Wednesday, 15 November 2017
Juries (Auslan Interpreters) Amendment Bill
Introduction and First Reading
The Hon. K.L. VINCENT: Obtained leave and introduced a bill for an act to amend the Juries Act 1927; to make related amendments to the Criminal Law Consolidation Act 1935; and for other purposes. Read a first time.
The Hon. K.L. VINCENT: I move:
That this bill be now read a second time.
When it comes to people’s ideas of a good time or aspects of the justice system that they are keen to get involved in, participation on a jury is not something that would usually come up on somebody’s bucket list. However, there is one way to get someone to desperately want to do something: that is to tell them that they can’t. To date, that has been the situation when it comes to deaf people who require an Auslan (Australian Sign Language) interpreter in order to participate on a jury—they have not been able to do so.
This has gained media attention in many states. In fact it was partially the call through the media of Drisana Levitzke-Gray and her struggle to appear on a jury when called up to do so as a deaf person that led her on the path that would see her become Western Australia’s Young Australian of the Year in recent times.
We have also sent a high-profile case of Gaye Lyons go all the way to the High Court from Queensland, yet we still have not achieved equality for people who need an Auslan interpreter to appear on juries.
This is in spite of the fact that we are required to enable full participation in all aspects of society to people with disabilities, including deaf people, under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and also in spite of the fact that investigating participation of people with disabilities on juries, including deaf people, was identified not just as an action but as a priority action under the Disability Justice Plan 2014-2017.
While many of the aspects and goals of the Disability Justice Plan have been achieved both through changes in practice and legislation, which thankfully have been unanimously supported by this parliament, investigating and allowing the participation of people with disabilities, including deaf people, on juries has remained unactioned under the Disability Justice Plan.
Given that that plan, as it stands—of course, as I have said, it goes from 2014 to 2017; and here we are fast approaching the end of 2017—still has not been actioned, I wanted to make sure that we put that priority firmly on the legislative agenda so that we remember not only that deaf people still face barriers to full participation in society but that there are aspects of the Disability Justice Plan which go far and beyond just legislative change when it comes to people participating in the justice system as victims of crime, or indeed offenders. Equal participation in the justice system must mean just that, where there is sound evidence to provide for it: equal participation in all aspects of the justice system.
Of course, members would be aware, particularly those who have a law degree or a particular interest in law, which as members of parliament we typically do—
The Hon. S.G. Wade: Hear, hear!
The Hon. K.L. VINCENT: ‘Hear, hear,’ says Mr Wade. I am glad to hear that his qualification has not gone to waste, but of course I already knew that, having listened so keenly to his speeches over the last few years. Members would be aware that the main barrier to deaf people participating in a jury is the current law around what is termed ‘the 13th person’—that is to say that 12 people can be on a jury and no other person can be in the space or room where the jury is deliberating, for fear that that 13th person may have an undue influence on the jury or otherwise share what would be private information with members of the public.
Given that an Auslan interpreter, not being a member of the jury, would be viewed as a 13th person in that deliberative space, they have, to date, not been allowed to participate in jury proceedings, despite the fact that they are allowed to appear in court to assist witnesses, victims and offenders of crime. So, I began to look around—including the media case and the arguments that had been made by deaf people themselves through the media—at what research exists to support the idea that deaf people whose first language is Auslan should be able to fully participate in juries with that assistance.
I became very interested in a study that the University of New South Wales, together with the Australian Catholic University and Heriot University, has done: research looking into whether or not deaf people should be allowed to participate as jurors and whether Auslan interpreters can adequately provide that service without disrupting other members of the jury or interfere in the jury process. The study that the University of New South Wales did as part of this collective conducted mock criminal trials using Auslan interpreters and made judgements about the accuracy or otherwise and other factors, such as whether it disrupted other jurors too much.
Pleasingly, the results that that very comprehensive research of a number of years came back with was that deaf people should be allowed, where appropriate, to participate fully as jurors with the assistance of an Auslan interpreter. The primary aim of this research-applied project was, of course, to investigate the capacity of deaf people who use sign language to participate in the administration of justice by serving as jurors. Research of this kind had never previously been conducted in Australia or, it is believed, internationally. The project expanded Australia’s knowledge base about court interpreting and jury service by pioneering the first study of its kind.
Additionally, through further collaboration with an international partner investigator with a proven track record in legal sign language and interpreting research, and collaboration with an international interpreting researcher, this project has fostered the international competitiveness of Australian research.
In so doing, that research led the New South Wales Law Reform Commission to recommend that the Jury Act 1977 of New South Wales should be amended to reflect the following: that people who are blind or deaf should be qualified to serve on juries and not be prevented from doing so on the basis of that physical disability alone; that people who are blind or deaf should have the same right to claim exemption from jury service; and that the court should have power to stand aside a blind or deaf person summoned for jury duty if it appears to the court that, notwithstanding the provision of reasonable adjustments, the person is still unable to discharge the duties of a juror in the circumstances of the trial for which that person is summoned.
That is exactly the bill that I have drawn up for members to peruse today: a bill that allows for people who are deaf and rely on Auslan interpreting to do so and to have the Auslan interpreter present in all matters relevant to the trial; but also allows for exemptions where a deaf person’s deafness may not be able to be accommodated and may impact on the case.
A particular example I can think of might be where a case includes evidence of a voice recording where, for example, jurors might be required to be able to distinguish between two voices if they were trying to decide which of the two voices was the guilty person in question. It is my view that this exemption is justified and appropriate.
I understand that some of the deaf people I spoke to about this bill were satisfied that an Auslan interpreter would be able to convey differences in a voice using spacial difference or different facial or hand gestures, for example, but given that I think that is quite subjective and that what the New South Wales Law Reform Commission has recommended, based on that very comprehensive research that has been carried out by the University of New South Wales, I think at this stage it is appropriate to have that exemption for cases in which audio recordings are involved as evidence, and where it cannot necessarily be directly interpreted into Auslan, where, for example, as I have said, there might be two voices and a person needs to very carefully distinguish between two very similar sounding voices.
Of course, equality before the justice system, in terms of participation of people with disabilities, including deaf people, should not come at the cost of the accuracy or viability of a court case. I am very happy to remain open to other feedback on that, but based on the feedback I have received and current research I think it is prudent to restrict the bill to have that exemption where audio evidence may disproportionately impact the ability of a deaf juror to participate.
I want to touch briefly on some of the amendments that have been made to the bill as a result of feedback. Originally, I had drafted the bill such that it would have covered interpreting services for not only deaf people but other people who are hearing but may have a first language that is not English or who may otherwise be fluent in English but struggle to understand the often nuanced and complex legal language that can be used as part of being on a jury.
This was, I am not ashamed to say, a thought bubble of my own that I thought we may as well investigate since we were looking into this issue, but again the feedback I have received, based on current research and understanding, is that it is prudent to restrict it simply to people who are deaf and whose first language is Auslan, second language English, to have access to that interpreting service.
We have also provided amendments clarifying the level of qualification that an Auslan interpreter must have in order to provide interpreting services to assist a deaf juror, and this indicates that the bill includes a tertiary, VET or university qualification in interpreting and accreditation from NAATI (National Australian Accreditor for Translators and Interpreters).
Importantly, we must also provide protections for those who may be harassed in their role as an Auslan interpreter, where a hearing juror might try unduly to get information from the Auslan interpreter about what they have said to a deaf person or what are a deaf person’s thoughts that they perhaps have not shared with the rest of the room.
So, a person who, for the purpose of obtaining information about the deliberations of a jury in criminal proceedings, harasses an interpreter assisting a juror in the proceedings, or who seeks to improperly influence a member of a jury to act in a way that might improperly influence the outcome of judicial proceedings, is guilty of an offence. In other words, you cannot harass the interpreter to try to persuade the deaf juror to cast their vote a particular way or to make particular observations. There are offences relating to that.
There are also requirements for the Auslan interpreter themselves to take an oath to interpret accurately and not to use their skills as an Auslan interpreter to influence proceedings. Their role is simply to directly interpret what is being said in the court, not to unduly insert their own beliefs, opinions or wants. That offence, to unduly use your powers as an Auslan interpreter to influence the proceedings, carries a maximum gaol sentence of 10 years, and the offence of a person unduly trying to influence the interpreter, and therefore to influence the deaf juror, carries a monetary penalty.
So, there are protections in this to ensure that the interpretation is accurate, that the deaf juror is protected in terms of not having other people impact on or interact with the Auslan interpreter. The Auslan interpreter is there simply to adequately and accurately interpret exactly what is being said in the courtroom and exactly what the deaf person, as the juror, wishes to communicate—nothing more and nothing less—and there are protections to provide for that through punishment of either inaccurate interpreting or of using your powers as an Auslan interpreter to influence the jury. Indeed, if you want to influence the deaf juror you will receive punishments as well.
Those punishments or protections are in place under the bill: that the Auslan interpreter is required to have a high level of accreditation, and that they are required to take an oath to interpret correctly and accurately to the best of their abilities. I have touched on the research that has been carried out by the University of New South Wales through the collective group, including Professor David Spencer. He wrote to me on behalf of the group on that issue, and I certainly thank him for that, as well as thanking the many other deaf and disabled people who have written to me with their views. I am confident that with those protections in the law and the research that has been carried out—that is not only nation-leading but, it would seem, world-leading—as well as our obligation under both the UN CRPD and the Disability Justice Plan, we can and should adequately provide for deaf people to have that right. They have spent their time and money bringing court cases to fight for this for so long.
As I said, the Disability Justice Plan is laid out to last until 2017 and then, hopefully, be reviewed and renewed. Here we are in 2017, and it is time to move forward with this important measure. Before I conclude I would like to add that I am aware there is an appetite to allow assistance to participate on juries for people with disabilities other than hearing-related disabilities, or being deaf, as well.
There is an appetite, I think, as you would have gathered from the research, for blind people to also be assisted where necessary and indeed for perhaps even a person with a physical disability who might need assistance to have a support worker present to assist them with personal care, for example, as they carry out their jury duties throughout the day, or it may even be that a person requires the assistance of a communication partner because of a communication difficulty or speech-related disability that affects their speech, to participate in a jury. We have, of course, already allowed that for witnesses, victims and offenders in cases, so I think we need to look at moving this forward.
Of course, the priority recommendation, 1.4, under the Disability Justice Plan does look at investigating ways for people with disabilities, not just deaf people, to increasingly participate in juries, and I am certainly keen to see that happen, but I think given that we still have not moved forward with this recommendation in any way and given that the current nation-leading, world-leading research is around, particularly, deaf people participating in juries, let us follow the evidence, let us follow the appetite and finally help deaf people increasingly see equality before the law, including in all aspects of the justice system. With those few words, I commend the bill to the chamber and look forward to members’ discussion and support.