NSW MPs continue to relegate the disability community, denying Deaf jurors to serve in court hearings

Today in Parliament, Abigail moved a Greens amendment to the Jury Amendment Bill 2023, demanding the inclusion of the Deaf community in jury panels which was shamefully rejected by the vast majority of the Upper House.

Abigail said:

I move The Greens amendment No. 1 on sheet c2023-127A:

No. 1  Support for persons with disability

Page 3, Schedule 1. Insert after line 6—

[1A] Section 14E

Insert after section 14D—

14E Reasonable support for potential jurors with disability

(1) This section applies if a judge is satisfied a person summoned to attend to serve as a juror, and who has not claimed an exemption or otherwise been excused from attendance, may be unable to properly discharge the duties of a juror, because the person has a mental or physical disability.

(2) The judge must—

(a) consider if support that would enable the person to properly discharge the duties of a juror can reasonably be given, and

 Examples of reasonable support — the provision of an Auslan interpreter, disability aid, support person or assistance animal

(b) if satisfied the support can reasonably be given, make a direction that the support be given.

 

Some members will be familiar with the late Michael Lockrey. He was a man who was profoundly deaf, and he died unexpectedly in November 2020. He was doing incredibly important advocacy work on behalf of the deaf community prior to his death.

Michael Lockrey advocated on behalf of the deaf community for their participation in all aspects of society, including as jurors. In 2012 Michael received notice to report for jury duty, but he was denied participation due to his hearing impairment. On 30 May 2016 the United Nations Convention on the Rights of Persons with Disabilities reported on Michael's efforts to secure fairness for the deaf in representation on juries. That report outlined Michael's appeal process through the Sheriff of New South Wales, the Australian Human Rights Commission and, finally, the United Nations Convention on the Rights of Persons with Disabilities, to which Australia is a signatory.

Article 29 of the United Nations convention seeks to guarantee the right of all disabled people to effectively and fully participate in political and public life, and in the conduct of public affairs. The convention also mentions the right of deaf people to access professional sign language interpreters in all areas of life, so it can be argued that preventing deaf people from serving as jurors because of their need to have an interpreter present is a breach of the rights of citizenship and of human rights.

The United Nations Committee on the Rights of Persons with Disabilities found that the exclusion of deaf people from jury duty was discriminatory and that the failure of the New South Wales Government to act to include deaf people on a jury constituted a breach of Australia's obligations under the convention. That was a finding made in favour of Michael and his work.

Michael Lockrey was successful in convincing the United Nations to come and say, "Yes, you are right. You should be allowed to be a juror in New South Wales." My understanding is that the New South Wales Law Reform Commission then wrote to the New South Wales Government and recommended that, among other things, it amend the Jury Act 1977 to allow deaf people to serve on juries. But, so far, the New South Wales Government has not implemented that recommendation. A significant barrier to deaf people who use Auslan serving on juries is a misunderstanding that they do not have the capacity to sufficiently comprehend courtroom and jury proceedings. But, as long as a deaf person has interpreters present, he or she would be able to follow courtroom and jury room deliberations, and there is nothing that would prima facie disqualify a deaf person from being able to discharge their duties as a juror.

I understand that there is another perceived obstacle: Deaf jurors have not been permitted to serve due to what is called the thirteenth person in the jury room. The barrier is based on a mistaken belief that interpreters play an active role in proceedings. Anyone who has observed the amazing Auslan interpreters in our Portfolio Committee No. 3 inquiry into children with disability in New South Wales educational settings will perhaps be far more aware than they were before of exactly what role an Auslan interpreter plays. They are simply interpreting and translating what is being said to the listener. They do not advise or participate or add flourishes in that interpretation process. Deaf people can serve as jurors in New Zealand and Ireland, and in some states of the United States, and the most recent research in Australia proves that there is no measurable detriment to having a deaf person and an interpreter as part of court proceedings and in the jury deliberation room. That is why we bring the amendment today.

This amendment would amend the bill to allow all people to be considered as potential jurors regardless of their disability. It requires that reasonable support be given to a person with a disability while they are serving on a jury, as long as that person has not claimed an exemption or is otherwise excused under the existing provisions of the Jury Act. Some examples of reasonable support include the provision of a Auslan interpreter, the provision of a stenographer, accommodation to allow disability aids, allowing for a support person to accompany a juror, and also allowing an assistance animal to accompany the juror, if that is one of the requirements that would fit within this reasonable adjustment concept.

In June last year I moved a motion in this place relating to this exact issue. If I recall correctly, it was passed unanimously; I think it went through in formal business. That motion called for the Government to implement in full the recommendations of the Law Reform Commission, which I referred to earlier, to allow blind or deaf people to exercise their democratic right to perform jury duty by having an interpreter or stenographer with them to interpret or transcribe proceedings or jury deliberations. The amendment I move today is exactly what we all agreed to in that motion. I anticipate that the amendment will not be supported, but I am looking forward to understanding why. In this day and age there is really no good reason why we cannot enable deaf jurors and those who are hard of hearing to participate in society like everyone else. A deaf person can be a defendant; they can be a witness. There is no reason why they cannot also be a juror. I commend the amendment to the Committee and look forward to the debate.

Labor and the Coalition then indicated they would not be supporting the amendment, to which Abigail responded:

I thank the Hon. Susan Carter for her contribution, which I take at face value. Members passed a motion to this effect last June. I am beginning to wonder why we do motions anymore. When the Government and its Minister have given feedback on a motion to say, "Yes, we agree with it"—they have not come to us to change anything and we have not had amendments—and it has been passed by the House, what is the point if the Government does nothing? I do not understand. It is not the first time that members have been here. The motion stated:

(3) That this House calls on the Government to implement in full the recommendations of the NSW Law Reform Commission, to allow blind or deaf people to exercise their democratic right to perform jury duty by having an interpreter or stenographer with them to interpret or transcribe proceedings or jury deliberations.

All members agreed with that in June last year. We said, "Yes, this is a human right. Yes, we've already been told off by the United Nations that we are breaching rules. Yes, we've been told that we're creating an environment that is not accessible for people with disability, yet again." We all agreed. I left it quite a long time, I thought. Then we got this bill through and I thought, "Great". The Government does not seem to be able to draft what is an incredibly easy provision to draft, based on what we have had in other jurisdictions that seem quite capable of allowing deaf people to participate as jurors. This amendment was drafted and it does the trick—but no. Why are we not doing it? Maybe it is just a little hard. Maybe we just do not really want to make those adjustments to allow people with a disability to participate in society because it might inconvenience the rest of us.

I get really fed up when it comes to disability issues in this place because, time and again, people with disability are at the bottom of the pile when it comes to priorities for whatever government it seems to be. I asked the previous Government to make this amendment for a good couple of years before I moved a motion on this issue in the House in 2023. Everyone agreed that it would be good to implement. Today the Government is giving excuses. We went through this issue, and to be honest it is incredibly ableist to say, "Actually, that would be a thirteenth person in the room." The issue has just been explained to members.

Anyone who would take the time to speak with the Deaf community and observe, or speak to, an interpreter would see for themselves that the autonomy of a deaf person is not taken away when an interpreter is interpreting for them. They are simply interpreting. The idea that an interpreter is a thirteenth juror in the room who is going to sway this person from what they would otherwise decide is incredibly offensive. It is incredibly offensive to say to somebody that they cannot participate in the same way that everybody else does because members do not understand what Auslan interpretation is about. That is really offensive.

Then members say, "Yes, but the problem is actually interpreter availability." I think that when judges make reasonable adjustments they are able to work out that if an interpreter is not available, a reasonable adjustment is not going to happen in this case. That is not an excuse for not passing this amendment. That is really bad form. If the Government, and the previous Government, actually cared about those sorts of obstacles to people who are deaf fully participating in our community, then they would have invested in Auslan capacity in the workforce, which they have failed to do.

I am getting really sick of hearing my own voice after standing in this Chamber for five years going on and on about the need for Auslan capacity in the workforce. It is not good enough. I put this amendment up fully knowing that members would respond the way they have because that is always the response. That is not good enough. The Attorney General needs to stop making excuses. He could have easily done what is in the amendment and sent a message to the countless people with disability in the New South Wales community that we actually see them and care about them. Members need to do better. I am really fed up with this.

 

Read the full debate in Hansard here.

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