Lyons v State of Queensland (No 2)
[2013] QCAT 731
•11 December 2013
| CITATION: | Lyons v State of Queensland (No 2) [2013] QCAT 731 |
| PARTIES: | Gaye Prudence Lyons (Applicant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | ADL075-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATES: | 3 and 4 June 2103 and by way of further written submissions. Last submission filed 19 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Roney QC |
| DELIVERED ON: | 11 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaint is dismissed. |
| CATCHWORDS: | ANTI – DISCRIMINATION MATTERS - Impairment discrimination - direct and indirect discrimination - eligibility of disabled citizens for jury service - deafness of potential juror on jury panel - exercise of discretion by Court officer to exclude juror from service - ability of deaf persons to participate in jury trials with Auslan Interpreter - ability of Auslan Interpreter to assist juror in jury room on retirement, meaning of expression - whether conduct shown to be “on the basis of an attribute” - meaning of expression “incapable of effectively performing the functions of a juror” in Jury Act 1995 - reasonableness of term imposed in indirect discrimination - implied repeal of provisions of the Anti-Discrimination Act 1991 (Qld) by provisions in the Jury Act 1995 |
| LEGISLATION CITED: | Anti-Discrimination Act 1991 (Qld) ss 5, 7, 8, 10, 11, 15 |
| CASES CITED: | O’Callaghan v Loder (1994) EOC 92-024 Qantas Airways Ltd v Gama (2008) 167 FRC 537 R v Staines [1942] QWN 49 Wentworth v Wentworth [2000] NSWCA 350 Wilde v The Queen (1988) 164 CLR 365 Nudd v R (2006) 225 ALR 161 Davies and Cody v R (1937) 57 CLR 170 R v Miller (2007) 177A CHRIM R328 Cesan v R (2008) 236 CLR 358 JM v QFG and GK [1998] QCA 228 Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49 R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133; [2003] HCA 62 Dovedeen Pty Ltd & Anor v GK [2013] QCA 116 R v Simeon Szypusz and David Anthony Gaynor [2006] EWCA CRIM 1552 Re Osman [1995] 1 WLR 1327 R v A Juror (Jeffrey McWinney) an unreported decision of the Woolwich Crown Court U19990078, 9 November 1999 People v Guzman (1984) 125 misC.2d457 State of Queensland v Attrill & Anor [2012] QCA 229 at [36]. Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia(1932) 47 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 Goodwin v Phillips (1908)7CLR1 Irvine and Portus v Mermaid Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482 Carey v Cairns Regional Council [2011] QCAT 26 |
REPRESENTATION:
| COMPLAINANT: | Mr Phillip French, Solicitor of the Australian Centre for Disability Law |
| RESPONDENT: | Ms K Mellifont QC and Mr A Scott instructed by the Crown Solicitor. |
TABLE OF CONTENTS
REASONS FOR DECISION
The issues raised in the case
Background
Relevant provisions of the ADA
Formal matters not in contest
The events leading to exclusion of the Complainant from jury service
The meaning and effect of section 4 of the Jury Act
Auslan as non literal translation
The problem of the 13th person in the jury room
The issue of potential mistrial and the Criminal Code
What does “incapable of effectively performing the functions” of a juror mean?
Treatment “on the basis of” a protected attribute – the causal element for direct discrimination
The appropriate comparator
The comparator and the effect of section 10(5) of the ADA
The Jury Act – restrictions in juries’ communications
Indirect discrimination and reasonableness
Reasonableness of the relevant condition
Implied repeal of the ADA by the Jury Act
Compensation issues
REASONS FOR DECISION
The issues raised in the case
This case raises the question of whether the State of Queensland, through its court staff in the District Court of Queensland, directly and indirectly, discriminated against a deaf person who was arguably otherwise eligible for jury service, by acting to prevent her from being selected as a juror because of her deafness. It raises questions about the eligibility of disabled citizens for jury service for the first time in this State, and in the context of anti-discrimination laws raises those questions for determination for the first time in Australia. The issues raised in this complaint have significance to other disabled persons that might regard themselves as capable of discharging and indeed entitled to discharge their civil responsibilities by acting as jurors in trials in which juries are required in this State. The case also raises difficult questions as to whether there is implied repeal of provisions of the Anti-Discrimination Act 1991 (Qld) (“the ADA”) by provisions in the Jury Act 1995 (“Jury Act”).
No deaf person has ever served on a jury in Australia. In New Zealand, deaf jurors are expressly permitted .There is evidence that a deaf juror has served on a jury in a trial in New Zealand. The practice of permitting deaf jurors to hear cases is permitted in some States in the United States. These are matters to which I shall return in the course of these reasons, particularly in the context of consideration of whether, in the context of indirect discrimination, the conduct of the Respondent was reasonable.
Background
The Complainant is a woman, who since she was 10 years of age, has been profoundly deaf. She is now in her mid sixties. She has a total loss of hearing, but despite that disability, is an active member of the community and is gainfully employed as an office administrator and shop co-ordinator.
It is common ground and one of the matters set out in a statement of agreed facts which was received into evidence, that the Applicant has an impairment within the meaning of the ADA in the sense that she has a total loss of a bodily function, namely her hearing.
She has other communication skills which enable her to communicate with the world around her, including the fact that she is a proficient lip reader. Her preferred method of communication though is Australian Sign Language, which is usually called Auslan. That is the sign language of the Australian deaf community. Auslan is the most convenient, comfortable and reliable method of communication for the Complainant in day to day experience.
It is also common ground that the ability to engage in Auslan communication is a characteristic that persons who are deaf generally have, within the terms of section 8(a) of the ADA, in the sense that it is a primary means of communication for such persons.
It is also common ground that in circumstances where the Applicant is communicating with persons who are not able to communicate directly via Auslan, the Applicant requires an Auslan interpreter and that Auslan is a ‘special service or facility’ within the meaning of sections 5 and 10(5) of the ADA.
The Complainant is on the State Electoral Roll in Queensland and is therefore liable to be selected from the list of prospective jurors from which a list is drawn from the electoral roll for the relevant jury district. She was in fact selected by that means as a prospective juror in 2012, and in early February 2012 she received notice summonsing her for jury service at the Ipswich District Court.
As the result of a number of decisions which were made by staff within the District Court Registry and the Sheriff’s office, and for reasons broadly that were concerned with her deafness or the necessity for her to have an interpreter were she to be selected as a juror, a decision was made to deselect her as a potential juror. As a result she was not permitted to remain on the panel of jurors from whom she might have been selected for a jury in particular criminal trials that were being held at those sittings of the Ipswich District Court. The result was that she did not participate in the selection process. Had she been selected for the jury at the commencement of any trial by the parties to the proceedings, she would have been empanelled and served on the jury so selected.
The Complainant contends that her treatment by court staff was an affront to her dignity, but more importantly she contends that it amounted to acts of direct and indirect discrimination against her on the basis of a protected attribute, namely on the basis of her hearing impairment.
In the form finally articulated, this claim was one of both direct and indirect discrimination toward the Complainant when the Sheriff and a deputy Registrar employed by the Respondent, and thereby vicariously, the Respondent, excluded her from jury service in purported application of provisions of the Jury Act.
Relevant provisions of the ADA
Section 7 of the ADA prohibits discrimination on the basis of certain attributes and these attributes include relevantly for present purposes, disability.
Section 10 of the ADA provides the definition of direct discrimination on the basis of an attribute. It provides as follows;
10 Meaning of direct discrimination
(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.
Example—
R refuses to rent a flat to C because—
C is English and R doesn't like English people
C's friend, B, is English and R doesn't like English people
R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.(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.Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5) 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.It is well established that the Complainant bears the onus of proof of indirect discrimination. In Queensland, unlike most other States, there is an exception where the claim is one of indirect discrimination. In an indirect discrimination case, the onus falls to the Respondent to show that the condition being imposed which is potentially discriminatory is reasonable. Similarly, the Respondent bears the onus of showing that it may rely upon an exemption or exception which attaches to its conduct[1].
[1]See Anti-Discrimination Act 1991 (Qld) section 204; O’Callaghan v Loder (1994) EOC 92-024 at 75,511; Qantas Airways Ltd v Gama (2008) 167 FRC 537 at [132].
The question that must be answered affirmatively if such a claim is to succeed is whether the particular conduct which is complained of here has been shown to be “on the basis of an attribute” within the meaning of sections 8 and 10 of the ADA.
Section 8 of the ADA provides:
8 Meaning of discrimination on the basis of an attribute
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; or
(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.
Example of paragraph (c:
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.Section 11(3) of the ADA provides that “the person’s motive for discriminating is irrelevant”.
Example
—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.The Respondent concedes that in excusing the Complainant from jury service, that was conduct that occurred in the administration of State laws and programs within the meaning of that expression in section 101 of the ADA. Section 101 provides as follows:
101 Discrimination in administration of State laws and programs area
A person who:
(a) performs any function or exercises any power under State law or for the purposes of a State Government program; or
(b) has any other responsibility for the administration of State law or the conduct of a State Government program;
must not discriminate in:
(c) the performance of the function; or
(d) the exercise of the power; or
(e) the carrying out of the responsibility.The Complainant also contends that the conduct in question falls within the area of discrimination in the supply of goods and services, within the meaning of section 46 of the ADA. Section 46 provides as follows:
46 Discrimination in goods and services area
(1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person:
(a) by failing to supply the goods or services; or
(b) in the terms on which goods or services are supplied; or
(c) in the way in which goods or services are supplied; or
(d) by treating the other person unfavourably in any way in connection with the supply of goods and services.
(2) In this section, a reference to a person who supplies goods and services does not include an association that:
(a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and
(b) does not carry out its purposes for the purpose of making a profit.Services are defined in the schedule to the ADA as including “access to and use of any place, vehicle or facilities that members of the public are permitted to use”; and so are relevantly “services provided by a public or local government”. The Complainant did not suggest that the determination of the matter led or might lead to any materially different result depending on whether the matter fell within the terms of section 46 only or section 101 in the alternative. I therefore do not propose to specifically resolve the question whether the conduct of summonsing, selecting and determining who would be on a jury is one of the services caught by section 46 of the ADA, it being unnecessary to do so.
Formal matters not in contest
It is common ground that the Respondent as the State of Queensland acted through its agency the Department of Justice and Attorney-General. That Department is declared and established as a department pursuant to sections 14 and 15 of the Public Service Act 2008.
The Sheriff of Queensland under the Jury Act and the Deputy Registrar of the Ipswich Courthouse, are public service employees of the Department under the Public Service Act 2008. The Deputy Registrar was Katrina Britton. Mr Marcus Leonard was at the time of Ms Lyons’ complaint the Sheriff of Queensland and held that position pursuant to section 72 of the Supreme Court of Queensland Act 1991.
It is common ground that by operation of section 133 of the ADA, the Respondent is vicariously liable for contraventions of the ADA by the Deputy Registrar Britton or the Sheriff of Queensland in the circumstances provided by that section.
The events leading to exclusion of the Complainant from jury service
By section 9 of the Jury Act, the Sheriff of Queensland kept a jury roll by computer record for each jury district. By section 15 of the Jury Act, the Sheriff of Queensland was required to prepare lists of prospective jurors for each jury district. By section 16 of the Jury Act, the names of the persons to be included in the lists of prospective jurors are to be drawn from the roll for the relevant jury district.
The Applicant’s name was included on the list of prospective jurors for the Ipswich district. By section 26 of the Jury Act, the Sheriff of Queensland was required to select prospective jurors from the list of prospective jurors to be summonsed for jury service for the jury service period. The Applicant was selected for summons from the list of prospective jurors. Each prospective juror summonsed for the jury service period was allocated a number. The Applicant was allocated the number 157 in jury panel B for those sittings.
Acting under delegation from the Sheriff of Queensland, the Deputy Registrar Britton summonsed the Applicant for jury service by formal notice to that effect dated 25 January 2012. That summons was issued in a form approved under the Jury Act and formally notified her that she was required to be available to attend the District Court at Ipswich for a period of three weeks commencing 13 February 2012. It notified her that if selected as a juror on a trial she must attend as instructed until discharged and that failure to comply with the summons without reasonable excuse might lead to a fine, imprisonment or her being charged with contempt of court.
The process which led to the issuance of a summons to a prospective juror includes a requirement prior to a summons being issued that they complete a questionnaire. The questionnaire includes amongst the questions asked of the juror whether they are in one of a number of specified categories. The statement is made at the head of Question 9 “if you tick a box you are ineligible for jury duty”. Some of those stated ineligibilities relate to the status of the individual being a current member of Parliament or other officers in the justice system, but also include those “unable to read or write English” and “incapable of performing the duties of a juror because of a physical or mental disability. Note: if you tick this box you will need to attach a medical certificate specifying the exact nature of the condition or illness”. There is provision in the questionnaire for a candidate to apply for excusal from jury.
Ms Britton gave evidence that the practice once questionnaires are returned is to enter the answers into a database. Her practice is, if a prospective juror ticks the box next to the category “incapable of performing the duties...etc” at Question 9 to mark that prospective juror ineligible. In relation to persons who are said to have a disability and cannot perform jury service, the Registrar adopted a practice of entering the database with an entry as excusal which means temporarily, that is, for the whole period of the current sittings, rather than permanently, and for which it is said that those candidates are “exempt”. In her response to the questionnaire, the Complainant did not tick the box which suggested she was incapable of performing the duties of a juror because of physical or mental disability and she did not apply otherwise for excusal on any other basis for excusal.
After receipt of the summons to attend the Complainant helpfully wrote to courthouse staff pointing out that she had been selected for duty commencing from 13 February 2012 and that she was “looking forward to sitting on the jury. However I am a deaf person and will require the services of two Auslan interpreters (Australian Sign Language). It would be appreciated if you could contact Brian Gook at Auslan Services to organise for him to provide two interpreters for each day of jury service please”. Later in that email she said that she would be sending the court some more information regarding deaf people sitting on the jury. She followed it up the next day to enquire what was happening to her request for interpreters for the following week. It referred to some attachments which she asked them to read. These emails were being read by Ms Britton at the time.
Ms Britton then took some steps to get some legal advice from the Legal Officer at the Brisbane Courthouse. By 13 February she had not received any such advice, and again received an email from the Complainant. This was on the morning of the day that she had been required to attend for the first day of jury service. The email provided that she had “not heard from you despite several emails. I won’t be coming. I am disgusted at the treatment I have had from you. SILENCE. Just because I am deaf does not mean I am stupid, and I hate being discriminated against”.
Approximately three hours later Ms Britton wrote to her apologising for not getting back to her stating that she was “a little unsure if we can accommodate your request and am in the process of getting some advice from our legal area. We can’t order an interpreter for a specific date, as we don’t know until the day prior, when your jury number will be required. I will notify you as soon as I have an answer from our legal area.
Five minutes later the Complainant responded pointing out that she was disappointed about being treated discriminately and that she had always wanted to sit on the jury. She suggested she had a deaf friend who was sitting on the jury for the District Court in Brisbane that day and they had no problem accommodating her request for an interpreter. There is no other evidence about whether or not this person was accommodated, and to the extent of their deafness however the evidence of Ms Britton suggests it unlikely that a deaf juror would ever have been accommodated in this way.
A few minutes later Ms Britton replied that she felt sorry that the Complainant felt she was being treated discriminately, but that was not the case. She needed to get some further information.
Later on that morning Ms Britton wrote to the Complainant saying that she had made enquiries in Brisbane, and that they were not aware of any deaf juror in their current sittings and that she would let the Complainant know the next day after she had spoken to the Sheriff.
The next day Ms Britton was sent information via the Deputy Registrar in the Criminal Jurisdiction in the Supreme, District and Land Court Services in Brisbane. That information had come by way of an email from Mr Leonard, describing himself as the “Sheriff and Marshal Team Leader in Criminal Jurisdiction”. He had been invited in the following terms by the Brisbane Registrar to comment on what would be his decision “on this as the Sheriff. It is a bit of a hairy one, ethically if we say no, given that it is a disability. I said it would ultimately be at the Judge’s discretion, however Katrina did not want to raise this with Judge Richards until she had some input from higher up. She has attempted to contact our legal section for advice but has not received a response”.
The Sheriff, Mr Leonard responded by email that “it is not possible to have an additional person (interpreter) involved in with a jury, this means that they would not be able to sit next to them in court, or sit with them in the jury room. There is no capacity for this in the jury act, and no provision to swear in an interpreter for a juror. No one is to have contact with the jury except for a Bailiff. This juror needs to be excused from jury duty. If the Registrar is not willing to do so I would recommend talking to the Judge” (sic).
The Brisbane Deputy Registrar passed this email on to Ms Britton who then asked if she was allowed to provide the Sheriff’s response to the Complainant. The Deputy Registrar in Brisbane advised her to notify the juror that she had received advice from the Sheriff and saying what the reasons were. It also advised that it should also be brought to the attention of the Judge as well before responding to the juror. So that is what she did.
At 9.55am on 15 February 2012 the Deputy Registrar Britton sent the Applicant an email dated, stating:
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.
The Complainant responded later that morning suggesting that she would be taking the matter further after talking to her solicitor, and asserting that it was a “blatant case of severe discrimination”, that there was nothing wrong with her just that she had “broken ears” ...and “the ancient Jury Act needs to be changed”. She indicated that she would not give up trying to be on the jury.
Later that day Ms Britton confirmed that she had in fact had a conversation with Judge Richards who was presiding, and who herself had spoken to the Chief Judge of the District Court. In her testimony Ms Britton swore that she had discussed Ms Lyons’ emails with Judge Richards who was one of the resident Judges at the Ipswich District Court. Judge Richards responded to the effect that the Complainant could not be on the jury, and pointed to section 4(3) of the Jury Act which referred to the fact that a person was not eligible for service if that person had a physical or mental disability that made them incapable of effectively performing the functions of a juror.
In cross examination Ms Britton described this conversation with the judge’s Associate and then the judge as follows;
When asked what she had said to the Associate she replied;
“I don’t remember the exact words. I think I’d said, I’m trying to find some information. We have a juror that’s deaf that wants to do jury service. I’m quite sure she can’t. But I’m onto Brisbane about – to get some reasons and some feedback from them, before I answer her. So that was probably the conversation that I had with the associate.
Q.He must have said something to the judge and then before –
A.When I got the email from Mr Leonard, that said, before you let her know that she’s been excused, make sure the judge is aware of it. So I’d gone upstairs and said to the judge, okay, I’ve got advice back from Brisbane, can you – she’d said something about she’d already spoken to the chief judge and she agreed. So there must have been a previous conversation with someone. And I’d said, can you show me what part of the Act says she can’t do it – just for my own interest and that’s when she’d pointed to it and said no, she can’t do it, because of this section.
She identified the section as S4(3)(l) of the Jury Act.
To some degree this suggests that Ms Britton may not have exercised her own judgement about the matter, and essentially acted on what the 2 Judges had decided. But later in her evidence she said that
“I’d decided beforehand, but Judge Richards kind of cemented the fact to me...
Judge Richards had kind of cemented the fact to me, when she’d pointed to the part in the Act. I’d already – the decision to me had been the information I’d got from Brisbane.
Q:So the reason was that she couldn’t do it?‑‑‑Yeah. She couldn’t do it. No. I didn’t think she could to start with, but I wanted the information from Brisbane first. Especially because Ms Lyons said she’d heard – she thought one of her friends was doing it in Brisbane, at the time. So I wanted to follow that up as well.
She was asked who was the decision maker in Brisbane? She replied “Well, I assume Mr Leonard, but he’d given me the information to say, no, she can’t do it, because you can’t have a 13th person in the jury room. I agreed..... But I don’t think I was the decision maker.
Q:So was it only Mr Leonard who was the decision maker?‑‑‑He was the one that fed me the information, so I’m not sure where he got it from.
Q:Was the decision already made when he conveyed that information or were you looking?‑‑‑I guess so. He’d given me the information and said no, she can’t do it, because of these reasons. Make sure your judge is aware before you tell her. Which is what I did. So to me the decision was made, no, she couldn’t do it. And I’d pass the information on...I agreed with the decision, so you can call me the decision maker.
Q:But putting that issue to one side, did you understand that what was going on here was that the judge was being asked for her opinion on the issue?‑‑‑No. That wasn’t. I wasn’t asking her opinion – I was letting her know.Consistently with that evidence, in her affidavit material, Ms Britton stated that it was on the basis of Mr Leonard’s email, and the reasons that he specified that she had determined to excuse Ms Lyons from jury attendance and then communicated that fact to her. Her email to the Complainant set out above intentionally left out reference to any section of the Jury Act to which the Judge or the Sheriff had made reference, because Ms Britton thought that this might upset the Complainant. But later she did send a copy of that section to the Complainant once it was requested. That arose because on 22 February 2012 the Applicant sent Deputy Registrar Britton an email requesting a copy of the Jury Act and asked to be shown “where it was provided that she was not allowed to be on the jury”. Deputy Registrar Britton replied by email dated 27 February 2012 in these terms:
Sorry for not getting back to you until now...
Please find an extract of the Jury Act 1995 attached.
Section 4(3)(l) is the section that applies – I’ve marked it on the page.Section 4 of the Jury Act provides as follows;
4 Qualification to serve as juror
(1) A person is qualified to serve as a juror at a trial within a jury district (qualified for jury service) if—
(a) the person is enrolled as an elector; and
(b) the person's address as shown on the electoral roll is within the jury district; and
(c) the person is eligible for jury service.
(2) A person who is enrolled as an elector is eligible for jury service unless the person is mentioned in subsection (3).
(3) The following persons are not eligible for jury service—
(a) the Governor;
(b) a member of Parliament;
(c) a local government mayor or other councillor;
(d) a person who is or has been a judge or magistrate (in the State or elsewhere);
(e) a person who is or has been a presiding member of the Land and Resources Tribunal;
(f) a lawyer actually engaged in legal work;
(g) a person who is or has been a police officer (in the State or elsewhere);
(h) a detention centre employee;
(i) a corrective services officer;
(j) a person who is 70 years or more, if the person has not elected to be eligible for jury service under subsection (4);
(k) a person who is not able to read or write the English language;
(l) a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror;
(m) a person who has been convicted of an indictable offence, whether on indictment or in a summary proceeding;
(n) a person who has been sentenced (in the State or elsewhere) to imprisonment.
(4) A person who is 70 years or more may elect to be eligible for jury service in the way prescribed under a regulation.By section 36 of the Jury Act, the Sheriff of Queensland was required to arrange for the attendance before courts of jury panels for trials during the jury service period from persons who had been summonsed and who have not been:
a) excused from jury service pursuant to Part 4, Division 4 of the Jury Act; or
b) excluded from the list of prospective jurors under section 24 and/or section 36(2)(b) of the Jury Act because they are not qualified for jury service.
Apart from the Deputy Registrar, the other persons who were involved or directly involved in the process by which she came to be excluded from the list of prospective jurors were, according to the evidence, Mr Marcus Leonard who at the time of Ms Lyons’ complaint was the Sheriff of Queensland. He held that position pursuant to section 72 of the Supreme Court of Queensland Act 1991. He was in that role from August 2011 and left it in September 2012. He had been in that position for a period of approximately six months by the time of the relevant events.
In his statement he referred to the fact that he first became aware of the issue of the Complainant potentially becoming a juror when he was contacted by email from a Deputy Registrar raising that issue. He telephoned Mr Hansen, who was an experienced former Sheriff and asked of his opinion. According to Mr Leonard, Mr Hansen held the view that interpreters could not be provided to jurors. I pause to mention that Mr Hansen does not agree with this version of events. According to his evidence, which I prefer as a more reliable record, he was told that there was a juror in Ipswich who was persisting in performing jury service but who was deaf. He was told that she had asked the Ipswich Courthouse to provide her with interpreters and Mr Leonard asked him what he would do in those circumstances. Mr Hansen replied that he “would excuse her”. According to Mr Hansen he did not discuss his reasons or that view, but said that it’s the Registrar’s decision to excuse a person, but if they do not the matter should be referred to a Judge.
After the conversation with Mr Hansen, Mr Leonard consulted the provisions of the Jury Act and in particular those in section 4(3)(l). He decided, having regard to the provisions of that Act and the Oaths Act 1867, that they “do not allow for jurors to have interpreters, firstly because interpreters cannot be present in the jury deliberation room and secondly, because there is no provision under the Oaths Act 1867 for an interpreter to assist a juror to take an oath or make an affirmation”. He therefore formed the view that in these circumstances section 4 of the Jury Act operated to “render the deaf summonsed juror ineligible”.
Put another way, Mr Leonard’s conclusion was to the effect that based upon his interpretation of the law, right or wrong, and his interpretation in particular of the way in which section 4 of the Jury Act operated, by operation of statute the Complainant was ineligible to be a juror. Therefore it followed, according to this reasoning, she could not as a matter of legal principle be sworn as a juror.
There was some evidence given by Mr Leonard which appeared to be to some degree inconsistent with statements he made in affidavits as to the basis for his decision. He was cross-examined about his sensitivity and knowledge in accommodating disabled persons or to even articulate any principles which might be appropriate to apply in the management of his functions as a Sheriff and in dealing with disabled persons, and avoiding discrimination against them. He conceded that he was not familiar with the provisions of the ADA although he accepted that its terms applied in the discharge of his own responsibilities. He had received what was described in the questions as disability awareness training.
In the course of cross-examination he was asked about his thought processes in arriving at the conclusion that the Complainant could not sit on a jury and ought be excluded. His response was that he considered that because she needed an interpreter, and having looked at parts of the legislation the interpreter could not sit with the jury, therefore she was not eligible for jury service. But he went on to say that the first thing he looked at was that he knew she needed an interpreter, then he referred to the Jury Act to see what that meant in terms of interpreter’s sitting with the jury. He looked at the Oaths Act to see if there was a provision that could swear an interpreter to be part or a member of a jury, and he then decided that there wasn’t so that the interpreter could not sit with the jurors.
Nothing has been put before me to suggest that an interpreter would be required to take an oath similar to that taken by jurors themselves. Experience, for example in New Zealand where a deaf juror was both a member and elected foreman of the jury in a Tax matter in the Wellington District Court in 2005, shows the interpreter there was administered an oath .The Judge gave directions to facilitate the juror’s participation, and of course maintained the power as would a judge in Queensland, of exercising ultimate control over the proceeding, and if necessary discharging the jury if satisfied it was in the interests of justice to do so. That would of course also mean that Counsel for either party did not use their right of peremptory challenge to exclude a deaf person called to serve in the random draw of names during the selection process.
Mr Leonard then looked back to the Jury Act at those things that he said deemed some not eligible for jury service and deemed that a person who has a physical disability and therefore required an interpreter was incapable of effectively performing the functions of a juror. He explained that no part of his decision was concerned with whether the use of an interpreter and the Auslan language would fatefully or correctly render the evidence that was being heard to the Complainant.
There were statements from two other witnesses apart from the Deputy Registrar and the Sheriff. One was Mr Neil Hansen who gave some evidence of the historical practices relating to the selection of jury panels in Queensland. Mr Hansen has worked in various roles, including as Sheriff and Marshal of the Queensland Supreme, District and Land Courts from 1998 until 2009. Mr Hansen was not cross-examined. He also gave evidence of a conversation he had with Mr Leonard, the Sheriff in February 2012. In that conversation Mr Leonard told Mr Hansen that there was a juror in Ipswich who was persistent in performing jury service although deaf, and who had asked the Ipswich Courthouse to provide her with Auslan interpreters. Mr Leonard asked what Mr Hansen would do in those circumstances. Mr Hansen told the Sheriff that he would excuse her. Mr Hansen also gave advice that it was the Registrar’s decision to excuse a person, but that if he did not want to make the decision, it could be put to a Judge.
There was also evidence in the form of a statement from Ms Joanne Ludlow. She was a clerk at the Ipswich District Court, and was responsible for arranging jury panels. She gave evidence which was also not the subject of any cross-examination, of having been involved in the process of reviewing emails from the Complainant about her proposed jury service. She was not one of those who decided, or had a direct role in the decision to exclude the Complainant from jury service. She did however give evidence of having met with the presiding District Court Judge, Judge Richards and the Deputy Registrar sometime before the commencement of the sittings on 13 February 2012 where she recalls Judge Richards saying words to the effect that Ms Lyons could not perform jury service. She could not recall detail of that conversation. The fact that there was a conversation between the Deputy Registrar and the Judge is corroborated by the evidence of Ms Britton herself, and that evidence I shall refer to in detail shortly.
The Complainant argued that in purporting to excuse her from jury service, the Deputy Registrar, whose conduct (as distinct from that of the Sheriff) appears to bear the main focus for the complaint, was the person who discriminated against her both directly and indirectly. The original complaint to the ADCQ dated 17 July 2012 complains of discriminatory conduct by both the Deputy Registrar and the Sheriff.
On the evidence before me it is clear, and I accept that the relevant decision maker for the purposes of excluding the Complainant from jury service was the Deputy Registrar Katrina Britton. She did so in part by adopting the advice from the Sheriff, however at the time she was the person who had been delegated the powers of the Sheriff pursuant to section 72 of the Jury Act. Pursuant to that Act, the decision making functions in question are conferred upon the Sheriff. For the State it was contended that there were two functions that “may” have been exercised in this case and which were exercised by the Deputy Registrar under delegation. It was submitted that here those functions were the power to exclude an Applicant from a list of prospective jurors under section 24 because the decision maker was of the opinion that the Applicant was not qualified, or alternatively the exclusion of the Applicant from the list of prospective jurors under section 36, because the Applicant was not qualified for jury service.
In this case the clear evidence is that neither of those statutory functions was being exercised nor purportedly being exercised by the Deputy Registrar. Section 24 is concerned with an event which precedes the issuance of summonses. Here the prospective juror had already been summonsed. Section 36 creates a power in the Sheriff to arrange for the attendance of a jury panel before the court. This obviously is an event that post dates the issuance of a summons and is concerned with organising a panel which is to attend at court from which a jury is to be selected. Section 36(2) directs the Sheriff to form that panel inter alia amongst the persons who have not been excused or excluded from the list of prospective jurors because they are not qualified for jury service. This again presumes that the exclusion has already occurred at some earlier time. Section 36 does not per se establish a power to exclude anything or anyone. Hence in my view the Deputy Registrar cannot have been exercising delegated functions either under section 24 or 36, nor did she give evidence that she was doing so or purporting to do so.
The meaning and effect of section 4 of the Jury Act
Some idea at least of the way in which the Queensland Law Reform Commission viewed the operation of the Jury Act may be found from its report no. 68 of February 2011 concerned with a review of jury selection. The members of the Commission who prepared that report included Justice Atkinson, Mr Bond QC and four other members, two of whom held positions as Professors in legal faculties in Queensland.
The Law Reform Commission proceeded on the basis that section 4 of the 1995 Act in effect gave it a discretion to the Sheriff who was entitled to assess “on a case by case basis” as to whether a person had a disability which made them incapable of effectively performing the functions of a juror. It referred also to the entitlement to refer the matter to a presiding Judge. It is accepted legal principle that a presiding judge would in this State be entitled to discharge a juror’s summons if the judge considered that the interests of justice and fairness to the parties suggested that was necessary. But that discretion was not called upon in the present case.
The power to discharge a hearing impaired juror after being sworn in was exercised by a Supreme Court judge in a murder trial after the trial had started in R v Staines [1942] QWN 49. In argument before me it was conceded that a Judge exercising power to exclude a juror would attract judicial immunity, however the Sheriff or delegated Registrar would not[2].
[2] Wentworth v Wentworth [2000] NSWCA 350.
The Jury Act 1929 which preceded the 1995 Act, previously provided that persons who were “blind, deaf or dumb” and people of “unsound mind” were excluded. It therefore appears that at least to some degree persons who are not entirely deaf, or who are deaf but who are nevertheless capable of effectively performing their functions are no longer automatically excluded.
The Queensland Law Reform Commission report made comparison with other jurisdictions noting that for example in England and Wales, physical disability is not a basis for automatic exclusion, but rather it is a matter for discretionary excusal, a principle which it is said “presumes that people with disabilities can serve on juries, and considered that people with disabilities who are summonsed for service should be given positive encouragement in that regard”.
The Queensland Law Reform Commission went on to identify a number of reasons why persons with physical disabilities including those who were blind or deaf should be eligible to serve. One of those was that “as long as interpreters are made subject to the same secrecy requirements that apply to jurors and others, there is no obstacle to their being in the jury room”. That conclusion was referenced to a similar view adopted by the Law Reform Commission of Ireland. It does of course appear to assume that interpreters would need to be made subject to those requirements, and if they were not presently made so subject. In its conclusions it recommended that section 4(3)(l) of the Jury Act should be amended to remove the ineligibility of persons with a physical disability. In lieu, it was suggested that there should no longer be any automatic exclusion on the basis of physical disability. This ought be dealt with “on a case by case basis, as a matter of excusal or discharge, having regard to the availability of reasonable accommodations to assist people to serve”.
The report suggested though that with different courthouses having different facilities and accommodations capable of accommodating a person’s physical disability, the Sheriff nevertheless retained the power to decide whether there was accommodation available to permit a juror to discharge his or her duties effectively. It accepted the proposition that persons should not be excluded from jury service without the Sheriff having made reasonable efforts to enable them to serve.
In discussion about the importance of permitting persons with disability to serve on juries the Commission’s report reached the following conclusion.
“5.21 The duty to perform jury service is so important that some have argued that it is an entitlement, rather than a mere obligation. This points to a final principle of eligibility, also related to representativeness: the right of members of the community not be discriminated against in the opportunity to perform jury service. Everyone, regardless of disability, ethnicity or other distinction, is entitled to participate in public and political life, and the principles of non-discrimination and equality of opportunity for all people are well-recognised. The characterisation of jury service as a basic civil duty (or entitlement) requires that people with disabilities, for example, should not be excluded from jury service arbitrarily or unjustifiably.” (footnotes omitted)
The principle just discussed is one which is unlikely to be controversial, and is clearly consistent with the principles and policies which stand behind the ADA.
When one turns to the explanatory notes to the Jury Bill 1995, one of the stated objectives was to ensure more representative juries were achieved by significantly reducing the number of classes of persons who were not eligible for jury service. The notes to what became section 4 simply state that it “sets out who is qualified to serve as a juror. It also sets out the classes of persons who are not eligible for jury service”. Again, this is the language of objective result, not the exercise of judgment by a court officer.
I pause to mention that in its consideration of a similar but significantly different provision in New South Wales, the New South Wales Law Reform Commission regarded a provision which required the Sheriff to delete from the jury roll the names of persons he or she determined were disqualified or ineligible, including persons who are “unable, because of sickness, infirmity or disability, to discharge the duties of a juror” as one involving a “subjective judgment” as regard fitness to serve. But it is to be noted that section 4 of the Queensland Act is not concerned with discretionary decisions by the Sheriff per se.
There seem to me at least to be some fundamental problems with the legal analysis that the Sheriff undertook in applying section 4 of the Jury Act. First of all, section 4(3)(l) refers to a connection between a physical or mental disability and that disability being something which objectively makes the person incapable of effectively performing the functions of a juror. The reference to “effectively” as the result of a disability is referable to what might be thought to be relative scales of abilities to effectively perform a duty. These scales are concerned with the nature and extent of the relevant disability. They are not in my view concerned with whether through some secondary consideration associated with the relevant disability, there is some other statutory provision that applies that means that it might be unlawful for the juror to participate. So for example, if there was some other reason which indirectly resulted in a disabled person not being permitted to sit on a jury or take an oath, those would not on the face of the clear language of section 3 mean that a disabled person was “incapable of effectively performing the functions of a juror”. Nor, on the face of section 4, or anywhere else in the Jury Act does one’s qualification depend upon the forming of an opinion by the relevant Sheriff or other court officer.
Were it to be the case that a fair trial could not be conducted in circumstances in which all of the participating parties, witnesses, accused and perhaps in legal representatives, required to be in perfect condition both in mind and body and capable of both hearing and competently understanding in the language of any given speaker the content of the proceedings else there be a miscarriage a justice, then very many trials which are effectively and efficiently conducted in our courts everyday would abort.
Ordinary experience demonstrates that Auslan interpreters, indeed other interpreters of language appear in our courts everyday and manage to translate effectively the testimony, and indeed the subject matter of the proceedings to participants who may not share either language or heightened sensory capacities.
Auslan as non literal translation
The suggestion put forward by the State that in some way or another there might be a miscarriage of justice, or at least the potential for a juror to misunderstand evidence because Auslan is not a literal interpretation of words, but is interpretive so as to give it a meaning reflecting the nature of the testimony, is in my view to overstate the position. Were that a basis to challenge a verdict, for example, verdicts by jurors who were hearing testimony through an interpreter of a witness for whom Auslan interpretation was required, might all be open to being criticised on the basis that the jury did not hear a literal translation of the words of the speaker, or the user of sign language. Similarly, a witness who was able to use sign language, but could not otherwise speak could only give his or her testimony through an Auslan interpreter. The jurors would be hearing the translation of the Auslan interpreter, and which translation would not be literal. Absent some demonstrated misinterpretation, or misstatement of what a witness said, and which is so serious as to arguably amount to a miscarriage of justice, I consider it unlikely that courts would regard that process as in any way affecting the integrity of verdicts.
In the same way here, putting aside the question of whether an interpreter could be in the jury room, it does not seem to me to be of any critical significance that deaf jurors might hear the evidence and addresses in a criminal trial translated for them in open court by an Auslan interpreter.
Relevantly to this issue in March 2007 the New South Wales Law Reform Commission published a research report on whether persons who were profoundly deaf or have a significant hearing or sight impairment should be able to serve as jurors in New South Wales, and if so in what circumstances. In undertaking the review they did so having regard to the New South Wales equivalent to the Queensland ADA, the Commonwealth Disability Discrimination Act, and the need to maintain confidence in the administration of justice in New South Wales. One of the project researchers was an expert on Auslan who also gave evidence about its use in the hearing before me. The Commission in that time comprised, inter alia Justice Michael Adams, New South Wales Supreme Court, and former Justice of New South Wales Supreme Court, James Wood. It’s essential conclusions were as follows:
“• legal facts and concepts can be translated into Auslan;
• Auslan interpreting can provide effective access to court proceedings for a deaf juror – but certain conditions are necessary;
• hearing people misunderstand court proceedings without being disadvantaged by hearing loss; and
• deaf people are willing and able to serve as jurors.
7.2 As there is evidence to suggest that deaf people are not disadvantaged by having to rely on sign language interpreters to access information in court, and that they seem to understand just as much content as their hearing counterparts, there is a strong argument in favour of allowing deaf people to serve as jury members.
...
• Hearing jurors in this study answered almost 78% of the comprehension test questions correctly, implying a relatively high level of comprehension of the judge’s summation.
• Deaf jurors in this study answered 75% of the comprehension test questions correctly, implying a relatively high level of comprehension of the judge’s summation.
• For the participants in this study there was no significant difference between levels of comprehension of the deaf and hearing jurors.
...
• Deaf and hearing jurors similarly perceived the content of the judge’s summation to be complex and repetitive.
• Deaf and hearing jurors regarded jury service as a necessary civic duty. The deaf jurors all expressed interest in serving as jurors if they were afforded the opportunity.
...
• The findings of this pilot study suggest that deaf jurors can effectively access courtroom proceedings via sign language interpreting.”
Those conclusions were reached by and were the subject of evidence before me by one of the authors of that report, namely Professor Jemima Napier. She is an internationally recognised expert on the subject. She was previously a senior academic in Linguistics at Macquarie University. She is now a senior academic in Linguistics at a University in Edinburgh. I accept her evidence without qualification
In its recommendations, the Commission recommended:
a)that deaf people be permitted to serve as jurors in criminal cases in New South Wales with access through interpreters and additional support;
b)that interpreters should receive specific legal training on how to interpret for deaf people in different roles in court;
c)that experienced legal interpreters should work in that context.
It qualified these conclusions by recognising that the report did not explore the potential impact of deaf jurors on the administration of justice, from the perspective of the advocates, the Bench, the accused and witnesses, and that further research was needed to investigate deaf juror participation in court proceedings.
The problem of the 13th person in the jury room
In the Respondent’s supplementary written submissions of September 2013 they sought to draw a distinction between disabilities which were due “to a hard barrier, an example of which was said to be that an interpreter could not be sworn in or could not be in jury rooms as here” or “a soft barrier, an example of which was that a particular individual had ‘physical or mental disability, assessed qualitatively, such as to render the person incapable of performing jury service’”.
Adopting momentarily that distinction, it seems to me that the language of section 4(3)(l) of the Jury Act is concerned with so called soft barriers. One could think of many so called hard barriers which might in a practical sense prevent a juror or potential juror from participating in the jury process or discharging their functions as such that they are not made that way because of a physical or mental disability. For example the absence of a wheelchair ramp at a courthouse to facilitate access by a wheelchair bound juror would not in my view fall within that qualification.
One is not incapable of performing the functions of a juror because one is disadvantaged in their performance. So for example a juror with shortened arms due to a birth defect, whilst incapable of making written notes, may well be able to record in a different way for later recollection some of the evidence, or use other techniques to enable the performance of his or her functions. They are not rendered incapable simply because something else other than that which would be required to accommodate an unimpaired juror might need to be provided to enable them to be fully and effectively performed.
For the State it was submitted that the inclusion of an interpreter amongst members of a jury during their deliberations may but would not necessarily render a miscarriage of justice requiring a conviction to be set aside on appeal. The State’s argument is not that it wouldn’t necessarily be set aside, but that a juror cannot effectively perform the functions of a juror within the terms of section 4 of the Jury Act if the juror has an impairment which renders the verdict of the jury of which the juror is a member liable to be set aside on appeal. This submission is said to be based on the power of an appellate court to set aside a conviction on the grounds of miscarriage of justice pursuant to section 668E of the Criminal Code, and subject to the proviso that the appellate court may not do so if there is an irregularity which has not led to a substantial miscarriage of justice.
To quote from the High Court in Wilde v The Queen (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ[3], the proviso “has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso”.
[3]See also Nudd v R (2006) 225 ALR 161 at 162, Davies and Cody v R (1937) 57 CLR 170 at 180, R v Miller (2007) 177A CHRIM R328 at par 45 and 48, Cesan v R (2008) 236 CLR 358.
In the absence of an express prohibition upon deaf jurors performing on juries because they would be required to have an interpreter present in the jury room, it is not easy to see how the mere presence of an interpreter in a jury room would lead to the conclusion that an accused had not had a proper trial. After all, implicit in the notion that such interpreters can be present in jury deliberations in New Zealand, and in some states of the United States, is the notion that the mere presence of an interpreter would not lead to such a miscarriage.
That issue is of course entirely separate from the other which arises for determination here, namely whether the provisions of the Jury Act have impliedly repealed the provisions of the ADA insofar as they apply to the facts of this case. I shall return to the implied repeal argument later in these reasons.
I was not referred to any decision by Counsel for either party in which it had been held to be the law in Australia that the mere presence, for example, of an interpreter to assist a juror in deliberations in the jury room would as a matter of course result in a mistrial, or even that it is likely for specific reasons to lead to that result.
The Juries Act 1981 (NZ) although not identical to the Queensland Act, also provides that physical disability per se is not a category of ineligibility, but preserves the power in a Registrar or Judge to excuse a person with a physical disability from jury service on the grounds that hardship or serious inconvenience would otherwise result. Or the Judge may also of the Judge’s own motion discharge the summons if the person was not capable of acting effectively as a juror. The New Zealand Act, as does the Queensland Act, contains jury secrecy provisions and the like. It does not therefore seem to me to be correct to suggest that as a matter of law in Queensland a deaf juror cannot participate or is, by virtue of deafness alone, and without more, incapable of effectively performing the functions of a juror.
The issue of potential mistrial and the Criminal Code
The State submits further that mere membership on the jury of a person with the Applicant’s impairment would amount to a failure to observe conditions which “are essential to a satisfactory trial” and which “go to the root of the proceedings”. The submission does not identify any basis for that assertion. Indeed it would be surprising if the fact of a person’s impairment, assuming that it could be accommodated by an allowance of an interpreter into the jury room, would in any way be likely to undermine the essential process which was underway. Finally, the submission was made that because section 604 of the Criminal Code entitles the person to be tried on indictment to be tried “by jury” then a trial held in front of a juror who could not “hear” the evidence and must have communicated to them by an interpreter means that the accused has not been tried by a jury.
Further the argument goes, the jury would be hearing an interpretation of the evidence by an interpreter by which they will have been influenced by the interpreter’s subjective response to what the witness was saying without themselves having heard the evidence. If that criticism had any validity, it would apply to every trial in which an interpreter of a foreign language, or for that matter an Auslan interpreter interpreting the evidence of a witness who had impaired or no capacity to speak would also involve jurors hearing an interpretation of evidence and therefore not availing an accused of a trial by jury.
Section 604 of the Criminal Code is not concerned with providing for the quality or the integrity of evidence which a jury might hear, failing those standards being met, defining a trial absent those standards as not trial by jury. In my view no court would be likely to construe a provision which entitles an accused to a trial by jury as one which required a juror who without the assistance of any aid, or the translating skills of another human being, could “hear” the evidence. I need not decide the point for the purposes of this decision, however it seems to me to be unlikely that a court would find that there had been a miscarriage of justice and a non-compliance with section 604, or that section 604 would intervene to prevent deaf jurors forming part of juries in Queensland, assuming the Jury Act permitted that, or did not prohibit that. But in the end none of those considerations are ultimately determinative of the issues before me, because none of them were a basis for the decision the Deputy Registrar made.
What does “incapable of effectively performing the functions” of a juror mean?
Juries comprise a cross section of the community. That is a principle reason for their use. These include members of the community of greater and lesser experience, intelligence, sensory capacity and other features which might render their ability to comprehend evidence, and its significance and interrelationship, and render a true verdict according to law. It seems to me to be implicit in the terms of section 4 of the Jury Act that all persons who are members of the community, and not excluded are qualified to serve. Some would be qualified to serve, but are disqualified because they are in particular employment categories. But they are nevertheless, in a sense, intellectually and physically qualified.
A convicted criminal is obviously physically qualified, but disqualified because of their specific history. When it comes to the excluded categories in section 4 which reflect capacity to perform a service, there are two; subsection (3)(k), which deals with the inability to read or write the English language and which in many cases would possibly require some level of judgment, and subsection (3)(l) which is that to which I have already made reference as having been thought to apply here. But the language of subsection (l) is not concerned with persons whose capacities are diminished. They must pass the threshold of being sufficiently diminished to render them “incapable of effectively performing the functions” of a juror allowing for the very real likelihood that many members of the community will have diminished capacities to perform those functions when compared to the capacities of others.
What are the functions of a juror? The Jury Act has a dictionary, but that expression is not defined there. The nearest this Act comes to identifying the jury’s functions is in sections 50 and 51, which requires that they be sworn “to give a true verdict”:
“50 Jury 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.
Editor's note—
For the form of the oath, see the Oaths Act 1867, sections 21 (Swearing of jurors in civil trials) and 22 (Swearing of jurors in criminal trials). Under the Oaths Act 1867, section 17, a juror may make an affirmation instead of an oath in certain cases (see also section 5 of that Act).51 Jury to be informed of charge in criminal trial
When the jury for a criminal trial has been sworn, the judge must ensure the jury is informed—
(a) in appropriate detail, of the charge contained in the indictment; and
(b) of the jury's duty on the trial.”Of course every case involving a capacity to perform will be different. The decision here though was not made on the basis that because of the Complainant’s disability, namely her being deaf, she was incapable of hearing and determining the evidence according to an oath which she was undoubtedly capable of taking.
Much was made in argument by both parties before me about the extent to which the use of Auslan would be capable of effectively communicating evidence heard in the court to a deaf juror. The evidence of Professor Napier, which I have already mentioned would suggest that concerns upon that issue are largely misplaced.
There was also argument as to the extent to which the Complainant might have effectively understood or for that matter not entirely understood the tone or demeanour or other material aspects of evidence heard in the court or for that matter the deliberations which would occur with fellow jurors.
I have dealt elsewhere with the diminishing significance of demeanour in assessing credit in modern jurisprudence.
But in the end, these considerations were not those which were in the mind of either the Sheriff, or the Deputy Registrar in excluding the Complainant.
Treatment “on the basis of” a protected attribute – the causal element for direct discrimination
Section 10(1) of the ADA requires that the Complainant establish that the Respondent has treated her or proposed to treat her in a discriminatory way “on the basis of” the relevant attribute. Section 10 of the ADA provides that a person’s motive for discriminating is irrelevant.
Against the factual background which I have described above, it is submitted for the Complainant that the mere fact that the Deputy Registrar relied upon section 4(3)(l) of the Jury Act was sufficient to demonstrate the required causal nexus under section 10 of the ADA. It was submitted that whatever the reasoning process, it is not possible to isolate it from the conclusion and say that a conclusion was not based upon the relevant attribute. For the Complainant it was submitted that if the relevant decision by the Deputy Registrar was that the Applicant was incapable of effectively performing the functions of a juror because of perceived requirements of the law for the way in which juries discharged their functions, then this was sufficient causal connection between the relevant contact and the protected attribute. The Complainant submitted that were any other approach adopted, the ADA would be brought “into disrepute among those persons it was designed to protect...” and that the ADA “caused for a broad, purpositive and beneficial approach to determining causation that is not literal or technical” though it is submitted, the Deputy Registrar’s conduct was actuated by the Applicant’s “status as a person with the impairment and biocharacteristic of her impairment, being her need for Auslan interpretation”. Ultimately it was submitted for the Complainant that it was startlingly obvious here that the Deputy Registrar did what she did because the Applicant was deaf and required Auslan interpretation in the jury selection process and, if selected as a juror, in the courtroom and in the jury room. Though in essence, the submission for the Complainant seems to be that if any consideration taken into account in reaching a conclusion as to the reason for what might be thought to be conduct disadvantaging a person with a protected attribute is that the person has that attribute, then the conclusion is one which was based upon the relevant attribute. An analysis of the authorities however which have dealt with this causative element, do not in my view support this conclusion.
The Queensland Court of Appeal in JM v QFG and GK [1998] QCA 228 gave careful consideration to the approach to be taken to ascertaining whether something occurred on “the basis” of an attribute. That case involved an appeal from a decision of the Anti-Discrimination Tribunal concerning whether a refusal of treatment at an infertility clinic on the claimed basis that a patient’s lawful sexual choice of lesbianism amounted to direct discrimination. The approach of the court was to carefully identify precisely what was the reason for the refusal of the treatment. It was held on an analysis of the evidence that it could not have been said to have been her exclusive lesbianism, but rather the fact that she failed to comply with the Respondent’s definition of what constituted infertility, which led to her being refused the relevant treatment.
Thomas JA said, in that case “...a proper reading of the doctor’s evidence demonstrates that there was no such discrimination on the basis of the patient’s lesbian sexual activity, and it was not open to find that there was. The evidence showed that doctors providing services of this kind (including the respondent doctor) endeavoured to act upon reports and statements made by various bodies including the National Bioethics Committee. That Committee had published the view that “the most commonly accepted definition [of infertility] within medicine is the inability of a couple to conceive after twelve months of intercourse without contraception”. That definition on any reasonable view seems to contemplate failure to conceive after intercourse between members of opposite sexes before infertility is established.
And later Thomas JA said “It is true that as the result of some leading and argumentative cross-examination by the President the doctor made statements, which taken in isolation, admitted the lesbian relationship as the basis of his decision. But those concurrences were driven by the “stable and exclusive lesbian relationship” fallacy mentioned above, and also, it would seem, by the assumption in the questioning that the failure of a member of a lesbian couple to qualify was the result of her lesbian sexual activity rather than the result of her sexual inactivity with a member of the opposite sex. This is addressed in (c) below...(c) The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but common sense suggests that many lesbians are also prepared to engage in heterosexual activity. One can only include the quality of heterosexual inactivity in a particular individual if one overworks the term “lawful sexual activity” by adding personal relationship factors such as “exclusive relationship” to the concept.
Davies JA said what “the President appears to have done is to conclude that, because it was exclusive lesbianism which, on the evidence of the second respondent, prevented the appellant from complying with the reason for treatment, exclusive lesbianism was the reason or a substantial reason, for refusal of treatment. That is neither logically nor legally correct. On the second respondent’s evidence the reason why she was refused treatment was that she did not comply with the second respondent’s definition of infertility. The reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first, not the second, which is the reason, and the only reason, for refusal. The second is not a reason for refusal as, in other cases, celibacy or the engaging in exclusively protected intercourse or the failure to maintain a relationship for 12 months would not be a reason for refusal. Each is merely one of the categories of person who does not comply with the reason for treatment, the sole reason for refusal being non-compliance with that reason, namely infertility as defined by the second respondent and others.”
The High Court in Australian Iron and Steel Pty Ltd v Banovic[4] was concerned allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:
“... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected”.
“Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... There is no finding to that effect by the Tribunal”.
[4] (1989-1990) 168 CLR 165 at 176-7.
Hence the court in Australian Iron and Steel Pty Ltd v Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The court went on to consider the alternative case of whether it was a case of indirect discrimination.
Shortly after Banovic was decided the High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49.
The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the court differed. Mason CJ and Gaudron J (Deane J agreeing) held under the heading “Section 17(1): does it require an intention or motive to discriminate?” at pages 520-521 as follows:
There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.
A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in relation to section 1(1)(a) of the Sex Discrimination Act (UK) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at 1194): “The intention or motive of the defendant to discriminate… is not a necessary condition of liability”.
His Lordship noted (at 1194) that, if intention or motive were relevant: “it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys” (emphasis added). (See also the discussion by Deane and Gaudron JJ in Banovic, at CLR 176–7.)
McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said at 103 ALR 513 at 552-553:
“The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).
With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.
The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.
How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.”
As has been often recognised in this context, it is important that the term which it is alleged was imposed be formulated with some precision; Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 at 185.
The “term” or condition relied upon here by the Complainant is the “condition of being able to communicate by conventional speech in the jury room”.
Reasonableness of the relevant condition
This condition or requirement as it came to be ultimately articulated, was nuanced from the proposition advanced in the course of the Complainant’s opening that the condition was that she “be able to communicate with others by a conventional speech”. The refocus upon the capacity to communicate in the jury room reflects the reality that the decision made by the Deputy Registrar here was in part, if not entirely unrelated, to the Complainant’s capacity to participate in the trial up until the moment when the jury retired.
The submission then moves to an argument to the effect that this was a term which a higher proportion of persons who are able to hear was able to comply with, and that it was not reasonable. As section 11 of the ADA makes clear indirect discrimination must also be on the basis of an attribute, but in this context it is deemed to be on the basis of an attribute if there was a term imposed with which a person, in this case with the attribute of deafness and consequential inability to communicate by conventional speech is not able to comply, and with which a higher proportion of people without the attribute comply or are able to comply. In those circumstances the requirement creates a discriminatory effect and it is not necessary that the person imposing or proposing to impose the term is aware of the indirect discrimination. Hence, those aspects which require a causal connection or identification of what is actuating the alleged discriminatory conduct is not a consideration in this context.
The difficulty with the argument put for the Complainant is in fact at no stage did the Deputy Registrar impose as a condition of her remaining on the jury panel, that she be able to communicate by conventional speech in the jury room. It may well have been that had the Complainant been able to assure the Deputy Registrar that she could communicate by conventional speech in the jury room, and did not require an Auslan interpreter to be present then she would not have had any reason to exclude her from jury service. It is true that in excluding persons from jury service who were required to have an Auslan interpreter present in the jury room, and to the extent that persons without the attribute of deafness were able to comply might have had a discriminatory effect. But here 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. The solicitor for the Complainant did not seek to develop the argument as to how it was that the term or condition relied upon here was in fact imposed. For example it is not suggested that the Registrar informed the Complainant that if she were to be on the jury she would have to be able to communicate by conventional speech whilst in the jury room. And that is the precise formulation of the term which it is alleged was imposed here.
Most of the submissions put forward in this context on behalf of the Complainant went to the question of whether the term which it is said was imposed was not reasonable. For the Complainant it was submitted that the term was not reasonable on various bases set out in paragraph 51 of the written opening statement. The points made in the Applicant’ written outline go rather to the question of whether it would be reasonable to permit a person who required an Auslan interpreter to participate in juries, and for necessary resources and perhaps even amendment to the Jury Act be carried out to permit that to occur.
The question of whether the conduct of the Registrar here, with the assistance of the Sheriff’s advice, involved the imposition of a term or condition which was not reasonable has troubled me greatly and arriving at a clear conclusion has not been without its difficulties. That is because, in the case of the Registrar, her decision was really based upon acceptance at face value of what the Sheriff had told her was the legal position, no doubt given considerable weight by the statement of the Judge to the effect that her participation as a juror would not occur. Although Deputy Registrar Britton dealt with the Complainant in a civil and sympathetic way, she did very little to ascertain whether in fact there were alternative ways in which the matter could be dealt with without excluding the complainant from the jury panel.
The result may well have been inevitably that a Judge, with ultimate power to control who would or would not be allowed on a jury panel, would have exercised that discretion to exclude the Complainant on the basis that the presence of an Auslan interpreter would lead to a mistrial. At the time Ms Britton was also unable to actually procure the services of an Auslan interpreter although by the time several days had passed from the commencement of the sittings, it may well have been that one could have been obtained but for the fact that the Complainant was going to be excluded from the panel for other reasons. It is hardly surprising that a court officer would seek to give effect to the expressed views the Judge who would be conducting the trial be given due weight and also to ensure that she applied the law, including that which had been summarised for her by the Sheriff.
Had she had an opportunity for proper reflection, she may well have been able to conclude that there was an alternative to the exclusion of the Complainant from the jury panel. That does not of course mean that the Complainant would have been selected as a juror, and sworn as a juror even had the Judge given leave for an Auslan interpreter to be present in the jury room.
But as the Queensland Law Reform Commission Report recognises, persons with disabilities ought not, except for good reason be excluded from participation in that service. Knee jerk reactions to circumstances where jurors with disabilities seek to exercise their right to participate by excluding them, when they might well be accommodated is prima facie not a reasonable reaction.
Because of the generality of the questions which jurors were sent the Complainant was quite properly entitled to take the view that she was not a person incapable of effectively performing her functions, even though ultimately others might take the view, as the Respondent has here, that that cannot be met if the juror is required to have someone else in attendance in the jury room. But the juror questionnaire did not ask such a question. Had it done so the Registrar may have been in a better position to make an informed decision, in good time as to whether there were circumstances in which a Complainant could remain on the jury panel. There is nothing in the terms of section 18 of the Jury Act, which requires a questionnaire to be sent to prospective jurors which requires it to adopt the precise language of section 4 as to those who are eligible and the powers of the Sheriff (in this case) delegated to the Deputy Registrar to exclude names appears only to arise in the context of keeping the jury roll for a jury district;
Section 10(2) which requires the Sheriff to exclude from the roll the names of persons who are to the Sheriff’s knowledge, not qualified for jury service, otherwise than under section 19 on an application by a juror to be excused. Otherwise section 20 permits a Judge to exercise the power to excuse from jury service on the Judge’s own initiative. So in this case the power purportedly being exercised by the Deputy Registrar, according to the submissions for the Respondent is that in section 24 of the Act. That however is a power to revise the list by exclusion of persons who “in the Sheriff’s opinion” is not qualified for jury service and in that context section 24(3) requires the Sheriff to make reasonable enquiries to find out whether the name of a person on the list of prospective jurors should be excluded because the person is not qualified for jury service. So the Act itself requires a level of enquiry and requires the conclusion to be reached that the juror is not qualified for jury service. Not merely that it is perhaps undesirable or that it might have an unpredictable effect, or that it might be inconvenient or difficult to accommodate a particular juror.
For the Respondent it is contended that no term was imposed of the kind that the Applicant contends for. But if that submission is rejected, it contends that the imposition of the term was reasonable because:
a)It was necessary to impose it to comply with the Jury Act.
b)It repeats various of the submissions I have already mentioned about what it contends to be the construction of that Act.
In this context, it does not limit itself to the contention that there may not be an interpreter in the jury room. The submission extends to arguments that:
a)A term is reasonable in the circumstances if it is necessary to comply with the requirement of an Act of Parliament;
b)This juror could not perform jury service because she could not effectively perform the functions of a juror, and that is because the Applicant required an Auslan interpreter; and
c)That the functions of a juror required her to listen to the evidence, draw inferences from it given orally in open court and assess witness credibility based upon a juror’s impression based on demeanour.
I have already rejected the proposition that what the Deputy Registrar did was necessary to comply with the terms of the Jury Act. What she did may have been justifiable on one reading of those legislative provisions, however, there was certainly no legal necessity associated with what she did. There is certainly room for doubt as to what the language of section 4(3)(l) is concerned with. It does not seem to me to be open to conclude that its reference to persons with a physical or mental disability means that every person with a disability who may require assistance to perform their duty and cannot do so otherwise, is ipso facto incapable of effectively performing the functions of a juror. It is highly questionable whether incapacity can involve secondary considerations which are not caused by the physical or mental disability itself, but caused by the necessity for example for something else to occur which may or may not be permissible by statute, e.g. to allow for the presence of a non-juror during jury deliberations. I have already rejected, for reasons set out elsewhere, the proposition that jurors to perform their functions it is necessary that they be capable of listening to the evidence given orally in open court.
I have mentioned that a deaf juror would not “hear” any evidence but rather observe an interpreter translate using Auslan the sign language of a witness. Credibility based upon physical demeanour is of course still possible, and one aspect, albeit of relatively little import is the tone in which the witness gives their evidence. But of course the High Court has now cast doubt upon the reliability of credit findings based upon demeanour[8].
[8] Eg CSR Ltd v Della Maddalena [2006] HCA 1 at [46].
Because I have found that there was no term or condition imposed 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.
Had I concluded that the term or condition to which the Complainant contends was in fact imposed, I would not have accepted that the imposition of that term by the Deputy Registrar was reasonable in the circumstances of this case.
There were limited consequences of the failure to comply. The ultimate discretion remained in the Judge, and there was power in the court to have allowed an Auslan interpreter into the room with the jurors. I think it unlikely that this being the first time that a deaf juror would ever have been permitted on a jury in Australia that a Judge would have taken the risk associated with that leading to a miscarriage of justice. And of course the Complainant may not have been selected on any jury in any event. There is no suggestion that there was a significant cost associated with accommodating the Complainant’s needs and of permitting her to remain on the jury panel available for selection. Hence to use some of the examples of matters which are to be considered in determining whether a term is reasonable in section 11(2) of the ADA, those considerations tend to demonstrate that the conduct was not reasonable.
There is no doubt that the Deputy Registrar was well motivated in her decision and was not seeking to be discriminatory either directly or indirectly. But as section 11(3) makes clear, her awareness of the nature of the indirect discrimination is irrelevant. In substance the only basis put forward for the Respondent as demonstrating reasonableness misstates the legal effect of the Jury Act and wrongly bounds it argument upon the proposition that it was necessary to exclude the Complainant from the jury panel to comply with that Act.
Implied repeal of the ADA by the Jury Act
The Respondent contends what amounts to a rather abbreviated submission on the point that the removal of the Complainant from the jury panel was not unlawful discrimination, but that if it was, there was an implied repeal of the ADA “to the limited extent of the inconsistency between the two Acts”. The submission does not condescend to an analysis of the extent of such an inconsistency. The submission concedes that to determine whether the Jury Act impliedly repeals the ADA, it is necessary to consider whether the competing provisions have “sensible and concurrent operation”[9]. It is also conceded that if they can have a concurrent operation, there is no implied repeal of the ADA. But if the Jury Act requires what would otherwise be unlawful discrimination under the ADA, then the Jury Act must impliedly repeal the ADA.
[9] State of Queensland v Attrill & Anor [2012] QCA 229 at [36].
The real question is not whether the Jury Act impliedly repeals the ADA, it is whether the power purportedly being exercised by the Deputy Registrar amounted to a specific power, conferred in a later enactment dealing with persons with a protected attribute, excluded the operation of the general provisions of the ADA.
The applicable maxim is expressum facit cessare tacitum. That was applied in the Court of Appeal in Attrill, it in turn applying Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia(1932) 47 CLR 1.
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power”.
In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, [2006] HCA 50 referred to above, Gummow and Hayne JJ provided some clarification of the principle:
“Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power”. (Citations omitted.)
In Goodwin v Phillips (1908)7CLR1 at 7, Griffiths CJ identified the general rule, “that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act”.
In Attrill the Court of Appeal posed the question thus at [29];
“To determine whether Pt 7 has effected an implied repeal or exclusion of s 15, it is necessary to consider whether, in fact, the provisions “are capable of a sensible concurrent operation”. If the conclusion were that application of the Anti-Discrimination Act provisions meant that the chief executive could not lawfully exercise his powers under Pt 7, the appellant’s case for repeal or exclusion would be made out.”
In supplementary submissions delivered some months after the trial, the Respondent sought to develop this argument by reference to what it contended was the basis of the exercise of the power here by the Deputy Registrar, namely sections 24 or 36, insofar as they applied section 4(3)(l) of the Jury Act.
To the extent that jurors or potential jurors were not otherwise disqualified from service are disqualified from service because they have physical or mental disabilities that make them incapable of effectively performing the functions of a juror, then demonstrably both the provisions of the Jury Act itself, and its supplementary provisions which allow for a Sheriff to exercise powers to give effect to section 4 impliedly repeal the provisions of the ADA which would deem the exclusion of persons from participation on the basis of protected attributes as unlawfully discriminatory.
But I have already found that the power being exercised in this case was not being exercised pursuant to either section 24 or 36 because the times for which those provisions were to be applied by the Registrar had already passed. Furthermore, and I do not intend to repeat the conclusions I have already reached as to the proper construction of the Jury Act. Those provisions require or at least assumes that the objective conclusion is open that the relevant person is incapable of effectively performing the functions of a juror. Reasonable minds may differ upon this, but in my view the language of section 4(3)(l) is not concerned with secondary aspects of disability which mean for example the requirement for the presence of a translator might offend some legislative provision. Even if I am wrong about that construction of section 4(3)(l) it does not follow that a person is incapable of performing the functions of a juror merely because they require a translator to be present because of the remnant discretion in the court to allow that to occur. Hence, in my view it is quite wrong to suggest, as does the Respondent, that in the circumstances of this case the powers being exercised by the Deputy Registrar under delegation were incapable of being applied in a way which applied for a sensible concurrent operation with the provisions of the ADA. I pause to mention again that this is not a case in which the Deputy Registrar formed the view that the Complainant had a physical or mental disability that of itself made her incapable of performing the functions of a juror. Indeed in a number of places in their final written submissions, Counsel for the Respondents expressly repudiated any suggestion that that conclusion had been reached, or was a relevant consideration except to the extent that that incapacity related to the necessity for a translator to be present in the jury room.
If I am wrong in my interpretation of section 4(3)(l) and an incapacity in that context can include the likes of the necessity to include a translator, then to the extent that the inclusion of a translator is impermissible at law under the Jury Act then there is a direct inconsistency and the Jury Act will prevail. For the reasons I have already mentioned however, it does not seem to me that it necessarily follows that under the Jury Act the inclusion of a translator in the jury room to assist a juror in deliberations is absolutely prohibited.
As Justice Holmes recognised in Attrill[10] a construction which gives to arguably conflicting Acts, their affect is to be preferred. The provisions of both Acts can indeed work effectively in respect of the exercise by non-judicial officers of powers under the Jury Act to decide who shall remain on a panel for potential jury selection. They do not, contrary to the submissions made on behalf of the State, leave the Applicant aggrieved by a decision to the effect that they are not capable of performing jury service with the only remedy namely that by way of judicial review rather than under the ADA.
[10] at [38].
Compensation issues
For the reasons I have already provided, I intend to dismiss the complaints of both direct and indirect discrimination. Whether or not a finding had been made of direct, or indirect discrimination, the relief that ought to have been granted would have been the same in either case.
For the Applicant it is submitted that orders ought be made:
a)requiring the Respondent not to commit a further contravention of the Act by refusing to permit her to participate in jury selection process and perform jury duty. However I would be disinclined to make such an order since it is anticipatory of an event which is yet to occur and hardly necessary. If indeed the refusal to permit her to participate in jury selection process is unlawful under the Act, then the operation of the Act itself is sufficient to provide the relevant relief.
b)The second order is for the Respondent to make a private apology to her for the discriminatory conduct. I do not consider this to be a case where the Respondent’s conduct lacked sensitivity or showed any malafides or caused any intentional hurt or humiliation. I do not regard this as an appropriate case for an apology.
Finally, it is submitted that the Respondent ought be ordered to pay the Complainant compensation in the amount of $20,000.00. These claims were set out in material filed as part of the Complainant’s opening statement. Her final address did not deal with the question of compensation although in written submissions filed on or about 29 October 2013, further submissions were made which addressed this issue.
For the Complainant it was contended that she was embarrassed, hurt, humiliated and distressed by the way she was treated by the Sheriff. Presumably that is intended also to refer to the Deputy Registrar’s conduct. It was submitted that the conduct was a serious assault upon her dignity and sense of equality and that it has been implied that she is incompetent to perform jury duty because of stereotypical views about the effects of her impairment. No reference was made to any comparable authority on the measure of compensation which might be made in a case such as this. I accept that the Complainant was humiliated and frustrated by the way she was treated, and her reaction to it may readily be seen from the content of the emails she wrote to the court about that time. It is indeed an important part of the civic duties of all members of the community that they be permitted to engage in important community functions, including participation in the jury. The importance of this has been recognised by the Law Reform Commission, whose comments on this issue are mentioned earlier in these reasons.
For the State it is contended that the appropriate range for compensation is in the range of $5,000.00 to $10,000.00. Reference has been made to the decisions of Irvine and Portus v Mermaid Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482 and Carey v Cairns Regional Council [2011] QCAT 26. In the former case an award of $15,000.00 for damages was made in circumstances in which a Complainant was subjected to sexual harassment and discrimination by termination of her employment on the grounds of pregnancy. There was a significant level of depression and other medical indicia which justified an award of $15,000.00. The decision in Carey involved an employee who suffered considerable distress, depression, hopelessness and loss of self esteem as a result of an unlawful dismissal.
I have no doubt that the Complainant believed herself wronged, and felt she was treated as incompetent simply because she was deaf. This no doubt would have caused her distress and frustration. She did strike me as an intelligent, and perhaps quite robust person who was capable of expressing herself and acting reasonably in response to what had happened to her. She did not strike me as a person who would unreasonably allow herself to suffer in the false belief that she had been treated as incompetent because she was deaf, when the true position was explained to her at an early stage following her complaint.
In the circumstances, had I upheld the claim in my view a reasonable allowance to compensate her for the effects of the conduct in question would be the sum of $10,000.00. I would have allowed interest upon that sum at the rate of 4% per annum for a period of 1.5 years.
The formal order that I make is to dismiss the complaints.
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