Lyons v State of Queensland
[2014] QCATA 302
•21 October 2014
| CITATION: | Lyons v State of Queensland [2014] QCATA 302 |
| PARTIES: | Gay Prudence Lyons (Applicant/Appellant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | APL008-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 26 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Presiding Judicial Member Senior Member Oliver |
| DELIVERED ON: | 21 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Insofar as leave to appeal is necessary, it is refused. 2. The appeal is dismissed. |
| CATCHWORDS: | DISCRIMINATION – DIRECT AND INDIRECT DISCRIMINATION- JURY – ELIGIBILITY FOR JURY SERVICE – Where the applicant is a person with an impairment (deafness) – whether the applicant was excluded from jury service because of her impairment – where necessary for the applicant to have an interpreter in the jury room to perform the function of a juror – where presence of a person not a juror in the jury room prohibited as a matter of law – whether a term or condition was imposed on the applicant for her to perform jury service – where tribunal rejected the term contended for by the applicant – whether duty to ascertain alternate term in the circumstances Anti-Discrimination Act 1991 (Qld) ss 10, 11, Jury Act 1995 (Qld) ss 4, 50, 54 and 70 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 Australian Iron and Steel Pty lt6d v Banovic (1989-1990) 168 CLR 165; |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr O’Gorman SC instructed by Australian Disability Law. |
| RESPONDENT: | Ms Mellifont QC with her Mr Scott of counsel, instructed by Crown Law |
REASONS FOR DECISION
Ms Lyons is profoundly deaf. In February 2012 she was summonsed for jury service at the criminal sittings of the District Court at Ipswich. After she received the summons she informed the District Court Registrar of her hearing impairment and that she would require two translators to assist her if she was selected as a juror for a trial. She could effectively communicate with Auslan translators and this is not contested.
The Deputy Registrar, after considering Ms Lyons circumstances, and after there was consultation with the Sherriff, and also reference to the provisions of the Jury Act 1995 (Qld), told Ms Lyons that because of her hearing impairment and the need to have Auslan translators in the jury room during deliberations, she could not to serve as a juror.
Ms Lyons then made a complaint to the Anti-Discrimination Commission of Queensland. Her complaint was that the respondent had engaged in both direct and indirect discrimination. The complaint of direct discrimination was that being a person with an attribute, a hearing impairment, she was treated less favourably then a person without the attribute would be treated.[1] The indirect discrimination was imposition of a term by the Deputy Registrar which could not be complied with and was unreasonable in the circumstances.[2] Ms Lyons’ complaint was transferred to the Tribunal.
[1]Anti-Discrimination Act 1991 (Qld) s 10.
[2]Ibid s 11.
After a hearing in June 2013, the Tribunal delivered a decision, with comprehensive reasons, on 11 December 2013 dismissing Ms Lyons complaint. This is an appeal from that decision. The grounds of appeal can be summarised as follows:[3]
(a)Determining that the impugned conduct was not based on the appellants impairment (that is, causation);
(b)Failing to treat as irrelevant the applicants need for special services and facilities;
(c)Not determining that the appellants impairment was a substantial reason for the impugned conduct;
(d)Failing to treat the Deputy Registrar’s motive for engaging in the impugned conduct as irrelevant;
(e)Its formation of the “comparator”;
(f)Formulating the “term” imposed upon the appellant in applying section 11 of the ADA; and
(g)Holding that it was bound by the precise formulation of the term relied upon by the appellant.
[3]The applicant’s outline of submissions, page 2 at [5].
The respondent contends that some of the grounds of appeal involve questions of mixed fact and law and therefore with respect to those grounds leave to appeal is necessary.[4] Having said that, there does not seem to be any dispute about the relevant facts underpinning the primary decision although there is potentially, some dispute as to how those facts should be applied. An example is with respect to the allegation of indirect discrimination and the applicant’s formulation of the term sought to be imposed. It is now contended that the learned Member, having rejected the term contended for by the applicant, should have formulated a term consistent with the facts as found by him, if one could be identified in the circumstances.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(b).
It is appropriate to first consider the legislation relevant to this appeal.
The Jury Act
Section 4 of the Jury Act 1995 (Qld) sets out those persons who are qualified to serve as jurors. Subsection (3) sets out those persons who are not eligible for jury service and it includes:
(l)a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror.
Other relevant sections of the Jury Act 1995 (Qld) are s 50, s 54, and s 70.
Section 50 provides:
50Jury to be sworn
The members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.
Section 54 deals with restriction on communication and is in the following terms:
54Restriction on communication
(1)While a jury is kept together, a person (other than a member of the jury or a reserve juror) must not communicate with any of the jurors without the judge’s leave.
(2)…
(3)A person who contravenes subsection (1) may be punished summarily for a contempt of the court.
Section 70 deals with the confidentiality of jury deliberation and provides:
70Confidentiality of jury deliberations
(2)A person must not publish to the public jury information.
Maximum penalty—2 years imprisonment.
(3)A person must not seek from a member or former member of a jury the disclosure of jury information.
Maximum penalty—2 years imprisonment.
(4) …
The Anti-Discrimination Act
It is not contentious that the applicant has an attribute within under s 7 of the Anti-Discrimination Act that is, a hearing impairment.
The meaning of direct discrimination is set out in s 10 of the Anti-Discrimination Act which is:
(1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
(2)It is not necessary that the person who discriminates considers the treatment is less favourable.
(3)The person’s motive for discriminating is irrelevant.[5]
[5]Examples excluded.
Indirect discrimination is provided for in s 11 of the Anti-Discrimination Act and it provides:
(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.
(2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a)the consequences of failure to comply with the term; and
(b)the cost of alternative terms; and
(c)the financial circumstances of the person who imposes, or proposes to impose, the term.
(3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4)In this section—
term includes condition, requirement or practice, whether or not written.[6]
[6]Examples excluded.
The decision below
The Deputy Registrar of the District Court at Ipswich acts under a delegation from the Sherriff of Queensland. All prospective jurors must fill out a questionnaire to determine if they are eligible for jury service. This is primarily to address the eligibility criteria set out in s 4(3) of the Act. If a juror is incapable of performing jury service, the Deputy Registrar can excuse the juror. If not excused, and once summonsed for jury service, the juror must attend the criminal sittings of the District Court as required.
Ms Lyons completed the questionnaire and returned it to the Deputy Registrar but did not tick any box that would indicate that she was not qualified, or incapable, of performing jury service.
When she was summonsed to attend the court, Ms Lyons emailed the court to indicate that she was ‘looking forward to sitting on the jury’ but as a deaf person, she would require the services of two Auslan interpreters. She gave details about how this could be arranged. Auslan is an abbreviation for Australian Sign Language, which is commonly used to assist deaf people to communicate.
There was no immediate response to Ms Lyons email. However, after consultation with a legal officer in the Brisbane Courthouse and communications with Mr Leonard, Sheriff and Marshall Team Leader in Criminal Jurisdiction, the Deputy Registrar wrote to Ms Lyons in the following terms on 15 February 2012:
After confirming with the Sheriff at the Brisbane Supreme & District Courts, unfortunately you won’t be able to perform jury service.
There is no provision in the Jury Act to swear in an interpreter for a juror. It also isn’t possible to have another person in the jury room other than the jurors and bailiff whilst deliberating.
I will need to excuse you on that basis. If, in the future, you get another jury questionnaire, please note on it that you are a deaf person.
Sorry about the delay in getting an answer in relation to an interpreter, I’ve never had the request before and wanted to make sure I was providing you with the correct information.
Thank you very much for making yourself available to do jury service, I wish more people had your community spirit, it would make our job a lot easier.
It was essentially on the basis of this statement that the learned Member found that the decision to exclude the applicant was not based on Ms Lyons’ attribute in the sense contemplated by s 10 of the ADA[7]. He said:
because there is no serious challenge to the process of reasoning which the Sheriff and Deputy Registrar adopted in this case…..I find that it (the decision) was based upon their interpretation of what was permissible at law, albeit that this required as an element, an appreciation of the fact that the Complainant was deaf and required an Auslan interpreter to be present in the jury room.[8]
[7]Reasons [171].
[8]Reasons [169].
The learned Member specifically rejected the applicant’s contention that the decision to excuse the applicant was on the basis of her attribute and therefore she was treated less favourably than a person without the attribute. The interpretation meant that an additional person was not permitted in the jury room during the jury’s deliberations.
As for the complaint of indirect discrimination, the learned Member considered the “term” sought to be imposed on the applicant as articulated by her being the “condition of being able to communicate by conventional speech in the jury room”.[9] He rejected the contention that such a term was imposed. In doing so, he was mindful of the need for the term sought to be imposed to establish indirect discrimination must be formulated with some precision and referred to Australian Iron and Steel Pty Ltd v Banovic.[10]
[9]Reasons [174].
[10](1989-1990) 168 CLR 165 at 185.
He concluded, after careful analysis, that there was no condition imposed on her by the Deputy Registrar that she be able to communicate by conventional speech in the jury room. Further, the learned Member said, “it was not the fact that the person to attend in the jury room was an interpreter but rather the mere fact that that person would be required to be present in the room was the relevant factor”. Even though the proposed term was said to have been imposed, there was no evidence or submission as to how the term was said to have been imposed and it was not suggested that the Registrar so informed the applicant of the term the precise formulation of which was alleged.
As to the reasonableness of the term, again this was confined to the term contended for by the applicant. As the learned Member found that “there was no term or condition of the kind which is relied upon, it is not strictly necessary to decide the question of whether, had such a term been imposed it would have been reasonable.” However, had the learned Member accepted that the term contended for was in fact imposed he said he would not have found the term to be reasonable.
It is now contended by the applicant that once the term was rejected, the tribunal should have formulated its own term.[11] The term suggested for the first time in the appeal is along the lines of:
as a potential juror she be able to participate in the jury room with an Auslan interpreter.
[11]The State of New South Wales v Avery & Ors (2006) 1230 CLR 174 at [208].
Having concluded that the complaint for both direct discrimination and/or indirect discrimination was not made out to his satisfaction, the application was dismissed.
Re: the Jury Act 1995 and an application by the Sheriff of Queensland[12]
[12][2014] QSC 113.
Before dealing with the grounds of appeal, it is appropriate to first discuss a recent Supreme Court decision which considered the very subject matter of the application before the primary Tribunal, and now this Appeal Tribunal.
The case provides support for the conclusions reached by the learned Member and the approach taken by the Deputy Registrar. In Re: the Jury Act 1995 and an application by the Sheriff of Queensland[13] the Sheriff of Queensland referred the question of whether a prospective juror, who is deaf and required an Auslan interpreter, was eligible for jury service. Justice Douglas found that the person was not eligible to serve on a jury.
[13][2014] QSC 113.
His Honour gave consideration to s 4(3)(l) of the Jury Act, which restricts persons with a physical disability from being a juror. The section proscribes that a person with such a disability is incapable of effectively performing the functions of a juror and is ineligible for jury service. His Honour also considered other jurisdictions where deafness, as a disability, has sought to be overcome with the use of Auslan interpreters. He accepted that this would overcome the problem with hearing the evidence during the course of the trial, but it did not overcome the potential difficulties of there being an additional person in the jury room who was not a juror. He emphasised the point this way:
Communication or discussion between jurors has been emphasised as an integral part of the jury system because of their collective duty to pool their experience and wisdom in coming to a verdict, see Watson and Ors (1988) 87 Cr App R 1, *. In the absence of legislative provision, it is clear that the jury is bound to deliberate in private, see Gody v Wetherill [1915] 2 KB 674, 675.
He also made reference to s 54 of the Act which prohibits a person from communicating with any of the jurors without the judges leave and said that it was “not at all clear” that the leave would permit the presence of an interpreter in the jury room during the deliberations. The purpose of the section seemed to be directed to maintaining the secrecy of jury room deliberations. In jurisdictions that do permit an interpreter in the jury room, this has done through legislation but that has not happened in Queensland.
One other difficulty His Honour indentified is the lack of explicit legislative power permitting an interpreter to swear an oath or make an affirmation to maintain the secrecy of the jury’s deliberations. He held therefore that it would not be permissible for an interpreter to perform a similar role in the jury room as a “13th” juror in the absence of a specific legislative provision. He concluded that:
In those circumstances, and in the absence of legislative provision to facilitate the use of an interpreter to assist her to engage in jury room discussion, my ruling is that the individual is incapable of effectively performing the functions of a juror and therefore ineligible for jury service. Should I be wrong in that view of her eligibility, I would have exercised my discretion under s 20 of the Act to excuse her from jury service, at least for the current jury service period on my own initiative because of the state of her hearing and in the interests of the conduct of a fair trial.
His Honour’s decision should be afforded great persuasive value and we see no reason to depart from it.[14] Indeed, we are respectfully of the same view as His Honour. This in our view is a complete answer to the applicant’s claim. It is of course the case that the learned Member, unlike the Deputy Registrar, did not consider that the applicant was statutorily precluded from serving as a juror.[15] The learned member saw the Deputy Registrar as acting on the law as she saw it something which would have necessarily been applied in case of the relevant comparator. The applicant failed because the learned member was not satisfied that the bases on which the claims were advanced were made out. In the case of direct discrimination, the learned Member was not satisfied there was any association between Ms Lyon’s attribute and the decision to exclude her from jury service. In respect of indirect discrimination, the condition or term alleged to have been imposed was not accepted by the learned Member Although we consider that what we have said about the judgment of Douglas J is sufficient to dispose of the appeal, we consider it appropriate to consider each of the grounds of appeal in case a different view is taken elsewhere.
[14]Bone v Commissioner of Stamp Duties (1972) 2 NSWLR 651 at 654 per Jaccobs P.
[15]Reasons [170] and [187]
Determining the impugned conduct was not based on the appellant’s impairment
This ground of appeal is a challenge to the Tribunal’s finding that the impugned conduct was not based on the appellant’s impairment. It is submitted that because, the learned Member disagreed with the Deputy Registrar’s interpretation of the Jury Act, this led the Tribunal to reach its own conclusion, inconsistent with that contended for by the applicant, and this thereby permitted the respondent to avoid liability by asserting its reliance upon an incorrect, unnecessary, and unreasonable interpretation of the law (false belief) applied by the Deputy Registrar thereby acting ultravires the Jury Act. In adopting the interpretation that the Act did not permit an interpreter to be present in the jury room the Tribunal failed to have regard to the warning in Waters v Public Transport Corporation.[16] That is, a discriminator would not be allowed to evade the implications of anti-discrimination legislation by redefining for itself the activities of which the aggrieved person complained. It is also contended that it was Ms Lyons impairment, and the need for an interpreter, which led to the decision to excuse her from jury service and this decision to excuse, could not be isolated from the matters that gave rise to that decision, those matters being her hearing impairment. By doing so, the purpose of the anti-discrimination legislation was defeated.
[16][1991] 173 CLR 347.
This submission must be considered in all the circumstances of the case as is required by s 10 of the ADA. The test to be applied is to decide whether the person with the attribute is treated less favourably than another person without the attribute in circumstances that are not materially different. This includes all of the objective features which surround the actual or intended treatment of the particular individual. It is those circumstances that are the circumstances attending the impugned conduct.
It is difficult to see, even using the example proffered by the learned Member of a person who had difficulty in understanding English (the comparator) how the appellant was treated differently to any other person who might require the assistance of a translator in the jury room. We do not see anything artificial in the approach taken by the learned Member. Firstly on the basis upon which Ms Lyons was excused and secondly, in the application of s 10 and the circumstances of the particular case.
Failing to treat as irrelevant the appellants need for special services and facilities
Here it is contended that the learned Member failed to have regard to s 10(5) of the ADA in giving consideration to the appellant’s requirement for special services or facilities. The subsection provides:
In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
The submission is directed to the consideration of the need for an Auslan interpreter not only in the actual hearing, but also in the jury room. That is, the presence of a thirteenth person in the jury room. The contention is that by giving consideration to the obvious difficulties with an extra person in the jury room, it is submitted that this was an error because subsection (5) specifically excludes such a consideration.
However, the consideration cannot be ignored when there is a statutory constraint or prohibition on a person who is not a juror being present in the jury room. Even though Ms Lyons does require special services or facility that fact was not relied on for determining the appropriate comparator.
We accept the submission of the respondent that s 10(5) is similar to a provision considered in Purvis[17] which noted at paragraph [217] of the judgment in that case:
Identifies one circumstance which does not amount to a material difference: “the fact that different accommodation or services may be required by the person with the disability”.
[17]Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92.
Of that provision, the majority held at [222]:
Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs.
The appellant’s contention, however, went further than that. She sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of disability intrude. That is not what the Act requires.
Not determining that the appellants impairment was a substantial reason for the impugned conduct
We have already dealt with this in some detail above. It was a consideration of all of the circumstances, and the effect of the interpretation of the Jury Act with respect to the impermissibility of an additional person in the jury room was the reason for the applicant being excused. That conclusion was open to the learned Member, and it is not correct to say, when considering an appropriate comparator, that the sole reason for her exclusion was her hearing impairment. We see no reason to interfere with that conclusion.
Failing to treat the Deputy Registrar’s motive for engaging in the impugned conduct as irrelevant.
Section 10(3) of the ADA specifically provides that motive for a decision which might result in discrimination is irrelevant. The learned Member was acutely aware of that and made reference to it in paragraph [99]. We agree that there is nothing in the reasons which would suggest that the learned Member failed to adhere to that statutory obligation. We accept that the reasons for making a decision are not the same as motive and adopt what has been submitted by the respondents, and observed in Purvis at [160]:
The reasoning in discrimination cases in this court is consistent with a view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. However, one can have a reason for doing something without necessarily having a particular object in mind.
Further, we would also observe that the evidence does not suggest that the Deputy Registrar embarked on a particular motive to exclude the appellant. Rather, after having considered the various sections of the Jury Act, she sought advice from the Sherriff and, even from the presiding Judge in Ipswich, and made a reasoned decision as to whether Mrs Lyons was eligible for jury service.
Formulation of the ‘comparator’
The learned Member discussed the appropriate comparator in two places. Firstly at [139] and secondly at [147]. It is submitted that the comparator postulated in [139] is of no ‘heuristic value’ to the direct discrimination enquiry. The reference to paragraph [139] is the decision made by the Deputy Registrar and the circumstances in which she decided to make the decision was to adopt the appropriate comparator as a person ‘who, although they did not have the particular applicants impairment, are unable to “effectively perform the functions of a juror”’. The learned Member then went on to say that, as we understand it, any comparator could not be a person who is able to effectively perform the functions of a juror because if they could, the Deputy Registrar would not have excluded the juror.
The appellant is critical of this comparator in that it provides no ‘heuristic value’ to the direct discrimination enquiry it is entirely circular so the submission goes.
However, the comparator postulated in [147] by the learned Member is in the following terms:
[i]t seems to me that the appropriate comparator is another person without the Complainant’s disability or impairment but who requested another person to be present in the jury room. That other person might have been an interpreter, to assist the juror in case they did not understand all that was going on there or did not have a sound grasp on the English language as thought might be appropriate, without actually falling into the category which would have excluded them from jury service on the basis that they did not read or write the English language. It seems to me to follow from the Registrar’s reasoning, that if applied consistently in that situation the comparator would also have been excluded from the jury on the basis that that other person would not be permitted to accompany the juror.
Even though, it is submitted, that it would be most unlikely that a person would fit into the category of the comparator postulated by the learned Member, it does not mean that it is an inappropriate comparator for the purposes of s 10. We adopt what the respondent has submitted: that Purvis and Dovedeen[18] demonstrates that the likelihood or otherwise, that a particular comparator exists is not relevant to the question as to how the comparator is to be defined. That question is to be resolved according to what are the circumstances attending the relevant impugned conduct. Once those circumstances are identified, the question of whether there has been direct discrimination is to be resolved solely according to whether another person without the appellant’s disability would have been treated in the same way in those circumstances. The surrounding circumstances cannot be ignored. They are, in particular, the fact that a third person, under the Jury Act, is not permitted to be in the jury room to assist in the jury’s deliberation. Once this notion is accepted, then the comparator postulated is not imaginary although the circumstances where it would arise would be rare.
[18]Dovedeen Pty Ltd & Anor v GK [2013] QCA 116.
Indirect Discrimination
The basis of the allegation of indirect discrimination was that the Deputy Register imposed a term (being a requirement condition or practice) on Ms Lyons participation as a juror, namely that she is “able to communicate by conventional speech in the jury room”[19]. The Tribunal found, as a fact, that the Deputy Registrar did not impose the term contended for and therefore the case of indirect discrimination was not made out. The applicant contends that the Tribunal fell into error in holding that it was bound by the precise term contended for by the applicant and instead should have formulated its own term, presumably if one was open on the evidence. The term contended for in the appeal was along the lines that: ‘the appellant, as a potential juror, be able to participate in jury activities without the assistance of an Auslan interpreter’.[20]
[19]Reasons [174] and paragraph 39 of the appellant’s written submissions.
[20]Transcript p15 line 36.
In support of the submission that it is for the Tribunal to formulate the term, the appellant relies on a statement from Callinan J in New South Wales v Amery.[21]
The Tribunal and the courts are not bound by an applicant’s formulation of a condition or a requirement. It is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or a condition which is discriminatory, and not reasonable within the meaning of the Act.
[21](2006) 230 CLR 174 at [208].
The process adopted by the learned Member did not, in our view, conflict with this statement. He cannot be criticised for addressing the case put forward by the applicant and concluding, on the evidence, that the term contended for was not imposed. The question then is, following on from Amery was there, after ascertaining the actual position, a term which might be imposed of the kind contended for by the applicant in the appeal. This can now only be addressed on the basis of the finding of the Deputy Registrar (with which we agree) that the applicant was not as a matter of law entitled to serve as a juror. The rejection of the applicant was not based upon the imposition of any term requirement or condition but rather the application of a statute.
Therefore, we cannot see any basis for accepting any alternative term, particularly that contended for by the appellant on this appeal. The steps taken by the Deputy Registrar were taken to give effect to the statute therefore it is irrelevant to speak of the imposition of a term or the reasonableness or otherwise of a term.
Conclusion
We think the learned Member’s dismissal of the claims was correct although for somewhat different reasons. The Respondent sought leave to issue a notice of contention to the effect that the Deputy Registrar correctly construed and applied the Jury Act. Such leave, if required, should be given. Insofar as the applicant seeks leave to appeal such leave is refused. Insofar as the Applicant appeals on a question of law the appeal is dismissed. There will be orders accordingly.
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