The United Nations Committee on the Rights of Persons with Disabilities (CRPD) recently found that Australia violated the rights of two deaf people who were called up for jury service but told that they could not participate because sign language or real-time steno-captioning could not be provided. See CRPD, Gemma Beasley v. Australia, Communication No. 11/2013, Views of 25 April 2016; CRPD, Michael Lockrey v. Australia, Communication No. 13/2013, Views of 25 April 2016. In two separate opinions, the CRPD found that Australia violated both individuals’ rights to equality and non-discrimination, accessibility, access to justice, and freedom of expression and access to information as guaranteed under the Convention on the Rights of Persons with Disabilities (ICRPD). See CRPD, Gemma Beasley v. Australia; CRPD, Michael Lockrey v. Australia.
While the CRPD has discussed the right of accessibility previously, these two cases are the first instance of the CRPD finding a violation of accessibility in the context of jury duty and in the context of the need for sign language or real-time steno-captioning accommodations. However, these cases build off of the CRPD’s past comments on accessibility as one of the main principles of the ICRPD that should be viewed in relation to equality and nondiscrimination. States must provide reasonable accommodation, the CRPD has commented, when a person with a disability needs it in a particular situation in order to enjoy rights on an equal basis with other members of society. See CRPD, General Comment No. 2 (2014) Article 9: Accessibility, UN Doc. CRPD/C/GC/2, 22 May 2014, paras. 4, 26.
Facts of the Complaints
Both Gemma Beasley and Michael Lockrey were summoned for jury duty but were then told that they could not serve because an additional person, the interpreter, was not permitted to be present for jury deliberations. The sheriffs who denied Beasley and Lockrey accommodations in both cases cited to section 14(4) of the New South Wales Jury Act of 1977, which states that a sheriff may exempt persons from jury service if there is good cause to do so. See CRPD, Michael Lockrey v. Australia, para. 2.5; CRPD, Gemma Beasley v. Australia, para. 2.2.
Beasley requires Australian Sign Language (Auslan) to communicate. See CRPD, Gemma Beasley v. Australia, at para. 2.1. Beasley was summoned to serve as a juror in New South Wales in November 2012. See id. Beasley informed the sherriff that she required assistance in the form of an Auslan interpreter to take part in the jury selection process and jury duty. See id. The sheriff and jury manager told her that under the law, they could not provide her with an Auslan interpreter and that real-time steno-captioning was also unavailable because it would compromise the confidentiality of jury deliberation and require a thirteenth person to be present in the jury room when only twelve are allowed. See id. at para. 2.2.
Lockrey requires real-time steno-captioning to communicate with others. See CRPD, Michael Lockrey v. Australia, para. 2.1. Lockrey was also summoned to serve as a juror in 2012, and he repeatedly contacted the sheriff to request that steno-captioning be made available for the proceedings. See id. His request initially went unanswered. See id. at para. 2.2 After several attempts to request accommodation, he was told that accommodations could not be made and he should submit a medical certificate to be excused from jury duty or face a fine of Australian $1,100 for failure to appear for jury service. See id. Lockrey did not submit a medical certificate because he believed that he could serve on a jury. See id. He also did not receive a fine but was subsequently summoned two more times by the court to report for jury duty. See id. at paras. 2.2-2.4. He responded to both summons by requesting assistance in the form of steno-captioning, but the sheriff continued to deny accommodations, stating that the introduction of a thirteenth person in the jury room would compromise confidentiality. See id at paras. 2.3-2.4.
Lockrey filed a complaint with the Australian Human Rights Commission (AHRC) under the Disability Discrimination Act to pursue a claim against the sheriff alleging that New South Wales had discriminated against him based on his disability when he was prohibited from participating in jury service. See id. at para. 2.5. The sheriff responded to his complaint and stated that including real time captioning in the courtroom would require a change to the current laws and that the department was unable to provide this service to jury members. See id. The AHRR eventually terminated his complaint when the parties could not reach an agreement. See id. at para. 2.7.
Alleged Violations of ICRPD
Beasley and Lockrey raised similar allegations in their communications to the CRPD, submitted in April 2013. Both claimed that the sheriffs’ actions violated the right to equal recognition before the law under Article 12 of the ICPRD because the ability and “obligation to perform jury duty is a fundamental dimension of the legal capacity of adult citizens.” See CRPD, Michael Lockrey v. Australia, para. 3.1; CRPD, Gemma Beasley v. Australia, paras. 3.1-3.2. They further argued that the sheriffs’ responses implied that deaf people were unable to adequately comprehend the legal process and that their participation would result in an interference with the right to a fair trial. See id. Both complainants also alleged violations of their rights to freedom of expression and opinion and access to information under Article 21 of the ICPRD because Auslan interpreters and steno-captioning are forms of communication that were denied to them. See CRPD, Michael Lockrey v. Australia, para. 3.3; CRPD, Gemma Beasley v. Australia, paras. 3.3-3.4. Finally, they argued violations of the right to participation in political and public life under Article 29 of the ICPRD. See CRPD, Michael Lockrey v. Australia, para. 3.4; CRPD, Gemma Beasley v. Australia, paras. 3.5.
The Committee’s Decision
In considering the merits of the case, the CRPD came to the same conclusion for both cases. The CRPD stated that discrimination occurs, inter alia, where there is a rule in effect that is neutral on its face but nevertheless disproportionately affects persons with a disability. See CRPD, Gemma Beasley v. Australia, para. 8.3; CRPD, Michael Lockrey v. Australia, para. 8.3. The CRPD found that States must take appropriate steps to ensure that reasonable accommodations are granted to further equality and eradicate discrimination and that the State has a certain “margin of appreciation” or discretion when assessing the reasonableness of an accommodation. See CRPD, Gemma Beasley v. Australia, paras. 8.3, 8.4; CRPD, Michael Lockrey v. Australia, para. 8.4. However, the Committee stressed that the State must determine reasonableness in a “thorough and objective manner, assessing all pertinent elements, before reaching a conclusion.” See id.
Therefore, after considering the State’s argument that providing an Auslan interpreter and steno-captioning would have an “impact on the complexity, cost and duration of trials,” the CRPD determined that the State failed to provide sufficient evidence or analysis to support the conclusion that these accommodations would constitute an undue burden. See CRPD, Gemma Beasley v. Australia, para. 8.5; CRPD, Michael Lockrey v. Australia, para. 8.5. The State failed to provide sufficient reasoning for why an adjustment, such as taking an oath, for the additional person in the jury room could not be made to retain the confidentiality of jury deliberations. See id. The CRPD also noted that both accommodations are used frequently for the purpose of communication by Australians, including members of the court, such as judges and attorneys. See id. The Committee, therefore, concluded that the State had not taken the necessary steps to ensure a reasonable accommodation for Beasley and Lockrey, in violation of the prohibition of discrimination under Article 12 of the ICPRD. See id.
The CRPD also found violations of accessibility, freedom of expression and access to information, and access to justice. In referencing its previous language on accessibility, the CRPD found that “the obligation to implement accessibility is unconditional” and that the “denial of access should be considered to constitute a discriminatory act.” See CRPD, Gemma Beasley v. Australia, para. 8.6; CRPD, Michael Lockrey v. Australia, para. 8.6. The refusal to provide accommodations in these cases denied both applicants the ability to participate in an “aspect of life,” in violation of the requirement of accessibility under the ICPRD. Id. The Committee viewed the refusal to provide them with the format of communication that they needed to participate in jury service as a violation of their right to freedom of expression and opinion and access to information under Article 21 of the ICPRD. See CRPD, Gemma Beasley v. Australia, para. 8.8; CRPD, Michael Lockrey v. Australia, para. 8.8.
The Committee concluded by noting that the performance of jury duty is an integral part of the judicial system in Australia and that participation of persons with disabilities in the judicial system cannot be limited to the roles of victim or defendant, but must include jury service on a non-discriminatory basis. See CRPD, Gemma Beasley v. Australia, para. 8.9; CRPD, Michael Lockrey v. Australia, para. 8.9. The CRPD, therefore, found a violation of the right to access to justice under Article 13, read in conjunction with the right to participate in political life under Article 29. See id.
The Committee made several recommendations to the State to remedy its violations, including providing an effective remedy to Beasley and Lockrey; enabling them to participate in jury duty and providing them with reasonable accommodation in the forms they requested; and ensuring non-repetition by performing a “thorough, objective and comprehensive assessment” of the assistance requested by a person with disabilities. See CRPD, Gemma Beasley v. Australia, para. 9; CRPD, Michael Lockrey v. Australia, para. 9.
Recent Controversy in Australia
These cases do not present the first time that Australia has dealt with the issue of discrimination toward deaf persons participating in jury duty. In 2014, a Queensland judge ruled that a deaf woman could not sit on a jury in a criminal trial because the relevant legislation did not provide for an Auslan interpreter. [The Guardian] This decision prompted the University of New South Wales to hold a mock trial in Sydney to determine whether deaf people could effectively participate on a jury. [The Guardian] Further, in 2006, the New South Wales Law Reform Commission recommended that the government amend the New South Wales Jury Act to enable blind and deaf people to serve as jury members. See also CRPD, Michael Lockrey v. Australia, para. 2.10. However, the New South Wales government rejected key components of those recommendations, which included providing deaf people with assistance of a steno-captioner. See id.
The CRPD is one of 10 United Nations human rights treaty bodies, and charged with monitoring States’ implementation of the ICRPD. The Committee comprises 18 independent human rights experts who examine regular reports submitted by States parties, receive individual complaints, and issue general interpretations of the treaty’s provisions. The ICPRD was the first Human Rights Treaty to be ratified by a regional organization, the European Union, and has been in effect since May 2008. See OHCHR, Committee on the Rights of Persons with Disabilities: Questions and Answers. Australia is a State party to the ICRPD and to the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which allows the Committee to receive and review complaints submitted by individuals. See CRPD, Gemma Beasley v. Australia, para. 1.
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