the submissions and other documents related to this enquiry. Join us again next time for more Old Law, New Law.