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 [33]). 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 [34]). These conclusions are reinforced by the absence of a provision allowing an oath to be administered to an interpreter (at [35]) or a prohibition against seeking disclosure of jury information as it would apply to an interpreter (see [36]).
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 [49]–[51]), 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 [52])
| High Court Judgment | [2016] HCA 38 | |
| Result | Appeal allowed | |
| High Court Documents | Lyons v Queensland |
|
| Full Court Hearing | [2016] HCATrans 165 | 25 July 2016 |
| Special Leave Hearing | [2016] HCATrans 60 | 11 March 2016 |
| Appeal from QCA | [2015] QCA 159 | 28 August 2015 |
| Decisions, QCAT | [2014] QCATA 302 | 21 October 2014 |
| [2013] QCAT 731 | 11 December 2013 |
While the outcome of this case is disappointing from a disability rights perspective, what is rather odd is the failure of the High Court plurality to deal with what appears to be a direct conflict between two pieces of Queensland legislation. The Court decided the case on the basis that since ss 53 and 54 of the Jury Act 1995 (Qld) prohibited any person who is not a juror from being in the jury room during deliberations, Ms Lyons could not have an Auslan interpreter in the jury room, which rendered her ‘incapable of effectively performing the functions of a juror’ within s 4(3) of the Jury Act and therefore ineligible to serve on a jury. However, the Anti-Discrimination Act 1991 (Qld) (ADA) prohibits disability discrimination by any person in the performance of functions, exercise of powers, or carrying out of responsibilities ‘under State law or for the purposes of a state government program’ (s 101). The only exemption from the Act for actions in compliance with other laws is for laws that existed before the ADA was adopted (s 106), so by implication, the ADA does not generally exempt actions required by legislation adopted after it, which would include the Jury Act. In this respect, the ADA is stronger in its protections against discrimination than many other anti-discrimination laws, many of which exempt actions required by all other legislation whether enacted before or after the law. Given this apparent legislative conflict, one would expect to see a discussion of how to resolve it in the High Court decision. However, the only resolution offered by the High Court plurality was the statement that the Jury Act issue was an ‘antecedent issue’ (at [26]).
Only Gageler J in his separate judgment acknowledged the conflict between the two laws, and considered how best it should be resolved. He rejected Ms Lyons’ argument that the ADA should prevail over the Jury Act, on the ground that the definition in s 4(3) was ‘objective and self-executing,’ so there was no basis to allow for administrative discretion in exercising the power. He found the state’s argument that the Jury Act impliedly repealed the ADA to the necessary extent ‘not compelling’ (at [51]), because it would require identifying an inconsistency between the two laws and resolving that in favour of the Jury Act, despite the existence of the presumption that both are intended to operate, which is reinforced by the limited exception provided for by ADA s 106. His preferred solution was to consider whether applying s 4(3) to the selection of a juror could breach the ADA. He said that it could not be direct discrimination because the sole reason for it was not the protected attribute, but was rather the Jury Act definition in s 4(3). Nor could it be indirect discrimination because even if there was a requirement, it would be reasonable because it involved no more than giving effect to a legislative definition.
While there may be different views on the correct resolution of the issue of conflict between the Jury Act and the ADA, the plurality’s failure to deal with this issue suggests it simply discounted the ADA. It gave detailed attention to the construction and meaning of the Jury Act, but none to the construction and effect of the ADA. It gave no reasons for not considering the ADA’s operation on jury selection. It is not clear why anti-discrimination law was not treated as carrying the same weight as the Jury Act. The decision gives little guidance on how to analyse potential conflicts between anti-discrimination laws and other laws of the same jurisdiction to which they appear to apply because the ‘statutory authority’ exception does not cover the situation.