Inclusive Juries—Access for People who are Deaf, Hard of Hearing, Blind or Have Low Vision: Consultation Paper (html)

4. The law relating to inclusive juries in other jurisdictions

4.1 This chapter examines the law relating to inclusive juries that applies in other Australian jurisdictions. In particular we look at recent reforms in the Australian Capital Territory. People in the subject groups have served on juries in overseas jurisdictions for some time. We examine the laws and practices in overseas courts, and the experiences of jurors who have served.

The law in other Australian jurisdictions

4.2 Most states and territories in Australia have similar legislation to Victoria. In practice people in the subject groups are given no option but to seek to be excused from service because they are not provided with the necessary supports. The 13th person rule also applies, prohibiting anyone other than jurors from being present in jury deliberations. There is no legislative requirement for the consideration of supports to help people to serve, except in the Australian Capital Territory as discussed below. In New South Wales the Act states that the questionnaire ‘may include questions’ as to ‘whether assistance or aids are required for jurors with a physical disability and requires consideration of reasonable accommodations when determining excusal or exemptions for good cause’.[1]

4.3 Legislation in Australian jurisdictions ‘refers to disability as a ground for disqualification from serving as a juror, or implies that persons with disability may be disqualified on the grounds that they are not capable of performing the duties of a juror.’[2] The Northern Territory law is blunter, specifying that a person who is blind or deaf is ineligible to discharge the duties of a juror.[3]

4.4 Only the Australian Capital Territory has implemented legislation to enhance the participation of people in the subject groups and to overcome the 13th person rule.

4.5 Appendix A contains an outline of the legislative position in other Australian jurisdictions.

Recent reform in the Australian Capital Territory

4.6 In 2018, the Australian Capital Territory amended the Juries Act 1967 (ACT) to create a positive obligation on the trial judge to consider if ‘reasonable supports’ could be provided to enable a person with disability or insufficient understanding of the English language to properly discharge their duties if they wish to serve and are not otherwise excused.[4] If satisfied that support could reasonably be given, the judge must make a direction for support to be provided.[5] The legislation lists some considerations in assessing whether supports can be reasonably provided.[6]

4.7 If the judge makes a direction allowing an interpreter or support person to assist the juror, the common law rule against having a juror in the jury room is limited by the Act.[7] This direction is subject to the interpreter or the support person agreeing to make an oath or affirmation that they will not participate in or disclose anything about those deliberations.[8]

4.8 At the time of writing, these provisions have not yet been used to support a person with disability to serve on a jury.

Australian case law

4.9 In recent years several legal challenges have been brought in Australia by people who are deaf who wanted to serve as jurors but were prevented from doing so by the Sheriff or court.

New South Wales

4.10 In 2012 Gemma Beasley and Michael Lockrey, residents of New South Wales, were summoned as jurors. Despite wanting to serve they were excluded under the Jury Act 1977 (NSW) on the basis of ‘good cause’.[9] Requests that the court provide an Auslan interpreter and steno-captioning machine were not accommodated.[10]

4.11 The decision to exclude them was based on the lack of a legislative provision to swear in a supporter to assist in jury deliberations, and the protection of juror confidentiality. It was not because of a determination that they could not perform the functions of a juror.[11]

4.12 Ms Beasley and Mr Lockrey were left without effective domestic remedies because, under the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1977 (NSW), it was not unlawful to discriminate against them on the basis of disability in the area of civic duties, including jury duty.[12] Further, in Beasley it was noted that it would have been futile to bring complaints before the Australian Human Rights Commission or the Anti-Discrimination Board of New South Wales as these are not judicial bodies and do not have power to order judicial review or consider remedies.[13]

4.13 Both complainants took their cases to the United Nations Committee on the Rights of Persons with Disability, arguing that they had been unlawfully discriminated against because of the failure to provide supports. They were both successful as discussed in Chapter 5.


4.14 In 2016 the High Court upheld the 13th person rule in Lyons. That case originated in the Brisbane Ipswich Court in 2012 when Gaye Lyons was summoned to serve as a juror. Although she can lip read, Ms Lyons required the assistance of an interpreter to serve. This request was denied. The court and subsequent courts held that the 13th person rule prohibited the interpreter from being present during jury deliberations.[14]

4.15 In response to the initial rejection, Lyons remarked:

we’re the same as everybody else, we’re human, we have kids, we go to work, we drive cars, we pay mortgages—I was just fuming because I could not have equal access to this.[15]

4.16 Ms Lyons believed that there was little to distinguish her request from the use of language interpreters currently working in legal proceedings. She is reported as saying:

They trust interpreters to work in those settings—what’s the difference with trusting them to relay in a jury room? What’s the difference if they work in court anyway?[16]

4.17 She unsuccessfully appealed her claim to the Queensland Administrative Tribunal[17] and its Appeal Division,[18] the Queensland Supreme Court[19] and ultimately the High Court.[20]

4.18 The High Court decision turned on the prohibition on a non-juror (in this case, an Auslan interpreter) being present in the jury room. The plurality (Chief Justice French, Justices Bell, Keane and Nettle) considered that any suggestion that this is permissible ‘must … be rejected’:[21]

The presence of a person other than a juror in the jury room during the course of deliberations is an incurable irregularity regardless of whether the person takes any part in the jury’s deliberations. The prohibition on the presence of a 13th person in the jury room protects the jury from the suggestion of external influence and promotes the frank exchange of views.[22]

4.19 The president of the Queensland Law Society has called for the state’s Jury Act to be changed.[23]

Other Australian reviews of the law

4.20 Reviews in Queensland, New South Wales, Western Australia and by the Australian Law Reform Commission (ALRC) have all recommended that legislation be amended to better facilitate the participation of people in the subject groups as jurors.[24] The 2014 ALRC report Equality, Capacity and Disability in Commonwealth Laws called for reform to support participation of people who are deaf on juries. The ALRC was of the view that in practice, ‘people with disability are prevented from serving on juries in Australia without sufficient reason.’[25]

4.21 All reviews recommended that people should not be prevented from serving on the basis of disability alone but that judicial discretion to exclude people unable to perform the duties of a juror be retained. The reviews emphasised making a case-by-case assessment of the provision of reasonable adjustments to assist people to serve. At the time of writing, the suggested reforms have not been implemented.[26]

4.22 Most recently, the Western Australian Department of Justice has published a consultation paper exploring possible amendments to the Juries Act 1957 (WA) to ensure people with disabilities can participate as jurors. The paper explores the provision of supports, adjustments to court room layout, costs, training and amendments to other legislation.[27]

The law in overseas jurisdictions

4.23 People who are deaf, hard of hearing, blind or who have low vision have successfully served on juries for some time overseas. We discuss law and practice in overseas jurisdictions including Canada and Scotland in more detail in Appendix B.

New Zealand

4.24 In New Zealand, sign language (NZSL) is an official language pursuant to the New Zealand Sign Language Act 2006 and interpreters are required to be used in court where it is the preferred language of a party, witness, counsel or member of the court, and any other person with leave of the court.[28]

4.25 The New Zealand Court Service requests that the court is contacted ahead of time so it can arrange supports for prospective jurors. Examples of supports mentioned on the court’s online information page include:

• a sign language translator

• documents in other formats (such as Braille or bigger type) if jurors have a vision problem

• use of an accessible court room if jurors have a mobility problem

• being seated near the witness or judge or getting sound reinforcement if jurors have a hearing problem.[29]

4.26 Pursuant to the Juries Act 1981 (NZ) a judge may cancel the summons of a person if satisfied that because of disability the person is not capable of acting effectively as a juror.[30] This can occur on the judge’s own motion or in response to an application by the Registrar or staff responsible for jury service. The application must be made before the jury is constituted, is heard in private and conducted at the discretion of the judge.[31]

4.27 In 2005 Dr David McKee, a deaf studies teacher at Wellington University, received a summons to serve as a juror in the Wellington District Court. He reported that his involvement in the trial was facilitated by ‘two interpreters who alternated because it was an all-day case, and yes, it proceeded quite smoothly.’[32] He was elected by his fellow jurors as the foreperson in the trial.[33]

England and Wales

4.28 The 13th person rule continues to apply in the United Kingdom (UK). This means that a juror with a disability cannot be assisted by a non-juror in the jury room.[34] However, people with disability including those who are deaf, hard of hearing, blind or with low vision are not disqualified from serving under the Juries Act 1974 in England and Wales.[35] There are some differences in jury legislation across the UK,[36] however the jury selection processes are broadly similar with respect to jurors in the subject groups. There are protocols to accommodate people with disabilities and enable them to serve on juries, provided they do not need the assistance of an additional person in jury deliberations.

4.29 The process in England and Wales includes:

• Asking people to provide information about what supports they might need in response to the summons.

• Adopting a flexible case-by-case approach to the provision of supports

• Providing a range of supports including hearing enhancements such as hearing loops, speech to text services, Braille material, accommodations for guide dogs, vision aids such as magnifiers, dedicated court ushers and the provision of additional breaks during the court process. Pre-court visits can also be organised to explore supports with the court.[37]

• The decision to exclude a juror with a disability from serving is made by a judge. A preliminary decision is made by a senior court official.[38] If reasonable supports cannot be provided and the person does not want to be excused, a hearing is scheduled before a judge. The prospective juror is able to attend the hearing to discuss this with the judge.[39]

The experience of jurors in the UK

4.30 In August 2019 a deaf man with lip-reading skills and the help of court stenographers established a ‘legal landmark’ when he sat on the jury of three trials during a two-week period in the Crown Court. He also served as a foreman of the jury. He is one of at least three people who are deaf who have served on juries in the UK. The Guardian reported:[40]

Johnston said: “They wanted to see me, how deaf I was, how well I could lip-read, and when they met me there was no problem.”

After being convinced of Johnston’s ability to serve without hindrance, and discussions with a judge, the officials secured financing for a two-person team of stenographers to transcribe everything spoken in court, which Johnston read on a tablet device from the jury benches.

Anthony Jarvis, who was on the same jury panel at Blackfriars as Johnston, said: “The processes in court seemed like they were in no way negatively impacted by having a deaf juror and that the court handled it very well. The trial carried on as if having a deaf juror was standard procedure. It didn’t feel like this was the first time.”

Johnston himself said that apart from a couple of small teething issues – his tablet ran out of battery charge at one point, and he also could not hear the announcements in the jury assembly area calling him to court – his time was entirely fulfilling.

“It worked. It can be done,” he said. “It means that more people with hearing impairments can go on a jury. You’ve got a bigger pool to select.”


4.31 Historically the 13th person rule has prevented people from serving on juries in Ireland with supports. A change to the law in 2008 removed the explicit reference to people who are deaf as ineligible.[41] Instead the law excludes a person with an ‘enduring impairment’ if it is not ‘practicable for them to perform the duties of a juror’.[42]

4.32 In 2010 a deaf man challenged his disqualification resulting from his need for a sign language interpreter in the jury room. The Irish High Court accepted that with assistance in the form of an interpreter and technological supports, it was practicable for a deaf juror to serve.[43] In the judgment, Justice Carney commented that the 13th person rule could be:

met by an appropriate oath being taken by the signer in which he would submit himself to the same obligations of confidentiality as the rest of the other jurors.[44]

4.33 Following the judgement, the Irish Law Reform Commission released a report in 2013 scoping potential reforms to enhance participation with supports.[45] Those recommendations were not implemented in legislation. However, the Irish Court Service has developed processes to enable deaf jurors to serve, including by providing Irish Sign Language interpreters.[46] The Irish Court Service has a dedicated disability liaison officer and takes a flexible and individualised approach to providing reasonable accommodations for people with disabilities.[47]

4.34 In October 2020 Patricia Heffernan became the first deaf person to deliberate on an Irish jury.[48] She was assisted in the deliberation by two Irish Sign Language interpreters. On two previous occasions she had been excused from jury service due to her disability.[49] Her experience was reported in the media:

… The Court Service assigned two interpreters, Vanessa O’Connell and Michael Feeney, who took turns translating the evidence into ISL for Ms Heffernan during the six-day trial.

It soon became obvious a third interpreter was required to accompany her during breaks.

This allowed O’Connell and Feeney time to discuss how to accurately interpret certain legal terms which may be confusing.

“ISL is my first language. English is my second language. So there were terms in English that would mean one thing but in a legal sense mean something different,” Heffernan said.

“There was a lot of terminology used that I would not be familiar with, like reasonable doubt. The interpreters were really good about explaining it.”

Judge Sinéad Ní Chúlacháin had to occasionally tell the parties not to talk over each other for the sake of the interpreters. According to one source familiar with the trial, this had the effect of making proceedings easier to follow for everybody involved, not just Heffernan.

“There were absolutely no issues around communication. Everything ran so smooth. I didn’t feel under any type of pressure,” Heffernan said.

… In the beginning the other jurors felt “a bit awkward” as they got used to talking to Heffernan through an interpreter. “But it became so natural. After a bit we were cracking jokes and having fun.”

One of her interpreters, O’Connell, said at first she was nervous about the deliberations, despite having 15 years’ experience as an ISL interpreter. “After hearing all the specifics of the trial, to be silent during the deliberations was very difficult.”

After they returned a verdict, Judge Ní Chúlacháin noted the historic landmark and told Heffernan she was free to talk about her experience as long as she complied with the in-camera rule which applies to sexual assault cases.

“The deaf community need to know we’re all well able to do whatever everybody else is doing in society. We’re all equal. The only thing is we have a different language.”[50]

United States

4.35 The legislative framework of the United States prevents the automatic exclusion of jurors with disability, including people who are deaf or blind. The Americans with Disability Act (ADA) states that:

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.[51]

4.36 As a result of ADA obligations and case law precedent, the inclusion of people who are deaf on juries in the United States is relatively routine.[52]

4.37 Courts are public entities for the purposes of the ADA.[53] Federal Courts are covered by the Rehabilitation Act which has the same substantive requirements.[54] Juries have been found to fall within the remit of court obligations under these statutes.[55]

4.38 The ADA lists examples of aids that should be provided to ensure effective communication with people with disabilities:

Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;

Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;

Acquisition or modification of equipment or devices; and

Other similar services and actions.[56]

4.39 Courts have also addressed the treatment of the 13th person rule. For example, in People v Guzman it was held that the rule pertains to officers of the court such as bailiffs, judges, or counsel, and ‘the presence of the signer is a different matter entirely.’[57] This is because ‘the role of the signer is not that of a participant or an authorized official of the court but is that of a communications facilitator.’[58] In United States v Dempsey the court addressed the main concerns associated with the 13th person rule. As to whether an interpreter would compromise the secrecy of the jury room, the court found it no more likely that an interpreter would reveal confidences than the jurors themselves.[59] The court found that a 13th person was unlikely to have a ‘chilling effect’ on deliberations as they are ‘part of the background’ rather than ‘independent participants’.[60] Concerns as to any unlawful participation by the interpreter could be addressed through an oath and by the judge inquiring prior to the verdict whether the interpreter abided by their oath.[61]

The experience of jurors in the United States

4.40 The National Federation of the Blind’s newsletter, Braille Monitor, contains personal stories from people who are blind about their experiences of the jury process in the United States. Gwen Nelson was hesitant to serve but decided to proceed:

Then, as a [member of the National Federation of the Blind], I was really ashamed, because many blind people before me who believe as I do that blind people should be first-class citizens, had stood by their convictions so that now I had the opportunity to accept the responsibility and privilege of taking my turn on jury duty.

Yes, I did have to wait around the courthouse for hours. It was inconvenient, but I did serve on a jury. I had the assistance I needed to read printed materials submitted as evidence at the trial. And, as I look back, I am truly glad that I chose to fulfill my duty as a citizen. Jury duty was educational and rewarding…[62]

  1. Jury Act 1977 (NSW) ss 13(2), 14A(c).

  2. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014) 234 [7.207] <>.

  3. Juries Act 1963 (NT) sch 7 item 22 s 11.

  4. Courts and Other Legislation Amendment Bill 2018 (ACT).

  5. Juries Act 1967 (ACT) s 16.

  6. Ibid s 16(3)(c).

  7. Ibid s 16(4)(b).

  8. Ibid s 16(4)(c).

  9. Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th Session, UN Doc CRPD/C/15/11/2013 (25 April 2016) [2.2] (‘Beasley v Australia’); Committee on the Rights of Persons with Disabilities, Views: Communication No 13/2013, 15th Session, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) [2.2] (‘Lockrey v Australia’); Juries Act 1977 (NSW) sch 2.

  10. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016) [2.1]; Lockrey v Australia, UN Doc CRPD/C/a5/D/13/2013 (30 May 2016) [2.2].

  11. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016) [2.1]; Lockrey v Australia, UN Doc CRPD/C/a5/D/13/2013 (30 May 2016) [2.6].

  12. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016) [2.7]; Lockrey v Australia, UN Doc CRPD/C/a5/D/13/2013 (30 May 2016) [2.11].

  13. Beasley v Australia, UN Doc CRPD/C/15/11/2013 (25 April 2016) [7.3].

  14. Lyons v State of Queensland [2016] HCA 38, [8]– [24], [38]; 259 CLR 518 [8]– [24], [38].

  15. Kim Sharnie, ‘Deaf Queensland Woman Gaye Lyons Loses High Court Bid to Become Juror’, ABC News (online, 5 October 2016) <>.

  16. Ibid.

  17. Lyons v State of Queensland (No 2) [2013] QCAT 731, [177].

  18. Lyons v State of Queensland [2014] QCATA 302.

  19. Lyons v State of Queensland [2015] QCA 159, [41].

  20. Lyons v State of Queensland [2016] HCA 38.

  21. Ibid [34].

  22. Ibid [33].

  23. Kim Sharnie, ‘Deaf Queensland Woman Gaye Lyons Loses High Court Bid to Become Juror’, ABC News (online, 5 October 2016)


  24. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014) 234–5 <>; New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 56 [4.3]. < >; Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors (Report No 99, April 2010) 107–7, Recommendation 56; Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011) [8.123].

  25. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014) 234 [7.204] <>.

  26. A summary of these reviews can be found in: Ibid [7.209].

  27. Department of Justice (WA), Participation of People with a Disability in Jury Service (Discussion Paper, March 2020).

  28. Hayley Reffell and Rachel Locker McKee, ‘Motives and Outcomes of New Zealand Sign Language Legislation: A Comparative Study between New Zealand and Finland’ (2009) 10(3) Current Issues in Language Planning 272, 12. The purpose of the Sign Language Act 2006 (NZ) is to ‘promote and maintain the use of New Zealand Sign Language’: at s(3). The Act also states that ‘in any legal proceedings, any of the following persons may use New Zealand Sign Language’ ‘any other person with leave of the presiding officer’: at s(7)(c).

  29. ‘Disability Support’, New Zealand Ministry of Justice (Web Page) <>.

  30. Juries Act 1981 (NZ) s 16AA(1).

  31. Ibid s 16AA(4).

  32. Annie Guest, ‘Deaf Jurors Serve in US and New Zealand, but High Court Blocks Australian Gale Lyons’ Bid’, ABC News (online, 5 October 2016) <,-nz/7905810>.

  33. Ibid.

  34. Re Osman 1 [1966] Cr App R 126.

  35. Juries Act 1974 (UK) s 1.

  36. See Criminal Justice Act 1995 (Scot); Criminal Procedure Act 1995 (Scot); Juries Order 1996 (NI).

  37. Information provided from Her Majesty’s Courts and Tribunals Service to the Victorian Law Reform Commission, 17 August 2020.

  38. ‘Making Jury Service More Accessible for Jurors’, Scottish Courts and Tribunals Service (Web Page) <>.

  39. Juries Act 1974 (UK) s 9(b).

  40. Howard Swains, ‘Subtitles Help Deaf Juror Past “13th Stranger” Court Rules’, The Guardian (online, 28 August 2019) <>.

  41. Irish Law Reform Commission, Jury Service (Report No 107, April 2013) [4.04] <>.

  42. Juries Act 1976 (Ireland).

  43. Irish Law Reform Commission, Jury Service (Report No 107, April 2013) [4.13–4.14] <>, citing DPP v O’Brien [2010] IECCA 103.

  44. Irish Law Reform Commission, Jury Service (Report No 107, April 2013) [4.13] <>.

  45. Irish Law Reform Commission, Jury Service (Report No 107, April 2013) <>.

  46. Mary Carolan, ‘Jury Service: Many with Disability “Would like to Do Their Civic Duty”’, The Irish Times (online, 4 February 2019)


  47. Ibid.

  48. Conor Gallagher, ‘Galway Woman Makes History as First Deaf Person to Deliberate on Irish Jury’, The Irish Times (online, 5 October 2020) <>.

  49. Ibid.

  50. Ibid.

  51. Americans with Disabilities Act, 42 USC Ch 126 §12132 (1990). See also Kristi Bleyer, Kathryn Shane McCarty and Erica Wood, ‘Access to Jury Service for Persons with Disabilities’ (1995) 19(2) Mental and Physical Disability Law Reporter 249, 250.

  52. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 38 <>.

  53. Galloway v Superior Court of the District of Columbia, 816 F Supp 12 (DDC, 1993) [19].

  54. Rehabilitation Act, 29 USC § 794(a) (1994) ss 501, 504.

  55. Galloway v Superior Court of the District of Columbia, 816 F Supp 12 (DDC, 1993) [18–19].

  56. Americans with Disabilities Act, 42 USC Ch 126 §35.104 (1990). See also United States Justice Department, Title II Technical Assistance Manual [II-7.1000] <>.

  57. People v Guzman, 478 NYS 2d (1984) 473 (Goodman J).

  58. Ibid.

  59. United States v Dempsey, 724 F Supp 573 (ND Ill 1989) [24] (Hart J).

  60. Ibid [17].

  61. Ibid [22–25].

  62. Gwen Nelson, ‘My Experience As A Juror’, National Federation of the Blind (Web Page) <>.