Current Legislation Summary

The following table shows what the current legislation is by state (jurisdiction) and what claims or actions have been taken.

Jurisdiction
Relevant Legislation
Comments on Jury Duty to date

New South Wales

Jury Act 1977 (NSW) s 14; Schedule 1

Sheriff required to delete from jury roll the names of those persons he or she determines are disqualified or ineligible to serve as jurors.

These are set out in Schedule 1, and include ‘a person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror’.

To date, the Sheriff has determined that people who are blind or deaf or have significant impairment to their sight or hearing are unable to discharge the duties of a juror, and thus are ineligible to serve.

Queensland

Jury Act 1995 (Qld)

Section 4(3)(k) of the Act exempts a person who ‘is not able to read and write in the English language’, and section 4(3)(I) exempts a person who ‘has a physical or mental disability that makes the person incapable of effectively performing the function of a juror.’

Queensland Court of Appeal held (in Lyons v State of Queensland (2015) QCA 159) that under existing legislation, deaf jurors who requires an Auslan interpreter are ineligible to serve. Ms Lyons has been granted special leave to appeal the decision by the High Court. The Queensland Courts Services has advised that legislative reform may be considered pending the outcome of the appeal. No blind people have applied to serve to date.

Northern Territory

Juries Act (NT)

Schedule 7 exempts a ‘person who is blind, deaf or dumb or otherwise incapacitated by disease or infirmity from discharging the duties of a juror.’ The Act also permits the Sheriff to question any chosen juror to ascertain whether that juror is able to ‘read, write and speak the English language.’

The Northern Territory reports that, while a number of jurors have been summoned who are deaf or blind, to date all have contacted the Sheriff’s office to make an exemption application.

Western Australia

Juries Act 1957 (WA) s 34G(2)

A judge or summoning officer may excuse a person if satisfied that a person who is summoned ‘is not capable of serving effectively as a juror because he or she has a physical disability or a mental impairment. The Act also provides that a person is unable to serve if they do ‘not understand spoken or written English, or cannot speak English, well enough to be capable of serving effectively as a juror.’

The first deaf person requiring Auslan interpreter in Australia was selected for trial empanelment on 14 January 2014 in the Perth District Court. She was ultimately not selected for a trial. The Sheriff’s Office subsequently received legal advice which confirmed that deaf people could not speak English adequately to fulfil the requirements of the Act. To date there have been no enquiries about whether a blind person is able to serve.

South Australia

Juries Act 1927 (SA) s13

A person is ineligible for jury service if he or she is mentally or physically unfit to carry out the duties of a juror. A person is also ineligible if he or she has insufficient command of the English language to enable him or her properly to carry out the duties of a juror.

To date, no deaf people have applied to serve. Even if they had, the facilities are inadequate at this stage to accommodate an interpreter and any additional requirements that the person may need. The Sheriff’s Office noted that inadequate facilities have also previously resulted in a blind person being excused who was keen to serve. While concerns were expressed about the ability of a blind person to access evidence, The Office considered that it would be easier to accommodate a blind person than a deaf person.

Australian Capital Territory

Juries Act 1967 (ACT)

Under the Act, people who are ‘totally or partially deaf or blind’ may claim exemption from serving as a juror. Section 10 provides that a person is not qualified to serve who ‘is unable to read and speak English language’ or ‘is, because of mental or physical disability, incapable of serving as a juror.’

In 2008 amendments to the Juries Act, the explanatory statement noted that ‘it is no longer appropriate to exclude people who are blind or deaf from participating in one of the rights and responsibilities of citizenship purely on the basis of a disability and without any enquiry as to the actual ability of a member of that class to perform as a juror.’ The ACT reports that no blind person have applied to serve, almost all ‘hearing impaired’ people who received a jury summon claim the exemption and are excused. There have been no instances of a deaf person requiring Auslan interpreter requesting to serve.

Tasmania

Juries Act 2003 (Tas)

Section 6(3) and Schedule 2 provide that people ‘who have a physical, intellectual or mental disability that renders the person incapable of effectively performing the duties of a juror’ or ‘who are unable to communicate in, or understand, the English language adequately

Prospective jurors who are deaf and wish to participate are currently advised that the Court does not have the capability to cater for someone who is profoundly deaf for jury service. On some occasions, potential jurors have been excused from jury service on the basis of hearing impairment.

Federal Court

Federal Court of Australia Act 1967 ss 23DQ and 23DR

The Sheriff may excuse a potential juror because of the potential juror’s inability, in all the circumstances, to perform the duties of a juror to a reasonable standard (s 23DQ), or if satisfied that the potential juror is, in all the circumstance, unable to perform the duties of a juror to a reasonable standard (s 23DR). The note to each of these section provides that the Sheriff must have regards to the Disability Discrimination Act 1992 Cth).

The Federal Court has had no jury trials to date. Legislation providing for criminal jury trials is new and untested.

Source: Discussion paper: equality and fairness in jury section, Victoria Government (Department of Justice and Regulation) 2016.