Committee on the Rights of Persons with Disabilities

Views adopted by the Committee under article 5of the Optional Protocol, concerning communicationNo. 11/2013 ** , ***

Communication submitted by:Gemma Beasley (represented by the Australian Centre for Disability Law)

Alleged victim:The author

State party:Australia

Date of communication:29 April 2013 (initial submission)

Document references:Decision taken pursuant to rule 70 of the Committee’s rules of procedure, transmitted to the State party on 7 June 2014 (not issued in document form)

Date of adoption of the Views:1 April 2016

Subject matter: Participation of deaf people in jury duty

Procedural issues: Admissibility of claims

Substantive issues:Equality and non-discrimination; reasonable accommodation; equal recognition before the law; freedom of expression; political participation

Articles of the Convention: 2, 4, 5, 9, 12, 13, 21 and 29

Articles of the Optional Protocol: 2 (d) and (e)

1.The author of the communication is Gemma Beasley, a national of Australia, born on 7 August 1975. She claims that Australia has violated her rights under articles 4, 5, 9, 12, 13, 21 and 29 of the Convention on the Rights of Persons with Disabilities. She is represented by the Australian Centre for Disability Law. The Convention and the Optional Protocol entered into force in the State party on 17 August 2008 and 19 September 2009 respectively.

A.Summary of the information and arguments submitted by the parties

Facts as presented by the author

2.1The author is deaf and requires Australian Sign Language (Auslan) interpreting of formal communications in order to communicate with others. On 30 October 2012, the Sheriff of New South Wales summoned her to serve as a juror in the criminal jurisdiction of the District or Supreme Courts of New South Wales at the Sydney West Trial Courts at Parramatta for a three-week period, starting on 28 November 2012. On 6 November 2012, Ms. Beasley contacted the Sheriff’s office and explained that she was deaf and would require an Auslan interpreter to participate in the jury selection process and jury duty. The Sheriff’s officer advised her that such support could not be provided. The author challenged that advice on the basis that it constituted discrimination against her on the ground of her disability. The Sheriff’s officer told her to call again to speak to a jury manager to discuss the matter further.

2.2On 7 November 2012, the author contacted the jury manager who told her that “under current legislation, [the Sheriff is] unable to assist with Auslan service relating to the empanelling procedure of the jury panel” and that real-time steno-captioning was not available either. The author then asked what other communication options could be made available to enable her participation in the jury empanelling process. The jury manager replied that she was unfamiliar with real-time captioning and added that “… under current legislation there are a couple of points to consider … the first one would be the breach of [confidentiality of jury deliberation] and also the fact that a verdict can only be delivered with 12 people in the [jury] room … so there is no capacity under current legislation to have an Auslan interpreter or real-time captioner”. The author specifies that in New South Wales the Jury Act 1977, as amended by the Jury Amendment Act 2010, regulates who is qualified and eligible to perform jury duty. Pursuant to sections 6 and 7 of the Act, certain categories of persons are excluded from jury service, while others can be exempted from serving as a juror if they claim such exemption. Those sections have no bearing on the qualification or liability of deaf persons to serve as jurors; they are liable to do so, provided they do not fall into any of the excluded or exempt categories. The Sheriff may also exempt a person from jury service if he considers that there is a good cause to do so, including where “some disability associated with that person would render him or her, without reasonable accommodation, unsuitable for or incapable of effectively serving as a juror”. The author notes that the Sheriff has precluded her from serving as a juror under that provision. She further submits that when she insisted that she wanted to participate in the jury selection process, the jury manager advised her to attend the court on 28 November and make a personal request to the judge to participate with the assistance of Auslan interpretation.

2.3On 27 November 2012, the author sent an email to the jury manager to confirm that she would be attending the Sydney West Trial Courts in answer to her summons to jury duty. On 28 November 2012, she presented herself at the Courts, intending to make a personal request to the judge to get the assistance of an Auslan interpreter. When the author arrived at the court, she was told by the jury manager in writing that no support would be provided to facilitate her communication with the judge. The author was therefore planning to use her iPad device to present her request, but the battery failed before she had a chance to meet the judge. No support was provided to her and she had to leave the court, feeling “humiliated” and without having had the possibility of communicating with the judge.

2.4Pursuant to section 14 A (b) of the Jury Amendment Act 2010, “a person has a good cause to be exempted or excused from jury service if … some disability associated with that person would render him or her, without reasonable accommodation, unsuitable for, or incapable of effectively serving as a juror”. According to section 14 (D) of the Act, “the Sheriff is to amend a supplementary roll or jury roll by deleting the name and particulars of a person if … the person has claimed exemption in accordance with this Act and has been exempted from jury service …”. According to the author, the Sheriff seems to have made a determination that deaf persons are unsuitable or incapable of effectively serving as jurors and that the provision of Auslan interpretation to a juror who is deaf does not constitute a reasonable accommodation because (a) a deaf person using Auslan is unable to sufficiently comprehend courtroom communication and jury deliberations and consequently the rights of an accused to a fair trial are liable to be compromised; (b) an Auslan interpreter in attendance during jury deliberations would constitute a “thirteenth person” in the jury room and would consequently violate a (purported) common law rule that requires jury deliberations to be confidential to empanelled jurors; and (c) the provision of Auslan interpreters to jurors who are deaf and the conduct of Courtroom proceedings and jury deliberations with the assistance of an Auslan interpreter would unreasonably impede the effective and efficient administration of justice.

2.5The author claims that there is no effective domestic judicial or administrative remedy available to her. She argues that a complaint to the Australian Human Rights Commission would prove to be ineffective, as it does not have the power to decide on a claim, but can only try to conciliate the parties. In that connection, the author submits that her solicitors have acted for a number of deaf persons in complaints to the Commission under the Disability Discrimination Act 1992 in relation to their exclusion from performing jury duty and that none of those complaints could be resolved. The author was therefore advised that such a complaint in relation to the Sheriff’s conduct would be futile.

2.6The author further submits that in 2002 the New South Wales Attorney-General referred the issue of whether deaf or blind people could serve as jurors to the New South Wales Law Reform Commission for inquiry. The Commission reported in September 2006, making four recommendations, including that the Government of New South Wales make amendments to the Jury Act 1977 (NSW) to enable people who are blind or deaf to serve on juries. In June 2010, the Government of New South Wales replied that it refused key components of the Commission’s recommendations, including that deaf people could serve as jurors with the assistance of Auslan interpreters or steno-captioners. In New South Wales the Jury Act 1977, as amended by the Jury Amendment Act 2010, regulates who is qualified and eligible to perform jury duty. The author notes that the Sheriff has precluded her from serving as a juror under section 14 (4) of the Jury Act 1977.

2.7The author also explains that the Anti-Discrimination Act 1977 and Disability Discrimination Act do not make discrimination unlawful in all areas of public life and do not make it unlawful to discriminate on the basis of disability in the area of civic duties, including jury duty. No remedies are therefore available regarding her exclusion from a civic duty. If the author pursues a claim of disability discrimination, the Sheriff will argue that her functions in relation to jurors involve the exercise of statutory powers and duties, which do not involve the provision of services and thus fall outside the scope of the Disability Discrimination Act and the Anti-Discrimination Act. The author argues that under Australian case law, she would be required to identify the services that the Sheriff refused to provide, while the essence of her complaint is that the Sheriff refused to provide the reasonable adjustment she would need to serve as a juror. Under national case law, reasonable adjustment is not a “service” and an attempt to establish that the Sheriff provides “services” to all jurors has poor prospects of success. The author refers to additional national jurisprudence under which claims of disability discrimination under the Disability Discrimination Act are determined in a normative context, which involves a court examining the broader obligations and responsibilities of the alleged discriminator. Furthermore, the Sheriff contends that she is obliged to exclude the author from performing jury duty because of the rule that jurors must deliberate in private. According to case law, that rule provides that if a “stranger” is present for a substantial time during the jury’s deliberations, its verdict is vitiated. In light of that jurisprudence, even if a court finds that the Sheriff provided “services” to jurors, it will probably conclude that the “true basis” for the Sheriff’s conduct was not disability-based discrimination, but the obligation to protect the integrity of jury deliberations. Moreover, under section 49 B of the Anti-Discrimination Act, the definition of discrimination on the basis of disability does not include the denial of reasonable adjustment. Even if it is established that the Sheriff provides jurors with “services”, it would therefore remain difficult to prove that she had an obligation to provide the author with Auslan interpretation or steno-captioning as a necessary adjustment. The author submits that claims under the Disability Discrimination Act and the Anti-Discrimination Act are notoriously difficult to pursue and frequently result in very protracted and complex proceedings. Finally, if the author was to pursue her claim and fail, she would be liable to pay her own legal costs and those of the State of New South Wales, namely between $A 50,000 and $A 100,000, which renders domestic remedies not reasonably available to her.

The complaint

3.1The author claims that the Sheriff’s actions constitute a violation of her right to equal recognition before the law as guaranteed under article 12 of the Convention. She argues that the obligation to perform jury duty is a fundamental dimension of the legal capacity of adult citizens, arising as it does from principles of reciprocity and representativeness that underpin the Australian and New South Wales legal systems. She further considers that the reply of the Sheriff’s office telling her that, “under current legislation”, she could not get Auslan interpretation, thereby preventing her participation in the jury, implies that deaf persons are inherently unable to sufficiently comprehend the legal process and that their participation would compromise the right to a fair trial. She considers that such a position violates her right to enjoy legal capacity on an equal basis with others. The author also submits that the refusal to permit Auslan interpretation constitutes a violation of (a) her right to access to the support she requires to exercise her legal capacity to perform jury duty pursuant to article 12 (3) of the Convention; (b) her right to non-discrimination under articles 5 and 12 of the Convention; and (c) her freedom to seek, receive and impart information and ideas on an equal basis with others through a form of communication of her choice pursuant to article 21 of the Convention.

3.2The author argues that the Sheriff refused to permit her to perform jury duty because she does not have the legal capacity to do so, as seems to be reflected in the following statement from the response of the Government of New South Wales to the recommendations of the Law Reform Commission: “Stakeholders raised several concerns about the nature of evidence in certain trials making it difficult for profoundly deaf or blind persons to perform properly the vital functions and duties of jury service. These concerns included the ability of interpreters to translate evidence objectively for a juror such as non-verbal witness behaviour and descriptions of images contained in evidence such as photographs, plans and video evidence … There were also stakeholder concerns about the presence of interpreters in the jury room during deliberations with queries raised as to whether effective safeguards are possible to ensure that the information conveyed to deaf or blind jurors is exactly the same as evidence given or presented in court”. The author considers that it is a necessary implication of that statement that persons who are deaf are inherently unable to sufficiently comprehend the legal process such that the right of an accused person to a fair trial would be compromised and that such interpretation constitutes a violation of the author’s right to enjoy legal capacity on an equal basis with others in all aspects of life.

3.3.With regard to the alleged violation of article 13 of the Convention, the author claims that the refusal to permit Auslan interpretation constitutes a violation of her rights to (a) effective access to justice, including in relation to the provision of procedural accommodation; (b) non-discrimination contrary to articles 5 and 13 of the Convention; and (c) freedom to seek, receive and impart information and ideas on an equal basis with others through a form of communication of her choice, contrary to articles 13 and 21 of the Convention.

3.4The author considers that Auslan interpretation should be seen as a form of “communication” of her choice in an “official interaction” within the meaning of article 21 of the Convention and, consequently, that the Sheriff’s refusal constitutes a violation of her right to freedom of expression and non-discrimination in violation of articles 5 and 21.

3.5As regards her claim under article 29 of the Convention, the author asserts that the participation in jury duty is a “political right” and that, as a component of the public administration of justice, the jury system is an aspect of the “conduct of public affairs” within the meaning of the article. Consequently, the author considers that the Sheriff’s refusal to permit Auslan interpretation amounts to a violation of her right (a) to enjoy political rights and the right to have access to public service on an equal basis with others; and (b) to non-discrimination in the enjoyment of her political rights.

3.6The author finally submits that her rights under articles 5, 12, 13, 21 and 29 have been violated as a consequence of the State party’s failure to observe its obligations under the respective articles, read alone and in conjunction with articles 2 and 4 of the Convention.

State party’s observations on the admissibility and merits

4.1On 28 November 2014, the State party submitted its observations on the admissibility and merits of the present communication, as well as with respect to communication No.13/2013. The State party accepts the general facts as stated by the author, but rejects the author’s characterization of the Sheriff’s actions and of the policy of the State of New South Wales with respect to deaf jurors. In particular, it submits that the Government of New South Wales provides reasonable accommodation for many people with disabilities who have been summoned to perform jury duty, such as hearing loops and infrared technology. In addition, the broader policy of the Government of New South Wales on the increased participation of persons with disabilities is outlined in its 10-year plan for the State under goal 14. In that connection, the State party notes that following the response of the Government of New South Wales to the report of the Law Reform Commission in 2010, the Department of Justice of New South Wales will undertake a review to consider reform opportunities, including with regard to the possibility of providing Auslan interpretation or steno‑captioning. It also notes that the Jury Amendment Act 2010 (NSW), which entered into force on 31 January 2014, amended the Jury Act 1977 (NSW), replacing ineligibility for jury duty with the capacity to be exempted for good cause. Under the amendment, a person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror will be eligible for a permanent exemption or exemption for “good cause”, depending on the nature of the sickness, infirmity or disability.

4.2The State party also submits that the author has failed to exhaust available domestic remedies as she did not submit a complaint to the Australian Human Rights Commission, while the procedure would have provided her with a free and accessible opportunity to conciliate her concerns with the Government of New South Wales. It further submits that the author has not brought her complaint before any judicial body, nor even a conciliatory body which could lead to the bringing of a case in a federal court in order to resolve her complaint. It therefore considers that her claims should be held inadmissible under article 2 (d) of the Optional Protocol.

4.3As to the author’s claims under articles 2, 4, 5 and 9 of the Convention, the State party notes that, according to the jurisprudence of the Human Rights Committee, an author must substantiate all his/her allegations and that the author has not provided any evidence of her claims. The State party therefore maintains that those claims are inadmissible pursuant to article 2 (e) of the Optional Protocol for lack of substantiation.

4.4The State party further considers that the performance of jury duty does not fall within the scope of article 12 of the Convention and that the author’s claim in that regard is therefore inadmissible. In that connection, the State party submits that the obligations contained in article 12 do not establish new rights and that this assertion is supported by the travaux préparatoires of the Convention. The State party further considers that the author does not provide evidence of an ongoing policy in the State party preventing deaf individuals from serving as jurors and reiterates that the Government of New South Wales will continue to monitor developments in disability aids, technologies and interpreter services, and review current policies to promote greater jury participation of people with hearing and sight impairments. The State party further notes that article 12 (2) of the Convention concerns the recognition of legal capacity on an equal basis with others, but does not encompass all concepts of capacity or ability. It does not refer to the ability to perform an activity, i.e. the performance of jury duty, but rather to the capacity to engage in acts with legal ramifications. According to the State party, article 12 (5) enumerates the elements of legal personality and does not cover jury duty. Finally, as there was no consideration of the author’s ability to perform jury duty, the State party concludes that her case does not relate to issues of legal capacity and falls outside the scope of article 12 of the Convention.

4.5As to the author’s claim under article 12 (3) of the Convention that the Sheriff’s refusal violated her right to access to the support she required , the State party reiterates that jury duty is not a manifestation of legal capacity and therefore that there is no obligation on the State to provide support in that regard. In the alternative, the State party considers that article 12 (3) defines the scope of its operation, requiring States to take measures that are “appropriate” considering resource limitations and their “proportionality” to the obligation to ensure that persons with disabilities are able to make their own decisions as far as possible. The State party reiterates that the State of New South Wales already provides adjustments to assist persons with hearing impairments to perform jury duty.

4.6As to the author’s claim under article 13 of the Convention, the State party submits that it falls outside the scope of that provision as “effective access to justice” refers to the ability of persons with disabilities to gain access to the justice system when coming into contact with the law, but not to participate in the different components of the justice system. The State party further submits that according to the travaux préparatoires for the Convention, jurors were not intended to be included in the categories of “direct” and “indirect” participants of article 13, as those terms relate to participants who are relevant to the substance and outcome of a case, such as the parties or witnesses. It further submits that the “reasonable accommodation” standard does not apply to article 13. It notes that according to article 31 of the Vienna Convention on the Law of Treaties, treaties are to be interpreted in accordance with the ordinary meaning of the terms of the treaty in question and with the object and purpose of the treaty. In that connection, instead of referring to the term “reasonable accommodation”, article 13 refers to “including through the provision of procedural and age-appropriate accommodations”. Furthermore, “procedural and age-appropriate accommodations”, only refers to the accommodations that are reasonable in view of the relevant procedure or age.

4.7Regarding the author’s claim under article 21 of the Convention, the State party agrees that Auslan interpretation or steno-captioning is a form of communication. However, it submits that pursuant to article 21 (b) of the Convention, States parties are required to take all appropriate measures in light of their resource constraints, without creating an absolute obligation on States. It also submits that the obligations of State parties under article 21 (b) must be realized progressively, subject to the limitations of their resources, and considers that the State of New South Wales has satisfied that standard. The State party further notes that the performance of jury duty does not extend to official interaction within the meaning of article 21 (b) of the Convention. The State party therefore maintains that the author’s claim under article 21 falls outside the scope of that article and is without merit.

4.8As concerns the author’s claims under article 29, the State party submits that it does not fall within the scope of that provision and is without merit. It submits that political rights within the meaning of article 29 are limited to those rights relating to aspects of the political process, such as voting, elections and representation, and does not cover jury duty. The State party considers that article 25 of the International Covenant on Civil and Political Rights is the main source of the content of article 29 and refers to commentaries on the scope of article 25 and the jurisprudence of the Human Rights Committee, which confirm that this provision does not extend to jury duty. The State party further considers that the author’s claim should be examined in the light of the conditions and restrictions that can be applied in compliance with the general comment No. 25 (1996) of the Human Rights Committee on article 25 (participation in public affairs and the right to vote) and submits that the State of New South Wales has a clear system regulating the performance of jury duty and provides an exemption from it where there is “good cause”.

4.9With respect to the author’s claim under article 5 of the Convention, the State party considers it without merit. It notes that the Convention is a major step in recognizing and raising awareness of the rights of persons with disabilities and on the need for a new approach in that regard. It considers that the Convention does not create new rights, but clarifies existing ones to ensure that they can be exercised by persons with disabilities. Article 5 should therefore be interpreted consistently with the established jurisprudence that legitimate differential treatment does not constitute discrimination. Furthermore, even if States parties have a legal obligation to take steps to respect, protect, promote and fulfil the right to non-discrimination, equality and non-discrimination should not be understood as requiring identical treatment of all persons in all circumstances. The State party therefore considers that its relevant national law is not discriminatory, insofar as the differential treatment provided for in the Jury Act aims to balance the rights of persons with disabilities with the rights of an accused to a fair trial. Additionally, the law, practice and policy of the State of New South Wales facilitate the participation of persons with hearing impairments in jury duty, where possible, in compliance with article 5 (3) of the Convention and the restriction is limited to cases where a person’s disability would render him or her “unsuitable for or incapable of effectively serving as a juror”.

4.10As regards the author’s claims under articles 2, 4 and 9 of the Convention, the State party considers them without merit because they are unsubstantiated. It argues that it has a strong commitment to respecting the rights of persons with disabilities and to enabling them to enjoy all human rights on an equal basis with others, in accordance with the terms of the Convention. It recognizes that States parties should refrain from acts or practices inconsistent with the Convention and should promote the research, development and availability of relevant new technologies and ensure accessibility for all persons with disabilities.

Author’s comments on the State party’s observations

5.1On 28 May 2015, the author rejected the State party’s contentions that her communication was inadmissible pursuant to article 2 (d) of the Optional Protocol. She submits that the Australian Human Rights Commission and the Anti-Discrimination Board of New South Wales are not judicial bodies and they consequently have no power to carry out a judicial review or to order remedies in relation to a complaint brought before them under the Disability Discrimination Act or the Anti-Discrimination Act, respectively. Their powers are limited to the investigation and conciliation of such complaints and the author submits that the Government of Australia has failed to demonstrate to the Committee how the submission of a complaint to the Commission or the Board would have constituted an effective legal remedy for her, while similar complaints were terminated by the Commission on the basis that there was no reasonable prospect of conciliation.

5.2In order to bring a matter before the courts or the New South Wales Civil and Administrative Tribunal, an applicant must have a cause of action and a claim based upon that cause that has reasonable prospects of success. In that connection, the author submits that she had no cause of action under the Disability Discrimination Act or the Anti-Discrimination Act that would have entitled her to bring a complaint before the State party’s courts and refers to domestic jurisprudence in Lyons v. the State of Queensland. In that case, the Sheriff of Queensland excluded the complainant from jury duty because she required an Auslan interpreter, but the complainant was able to bring an impairment discrimination claim under the Anti-Discrimination Act 1991 (Qld) because the “administration of State laws and programs” is a protected area of life under that Act and the Sheriff of Queensland, in excluding her from jury service, was administering the Jury Act 1995 (Qld). There is no equivalent protected area of life under the Anti-discrimination Act and while the Disability Discrimination Act includes the administration of Commonwealth laws and programmes as a protected area of life, the Jury Act 1977 (NSW), pursuant to which the author was excluded from jury duty, is a state Act. Further, in the case of Ms. Lyons, the Tribunal rejected her claims for direct and indirect discrimination on the basis that she was not excluded from jury duty because she was deaf, but because she required an Auslan interpreter, who could not be present in the jury room. The author asserts that this reasoning would be applied by any other court or tribunal in the State party and that any claim for judicial review of the Sheriff’s decision to exclude her from jury duty would fail because Australian law does not permit a deaf juror to receive live assistance in the jury room.

5.3As to the costs involved in conducting disability discrimination claims, the author submits that while she could cover the fee to commence a disability discrimination claim, the party/party costs that are likely to be awarded against an unsuccessful applicant are ruinous. In that regard, the author explains that a party to such litigation can apply to the courts for a maximum costs order, but such orders are discretionary and rarely made. In exercising discretion to make such an order, courts consider a range of factors, including whether the applicant has an arguable claim. It is therefore misleading for the State party to suggest that the author would have been able to obtain a maximum costs order while her claim did not have reasonable prospects of success.

5.4The author reiterates that she was legally advised that she had no prospect of success before the Human Rights Commission and that she had no cause of action under the Disability Discrimination Act or the Anti-Discrimination Act. She further submits that Australian legal practitioners bear a duty under section 345 of the Legal Profession Act 2004 not to commence or maintain a civil claim that does not have reasonable prospects of success. Should a legal practitioner do so, s/he could have the costs of the litigation awarded against him or her and be found guilty of professional misconduct, and might be suspended or have his or her licence to practise revoked. The author therefore considers that the Committee should reject the State party’s contention, inviting her to pursue a cause of action which does not have any prospect of success.

5.5As concerns the State party’s argument that the author’s claims under articles 2, 4, 5 and 9 of the Convention should be held inadmissible, the author argues that article 2 is an interpretive provision under which Auslan interpretation must be identified as a form of communication and a reasonable accommodation necessary for her to participate in jury duty, issues that have not been questioned by the State party.

5.6As to article 4 of the Convention, the author notes that it sets out the general obligations of States parties, which apply to the realization of all the specific obligations of the Convention, including those set out in articles 12, 13, 21 and 29. The author contends that the mere existence of the human rights violations she alleges demonstrates that the State party has failed to fulfil those general obligations. She further argues that the Government of New South Wales could provide the reasonable accommodation she requires and that if the State party considers that there is a legal barrier to the participation of deaf people who require live assistance in the jury system, it has the constitutional power to make the necessary legislative reforms. The author submits that the general obligations under article 9 apply for the realization of all the conventional specific obligations which the State party has failed to fulfil in the present case. She maintains that Auslan interpretation is a form of “live assistance” required by her within the meaning of article 9 of the Convention.

5.7As to the merits of her claims, the author refers to the general rules of interpretation as provided by the Vienna Convention. In that context, she notes that the term “legal capacity” under article 12 refers to the ability of a person to exercise legal rights and entitlements, perform legal obligations or duties and bear legal responsibilities. There is no textual basis to support the contention that the reference to legal capacity in article 12 (2) is limited to the exercise of legal rights and entitlements, or that the term otherwise has “a limited and specific meaning” or refers to a “subset of capacity”. It would frustrate the purpose of the Convention if legal capacity was given the narrow meaning proposed by the State party, as it would restrict the application of article 12 (2) to people with cognitive impairments who require decision-making support.

5.8The author further submits that in its response to the Law Reform Commission report in 2010, the Government of New South Wales clearly stated that the recommendation to enable deaf people to perform jury duty could not be supported at that time. In December 2013, the State of New South Wales provided an update on the government response, stating that in view of serious concerns expressed by the stakeholders, the Government did not support changes to the Jury Act, but agreed to monitor developments in disability aids, technologies and interpreter services, to promote greater participation of people with hearing and sight impairment. According to the author, that demonstrates the ongoing policy of the State of New South Wales and its Sheriff and questions the legal capacity of deaf persons to perform jury duty. In addition, the undertaking to monitor developments refers to adjustments that do not involve live assistance to a deaf juror in the jury room.

5.9The author argues that the provision of an Auslan interpreter is the “appropriate support” she needs to perform as a juror, in compliance with article 12 (3) of the Convention. The obligation of a State party to take “appropriate measures” to provide access by persons with disabilities to the support they may require in exercising their legal capacity is a specific obligation in article 12 that is additional to the general obligations set out in the cross-cutting articles in the Convention, including articles 4, 5 and 9. The author considers that article 12 must therefore be interpreted in the light of the cross-cutting obligations of article 5 (1) and (3), insofar as Auslan interpretation is a reasonable accommodation that promotes the author’s equality before the law for the exercise of legal capacity. She adds that this reasonable accommodation should be accompanied by legislative measures to amend and repeal parts of the Jury Act to assert the ability of an Auslan interpreter or stenographer to be present in the jury room and facilitate communication between deaf and hearing jurors. The author notes that the State party does not contend that the provision of Auslan interpretation would constitute a “disproportionate or undue burden”, but rather that it has already taken measures to enable the participation of deaf people in jury duty, while those measures are not pertinent in her case.

5.10The author submits that “direct and indirect participants” include individuals forming part of the legal system, including jurors. She also submits that the participation or “intervention” of people with disability in the justice system, for example as judges, jurors and legal practitioners, is a means for them to achieve access to justice and that she is not equating the obligation in article 5 of the Convention to provide “reasonable accommodation” with the obligation in article 13 to provide “procedural and age-appropriate accommodations”. Both are interrelated, but their meaning and scope are different. In the present case, the provision of Auslan interpretation is a reasonable adjustment that promotes the author’s participation in legal proceedings. That adjustment would require simple procedural accommodations, such as the introduction of an oath for Auslan interpreters that they will keep jury deliberations secret, or the issuance of a specific direction by the court to all jurors that they do not attempt to discuss or deliberate on the case with the interpreter, but only interact with him/her as a facilitator of communication for the deaf juror. The author therefore considers that the State party has failed to establish that the provision of the required accommodation would impose a disproportionate or undue burden and would therefore be unreasonable, thereby violating her rights under article 21, read alone and in conjunction with article 5.

5.11The author further contends that the measures the State party purports to have taken do not fulfil the obligation imposed by article 21 (b) of the Convention and that there is no textual basis to support the State party’s contention that the reference to “official interactions” is not applicable in the present case: a court is a public authority or body and its activities are focused on the public administration of justice, including through the conduct of trials by jury. A juror is a person holding a public responsibility in the administration of justice and is involved in interactions with other persons exercising public duties and responsibilities, including other jurors and judicial officers.

5.12Concerning her claim under article 29 of the Convention, the author submits that the Committee has jurisdiction to consider the alleged violation of the political rights of persons with disabilities, including their right to participate in the conduct of public affairs and the right of access to public service. In doing so, the Committee exercises jurisdiction to assess the measures taken by States parties to ensure that persons with disabilities enjoy their political rights on an equal basis with others. She notes that the term “conduct of public affairs” is a wide concept, which embraces the exercise of governmental power by all arms of government, including the administration of justice. Jurors play a part in the judicial power of the government as they directly participate to determine guilt or innocence in a criminal trial or liability in a civil trial. They are therefore engaged in the conduct of public affairs and of a public service, that being the public administration of justice. The author concludes that her exclusion from jury duty was not based on reasonable and objective grounds and that it was arbitrary and discriminatory.

5.13Finally, with respect to the State party’s arguments that the author purports to identify and rely upon “new rights”, the author submits that the terms of the Convention must be interpreted broadly, in consideration of the purpose of the Convention. She further argues that the notion of new rights cannot be used as a shield to prevent the application of traditional rights to the specific circumstances of persons with disabilities, even if that extends the traditional understanding of traditional rights.

State party’s further observations

6.1On 23 October 2015, the State party sent additional observations. It reiterates that the Convention does not establish additional rights for persons with disabilities. It notes that a number of terms of the Convention, such as “legal capacity” and “direct and indirect participants”, are not defined, that their meaning is ambiguous and that it is therefore appropriate to have recourse to the travaux préparatoires to understand them. The State party considers that the reference to “political rights” in article 29 of the Convention does not “encompass and guarantee” all human rights more broadly characterized as political rights in international human rights law and it submits that the performance of jury duty is not an aspect of the “conduct of public affairs” within the meaning of article 29.

6.2The State party also submits that the measures adopted by the State of New South Wales are “appropriate” and “procedural and age-appropriate accommodations”, thereby complying with articles 12, 21 and 13 of the Convention. It further notes that the use of Auslan interpreters has an impact on the complexity, cost and duration of trials and therefore has consequences for resources, as reflected in the response of the Government of New South Wales to the report of the Law Reform Commission in 2010.

B.Committee’s consideration of admissibility and the merits

Consideration of admissibility

7.1Before considering any claims contained in a communication, the Committee must, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Convention.

7.2The Committee has ascertained, as required under article 2 (c) of the Optional Protocol, that the same matter has not already been examined by the Committee and has not been or is not being examined under another procedure of international investigation or settlement.

7.3The Committee notes the State party’s argument that the author has not exhausted all available domestic remedies as she has not brought her complaint before any judicial body, nor even a body which could lead to the bringing of a case in a federal court in order to resolve her complaint. The Committee notes the author’s arguments that (a) bringing a complaint before the Australian Human Rights Commission and the Anti-Discrimination Board of New South Wales would have been futile, as they are not judicial bodies and consequently have no power to carry out a judicial review or to order remedies; and (b) that the State party has not demonstrated how the submission of a complaint to the Commission or the Board would have constituted an effective legal remedy for her when similar complaints were terminated by the Commission on the basis that there was no reasonable prospect of conciliation. The Committee also notes the author’s argument that a court could not provide an effective and reasonably accessible remedy under the Disability Discrimination Act or the Anti-Discrimination Act in her case because (a) the Disability Discrimination Act prohibits discrimination on the basis of disability in specified areas of public life, but does not apply to her case; and (b) the Anti-Discrimination Act incorporates prohibitions of discrimination on the basis of disability in specified areas of public life that do not include the issue of jury duty. The Committee also notes the State party’s submission that the fee for filing a complaint to the Commission or the Board is $A 55 and that the federal circuit court may also specify the maximum costs that can be recovered. Nonetheless, it notes the author’s argument that any attempt to bring a claim related to the violations she alleges before the courts under the Disability Discrimination Act or the Anti-Discrimination Act would also fail on the basis of the national legislation and jurisprudence on discrimination, thereby excluding the possibility for her to obtain a maximum costs order from a federal court because her claim does not have reasonable prospects of success.

7.4.The Committee recalls that under article 2 (d) of the Optional Protocol, it shall consider a complaint inadmissible when “all available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief”. In the present case, the Committee considers that the information provided by the parties does not enable it to conclude that the author’s complaint under either the Anti-Discrimination Act or the Disability Discrimination Act would have had a reasonable prospect of success and would have provided the author with an effective remedy. Given the nature of the claims under consideration and in the light of the information provided by the parties, the Committee finds that article 2 (d) of the Optional Protocol does not preclude it from considering the communication.

7.5The Committee further notes the State party’s submission that the author’s claims under articles 2, 4, 5 and 9 of the Convention are inadmissible for lack of substantiation. As regards the author’s claims under articles 2 and 4, the Committee recalls that, in view of their general character, those articles do not in principle give rise to free-standing claims and can only be invoked in conjunction with other substantive rights guaranteed under the Convention. The Committee therefore considers that the author’s claims under articles 2 and 4 read alone are inadmissible under article 2 (e) of the Optional Protocol. As to the author’s claims under articles 5 and 9, the Committee considers that those claims are sufficiently substantiated for the purpose of admissibility and proceeds to their examination on the merits.

7.6As regards the author’s claim under article 12 of the Convention that she was denied her right to enjoy legal capacity on an equal basis with others on account of the Sheriff’s refusal to provide her with Auslan interpretation, the Committee notes that the Sheriff justified her decision by asserting that introducing a non-jury person to provide Auslan interpretation would breach the principle of confidentiality of deliberations. The Committee therefore notes that the State party did not question at any time the author’s legal capacity to perform jury duty. Accordingly, the Committee concludes that the author’s claim is incompatible ratione materiae with article 12 and is therefore inadmissible under article 2 (b) of the Optional Protocol.

7.7The Committee notes that the State party has raised no objections to the admissibility of the author’s claims under articles 13, 21 and 29 of the Convention. Accordingly, it declares those parts of the communication admissible and proceeds with the examination of the merits.

Consideration of the merits

8.1The Committee has considered the case in the light of all the information provided by the parties, in compliance with article 5 of the Optional Protocol.

8.2The Committee notes the author’s claim that the refusal to provide her with Auslan interpretation to enable her to perform jury duty was discriminatory as it amounted to a denial of reasonable accommodation, in violation of article 5 (1) and (3) of the Convention. The Committee also notes the State party’s submission that there has been no violation of the author’s rights under article 5, as the pertinent national law is not discriminatory and the differential treatment provided for in the Jury Act is legitimate. The State party further considers that its law and policy provide reasonable accommodation in accordance with the requirements of the Convention.

8.3The definition of discrimination on the basis of disability in article 2 of the Convention explicitly states that “it includes all forms of discrimination, including denial of reasonable accommodation”. In the present case, the author was summoned on 30 October 2012 to serve as a juror in the criminal jurisdiction of the District or Supreme Courts of New South Wales for a three-week period, starting on 28 November 2012. The Committee notes that on 6 November 2012, the author contacted the Sheriff’s office and explained that she would require an Auslan interpreter to perform her jury duty and that the Sheriff’s officer advised that such support could not be provided, but that she should attend the court on 28 November and make a personal request to the judge to participate with the assistance of Auslan interpretation. The Committee also notes that the author confirmed with the Sheriff’s office that she would indeed come to the court that day, but that when she presented herself, she was told that she could not be provided with any support to communicate with the judge. Additionally, the Sheriff’s office clearly told the author that under “current legislation” (Jury Act 1977), Auslan service and real-time steno-captioning would not be provided, considering that the introduction of a non-jury person in the deliberations room would be incompatible with the confidentiality of jury deliberations. In that regard, the Committee recalls that discrimination can result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate, but that disproportionately affects persons with disabilities. Further, under article 5 (1), States parties must ensure that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law, and that under article 5 (3), States parties must take all appropriate steps to ensure that reasonable accommodation is provided to promote equality and eliminate discrimination.

8.4The Committee further recalls that under article 2 of the Convention, “reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. The Committee considers that when assessing the reasonableness and proportionality of accommodation measures, States parties enjoy a certain margin of appreciation. However, States parties must ensure that such an assessment is made in a thorough and objective manner, covering all the pertinent elements, before reaching a conclusion that the respective support and adaptation measures would constitute a disproportionate or undue burden for a State party.

8.5In the present case, the Committee observes that the adjustments provided by the State party for people with hearing impairments would not enable the author to participate in a jury on an equal basis with others. It also notes that, while the State party argues that the use of Auslan interpreters has an impact on the complexity, cost and duration of trials, it does not provide any data or analysis to demonstrate that it would constitute a disproportionate or undue burden. Further, while the confidentiality principle of jury deliberations must be observed, the State party does not provide any argument justifying that no adjustment, such as a special oath before a court, could be made to enable the Auslan interpreter to perform his/her functions without affecting the confidentiality of the deliberations of the jury. The Committee finally notes that Auslan interpretation is a common accommodation, largely used by Australian deaf people in their daily life. On the basis of the information before it, the Committee considers that the State party has not taken the necessary steps to ensure reasonable accommodation for the author and concludes that the refusal to provide Auslan interpretation or steno-captioning, without thoroughly assessing whether that would constitute a disproportionate or undue burden, amounts to disability-based discrimination, in violation of the author’s rights under article 5 (1) and (3) of the Convention.

8.6As regards the author’s claim under article 9 (1) of the Convention, the Committee recalls that under that provision, States parties have the obligation to take appropriate measures to “enable persons with disabilities to live independently and participate fully in all aspects of life”. In that connection, the Committee notes that the performance of jury duty is an important aspect of civic life within the meaning of article 9 (1), as it constitutes a manifestation of active citizenship. The Committee further notes the State party’s submission that it devotes significant efforts and resources to ensuring that persons with disabilities are able to enjoy all human rights fully on an equal basis with others. The Committee also recalls that, according to its general comment No. 2 (2014) on article 9: accessibility, the obligation to implement accessibility is unconditional, that it is important to address accessibility in all its complexity, including communication. Likewise, access should be ensured on an equal basis in an effective manner, in accordance with the prohibition of discrimination, and the denial of access should be considered to constitute a discriminatory act. In the present case, by refusing to provide Auslan interpretation, the State party did not take the appropriate measures to enable the author to perform jury duty, thereby preventing her participation in a clear “aspect of life”, in violation of her rights under article 9 (1) read alone and in conjunction with articles 2, 4 and 5 (1) and (3) of the Convention.

8.7As to the author’s claim under article 21 of the Convention, the Committee notes the State party’s argument that the standard of “accepting and facilitating the use of sign languages” and other means of communication has been met in the present case by the State of New South Wales and that obligations under article 21 are to be achieved progressively. The Committee also notes the author’s contention that article 21 does not contain rights and obligations that are subject to progressive implementation and that the measures the State party purports to have taken to enable deaf people to participate in jury duty are not adapted to her needs.

8.8The Committee recalls that pursuant to article 21 (b) of the Convention, States parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication, by accepting and facilitating different means and formats of communication in official interactions. The Committee further recalls that according to article 2 of the Convention “communication” includes languages and alternative modes, means and formats of communication, obviously encompassing Auslan interpretation and steno-captioning. In that context, the Committee notes the author’s argument that a juror is a person holding a public responsibility in the administration of justice “in interactions with other persons”, including other jurors and judicial officers, and that such interactions therefore constitute “official interactions” within the meaning of article 21. In view thereof, the Committee considers that the refusal to provide the author with the format of communication she needs to enable her to perform jury duty and therefore to express herself in official interaction, amounted to a violation of article 21 (b) read alone and in conjunction with articles 2, 4, and 5 (1) and (3) of the Convention.

8.9As regards the author’s claims under articles 13 (1) and 29 of the Convention, the Committee notes the State party’s argument that this claim is without merit, as it considers that “effective access to justice” refers to accessibility to the justice system and that the terms “direct” and “indirect” participants do not encompass jury duties. The State party also argues that the “reasonable accommodation” standard does not apply to article 13. The author in turn asserts that the term “direct and indirect participants” relates to individuals taking part in the legal system and that obligations under article 5 to provide “reasonable accommodation” apply for the realization of those rights. The Committee recalls that, pursuant to article 13, States parties have to ensure effective access to justice for persons with disabilities on an equal basis with others, in order to facilitate their effective role as “direct and indirect participants in all phases of legal proceedings”, including through the provision of procedural and age-appropriate accommodation. The Committee notes that the performance of jury duty is an integral part of the Australian judicial system and, as such, it constitutes “participation” in legal proceedings. The Committee further recalls that article 29 (b) requires States to “promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs”. Attention must therefore be given to the participation of persons with disabilities in the justice system in capacities besides those of claimant, victim or defendant, including in jury service, on an equal basis with others. In view thereof, the Committee considers that the decision of the Sheriff not to provide Auslan interpretation amounted to a violation of article 13 (1) read alone and in conjunction with articles 3, 5 (1), and 29 (b) of the Convention.

C.Conclusion and recommendations

9.The Committee on the Rights of Persons with Disabilities, acting under article 5 of the Optional Protocol, is of the view that the State party has failed to fulfil its obligations under articles 5 (1) and (3); 9 (1); 13 (1) read alone and in conjunction with articles 3, 5 (1) and 29 (b); and 21 (b) read alone and in conjunction with articles 2, 4 and 5 (1) and (3) of the Convention. The Committee therefore makes the following recommendations to the State party:

(a)With respect to the author, the State party is under an obligation:

(i)To provide her with an effective remedy, including reimbursement of any legal costs incurred by her, together with compensation;

(ii)To enable her participation in jury duty, providing her with reasonable accommodation in the form of Auslan interpretation in a manner that respects the confidentiality of proceedings at all stages of jury selection and court proceedings;

(b)In general, the State party is under an obligation to take measures to prevent similar violations in the future, including by:

(i)Ensuring that every time a person with disabilities is summoned to perform jury duty, a thorough, objective and comprehensive assessment of his/her request for adjustment is carried out and all reasonable accommodation is duly provided to enable his/her full participation;

(ii)Adopting the necessary amendments to the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organizations;

(iii)Ensuring that appropriate and regular training on the scope of the Convention and its Optional Protocol, including on accessibility for persons with disabilities, is provided to local authorities, such as the Sheriff, and the judicial officers and staff involved in facilitating the work of the judiciary.

10.In accordance with article 5 of the Optional Protocol and rule 75 of the Committee’s rules of procedure, the State party should submit to the Committee within six months a written response, including any information on any action taken in the light of the present Views and recommendations of the Committee. The State party is also requested to publish the Committee’s Views and have them translated into the official language of the State party and widely disseminated, in accessible formats, in order to reach all sections of the population.