The High Court has dismissed an appeal against a decision of the Queensland Court of Appeal on whether preventing a deaf person from serving on a jury constitutes discrimination. The appellant, who is deaf, is a proficient lip reader, but requires an Auslan interpreter when communicating with people who do not know Auslan. After being called for jury service, the appellant notified the Deputy Registrar that she required an Auslan interpreter, after which the Deputy Registrar excluded the appellant as a potential juror under s 4(3)(l) of the Jury Act 1995 (Qld) which precludes a person with a ‘physical or mental disability that makes the person incapable of effectively performing the functions of a juror’ ineligible for jury service. The appellant contends that this decision constituted both direct and indirect discrimination, contrary to the Anti-Discrimination Act 1991 (Qld). The QCA dismissed an appeal against the QCAT holding that the registrar had not discriminated against her on the basis of her deafness, but rather because the Jury Act would have prevented her from communicating with the Auslan interpreter during closed jury deliberations.
A unanimous High Court dismissed the appeal. The plurality (French CJ, Bell, Keane and Nettle JJ) held that a deaf person who requires an interpreted to communicate with other jurors is not eligible for jury service in Queensland because an interpreter cannot be allowed to assist the appellant while the jury is kept together, and that the Deputy Registrar’s decision not to include the appellant in the jury panel was not unlawful discrimination under the Act. The plurality rejected the contention that the disclosure of jury deliberations to an Auslan interpreter is ‘allowed by law’: the common law has long required that juries be kept separate, not communicate with persons other than fellow jurors (or an officer of the court), and that no one besides a juror be present in the jury room during deliberations to avoid any suggestion of external influence and to promote a frank exchange of views between jurors (see ). Similarly, the plurality rejected the appellant’s contention that s 54(1) of the Jury Act, which prohibits any person besides a juror from communicating with any of the jurors without the judge’s leave, extended a grant of leave to an Auslan interpreter: that power is aimed at communications with the jury while they are kept together, not a general power to grant leave to a person to be present during deliberations (at ). These conclusions are reinforced by the absence of a provision allowing an oath to be administered to an interpreter (at ) or a prohibition against seeking disclosure of jury information as it would apply to an interpreter (see ).
Gageler J agreed with the conclusions of the plurality, but noted that the plurality’s central conclusion that a person requiring an interpreter cannot effectively perform the functions of a juror within the meaning of s 4(3)(l) of the Jury Act also answers the appellants’ claim that the Deputy Registrar contravened the prohibition against discrimination contained in s 101 of the ADA. Rejecting both the appellant and respondent’s arguments on the interaction between the Jury Act and the ADA (respectively, that s 101 controls the application of s 4(3)(l), and that the Jury Act impliedly repealed the ADA: see –), Gageler J held that the ‘better answer’ is that administering the Jury Act solely to give effect to the definition in s 4(3)(l) cannot be either direct or indirect discrimination (at )
|High Court Judgment|| HCA 38|
|High Court Documents||Lyons v Queensland
|Full Court Hearing|| HCATrans 165||25 July 2016|
|Special Leave Hearing|| HCATrans 60||11 March 2016|
|Appeal from QCA|| QCA 159||28 August 2015|
|Decisions, QCAT|| QCATA 302||21 October 2014|
| QCAT 731||11 December 2013|