Violations: CRPD art 3, CRPD art 5(1), CRPD art 5(3), CRPD art 9(1), CRPD art 13(1), CRPD art 21(b), CRPD art 29(b)
[Australia] is under an obligation to:
- provide him with an effective remedy, including reimbursement of any legal costs incurred by him, together with compensation.
- enable his participation in jury duty, providing him with reasonable accommodation in the form of steno-captioning in a manner that respects the confidentiality of proceedings at all stages of jury selection and court proceedings
- take measures to prevent similar violations in the future, including by ensuring that every time a person with disabilities is summoned to perform jury duty, a thorough, objective and comprehensive assessment of his or her request for adjustment is carried out and all reasonable accommodation is duly provided to enable his or her full participation
- amend relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organisations
- ensure appropriate and regular training of 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.
Mr Lockrey is profoundly Deaf and requires real-time steno-captioning in order to communicate in formal settings.
In 2012, he was summoned to serve as a juror. Mr Lockrey notified the Sheriff of New South Wales that he required steno-captioning in order to fulfil his duty. The Sheriff’s office wanted to excuse him from duty, rather than provide captioning. She claimed that while real-time captioning was possible in the courtroom, to have a captioner in the jury room would breach the Jury Act 1977 (NSW), which permits only jury members in the jury room during deliberations. She also cited efficiency as a reason for refusing to provide a captioner.
Mr Lockrey lodged a complaint with the Australian Human Rights Commission alleging discrimination under the Disability Discrimination Act 1992. The Commission endeavoured to conciliate the matter without success.
The Committee noted 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” (para. 8.3). The “reasonable accommodation” required by CRPD art. 2 means “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden.” Governments enjoy a “certain margin of appreciation” in determining what is reasonable and proportionate, but the Committee concluded Australia had not thoroughly assessed the question (para. 8.5).
The Committee also noted that there are deaf judges and barristers who use steno-captioners in their daily work in court. It dismissed Australia’s concerns about the impact of a steno-captioner on the complexity, cost and duration of trials, noting that a captioner could be required to take a special oath of confidentiality before the court, in order to be present in the jury room during deliberations (para 8.5).
The Committee concluded that Australia had discriminated against Mr Lockrey, in violation of his rights under CRPD arts 5(1) and 5(3). Further, it found violations of art 9(1) concerning the right to accessibility, and art 21(b) concerning Mr Lockrey’s right to express himself “in official interactions”, both when read alone and in conjunction with articles 2, 4 and 5.
Finally, the Committee found a violation of art 13(1) concerning access to justice, when read alone and in conjunction with articles 3, 5(1) and 29(b) of the Convention, noting,
“the performance of jury duty is an integral part of the Australian judicial system … 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 jury service, on an equal basis with others” (para. 8.9)
Australia continued to argue its case after the Committee handed down its Final Views, introducing the new contention that it has not discriminated in denying the author steno-captioning, because it also doesn't provide interpreters for (hearing) non-English speakers. Australia maintains that providing real-time steno-captioning in the courtroom and jury room is not a reasonable accommodation. Australia refutes the Committee's conclusion that it has breached the CRPD and declines to act on the Committee's recommendations regarding effective remedies.