JH v Australia (CRPD, 2018)

Violations: CRPD art 5(2), CRPD art 5(3), CRPD art 21(b), CRPD art 21(e)

Remedy's assessment: Unremedied

The UN says:

Australia is under an obligation to:
• Provide [Ms JH] with an effective remedy, including reimbursement of any legal costs incurred by her and compensation;
• Enable her to perform 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;
• Ensure 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 conducted and all reasonable accommodation is duly provided to enable his or her full participation;
• Adopt the necessary amendments to the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organizations;
• Ensure that appropriate and regular training on the scope of the Convention and the Optional Protocol, including on accessibility for persons with disabilities, is provided to local authorities and the judicial officers and staff involved in facilitating the work of the judiciary, such as the manager of jury services.

CRPD (2018)

‘JH’ is Deaf and uses Australian Sign Language (Auslan) to communicate. In 2014 she was summoned to serve as a juror in the Western Australian District Court. When she advised the court that she would require an Auslan interpreter, the court cited the WA Juries Act 1957 to explain that it could not allow an interpreter in the jury deliberation room, in the interests of jury confidentiality and a fair trial. She was told it was not a question of resources (para. 2.6).

JH was unsuccessful in obtaining a domestic remedy through the WA Equal Opportunity Commission.
She petitioned the UN CRPD Committee, arguing the provision of an Auslan interpreter would not be a disproportionate or undue burden on the courts. In responding, Australia maintained the cost of providing the interpreters and training necessary to permit Deaf people to serve on juries was not reasonable and that the jury confidentiality necessary to a defendant’s right to a fair trial took precedence.

The Committee noted that denial of reasonable accommodation is a form of discrimination (CRPD art. 2) and 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. 7.3). To comply with the CRPD, courts must conduct thorough and objective assessments of what reasonable accommodation(s) may be requested on an individual basis “before concluding that the support and adaptation measures would constitute a disproportionate or undue burden” (para. 7.4); the Committee found this had not occurred in Ms JH’s case.

The Committee accepted the importance of jury confidentiality and suggested that Auslan interpreters making a special oath of confidentiality before the court would be a suitable adjustment to meet this aim.

The Committee found Australia had discriminated against JH in violation of article 5(2) and 5(3), and denied her freedom of expression in “official interactions” as protected by article 21(b) and 21(e). It recommended both individual remedies, including compensation, and non-repetition measures, including reasonable accommodation assessments, law reform and training (see box).

Responding in 2020, Australia did not accept the Committee’s Final Views, and refused to provide an effective remedy. Reiterating many of its prior arguments, Australia maintained that it did undertake a thorough and objective assessment of JH’s request and found it unreasonable, owing to its negative impact on the cost, duration and complexity of trials”, the need for training and preparation, and the possibility the trial may feature “non-verbal audio evidence that would be difficult or impossible” for an Auslan interpreter to convey (para. 9).

It said the Western Australian government was “exploring the possibility of the participation of deaf people in jury service” (para. 15) and

will consult with key stakeholders regarding existing barriers that may prevent people with certain disabilities being considered for jury service. In relation to deaf jurors particularly, the Western Australian Government, through the Department of Justice, monitors developments in disability aids, technologies and interpreter services for incorporation into courtroom design.

(para. 23 & 24)

Read Australia's response to the Committee's final views (February 2020, PDF 249Kb).

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