Lyons v State of Queensland

[2016] HCATrans 60

[2016] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B56 of 2015

B e t w e e n -

GAYE PRUDENCE LYONS

Applicant

and

STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MARCH 2016, AT 11.35 AM

Copyright in the High Court of Australia

MS K.T. NOMCHONG, SC:   Your Honours, I appear with my learned friend, MR B.E. FOGARTY, for the applicant.  (instructed by Australian Centre for Disability Law)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, with my learned friend, MS K.A. MELLIFONT, QC, for the respondent.  (instructed by Crown Law (Qld)

KIEFEL J:   You may need to speak up, Mr Solicitor, or bring the microphone towards you.

MR DUNNING:   Thank you, your Honour.  Is that better?

KIEFEL J:   Yes, it is.  Thank you.

MR DUNNING:   Thank you.

KIEFEL J:   Yes, Ms Nomchong.

MS NOMCHONG:   Thank you.  Your Honours, this is a matter which we say attracts the grant of special leave because it involves a significant public interest.  Discrimination legislation such as the Anti‑Discrimination Act 1991 has, as its principal focus, equality in the participation of civil and political and community activities.

In the preamble to the Act, one can see that the Queensland Parliament relied on international treaties such as the Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights.  These treaties stipulate the manner in which human rights of people with disabilities ought be promoted and how adjustments ought be made in our communities to ensure an equal participation for people with disabilities and the way they are to be enjoyed.

KIEFEL J:   I think you could take it that we appreciate this.  Given the time constraints that you are under, it might be as well to get straight to the issues for special leave.

MS NOMCHONG:   I will, your Honour.  Your Honour, the heart of this claim is, of course, how the Anti‑Discrimination Act 1991 can be construed harmoniously and effectively so that it works in conjunction with the Jury Act and the Oaths Act.  It is of critical importance to the appellant who is deaf but wants to actively participate in our community by being able to be considered for jury service, but it has a wider implication of course because section 4(3) of the Jury Act makes reference to any person with mental or physical disabilities.

The errors that we say enliven and would attract the grant of special leave in this matter are threefold; the first is the erroneous finding at the Tribunal, the appeal panel and of course by the Court of Appeal that the Deputy Registrar did no more than make a simple application of section 4(3)(l).  Rather, the correct finding ought to have been that what the Deputy Registrar did was undertake some sort of functional assessment or interpretation of section 4(3)(l) and then apply that.

The second part is that the erroneous finding of the Deputy Registrar was that there had not been a term imposed within the meaning of section 11(4), and the third is that there was no causative link between the conduct of the Deputy Registrar, and that of course was informed by a manifest misconstruction of section 10(5) of the Anti‑Discrimination Act.  I deal briefly with each of those matters.

First, it is abundantly apparent that this was not a mere application of the Jury Act because what was found was that it did not matter whether the Deputy Registrar’s interpretation was right or wrong.  Now, of course, the corollary to that is that a deputy registrar could make a complete misinterpretation or a very bad functional assessment of section 4(3)(l) and not be held to account because it would then be deemed, as it was by the Court of Appeal, as just a mere application.   What happened here was, it was the ‑ ‑ ‑

KIEFEL J:   But if the Deputy Registrar had misconstrued the Act, you would have a different form of relief, would you not, by way of review?

MS NOMCHONG:   It was not misconstruction.  It was the functional assessment.  The conduct that we complain of is in relation to the application that was made by Ms Lyons for an Auslan interpreter.  So, when that came to be about, it was not about the application of section 4(3)(l), it was about how they dealt with the application for an Auslan interpreter.  That is the crux of this matter.

KIEFEL J:   But if the conditions set by the statute require such an assessment, what do you say then?

MS NOMCHONG:   Well, there is a functional assessment to be done but it cannot be done erroneously and it cannot be done by taking into account in a discriminatory fashion, pursuant to section 10(5), taking into account the special service that was design not to be taken into account.  I am perhaps not putting that in the right way but I will come to it in argument.

Unlike most of the other factors in section 4(3), section 4(3)(l) requires that functional assessment.  All of the other factors in section 4(3)(l), perhaps with the exception of the ability to read and write English, are matters where there is a straight application; you have been the governor‑general, you are a lawyer, you have been a police officer, all of those things are straight applications.  But when you come to section 4(3)(l), what has to be determined is whether the mental or physical disability that you have renders you incapable of effectively performing the role of a juror.  It has to be a functional assessment, otherwise anyone who wore spectacles, had a hearing aid, had a limp, they would all be excluded per se, on the basis of a 4(3)(l) reading that it would simply be unacceptable.

Indeed, I think Tribunal member Roney at first instance said, if there were no ramps leading to the courthouse, it would not be correct to say that 4(3)(l) would preclude a person in a wheelchair from effectively performing the role of a juror, and yet that is a functional assessment that would have to be made.  So too was the assessment or the interpretation that was undertaken by the Deputy Registrar here. 

What she did was to say, erroneously we say, there was no provision for the swearing in, under the Oaths Act, of an interpreter for a juror, and secondly, there could be no additional person in the jury room.  Now, it has been commonly held I think all the way through that that is probably a wrong interpretation.  The Court of Appeal said it did not matter whether it was or was not but we dispute that that is the case.

KIEFEL J:   The reference in section 4(3)(l) to:

performing the functions of a juror –

Is that the functions of a juror in the context of the criminal justice system and how it operates under the various statutes?

MS NOMCHONG:   It would be both in terms of the criminal justice system and the civil justice system, your Honour.

KIEFEL J:   But what I mean by that is, including the conditions in which a jury must operate, a jury decision‑making is undertaken.

MS NOMCHONG:   Yes, your Honour.

KIEFEL J:   Well, that is the point though, is it not?  That, if one accepts section 4(3)(l) is referring not only to the performance by that person intellectually of the role of the juror but also of the undertaking the functions of a juror as they are limited by the context in which jury decision‑making is made, we are in a different area.

MS NOMCHONG:   The discriminatory conduct, your Honour, arises because that assessment is based upon a special service and the special service is the Auslan interpreter.  Now, everyone agrees and it is common ground that the special service was the Auslan interpreter.  The interpreter cannot be separated from the natural person who performs that task and therefore, by taking into account them as a special service, the Deputy Registrar has contravened section 10(5) of the Act which specifically says you cannot take into account a wheelchair, a guide dog, a walking stick and, in this case, an Auslan interpreter when you are making a comparison about whether someone can do something or not do something.  That is the whole point of this legislation.

KIEFEL J:   But the distinction I was seeking to draw for the purpose of your argument was that one may not, in the context of section 4(3)(l), be looking just at the person as they function with these services attached which would enable them to do what is required – say as a juror performing intellectual functions, there is no doubt that that could be undertaken – but rather that section 4(3)(l) in its references to the performance of the functions of a juror takes you into the jury room, the context of that, the limitations that operate within the criminal justice system for the decision‑making of jurors and all that that involves.  That is where the limitations come in.

MS NOMCHONG:   Yes, your Honour, but it is not a limitation that cannot be accommodated reasonably.  That is, if the two matters upon which the Deputy Registrar was stuck, that is, the taking of an oath, the Oaths Act, while it does not make specific provision for an interpreter for a juror, there is a general oath for interpreters and all that would need to be done was an exercise of the inherent power of the court to direct its own matters and a direction be given to the interpreter not to disclose any of the jury deliberations.  The person is not participating.  They are simply interpreting what has happening in the jury room and conveying it.

KIEFEL J:   But you are saying that – the court does not intrude into the jury room either.  Are you saying that the court can give directions which overcome the statutory prohibitions?

MS NOMCHONG:   No, the court can give a direction to the interpreter, your Honour.  The mischief that was at the heart of the Deputy Registrar’s decision‑making was that because you could not give an oath to an interpreter, thereby they would be at risk of disclosing jury deliberations.  The oath that is contained in the Oaths Act 1867 is directed to two things; that is, one, trying the matter before them truly, and the second is keeping jury deliberations confidential.

Now, interpreters’ oaths are directed towards interpreting faithfully and that of course has never been any difficulty.  There has never been any contravention by the respondent that the Auslan interpreter would not deliver a true and faithful interpretation.  So the only thing left to do was to issue a direction, which can of course be done, and the Jury Act itself gives the court leave, that is, a third person can be in the jury with the leave of the court. 

So, in that circumstance, if the interpreter which is a reasonable special service or reasonable accommodation, to use the language of the Disability DiscriminationAct (Cth), is to allow the interpreter to be there to participate in those jury deliberations and simply to give the direction that they remain confidential. There is no great impediment, there is no specific provisions delineating that. For example, the bailiff is given a similar direction. The bailiff’s oath is so that he or she does not communicate with a jury and there is nothing in the Jury Act or in indeed in the Oaths Act which then is a special direction to the bailiff. 

That seems to be caught perhaps under the provisions of section 70 which makes offences about disclosing deliberations of the jury.  So those things would apply equally, we say, to an interpreter.  There is no great statutory impediment to allow an Auslan interpreter to be present in jury deliberations.

KIEFEL J:   I am sorry, what provision of the Jury Act were you just referring to?

MS NOMCHONG:   Yes, it was section 70 creates a range of offences about protecting the confidentiality of jury deliberations.  So, your Honour, we say that the application for the Auslan interpreter was misconstrued by the Court of Appeal and, indeed, misconstrued by QCAT before it in a way which was impermissible and then misled the court, both in relation to direct and indirect discrimination, because clearly what happened on a direct level was that, and we will come to this when we deal with causation, but in comparing the applicant with a person who needed an Auslan interpreter, what QCAT did at first instance on appeal and the Court of Appeal permitted was that you would take into account the third person.

Their comparison then was a complete misapprehension of the way in which the legislation should work because what they did was they misapplied the principles in Purvis, a decision of this honourable Court, and they conflated it with the prohibition in section 10(5).  So, what they said is that you compare Ms Lyons needing an Auslan interpreter with another person who wants to be a juror and just bring a friend.

Now, clearly that cannot be what the legislation is designed to mean because section 10(5) would have no absolutely no work to do.  It would be like a visually impaired person presenting for boarding on a plane with their guide dog and being told, no, I am terribly sorry, you cannot come because the comparator would just be another passenger not visually impaired who just wanted to bring their dog for company.  That is the corollary.

KIEFEL J:   The comparator that you have just referred to was that not taken up by the Court of Appeal though, was it?

MS NOMCHONG:   I am sorry, your Honour, I did not hear you.

KIEFEL J:   The comparator that you have just referred to, was that not taken up by the Court of Appeal?

MS NOMCHONG:   That is right and, your Honour, it was the wrong ‑ ‑ ‑

KIEFEL J:   I thought they held that the comparator was a person with hearing seeking the assistance of another in the jury room.

MS NOMCHONG:   No, the comparator was a person who did not have a hearing impairment who simply wanted to bring a third person into the jury room.

KIEFEL J:   Yes, that is right.

MS NOMCHONG:   So the very mischief that section 10(5) is designed to avoid was completely given no weight by the Court of Appeal and instead what they did was to render a verdict which would mean there would be direct discrimination ever, because the comparator would always be the person in precisely the same circumstances but without the disability and therefore the dog on the plane, the walking stick, the wheelchair, the person with the Auslan interpreter, would always be compared with someone who had those things by choice rather than by necessity.

In indirect discrimination, the error arises because what QCAT did and what the Court of Appeal upheld was that there was a failure to find a term and this is a much stronger part of our case, we say, because the term was clearly, in order for Mrs Lyons to be able to participate as a juror, she had to do it alone.  She had to not have an Auslan interpreter.  Now, whatever way you phrase that and this Court has held both in Waters and in Banovic that you are not bound by the precise formulation of your term because what you are really looking at is substance, not form.

The substance of this is Mrs Lyons had to participate as a juror without her Auslan interpreter.  So that means that she had to either be able to confer using conventional speech, which she cannot do, or simply sit there in silence and that would not be effectively carrying out the role of the juror.  Now, the term, of course, they said – there was no term imposed and they failed to take regard to all of the authorities to which their attention was drawn; that is, a term may be implicit, it does not have to be express, it does not have to be imposed, and yet if you read the language both of the appeal panel and the Court of Appeal, they were saying, well, where was the Deputy Registrar’s term?  Where was it written down?  Where was it given to Ms Lyons? 

That is not how it arises.  In Waters v Public Transport Corporation in which this Court considered a decision by the Public Transport Commission to take away conductors, seemingly a value less judgment, it was found that the term – perhaps if I just start again.  That is, the removal of conductors on trams did not seem to have any discriminatory effect, save for the fact that there are a number of people with disabilities who utilised conductors on trams to assist them getting on and off the tram, and what the High Court found was that the term – was the complainants had to be able to use the tram without conductors and they held that term to be indirect discrimination.

That is precisely on all fours here.  The term was you have to be able to perform work as a juror but without an Auslan interpreter.  So the term was, here, something that has been dealt with by the Full Court of the Federal Court in Clarke v Catholic Education Office, and the Federal Court had no difficulty in determining that a deaf student had a term imposed upon him that he be able to undertake his schoolroom classes without the aid of an Auslan interpreter.  That was the term that was imposed.  That was the term that was not reasonable in the circumstances and that was the term that founded indirect discrimination.  So the findings are all in relation to those matters.  I note the time but I just want to talk briefly about causation.

KIEFEL J:   You have a little time until the red light.

MS NOMCHONG:   Thank you.  Your Honours, in relation to causation, and I have dealt with it briefly anyway, it really simply does not make sense.  If your Honours go to application book 128, this is really a pure and simple exercise in statutory constructions because what it is is that section 7 of the Act says that an attribute is an “impairment” in 7(h).  In section 8, it stipulates:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –

(a)a characteristic that a person with any of the attributes generally has; or

(b)a characteristic that is often imputed to a person with any of the attributes –

Now, it was common ground that the use of sign language and the need for an Auslan interpreter was a characteristic of a person who was deaf.  So by discriminating against Ms Lyons on the basis of her need for an Auslan interpreter was ipso facto discrimination against her on the grounds of her deafness.  It is a pure matter of statutory construction.

But what has happened in QCAT and in terms in the Court of Appeal is that they have somehow interwoven or come to some perverse arrangement that, because all that was happening was an application of the Jury Act, there was not in fact this causative link.  Well, there has to be, in our respectful submission, in relation to that.  

The Deputy Registrar’s decision‑making was focused on whether an Auslan interpreter could be present to enable the applicant to participate as a juror.  Axiomatically, we say, deafness was a substantial, if in fact not the predominant reason for the decision.  The predominant reason for the decision was not simply an application of 4(3)(l), it was the determination of the application to have an Auslan interpreter. 

Finally, your Honours, I want to deal with the issue of section 106 of the Anti‑Discrimination Act and this has been dealt with in various guises. I should say at the start it was not a provision relied upon by the respondent, but what section 106 says, and your Honours can find that at application book 135, is that in order for the provisions of the Anti‑Discrimination Act to be ousted by the operation of another Act, it has to be, and I read:

necessary to comply with, or is specifically authorised by –

that other Act. Now, Tribunal member Roney found, and it was not disturbed anywhere else, that what was occurring here was not an application because everyone concedes that there was probably wrong interpretation, so that the wrong interpretation means that at the end of the day there was not compliance with section 106 that would have allowed the Jury Act or the Oaths Act to displace the provisions of the Anti‑Discrimination Act.  Thank you.

KIEFEL J:   Thank you.  Yes, Mr Solicitor.

MR DUNNING:   Thank you, your Honours.  Your Honours, beyond what we have in writing, we wish only to supplement that with these oral submissions.  Firstly, it may be accepted that the issue was run of public interest and that that was something that was taken into account by the Court of Appeal, and in that regard may I direct your Honours please to paragraph [7] of the Court of Appeal’s reasons, or Justice Holmes’ reasons, page 97 of the application book, where her Honour in terms held that she accepted that it was “a matter of significant public interest” but the basis for the refusal of the grant of leave was that it did not enjoy sufficient prospects.

That, your Honours, leads to a reference to what her Honour recorded in paragraph [5] and that is what was before the Court of Appeal was an application for leave to appeal.  It was not a rehearing on the merits.  With very great respect to our learned friends, nowhere either in argument today, nor in their application for special leave, which your Honours will find at page 109 of the application book, do our learned friends identify what is in fact the special leave point provoked by the decision of the Court of Appeal, and further, how this case be a useful vehicle for in some way exploring the law in relation to these provisions of the Anti‑Discrimination Act in Queensland and, if it be relevant there, application in analogous provisions interstate.

Absent that, it is just not an appropriate vehicle for a grant of special leave because the hearing in the High Court could do no more than the hearing in the Court of Appeal could do, and that is look to see whether it enjoyed a certain level of prospects.  Indeed, the position in the High Court would be worse because all that the Court would be left to do would be to examine if the Court of Appeal fell into error in some way in its assessment of whether a grant of leave should have been made in that court. 

KIEFEL J:   But Mr Solicitor, the fact that there is a requirement of leave at the intermediate appellate court level does not mean that this Court, on an application for special leave to it, cannot look at the matter.  All it means is you look to the application for leave brought to that court and look to the decisions below it to see whether or not the Court of Appeal was wrong in the view it took of those decisions.  The fact that you interpose a level of leave does not alter the fact that this Court can look to the substance of those decisions.

MR DUNNING:   No, I would accept that, naturally.  What it does have an impact upon, though, is it draws attention to the fact that what it was that came before the Court of Appeal illuminates what it is that might usefully be determined on a full hearing of an appeal, and when one looks to how the matter was disposed of in the Court of Appeal and the reasons that the court came to the view that there was no realistic prospects of success, one ….. will not provide a means by which those underlying issues, if I can call it that way, which we accept, can properly be considered by this Court, notwithstanding that there was a leave requirement interposed in the immediate appellate court.

KIEFEL J:   Mr Solicitor, I think we would be more assisted if you went directly to the answers to the questions of direct and indirect discrimination.

MR DUNNING:   Your Honours, can I move first to the application of section 4(3)(l) of the Jury Act, and your Honours will find that on page 138 of the application book.  In our respectful submission, that did not, as was rightly held in the Court of Appeal and elsewhere, impose upon the Deputy Registrar some obligation of the setting of any criteria.  Rather, it nominated a criteria which the Deputy Registrar was obliged, and did not have any choice in, the application of.  It follows, in our respectful submission, that as a consequence of that, if there was an error made by the Deputy Registrar in the application of 4(3)(l), the response is, as Justice Kiefel suggested, some form of review of that decision and not in these proceedings, because these proceedings cannot address that error, if it was such an error.

NETTLE J:   Might it not be an error of law in the proper construction of 4(3)(l)?  That is to say, having regard to the Anti‑Discrimination Act, that a person does not relevantly suffer from a disability within the meaning of 4(3)(l) if that person can, with appropriate aids, perform the functions which are otherwise required?

MR DUNNING:   Justice Nettle, that might be right but underlying that is a determination of fact to see whether that statutory criteria expressed in that way is met.  So, if we take it to the facts of this case, one would need to make an assessment of the individual prospective juror to see whether, by reason of the disability, that test would or would not be met in the relevant circumstances.  So that ultimately that would be a question of fact.

NETTLE J:   But was there any question of fact here that the applicant would have been able to perform the function of a juror with the aid of an Auslan interpreter, or was that accepted as being the case?

MR DUNNING:   Your Honour, that was not challenged, no.

NETTLE J:   Well then, it is purely a question of construction as to whether such a person, with the aid of an interpreter, is capable of discharging the functions of a juror within the meaning of the Jury Act without contravening 4(3)(l), is it?

MR DUNNING:   Yes, yes, we would accept that.

NETTLE J:   Well then, is it not a question of law appropriate to be resolved in the way in which it was sought to be done on appeal to the Court of Appeal, rather than merits review?

MR DUNNING:   Yes, and their Honours gave consideration to that and came to the conclusion they came to.  Your Honours, connected with that is the question that, in our respectful submission, is assumed rather than ultimately answered by the applicant and that is the power to have made a direction in respect of the use of the interpreter in the jury room.

Our learned friend gave your Honours reference to section 70 of the Jury Act and said, well, you have got the capacity, for example, for the bailiff to have that sort of contact with the jury.  Might we please direct your Honours’ attention to section 54 of the Jury Act.  Your Honours will find that at pages 142 to 143.  What your Honours will notice from that is in subsection (1) there is an obligation that another person:

not communicate with any of the jurors without the judge’s leave.

Then in subsection (2)(a) of 54, express provision is made for “the officer of the court who has charge of the jury”.  Compare that, in our respectful submission, with the situation of the Auslan interpreter and there is not the same statutory architecture to deal with the fact that there would need to be another person in the room ‑ ‑ ‑

NETTLE J:   But I took Ms Nomchong to be relying on subsection (1) and the ability of the judge to grant leave for the interpreter to be present. 

MR DUNNING:   Yes.

NETTLE J:   Would the judge have that ability, do you say, under subsection (1)?

MR DUNNING:   The conferral of the discretion does not seem to be limited in terms in subsection (1).  So, in an appropriate case, plainly the judge has a power to allow the communication of a person with a juror by a grant of leave.

NETTLE J: If that is right, does it go to the application of section 106 of the Anti‑Discrimination Act?

MR DUNNING:   Yes, it would.

NETTLE J:   Thank you.

KIEFEL J:   And is there potentially also an anterior question as to whether or not an Auslan interpreter actually communicates with the person when they are interpreting or translating for them?  Communication implies communicating information from one person to another, communication being the thoughts or information that person A wants to give to person B.  If someone is translating, are they communicating?  Is there not a question of law there?

MR DUNNING:   Justice Kiefel, yes, in our respectful submission, one that is readily answered, that yes, they are communicating because A is communicating to B something, albeit A is endeavouring to communicate faithfully and only that which C has imparted to A and which ‑ ‑ ‑

KIEFEL J:   Well, perhaps the question then is whether or not the nature of that communication goes to the exercise of the judge’s discretion to grant leave.

MR DUNNING:   Yes, that is correct.

KIEFEL J:   What do you say about the vexed question of the Purvis questions that often arise?

MR DUNNING:   Your Honour, in our submission, the Court of Appeal was correct to deal with Purvis in the way that it did.  It may be accepted that the position is a vexed one as your Honour has ‑ ‑ ‑

KIEFEL J:   Well, I should not say vexed.  It is difficult in its application.

MR DUNNING:   Well, I was about to say it is vexed in as much as, and perhaps vexed was an expression your Honour was permitted to use but for me not to adopt, but in this sense.  Each of these cases will have an idiosyncratic set off facts and each of them will present a suite of difficulties in the application of those facts to determine whether in truth there has been an act of discrimination by a person or whether in truth that person was simply fulfilling a function that, if we bring it back to the facts of this case, that person was charged to do and was not that person, him or herself, imposing such a term.

So, in our submission, the difficulty with the comparator here, the difficulty that will arise in every case – sometimes the difficulty might be easily resolved.  In other cases, it may admit a much wider range of respectable views as to what it is, but nonetheless the Court of Appeal gave that matter careful consideration for its reasons and it came up with what it considered to be the appropriate comparator and when one gets to that point, what it did was, it made a decision on the basis of the case before it and in that sense does not raise a matter of public importance.  Your Honours, beyond that, we are going to rely on what is in our written submissions, unless there is any other aspect of the case.

KIEFEL J:   Yes, no, thank you, Mr Solicitor.  We do not need to hear you in rely, Ms Nomchong.  There will be grant of special leave.

MS NOMCHONG:   Thank you. your Honour.

KIEFEL J:   Could I have a time estimate for how long the argument would take?

MS NOMCHONG:   We would hope, less than a day, probably half a day, I would imagine.

KIEFEL J:   Would you agree with that, Mr Solicitor?

MR DUNNING:   We would, thank you, your Honours.

KIEFEL J:   Could you have your instructing solicitors please obtain a copy of the timetable of the directions which will need to be maintained.

MS NOMCHONG:   Thank you, your Honours.

KIEFEL J:   Thank you.

MR DUNNING:   Thank you, your Honours.

AT 12.10 PM THE MATTER WAS CONCLUDED