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)
Committee object (4) (2016)
[Australia] is under an obligation to:
- provide [Ms Beasley] with an effective remedy, including reimbursement of any legal costs incurred by her, together with compensation
- 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
- 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/her request for adjustment is carried out and all reasonable accommodation is duly provided to enable his/her full participation
- amend the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organisations
- ensure that 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.
Sydney woman Gemma Beasley is Deaf and uses Australian Sign Language (Auslan) to communicate. In 2012 she was summoned to serve as a juror. When she advised the Sheriff’s office that she would require an Auslan interpreter in order to serve on the jury, she was told the court would not provide either an Auslan interpreter or real-time steno-captioning.
Ms Beasley argued that performing jury duty is fundamental to the legal capacity of adult citizens (para. 3.1), which she has a right to enjoy on an equal basis with others (art 12(2)). She maintains jury duty is also a political right (para. 3.5), being a component of ‘the conduct of public affairs’ referred to in Article 29(b) of the Convention on the Rights of Persons with Disabilities (CRPD).
Australia maintained that to allow an interpreter into the jury room would violate a common law principle which purportedly requires a jury’s deliberations to be confidential to empanelled jurors only. However, rules that are neutral at face value and do not intend to discriminate may nonetheless be discriminatory in effect (para. 8.3).
Deaf people have been eligible to sit on juries in the US since 1990. In 2006, the NSW Law Reform Commission recommended that the Jury Act 1977 (NSW) be amended to enable deaf and blind people to serve on juries, but the NSW Government rejected this advice.
‘Where needed in a particular case,’ States Parties are required to make ‘reasonable accommodation’ – that is, ‘necessary and appropriate modification and adjustments’ that do not impose a ‘disproportionate or undue burden’ – to ensure persons with disabilities enjoy or exercise all their human rights on an equal basis with others (art 2 & 5).
Ms Beasley argued that reasonable accommodation in this instance should include amending the Jury Act (NSW) to allow an Auslan interpreter or stenographer to be present in the jury room to facilitate communication between Deaf and hearing jurors. The Act should introduce a special oath for interpreters and stenographers regarding the confidentiality of jury deliberations, while all jurors ought to be directed not to discuss the case with the interpreter or stenographer except for the purpose of communicating with the Deaf juror(s) (para. 5.10).
Denial of reasonable accommodation constitutes discrimination under the CRPD, however the Committee permits States a certain ‘margin of appreciation’ when assessing the reasonableness and proportionality of accommodation measures (para. 8.4).
In responding to Ms Beasley’s communication, Australia did not claim that providing Auslan interpretation would constitute a disproportionate or undue burden (para. 5.9). Indeed, it did not provide ‘any data or analysis’ concerning the impact of providing Auslan interpretation to a juror (para. 8.5). The Committee concluded that Australia ‘had not taken the necessary steps to ensure reasonable accommodation’ for Ms Beasley. Refusing to provide Auslan interpretation or steno-captioning ‘without thoroughly assessing whether that would constitute a disproportionate or undue burden amounts to disability-based discrimination’ and a violation of Ms Beasley’s right to equality before the law under Article 5.
As for her claim under Article 9, the Committee referred to its General Comment No. 2, which holds that the obligation on States to guarantee equality of access to information and communications – ‘ in all its complexity’ – is unconditional (para. 8.6). It found Australia had violated Article 9(1), when read alone and in conjunction with articles 2, 4, 5(1) and 5(3) of the CRPD.
CRPD Article 21 on freedom of expression provides that persons with disabilities are free to seek, receive and impart information through forms of communication of their choice. Ms Beasley’s chosen form of communication is Auslan (para. 3.4). The Committee found Australia had violated Article 21(b), read alone and in conjunction with articles 2, 4, 5(1) and 5(3) of the CRPD.
The Committee found that the civic duty to serve on a jury constitutes ‘participation’ in legal proceedings, thus denying Ms Beasley’s request for an Auslan interpreter violated Article 13(1), read alone and in conjunction with articles 3, 5(1) and 29(b).
“This is the first time that the Committee has made a ruling on the right of people with disabilities to serve as jurors”, says Committee member Dr Damjan Tatic. “Lack of ability to participate sends a message that you as a Deaf person are less worthy than other members of the State. We are sending a clear message that people with disabilities have the right to participate in a country’s public affairs. In some countries, jury duty is an important part of this.”
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 an Auslan interpreter, because it also doesn't provide interpreters for (hearing) non-English speakers. Australia maintains that providing Auslan interpreters 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.