By Stephen Tully -
Snapshot
- Australia has been twice found to have violated the Convention on the Rights of Persons with Disabilities by refusing to reasonably accommodate participation of deaf people in jury duty.
- Hearing-impaired individuals excluded from jury duty because Auslan interpreters are required, face significant challenges in bringing discrimination claims under Australian law.
- Human rights activists are resorting to United Nations human rights complaints mechanisms to strengthen domestic law reform agendas.
The United Nations Committee on the Rights of Persons with Disabilities (the Committee) has recently issued three views which assessed Australia’s compliance with the Convention on the Rights of Persons with Disabilities (‘CRPD’ or Convention) [2008] ATS 12 which entered into force for Australia on 16 August 2008. Australians can bring complaints alleging violations of that treaty by Australia under the Optional Protocol to the CRPD [2009] ATS 19 (entry into force for Australia on 20 September 2009).
This article explores how these three complaints sprung from and advance NSW law reform initiatives.
Background
The general obligations of States Parties to the CRPD, which apply to realising all of the specific obligations under that treaty, are indicated in art 4. States must also take all appropriate steps to ensure that ‘reasonable accommodation’ is provided to disabled persons with a view to promoting equality and eliminating discrimination (art 5(3)). ‘Reasonable accommodation’ means necessary and appropriate modification and adjustments which do not impose a disproportionate or undue burden so that disabled persons can enjoy and exercise human rights (art 2). For example, disabled persons have a right to enjoy legal capacity on an equal basis with others (art 12). They must also be free to seek, receive and impart information and ideas, including in their official interactions (art 21(b)). Measures must be taken to enable disabled persons to ‘participate fully in all aspects of life’ (art 9(1)), with States facilitating an effective role for them as ‘direct and indirect participants, in all phases of legal proceedings’ (art 13).
Gemma Beasley, represented by the Australian Centre for Disability Law, lodged her communication with the Committee during April 2013. She is deaf and requires Australian sign language (Auslan) interpretation to communicate. When the NSW Sheriff summoned her to serve as a juror, she explained that she is deaf and required Auslan assistance. The Sheriff advised that such support, or alternatively real-time steno-captioning, could not be provided. Gemma believed that deaf persons are considered unable to sufficiently comprehend courtroom communication or jury deliberations. Furthermore, Auslan interpretation was not being treated as a reasonable accommodation by reason that an accused’s rights to a fair trial were compromised, jury deliberations might not be confidentially confined to empanelled jurors, and the efficient administration of justice was unreasonably impeded. She asserted violations of several CRPD rights.
Australia contended that the CRPD was not violated, including because some claims fell outside the Convention’s scope. Australian law and policy was not discriminatory and any differential treatment was legitimate. Auslan interpreters impacted on the complexity, cost and duration of trials, and the NSW Government already provided hearing loops and infra-red technology. Furthermore, several complaints were inadmissible (including for lack of substantiation) or without merit.
