High Court of Australia confirms Queensland law does not permit an Auslan interpreter to be present during jury deliberations

Lyons v State of Queensland [2016] HCA 38

The High Court of Australia has dismissed an appeal from the Queensland Court of Appeal, confirming that a deaf woman was not unlawfully discriminated against when she was excluded from jury service.

The appellant, Ms Lyons, is profoundly deaf. She is an active member of the community and is employed as an office administrator and shop co-ordinator. Ms Lyons, though a capable lip reader, prefers to communicate through Australian Sign Language (Auslan).

In January 2012, Ms Lyons was given written notice that she had been summoned for jury service by the Deputy Registrar of the Ipswich District Court for a period of three weeks to commence in February 2012. Ms Lyons was required to complete a questionnaire designed to determine whether she was qualified to serve as a juror and was provided with an application form should she wish to make an application to be excused from jury service.

Ms Lyons completed and returned the questionnaire and subsequently received a summons for jury service.  Upon receiving the summons Ms Lyonsadvised the Ipswich Courthouse she was deaf and would require two Auslan interpreters in order to perform jury service.

The Deputy Registrar advised Ms Lyons there was no provision under the Jury Act 1995 (Qld) (Jury Act) to swear in an interpreter for a juror and that an interpreter cannot be present during jury deliberations.  Accordingly, the Deputy Registrar then made the decision to exclude Ms Lyons as a potential juror under section 4(3)(l) of the Jury Act, which provides that a person will not be eligible for jury service if they have  “a physical or mental disability that makes the person incapable of effectively performing the functions of a juror”.

Ms Lyons madea complaint to the Anti-Discrimination Commissioner (Commissioner)  that she had been unlawfully discriminated against by the State of Queensland in contravention of section 101 of the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act). More specifically, Ms Lyons alleged that the Deputy Registrar had directly and indirectly discriminated against her, on the basis of her impairment, in the performance of a function or the exercise of a power under Queensland law, in contravention of the Anti-Discrimination Act.  The matter was unable to be resolved by conciliation and the Commissioner referred the complaint to the Queensland Civil and Administrative Tribunal (QCAT). 

In the first instance, the QCAT found thatdespite the Deputy Registrar misinterpreting the Jury Actthere had been no unlawful discrimination.  The complaint was dismissed.

Ms Lyons appealed to QCAT's Appeal Tribunal. The Appeal Tribunal found that the Deputy Registrar's interpretation of the Jury Act was correct and dismissed the appeal.

The Court of Appeal of the Supreme Court of Queensland refused leave to appeal from the Appeal Tribunal's decision.

By grant of special leave, Ms Lyons appealed to the High Court of Australia.

Before the High Court, Ms Lyons contended that the Deputy Registrar's decision to exclude her from jury service constituted unlawful discrimination because her hearing impairment was the "true basis" or "real reason" for the decision. 

More particularly, Ms Lyons submitted that the Tribunal had misapplied the test for direct discrimination, by selecting the wrong comparator.  The test for direct discrimination requires a decision maker to determine whether a person with an impairment has been treated "less favourably than another person is or would be treated in circumstances that are the same or not materially different".  This is often referred to as the 'comparator test'.

In this case, Ms Lyons submitted that the Tribunal had erred by comparing her circumstances with the treatment of a hearing person who had asked to have another person present to assist him or her in jury deliberations. Ms Lyons submitted that, by selecting the wrong comparator, the Tribunal had failed to give effect to section 10(5) of the Anti-Discrimination Act, which states "the fact that the person with the impairment may require special services or facilities is irrelevant".  The assistance of an Auslan interpreter is an example of special services or facilities that may be required by somebody with a hearing impairment.

In the alternative, Ms Lyons argued that the Tribunal had erred in dismissing her indirect discrimination claim, because the Deputy Registrar's decision amounted to a condition or requirement that Ms Lyons be capable of performing jury service without the benefit of an Auslan interpreter. 

The majority decision of French CJ, Bell, Keane and Nettle JJ held that the correct operation of the Jury Act was an antecedent issue to the discrimination claim.

In short, the majority found that the Jury Act does not permit an Auslan interpreter to assist a juror while the jury was kept together.  Thus, the Court held that Ms Lyons was "incapable of performing the functions of a juror" and was not eligible for jury service.  According to the majority, it followed that the Deputy Registrar was statutorily required to exclude Ms Lyons from jury service.  Therefore, the majority concluded that the Deputy Registrar had not infringed the Anti-Discrimination Act's prohibition on discrimination in the performance of a function or the exercise of a power under Queensland law. Gageler J, delivering separate reasons but also dismissing the appeal, found that the Deputy Registrar made a decision according to an objective definition in section 4 of the Jury Act and was not exercising a “function” capable of amounting to direct or indirect discrimination under the Anti- Discrimination Act.

In Australia, no deaf person has ever served on a jury.

In April 2013, two deaf people from New South Wales appealed individually to the United Nations Committee on the Rights of Persons with Disabilities (UN Committee).  In each case, the individuals had been excluded from jury service under the Jury Act 1977 (NSW) following their respective requests for the assistance of an Auslan interpreter. The appeals to the UN Committee were on the basis that New South Wales, and by effect, Australia, had infringed on their right to equality and non-discrimination under Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD).

In April 2016, the UN Committee determined that Australia was in breach of its obligations under the CRPD and recommended that Australia enact measures to enable participation in jury service such that would prevent a reoccurrence of the same problem.

In Queensland, the predecessor to the Jury Act exempted from jury service persons who “are blind, deaf, or dumb, or of unsound mind or are otherwise incapacitated by disease or infirmity”.  The Explanatory Notes to the Jury Act note that the intention of the new section 4 is to ensure more representative juries.

However, Ms Lyons' case establishes that despite these amendments to the Jury Act, a person requiring the assistance of an Auslan interpreter will be ineligible for jury service in the state of Queensland.  Once again, this highlights a probable failure to comply with Australia's treaty obligations under the CRPD.

Tara Evans is a Lawyer and Emma Purdue is a Senior Associate at Lander & Rogers