Lyons v State of Queensland [2016] HCATrans 165 (25 July 2016)

Last Updated: 28 July 2016

[2016] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B16 of 2016

B e t w e e n -

GAYE PRUDENCE LYONS

Appellant

and

STATE OF QUEENSLAND

Respondent

FRENCH CJ
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 25 JULY 2016, AT 2.14 PM

Copyright in the High Court of Australia

MS K.T. NOMCHONG, SC: If the Court pleases, I appear with my learned friend, MR B.E. FOGARTY, for the appellant. (instructed by Australian Centre for Disability Law)

MR W. SOFRONOFF, QC: May it please the Court, I appear for the respondent with my learned friends, MS K.A. MELLIFONT, QC, MR A.D. SCOTT, and my learned pupil, MS P. KINCHINA, is attending with us today. (instructed by Crown Law)

FRENCH CJ: Yes, thank you.

MR SOFRONOFF: Your Honours, there is an application by the respondent for an extension of time within which to file a notice of contention. That is opposed, but I would invite the Court to treat it in the course of hearing the appeal, if that is convenient.

FRENCH CJ: Yes, thank you. Ms Nomchong, the Court is disposed to grant the leave to extend time but without prejudice to your argument that the submissions put should not be ultimately entertained.

MS NOMCHONG: Thank you, your Honour.

FRENCH CJ: So you have the extension, Mr Sofronoff.

MR SOFRONOFF: Thank you, your Honour.

FRENCH CJ: Yes, Ms Nomchong.

MS NOMCHONG: Your Honours, the appellant’s case is that she was the subject of both direct discrimination and indirect discrimination in that she was denied the ability to participate in the jury selection process, being the administration of a State law covered by section 101 of the Anti-Discrimination Act (Qld). This occurred, we say, because she was deaf and needed an Auslan interpreter in order to perform the role as a juror.

In relation to indirect discrimination we say that the effect of the deputy registrar at Ipswich – and her decision – was to impose a term that the appellant be able to perform the role of a juror by being able to communicate using conventional speech or, the flip side of that coin, without the need for an Auslan interpreter. That was a term which we say was one with which she could not comply and it was not reasonable in the circumstances and with which a substantially high proportion of people in the community could comply.

Section 106 of the Anti-Discrimination Act – and that can be found at the authorities bundle at page 775 – provides a defence for discriminatory conduct, based upon the conduct being:

an act that is necessary to comply with, or is specifically authorised by –

(a) an existing provision of another Act –

Section 106 was not relied upon by the respondent in these proceedings, but the way in which the use of section 4(3)(l) of the Jury Act, to which I will come in a moment, was enlivened was that the respondent pleaded that if there had been the imposition of a term of the kind that was pleaded or argued then it was a reasonable term because it was contained in an Act of Parliament, being section 4(3)(l) of the Jury Act.

May I turn to our first point, which is section 10(5) of the Anti-Discrimination Act and what we say is the misapplication of the principles in Purvis v New South Wales (Department of Education and Training). Section 10(5) is contained at page 770 of the authorities bundle and it is in very similar terms to section 5(2) of the Disability Discrimination Act (Cth).

It says that in determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is relevant.

Your Honours will appreciate that it was common ground that the use of an Auslan interpreter was a special service and this was never contested. What was held by the Tribunal, the Appeal Panel and the Court of Appeal was that, despite the provisions of section 10(5) of the Anti-Discrimination Act, the fact that the appellant required an Auslan interpreter was to be taken into account in that comparative exercise.

The Court of Appeal upheld or held that the comparator was to be assessed by a third person being in the jury room and the perceived view of the deputy registrar that such a third person was not allowed under the Jury Act. The decision at the Court of Appeal and below rested on the notional comparator being another person accompanying a juror into the jury room, even though that person had no disability whatsoever.

We say that construction must be wrong and it must be wrong because if it be so then section 10(5) has no work to do. For example, a visually impaired person about to embark on a plane with a guide dog would be refused passage onto the aircraft because the comparison would be a person wanting to bring their pet dog onto the aircraft just for company. One can see immediately that the use of the special service as part of the comparative analysis then falls away.

But this was not the comparative analysis that was advocated before by this honourable Court in Purvis. Purvis is in the authority bundle at page 553 and the passage to which I wish to take you commences at page 572. I should say for your Honours that page 572 sets out, at the top of the page - - -

FRENCH CJ: Sorry, can you give us the page of the report that you are referring to for those of us with electronic copies up here.

MS NOMCHONG: Yes, it is page 111 of 217 CLR and that contains the recitation of section 5(2) of the Disability Act so your Honours can see the comparison with section 10(5). At paragraph 217 which is at page 159 of the report and page 620 of the bundle, the Court emphasises that special needs are not to be taken into account in the comparative analysis, that is, the reference to section 5(2) was that you do not take into account that a person requires special needs. Then, at paragraph 222, the Court stipulated that in any comparator analysis, the fact that a person requires special needs comes out of that comparative analysis.

In that matter, your Honours will recall, what was at stake was the claim of direct discrimination by a young boy who wanted to participate in the educational services provided by the New South Wales Department of Education. Part of his disability was violent behaviour and the violent behaviour was the characteristic which the High Court attached to the notional comparator. It was not the fact that the student required special needs. So we find that the comparative analysis that is then required is at paragraph 222 which is on page 160 of the report, page 621 of the bundle. The Court held:

It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) –

the equivalent to section 10(5):

provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

In a misapplication of that particular paragraph, we say that what happened in the Tribunal, the Appeal Panel and the Court of Appeal was that they attributed to the notional comparator the very thing, the special needs, and that was what was not – that was carved out by paragraph 222 in Purvis. The very purpose of section 10(5) of the Anti-Discrimination Act is to prohibit any comparison based on any special service whether it be a wheelchair, a hearing aid, a walking stick or, in this case, an Auslan interpreter.

An Auslan interpreter is a special service that is provided by a natural person. One cannot separate the interpretation from the person. The fact that this makes them a 13th person in the jury room is rendered irrelevant for the comparative analysis by reason of the proper construction of 10(5) of the Anti-Discrimination Act.

By conflating the effects of the disability with a need to use special services would effectively mean that there would never be any direct discrimination at all because one would always be comparing the person with a disability to another person in exactly the same situation, being with a guide dog, a wheelchair, an interpreter, rather by choice than because of need. The consequence of a finding in our favour would be that less favourable treatment would be available but we still have to deal with the issue of causation.

The need for an Auslan interpreter only arises because of the appellant’s deafness. Axiomatically, her deafness is the reason for the less favourable treatment that she received. In any event, section 8 of the Anti-Discrimination Act is relevant - and this is at page 769 of the authorities bundle - because section 8 stipulates that:

Discrimination on the basis of an attribute –

and that is the terminology used by the Queensland Discrimination Act for, including other things, an impairment, and you can see that at section 7(h) of the Anti-Discrimination Act, section 8 provides that:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –

(a) a characteristic that a person with any of the attributes generally has –

It was common ground below that the use of an Auslan interpreter was just such a characteristic. The Court of Appeal held that there had been no error in the Tribunal or the Appeal Panel’s decision that the only reason the appellant was rendered ineligible for jury service was because the deputy registrar believed that what she was doing was applying section 4(3)(l) of the Jury Act. I might take you to that now because it will assist – it appears at page 739 of the bundle and it appears under “Qualification to serve as juror”:

(1) A person is qualified to serve as a juror at a trial within a jury district –

and then there lists a whole host of occupations and other persons, and at section 4(3)(l) we see that a person who is not eligible for jury service is:

a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror –

So, what the Appeal Panel, the Tribunal and the Court of Appeal all found was that the deputy registrar believed that what she was doing was simply applying section 4(3)(l). The evidence disclosed that the only reason that the deputy registrar thought that section 4(3)(l) applied was because of two things: one, there was no specific provision in the Oaths Act (Qld) to swear in an interpreter for a juror and, secondly, that she believed that there was a prohibition in the Jury Act preventing a 13th person being in the jury room.

GAGELER J: Ms Nomchong, why are we concerned with what was in her mind?

MS NOMCHONG: We ought not to have been at all. Indeed, her motive is something that the court ought not to have been contending with but this was the basis for the finding that there had been no less favourable treatment or no causation because that was the part that was latched on to.

GAGELER J: I suppose that is my question - where does causation come into it?

MS NOMCHONG: Well, causation is that the less favourable treatment has to be because of the attribute or a characteristic generally appertaining to the attribute and the appellant was defeated in the Tribunal, the Appeal Panel and the Court of Appeal because what they said was “We did not treat you less favourably because you were deaf or you needed an Auslan interpreter. We treated you less favourably because the deputy registrar was applying section 4(3)(l) of the Jury Act”.

NETTLE J: It was not so much treating less favourably as treating her as not being qualified for jury service.

MS NOMCHONG: That is correct.

NETTLE J: What was wrong with that? What was wrong with saying that by reason that would necessitate the 13th person in the jury room the lady was incapable of performing the functions of a juror?

MS NOMCHONG: Two things, your Honour. First of all, there is no prohibition on a 13th person being in the jury room - and I will come to that later - but second of all, section 4(3)(l) does not provide a blanket prohibition on people who are deaf or having - of being a juror and so the presence of the Auslan interpreter only being rendered necessary by reason of the appellant’s deafness was really the core feature. That was the causative factor and what the court was required to do and what we urge upon this Court is to look at the real or true reason and it is not the ascribed reason of the deputy registrar to say, “All I did was apply section 4(3)(l)”. It is the real reason - - -

NETTLE J: But what authorisation is there to have a 13th person, not a member of the jury, in the jury room, during deliberations?

MS NOMCHONG: It is permitted, we say, because what is required for any interpretation of this Act, and in particular because of the operation of section 101 of the Anti-Discrimination Act, is that the Jury Act and the Oaths Act has to be administered in a non-discriminatory fashion and that is really the overall argument that we have, your Honour.

FRENCH CJ: But does that go to the interpretation or to the way in which the Act, properly construed, is administered?

MS NOMCHONG: It goes to both, your Honour.

FRENCH CJ: Well, do you say that a misinterpretation of the Act can constitute an act of discrimination under the Anti-Discrimination Act?

MS NOMCHONG: Yes I do, your Honour.

NETTLE J: That was not put below, was it? It was put upon the basis that it had been decided on discrimination rather than by reason of the qualification of the lady for service on jury.

MS NOMCHONG: I think, below, your Honour, that it was put and, indeed, Tribunal Member Roney found that the interpretation ascribed to section 4(3)(l) by the deputy registrar was wrong, that is, that he also found that there was no prohibition in the Jury Act for the 13th person and, indeed, we know that the bailiff and other members of the court often are in there and subject to oaths and directions about not communicating with members of the jury, so that he found that the interpretation was wrong.

BELL J: The Court of Appeal, although I think it was not strictly necessary on the analysis that they took, was not so critical of the approach of the Tribunal member - I am sorry, the Court of Appeal concluded, having regard to 54(1), that there was likely an obstacle under the Act to a 13th person being present throughout the communications of the jury in the course of the jury’s retirement.

Now, it is one thing to point out that a judge might, with leave, permit a person to enter the jury room once the jury have retired to consider their verdict. It is another thing to think that that leave might extend to a 13th person being present throughout the course of the retirement, so that each juror is communicating his or her views in the presence of a person who is not a juror. It might be a bold judge who would give leave in those terms.

MS NOMCHONG: Well, we would hope that it would be a judge, your Honour, who would be informed by the overarching obligations that we have to our international treaty obligations, that is, to make reasonable adjustments so that people who are deaf can be active in all forms of civil and political life.

What we say is that the Court of Appeal in their decision really did not give it any great consideration because they relied on a very short judgment of his Honour Justice Douglas in Re the Jury Act and, to be fair to his Honour, he was not given any assistance in terms of the sort of submissions that we now present about the way in which the material can show that the Jury Act in fact does not provide a prohibition for the 13th person.

We know from overseas experience that deaf jurors are given assistance not only of Auslan interpreters but real time transcribers who provide transcription services in the jury room and all of the arguments that we hear from the respondent do not seem to have borne out any of the miscarriages of justice that alarm is being raised for here.

NETTLE J: Where it is done overseas, is it done with express statutory permission for a 13th person to be in the jury room?

MS NOMCHONG: Yes, your Honour, but as we will see that section 50 of the Jury Act, and I will come it in a moment, section 50 allows communication with another person whilst doing their deliberations as allowed or permitted by law and our argument is that the presence of the Auslan interpreter is permitted and, indeed, required by law because what section 101 of the Anti-Discrimination Act does is to say you must, in the administration of State laws, being the Jury Act, ensure that it is administered in a non-discriminatory fashion and if you are doing that you cannot take into account a 13th person. You cannot take into account the Auslan interpreter.

So, we say that the requirement, that proviso in section 50, and perhaps I might take you to it, which is at page 754 of the Jury Act - this is one of the provisions upon which the respondent relies and, indeed, I think was relied on below that:

members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.

It is the appellant’s contention that the presence of the Auslan interpreter to assist the deaf juror is required by law and it is required by section 101 of the Anti-Discrimination Act and that is because this Act, this Jury Act must be administered in a non-discriminatory fashion. That is what the Queensland Parliament asked for and prescribed in section 101 of the Anti-Discrimination Act.

So, in order to allow the appellant, who is deaf, to participate as a jury member, she was to be provided with an Auslan interpreter and accommodation would be made. In the absence of any specific prohibition, of which there is not, then that should be allowed in order to permit her to do that and for her to participate in the full way.

KEANE J: Ms Nomchong, when you say she is to be provided with the assistance of an Auslan interpreter, do you say that comes from the Jury Act?

MS NOMCHONG: No, I do not say it comes from the Jury Act, your Honour. I say it comes from the way in which the Jury Act should be interpreted in the context of section 101 of the Anti-Discrimination Act.

KEANE J: What section 101 says, relevantly, I think – and correct me if I am wrong – is that a person who has responsibility for the administration of a State law must not discriminate in carrying out that responsibility.

MS NOMCHONG: Yes, your Honour.

KEANE J: Now, if the Jury Act has certain requirements and makes certain provisions and the registrar is simply complying with those provisions, there is no breach of 101.

MS NOMCHONG: That would be true, your Honour, if - - -

KEANE J: Section 101 takes the Jury Act as it finds it. It assumes that the Jury Act makes provision and then says that a person charged with administering it must not discriminate in the course of administering it. But if the Jury Act itself requires that something happen then that is just the law. There is no discrimination in the person administering the Act simply applying the law.

MS NOMCHONG: But, your Honour, the Jury Act 1995 was a wholesale revision of the Jury Act 1929 and the words restricting – and we will come to this, if I get that far. The 1929 Jury Act rendered ineligible people who were deaf, dumb or blind or of unsound mind. Now, the explanatory memorandum tells us that what the Queensland Parliament wanted to do was to make juries more representative, so we cut out a large number of the occupations that were contained in what was the old section 8, which was the ineligible jury panel, and put in this phraseology. What it did is it does not – it is not a wholesale application of people who were deaf and not there. What we have is 4(3)(l), which inserts a functional assessment based on merit, based on capacity – not a blanket disregard that all people who are deaf are incapable of performing the role of a juror.

KEANE J: But what you do not have is a provision in the Jury Act obliging the registrar to provide, at its expense, the expense of the budget, if you like, or the expense of the legal aid budget or whatever – what you do not have is a Jury Act providing that facilities will be provided.

MS NOMCHONG: I think, with respect, your Honour, you are looking at it the wrong way because, really, what section 4(3)(l) says is that in order to identify someone as ineligible to be a juror, you have to make this assessment. You are quite right; it does not say you have to provide them with an Auslan interpreter. But what section 101 of the Anti-Discrimination Act says is that when you are administering section 4(3)(l), being the State law, you need to do it in a non-discriminatory way - - -

KEANE J: Quite.

MS NOMCHONG: When you do that you have to take the Auslan interpreter out of the equation.

KEANE J: That is the assertion. The assertion is you have to take the Auslan interpreter out of the equation. But before you get to that, when you are talking about administering the Jury Act in a non-discriminatory way, you have to face up to the fact that your side says the Auslan interpreter has to be provided. Now, the Jury Act does not provide that. Generally speaking, expenditure of consolidated revenue has to be authorised by a statutory provision.

Section 63 of the Jury Act contemplates that jurors are paid remuneration and expenses in accordance with the regulation. The regulation does not provide for the expense of enabling a deaf juror to act as a juror. You are wanting to read section 101 as if it somehow overrides the actual provisions of the Jury Act and the Constitution Act (Qld).

MS NOMCHONG: Your Honour, it is not the appellant’s case that this is a requirement upon the Queensland Government to pay for Auslan interpreters. This is - - -

KEANE J: But your client’s application – when your client responded to the summons, your client said, “I will be attending and I require the provision of an Auslan interpreter”. That is the application. Now, if it was not open to the registrar to accede to the requirement for the provision, at State expense, of an Auslan interpreter, how was your client being discriminated against in the administration of the Act?

MS NOMCHONG: Your Honour, to be fair, no part of the case put below by the respondent was in relation to the financial aspects of the provision of the Auslan interpreter. The decision of the deputy registrar was made solely on her interpretation of the Jury Act that there was no provision in the Jury Act for a 13th person and that there was no provision in the Oaths Act for an interpreter for a juror. So no part of the decision anywhere had anything to do with the payment of Auslan interpreters. If it came to pass – and I say in pleadings that it was not run below that the matter was unreasonable, the imposition of the term was unreasonable because of the matters that your Honour raises.

KEANE J: But it is not a question of unreasonableness. It is a question of the ability of an officer of the Executive Government to accede to a request to spend the money of the State in a way not authorised by statute.

MS NOMCHONG: But, your Honour, that was no part of the deputy registrar’s decision making.

KEANE J: You have told us earlier that what was in the deputy registrar’s mind does not matter.

MS NOMCHONG: It does not matter in - - -

KEANE J: The question is whether it was open to the deputy registrar to do these things.

MS NOMCHONG: Your Honour, the point I am trying to make is this argument is about causation and that is what was the true reason that the deputy registrar rendered the appellant ineligible, and the true reason was because she needed an Auslan interpreter. That is a characteristic that generally appertains to deaf people. Therefore, there was a contravention of the Act. That is the way that that flows.

Now, the respondent does not come here today and argue the matters that your Honour raises about finances, nor was it run below and, indeed, one might speculate about what would have happened if the court had said well, yes, you can bring an Auslan interpreter at your own cost but we cannot provide it. That may have well been something that the appellant acceded to. But that is not what this case is about.

This case is about whether section 4(3)(l) should be interpreted as a functional test, which means that deaf people are allowed to participate in juries on the grounds of merit, not simply by some, we say, wrong interpretation of the legislation.

FRENCH CJ: Do you accept that section 101 of the Anti-Discrimination Act does not of itself affect the interpretation of any relevant provisions of the Jury Act? To pick up a point that his Honour put to you, you would take the Jury Act as it is - - -

MS NOMCHONG: Yes.

FRENCH CJ: It confers powers and responsibilities and what 101 prohibits is discrimination in the exercise of those powers and responsibilities.

MS NOMCHONG: That is correct, your Honour.

NETTLE J: Do you say 101 is sufficient to authorise the presence of a 13th person in the jury room for the duration of deliberations?

MS NOMCHONG: Yes, your Honour.

NETTLE J: Just those words is enough?

MS NOMCHONG: Yes, your Honour, because what it is saying is that in the administration, when the deputy registrar looked at section 4(3)(l) of the Jury Act, what she was required to do was to ensure that in exercising her functions under the Jury Act she did not discriminate against the appellant, and she did in this circumstance because she denied her eligibility to be a juror on the grounds that she required an Auslan interpreter.

NETTLE J: I am assuming you would accept that, absent express statutory authorisation or sufficiently necessary implicit statutory authorisation, the presence of a 13th person in the jury room during deliberations would be a miscarriage of justice which would result in a discharge?

MS NOMCHONG: No, we do not accept that, your Honour.

NETTLE J: Is that not the law at common law?

MS NOMCHONG: Your Honour, we say that that is not the way it should be interpreted. We do not accept that at all, that the presence of an interpreter in the form of an Auslan interpreter does not render the miscarriage of justice point to have any validity. That is our - - -

NETTLE J: At common law.

MS NOMCHONG: At common law, your Honour.

NETTLE J: Is there authority for that?

MS NOMCHONG: Your Honour, if I could come to that, if I deal with the other points that I can - - -

NETTLE J: Yes or no will do for the present.

MS NOMCHONG: Do I have authority for the proposition?

NETTLE J: That at common law the presence of an Auslan interpreter in the jury room during deliberations would not constitute a miscarriage of justice?

MS NOMCHONG: No, your Honour, I do not have authority for that specific proposition.

NETTLE J: There is some against it, is there not, in England?

MS NOMCHONG: Yes, there is, and it is raised by my learned friend’s argument.

GAGELER J: Ms Nomchong, can I go back one step. You first addressed us on the comparator issue.

MS NOMCHONG: Yes, your Honour.

GAGELER J: Then you have moved on to another issue that you label either “causation” or “the true reason for the decision”.

MS NOMCHONG: Yes, your Honour.

GAGELER J: Now, I can see that if we were concerned with section 5(1) of the Commonwealth Act, the provision that was in issue in Purvis, that two issues would be raised. One would be the comparator issue and the other would be the causation issue which arises by reason of the words “because of the disability”.

MS NOMCHONG: Yes, your Honour.

GAGELER J: Why is there the second issue in this case? Why is it not just a comparator issue? I just do not see equivalent words in this legislation. I just do not know why we need to look at that.

MS NOMCHONG: I am sorry; I cannot hear your Honour.

GAGELER J: I do not know why we are looking at a separate issue that you labelled “causation or true reason”. Is there a statutory anchor for that or is it just a reflex of the Purvis decision and the differently worded language of the common fact?

MS NOMCHONG: It is an extension of the Purvis decision – that is, when looking at the issue of causation, what the Tribunal and the Appeal Panel and the Court of Appeal did was to say that the true reason for the discriminatory conduct was the deputy registrar’s belief that section 4(3)(l) of the Jury Act - - -

GAGELER J: My question is why do you ask that question? Why do we get into the true reason?

MS NOMCHONG: Because that was one of the elements that was found against us below.

GAGELER J: All right.

MS NOMCHONG: My learned junior reminds me that section 10(4) of the Anti-Discrimination Act provides that, if there are multiple reasons for a discriminatory act, so even if the deputy registrar’s belief was one reason, we say that another reason and, indeed, a substantial reason was the requirement for an Auslan interpreter.

May I now move to the next point, which was that a term was imposed for the purposes of indirect discrimination pursuant to section 11 of the Anti-Discrimination Act. The pleaded term was that the appellant be able to participate in jury deliberations by use of conventional speech. It transmogrified in the Appeal Panel to being able to communicate without an Auslan interpreter – we say, as I said also, flip sides of the same coin.

At all levels it was dismissed on the basis that no term had been imposed. Your Honours will be familiar with the decision in Amery in which it was held at paragraph [208] that it is the Court’s role to determine whether or not the effect of a particular circumstance amounts to the imposition of a term and the principles in this area are that, whilst the term has to be identified with some particularity, you are not beholden to the pleaded term. What we are really looking for is the effect of the conduct. I would like to take your Honours to the decision of this Court in Waters which commences at page 349 - - -

FRENCH CJ: This is [1991] HCA 49; (1991) 173 CLR 349.

MS NOMCHONG: Yes, your Honour, it is [1991] HCA 49; 173 CLR 349. I apologise for that delay.

FRENCH CJ: That is all right.

MS NOMCHONG: In this matter, may I first take you to the passage at page 360 of the report in which their Honours, Chief Justice Mason and Justice Gaudron, discussed the requirement or condition in section 17(5) of the Victorian Equal Opportunity Act. At about point 5, halfway through the paragraph, their Honours said this:

It is clear from that case that compliance may be required even if the requirement or condition is not made explicit: it is sufficient if a requirement or condition is implicit in the conduct which is said to constitute discrimination.

At page 393 of the report, their Honours, Justices Dawson and Toohey, looked at the previous High Court authority in this area in Banovic and at about point 5, halfway through that paragraph, their Honours said this:

In Australian Iron and Steel Pty. Ltd. v Banovic, Dawson J. observed that, upon principle and having regard to the objects of the Act, the words “requirement or condition” in the comparable provision in the Anti-Discrimination Act should be construed broadly so as to cover any form of qualification or prerequisite, although the actual requirement or condition in each instance should be formulated with some precision.

At the top of page 407, his Honour Justice McHugh, dealing with the same issue, said:

In conformity with these pronouncements, s. 17(5) should be given a liberal interpretation in order to implement the objectives of the legislation. In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.

Utilising that, we say that the effect of the deputy registrar’s decision was to impose the condition that we say – that is, that in order to be eligible as a juror she needed to be able to communicate via conventional speech or she needed to be able to not use an Auslan interpreter.

The Full Court of the Federal Court recently dealt with just this issue in relation to the provision of Auslan interpreters in a school setting and that case can be found at page 46 of the bundle and is reported at [2004] FCAFC 197; (2004) 138 FCR 121.

BELL J: What is the name of the case?

MS NOMCHONG: Catholic Education Office & Another v Clarke. Now, the primary judge in that matter formulated the term and this case involved a young deaf student who wanted to access the services of the school by use of or with the assistance of an Auslan interpreter. The school rejected that application and said that he was to be provided with educational services in the same way as other students. The primary judge’s decision as to what the term was is to be found on page 135 at paragraph 63 and held that:

the CEO had required Jacob –

That is the student:

to comply with a “requirement or condition” within s 6 of the DD Act –

the Disability Discrimination Act:

“to participate and receive classroom instruction without the assistance of an interpreter”.

The Full Court of the Federal Court at paragraphs 103 and following said this:

the expression “requirement or condition” in s 6 of the DD Act should be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition should be formulated with some precision –

and made reference to Banovic and also to Waters:

In this respect, the legislation should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or indirect discrimination by defining its services so as to incorporate the alleged requirement or condition –

and that is in Waters v Public Transport Commission. Paragraph 104 their Honours held that the “requirement or condition” does not need to be “explicitly imposed”. Then, at paragraph 107 held that:

the appellants have not identified any error in his Honour’s finding that the terms or conditions on which the appellants were prepared to admit Jacob to the College constituted a requirement or condition for the purposes of s 6 of the DD Act, namely that he participate in and receive classroom instruction without the assistance of an Auslan interpreter.

Now, we say, that same conclusion ought to have been made in this matter, that is that - - -

FRENCH CJ: So, essentially, as I understand the argument is that the deputy registrar misconstrued, as it were, the inflexibility – or misconstrued the Act in a way that imposed a degree of inflexibility and then making her decision on the basis of that misconstruction, thereby imposed a condition contrary to the provisions of the ADA.

MS NOMCHONG: That is correct, your Honour, thank you.

FRENCH CJ: In that respect, discriminated in the administration of the Act.

MS NOMCHONG: That is correct, your Honour, under section 101. If that be the case and we are correct in the formulation of the term then the finding of the Tribunal matter at first instance was that the term was not reasonable and that can be found at the Tribunal member’s decision at AB 697, paragraph 190. The appellant, in her pleadings, identified the grounds on which she said the term was unreasonable and that can be found at AB 15 in clause 31.6 of the points of contention. The respondent, as I have said, pleaded that the term was reasonable because of section 4(3)(l) of the Jury Act. We say that the Tribunal’s finding should stand but that will, of course, depend on what this honourable Court finds in relation of the construction of 4(3)(l) of the Jury Act to which I now take you.

FRENCH CJ: If the construction was wrong, no question of reasonableness or unreasonableness arises. It is not like the exercise of a discretion.

MS NOMCHONG: That is right. May I turn now to section 4(3)(l) of the Jury Act. As I have said - - -

BELL J: Just before you do, can I inquire, is there some aspect of your argument whereby though you may fail on direct discrimination you could succeed on your indirect argument?

MS NOMCHONG: Yes, your Honour.

BELL J: I find that slightly elusive at the moment. What is that argument?

MS NOMCHONG: They are two different forms of the same creature, obviously.

BELL J: I understand that. But there is a difference between this case, so it seems to me, and one like the Catholic Education one where what is said is “Jacob can come to the school, but Jacob is to come to the school on this basis” and here one would think either you will get up on your direct discrimination argument and the Jury Act argument that is put against you disappears or you do not. But I am just trying to understand how you succeed on the indirect discrimination argument without – in a circumstance in which you do not succeed on a direct discrimination.

MS NOMCHONG: I think in order to succeed on either, your Honour, I need to have a construction of 4(3)(l) in the way in which we contend.

BELL J: Well, that is exactly what I am putting to you and if you have that construction in your favour then do you need to go to indirect discrimination?

MS NOMCHONG: No, I do not but I am covering all bases, as it were.

BELL J: I just cannot – you understand what I am raising.

MS NOMCHONG: Yes, I do, thank you. So may I now come to the construction of section 4(3)(l) of the Jury Act? As I have said, the 1995 Act involved the wholesale revision of the Act replacing, amongst other things, the, what we say anachronistic ineligibility of some people who are described in the old section 8. The former Act was mainly procedural, referring to summonsing and empanelling of a juror and, we say, referable to the community standards of its time, including the formulation of people being deaf, dumb and blind and of unsound mind which has now disappeared, thankfully, in all except the Juries Act (NT).

The blanket ineligibility for people who are blind, deaf or dumb was replaced, as I have said, with this functional test in section 4(3)(l) and the evidence was that the respondent had developed no guidelines, policies or other instructions for the deputy registrar or anyone else as to how section 4(3)(l) was to be applied.

It was also noted by the Tribunal at first instance that the effect of what the deputy registrar did was take away from the judge this functional assessment and, indeed, the way it works in overseas jurisdictions is that this is a discretion left to the judge which, we say, is still maintained under section 20 of the Jury Act, that is, the judge will still retain an overarching right to control the proceedings and excuse a juror if, in his or her opinion, there is some level of incapacity that attaches to it. We do not cavil with that provision.

It is the applicant’s case that, properly construed, section 4(3)(l) does not exclude deaf people who require Auslan interpretation which is the position contended for by the respondent. Before moving to that part, I should say that no part of the deputy registrar’s decision involved any assessment of the appellant as to whether or not she would have any capacity, with the assistance of an Auslan interpreter, to properly understand, comprehend and receive the information.

BELL J: Perhaps, unlike some deaf individuals, what the appellant made clear was that she did require the services of an Auslan interpreter. I mean, when you talk of the change effected by the 1995 Act it may be that there are degrees of deafness and it may be that some deaf people do not require the services of an Auslan interpreter and are capable of participating as members of a jury, but this appellant made clear that, in her case, she required the services of an Auslan interpreter.

MS NOMCHONG: That is correct, your Honour.

GAGELER J: Is it your position that a deaf person who does require the services of an Auslan interpreter might, in a particular case, or in the case of a particular deaf person, still be a person whose physical disability makes them unable to perform the functions on the jury?

MS NOMCHONG: Yes, your Honour. We say that there must be cases that would involve perhaps hearing two different voices, or recordings, or evidence of some kind that would mean that they would be unsuitable for that. Presumably, they would be the result of peremptory challenge in any event, if that be the case, in the nature of the evidence to be called, but of course we do.

GAGELER J: So 4(3)(l) is a matter for individual assessment?

MS NOMCHONG: Indeed, your Honour - - -

GAGELER J: That did not occur here?

MS NOMCHONG: - - - and that is not a blanket removal of them to start with.

BELL J: Your point is that that would occur at the stage of empanelling, and not at the stage of who is selected to form part of the panel.

MS NOMCHONG: That is correct, your Honour.

FRENCH CJ: Would the requirement expressed by the appellant for an Auslan interpreter in the circumstances of this case amount to a statement that, absent the interpreter, she would be incapable of effectively performing the functions of a juror?

MS NOMCHONG: Yes, your Honour.

FRENCH CJ: So, in other words, without the interpreter, she would fall within the statutory definition?

MS NOMCHONG: Yes, your Honour, but then, of course, my arguments as to the way in which section - - -

FRENCH CJ: No, I know. I am just wanting to clear away - narrow the issue that we are looking at here, yes.

MS NOMCHONG: Yes, thank you, your Honour. First of all – and I am dealing, really, with the arguments that are put against us, so as to reduce time, hopefully – we say that the need for Auslan interpretation does not render the appellant incapable of effectively understanding the evidence, first, because the use of interpreters for witnesses whose language have different tone, modalities, pausing, phrasing, vocabularies does not automatically exclude the admission of that evidence on the basis of possible inaccuracies, which is one of the matters put against us. It does not affect the way in which the jurors can assess credibility when such phrasing, pausing and vocabulary may be different in the language which is being interpreted.

Secondly, we say it is not necessary for there to be word-for-word translation. The Oaths Act itself, and if your Honours go to page 781 of the bundle, your Honours will see that the current suggested oath – and we will come to this – all of these oaths are not prescribed, but in fact suggestions:

Interpreters may be sworn in civil causes . . . in the following form or to the like effect –

and in the second paragraph of the oath, it is –

‘You shall well and truly interpret and true explanation make [to] the witness –

We say that what that envisages is the explanation of idioms, phrases, and concepts unknown to the language of the person receiving the interpretation.

FRENCH CJ: Well, speaking for myself, I would be happy to take judicial notice of the proposition that interpretation from one language to another can be rarely, if ever, word for word.

MS NOMCHONG: Indeed, your Honour. What is put against us is because the juror will be receiving – that is, the deaf juror will be receiving it in a different manner, not in a word-for-word translation – that that would somehow render the deaf juror unable to carry out her functions.

There are also the conclusions of the expert evidence at first instance. In this regard, can I refer you to the summary of that given by Tribunal Member Roney at appeal book 666 to 667, paragraphs [75] to [76]? You will see there that at that particular passage, Tribunal Member Roney summarised the evidence of Professor Napier. It commences at paragraph [75] at the bottom of 666, making reference to the New South Wales Law Reform Commission report, and sets out all of the matters there – that is:

legal facts and concepts can be translated into Auslan –

and I do not intend to read the rest. We simply refer your Honours to them. At paragraph [76], Tribunal Member Roney accepted that evidence “without qualification”. In looking at the evidence of Professor Napier, may I take you – because this is one of the matters that was put against us – to volume 1 of the appeal book at page 114? In paragraph 17 on page 114, Professor Napier cited paragraph 2.82 of the New South Wales Law Reform Commission report as follows:

The Commission is concerned, foremost, with maintaining confidence in the administration of justice in NSW. However, it does not regard the removal of the general prohibition on deaf people serving on juries as undermining the fairness of the trial. The Commission’s inquiry leads it to conclude that the practice of not allowing deaf people to serve is most likely based on unfounded assumptions about the nature of deafness and the ability of deaf people to comprehend and communicate. There is no reasonable basis for the conclusion that a person, by virtue of deafness alone, is incapable of discharging the duties of a juror.

Over the page, at paragraphs 33 and 34, while we are here, one of the matters put against us is some pejorative view that Auslan interpreters will necessarily mistranslate. Professor Napier says – this is at paragraph 33:

I am very familiar with the standard and practice of Auslan interpreting in Australia. In my professional opinion a NAATI accredited Interpreter Level (or Professional Level) Auslan interpreter is capable of accurately interpreting legal discourse into Auslan to facilitate the participation of a deaf person as a courtroom actor, including as a juror. NAATI accredited Interpreters observe a very high standard of professional practice and responsibility including in relation to confidentiality, impartiality and the avoidance of conflict of interest.

In the course of my research in relation to the participation of deaf persons as jurors I have observed that many legal professionals have a limited understanding of Auslan and Auslan interpretation. In particular, there is a misconception that Auslan interpretation is only literal and does not convey the intonation and mood of the source message. That is not correct. Professional Auslan interpretation renders the message of the source text and this includes an adaptation to make the form, the tone, and the deeper meaning of the source text felt in the target language.

Fourthly, we say imposing a requirement on Auslan interpretation of the way in which the respondent contends that would result in the translation being a perfect level of listening, a perfect level of comprehension of all of the evidence – places a higher test on a deaf person with an Auslan interpreter than it does for the rest of the jurors. What we say, and that is seen in all of the expert evidence, is, for example – and the New South Wales Law Reform Commission looked at this – the issue of accuracy and literal translation, there were no difficulties in that, and your Honours can see that at appeal book 333 to 358.

Equally, it could be said that representative juries will be comprised of persons with different educational backgrounds, socioeconomic backgrounds, and the like; all of which means that there is no guarantee that hearing jurors will hear and/or comprehend the evidence and the legal argument, or that they will not misunderstand or mishear something that is put to them. It is just as likely that a hearing juror will be distracted, or bored, or unable by reason of their education to properly comprehend the evidence or the legal argument.

Indeed, in relation to demeanour and credit, the Queensland Law Reform Commission report dated February 2011 found that demeanour was overstated as being a reason for credibility and found that most people were, in fact, “poor lie detectors”. Your Honours can read that at appeal book 610 in the fourth dot point.

In relation to the prejudices and adverse influences, this honourable Court recently held in the matter of Alqudsi v The Queen [2016] HCA 24 – we have handed up copies of that judgment for your Honours. May I read from paragraph 195 of that judgment:

The criminal justice system is not naïve. While the law assumes the efficacy of the jury trial, it does not assume that the decision making of jurors will be unaffected by matters of possible prejudice. What “is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations”. Legislative and procedural mechanisms have evolved to reinforce the fairness and integrity of a jury trial. That is unsurprising. But those mechanisms reinforce, not destroy or detract from, a trial by jury.

So, in that sense, it must be accepted that, if what my friend contends is that there would be either a rogue interpreter who will somehow bring some mistranslation or undue influence upon a deaf juror, or secondly, that the information will be conveyed in some different way, the possibility of that mistranslation or misapprehension will be corrected during jury deliberations. When the evidence and the legal concepts are discussed, there has been some failure in translation, it will be immediately apparent by what goes on in the jury room, just as it would for a hearing juror. Any misconception or failure to be paying attention at a relevant time will be picked up in those jury deliberations if the matter is of vital importance or critical to the decision making of the juror.

In Smith v The Queen, also a copy of which we have handed up, [2015] HCA 27, the Court noted, particularly at paragraph 4 in a decision of her Honour Justice Gordon, about the fluidity of these court deliberations. That was a matter in which the voting patterns of a particular jury were disclosed to the judge, and her Honour said you must recognise this fluidity of court deliberations, of the ability of people to change their minds, which they do do during the course of jury deliberations, such in the same way, we say, that any thought that there would be necessarily some miscarriage of justice due to misinterpretation or not hearing the evidence in the same way is met.

Our next point is in relation to the presence of the Auslan interpreter, and this might go to your Honour Justice Nettle’s point. First of all, we say that the State law is to be administered in a non-discriminatory manner – that is, by section 101. Therefore, the availability of the Auslan interpreter must, if it can be possibly accommodated, be the correct interpretation of the Jury Act.

Secondly, there is no prohibition anywhere in the Jury Act of other persons being in the jury room. Thirdly – and I think I have made this point already – the disclosure of jury deliberations to the interpreter would, in our submission, be allowed or required by law, therefore imposing no contravention of section 50 of the Jury Act. Fourthly, interpreting is not communication in the sense that there is an independent conveyance of the personal views of the interpreter in any dialogue. Rather, there is conveyance of what has been said backwards and forwards between the persons engaged in that dialogue.

However, if it is communication, which we say it is not, then the communication may occur with the interpreter, with the judge’s leave, and that is provided for under section 54(1) of the Jury Act. So the judge can make directions to the effect that there be communications with the interpreter for the purposes of the jury deliberations and then that would be something that would be permissible.

BELL J: Looking at that submission, Ms Nomchong, when one has regard to the scheme of the Jury Act and to the provision for the bailiff to be sworn and the absence of any provision for a person who is in some way assisting the juror to be present in the jury room, hearing all the communications that go on and no provision for that person to be sworn, accepting that Auslan interpreters are professionals, nonetheless, interpreters, who are NAATI accredited, are required to take an oath, there is simply no mechanism under the Act for this.

MS NOMCHONG: First of all, there are two parts to your Honour’s question which I would like to answer. First of all, this honourable Court found in NSW Registrar of Births, Deaths and Marriages v Norrie that the fact that something is not in an Act does not mean that it results in the prohibition. That is the first thing. The second thing is that the Oaths Act sets out a prescribed proposal. As I have said, these are not mandatory matters. Indeed, section 32 of the Oaths Act says just because you give an oath in a lawful and proper form, nothing else in this Act renders that oath invalid.

So what the Tribunal member found at first instance was that, in the same way that it is delivered overseas an oath could be administered, so, for example, the oath under section 26 of the Act would only have to be altered quite slightly so that if in the first paragraph where it says:

“You swear that you understand the language of the witness –

and other members of the court:

and are able to interpret between the witness –

and other members of the court, and between the members of the jury –

and all persons conversant with the English language. So help you God.”

So that this can be amended - - -

BELL J: You say there would be authority to administer an oath in terms that the judge settled on, being an oath for which the Act does not provide?

MS NOMCHONG: What we say is that because there is an amendment to the oath – the suggested oath in section 26, it will not be rendered invalid because of the operation of section 32, that is that what is not being said in this Oaths Act is that if there is nothing in this Oaths Act that looks like this then you cannot have one. It does not say that. In fact, it says the opposite. Section 32 says if you properly and lawfully administer an oath, nothing in this Act will render that invalid.

BELL J: Well, that is unsurprising, but it is a different proposition, is it not, to say well, it is open to the judge in the exercise of his or her discretion to frame an oath and administer it, being an oath for which the Act does not provide?

MS NOMCHONG: If I am wrong about that – I say that it is, your Honour. Certainly, the appellant’s submission is that it is open to the administration of an oath, varying the current interpreter’s oaths, under 26 and 29 of the Act. That is our primary position. If it is not, then that can be amended the same way it is in overseas jurisdictions and that is by the administration of directions by the judge.

Tribunal Member Roney, at appeal book 661 to 662, paragraph [52], noted that directions in a New Zealand case were given where the deaf person was both a juror and the foreman. So that this ability that is in the absence of an oath simply a direction to the jury members and to the translator, that is that they be able to communicate with each other but not involving any deliberations, that they speak one at a time so that the Auslan interpreter be able to communicate backwards and forwards, those are the sorts of directions that were given, so it is not necessary for the oath.

What the Oaths Act or what the Jury Act is looking for – the mischief it is looking for – is not to disclose jury information to the outside. So what will protect that is already section 70(2) of the Jury Act. It already makes it an offence. That will cover - section 70(2) will already cover the interpreter. They will not be allowed to tell external persons jury information or jury deliberations.

NETTLE J: Ms Nomchong, just before you go from that, you mentioned the first point as being that just because the Act does not provide for the presence of a 13th person in the jury room it does not mean that it prohibits it.

MS NOMCHONG: That is correct, your Honour.

NETTLE J: I just want to be sure, if I may, that at some point in your address you are going to come to the common law as to whether there may be a 13th person in the jury room without a miscarriage and as to whether and why section 101, or something else, overrides that sufficiently to enable it. Are you going to do that?

MS NOMCHONG: I was going to do that in reply after my friend dealt with the authorities, your Honour.

NETTLE J: That is really the, perhaps, essence of the deputy registrar’s decision that was upheld first before the Tribunal, then the appellate Tribunal, and the Court of Appeal, is it not?

MS NOMCHONG: Your Honour, the analysis under which I am taking your Honours to I hope persuades you that the way in which section 4(3)(l) should be construed is to allow this 13th person. The way in which the 13th person is to be looked at is not some outsider who simply walks into the jury room. This is a special service in the form of a human being that is being delivered to a deaf person. So the 13th person in the jury room ought not be considered as, for example, in some of the old cases, a sheriff who simply walked in and sat in on it or some other judicial officer. This person, this Auslan interpreter, has to be considered as what they are: a special service in the form of a human being there to assist a deaf juror.

NETTLE J: So is it really a case of recognising a new exception to the common law rule for the special person of which you speak?

MS NOMCHONG: It could be, your Honour. I think it arises by application of the Anti-Discrimination Act. The Anti-Discrimination Act says that you cannot discriminate or render less favourable treatment – that is, deprive someone of the ability of exercising their civic right to be a juror simply because they need a special service and that special service happens to come in the form of a human being who is the Auslan interpreter.

NETTLE J: So section 101, upon its proper construction, necessitates a new common law exception to the rule? Is that it?

MS NOMCHONG: Yes, your Honour, it does. Your Honours, if I could just finish about the Auslan interpreter. We say that most, if not all, of the contentions of the respondent are premised on unreasonable assumptions that Auslan interpreters are more likely to result in a deaf juror misunderstanding the evidence and the legal arguments than a hearing person does by listening to it because of errors in translation.

We say that the Tribunal at first instance, at paragraph 71, held that if a miscarriage of justice arises for that reason then it would apply to every single jury, and it cannot be said that all members of the jury have perfect hearing, perfect sight, perfect intellectual skills that enable them to receive the evidence and the proceedings in a particular way. Indeed, the opposite is true. That is why we have four or 12 people as jurors so that this mixture of intellectual capacity, perceptions, prejudices, are put into the mix so that the human frailty can be measured and so that the offender’s conduct can be measured against a group of randomly selected peers.

The risk of miscarriage of justice is not borne out by any experience in the jurisdictions which allow deaf jurors, and that is in a number of states – in the United States, England, Wales, Ireland and New Zealand. None of those jurisdictions complain that they have any difficulties with interpretation, literal translation or the like.

NETTLE J: Do each of those expressly authorise it, or was it this process which you ask us to engage in of taking anti-discrimination law and concluding it necessitates that common law exception?

MS NOMCHONG: Your Honour, I have not looked at that question. The way in which we phrase it is simply answering the respondent’s argument, that is, that they say the risk of a miscarriage of justice will necessarily arise because of mistranslation issues, amongst other things.

NETTLE J: It would be one thing if a Parliament determined whether or not there would be a miscarriage – we will insist that there be the provision for Auslan – and it would be another if courts overseas had taken a view that because of general anti-discrimination legislation it necessitates an exception to the general law.

MS NOMCHONG: That is right. Your Honour, I can say that in New Zealand – we know that New Zealand in fact enacted Auslan as one of the national languages of New Zealand, so it overcame the proposition of deaf people participating as jurors by identifying it as a language in which people can communicate at all levels. So that may be part of an answer to your Honour’s question.

But the nature of the argument put against us is not about the statutory framework existing overseas. It simply arises because the respondent says that the risk of miscarriage of justice by the Auslan interpreter being in the jury room renders that person incapable of effectively performing the role of a juror. So we are dealing with the matter of construction of section 4(3)(l).

FRENCH CJ: Section 101 refers to State law. Are we to take that as a reference to statute law?

MS NOMCHONG: Yes, your Honour.

FRENCH CJ: There is no relevant Interpretation Act provision in relation to what State law or law of the State means?

MS NOMCHONG: It was accepted below that the Jury Act and the Oaths Act were both State laws for the purposes of - - -

FRENCH CJ: No, I appreciate that. I am just wondering why 101 runs, whether we are talking about the administration of statutes.

MS NOMCHONG: I would think that, amongst other things, it would definitely apply to the administration of statutes.

FRENCH CJ: Obviously it does. I am just wondering if it is confined to that, that is all.

MS NOMCHONG: I am not sure, your Honour, and we have not proceeded. I just want to finish this argument about the role of the Auslan interpreter, because what it is based on is a premise, we say, of perhaps – to use a colloquialism – scare tactics. These are scare tactics that there may be a mistranslation, that there may be a rogue interpreter, that there may be some influence brought to bear by the presence of the Auslan interpreter in the jury room.

But what that does is to misstate what we rely on day and night in courts all around Australia and that is the mechanisms by which we say these are protected. They are oaths, they are obedience to instructions, they are obedience to the law. So the oaths taken by the jurors themselves will preclude any deliberation being communicated outside. Any directional oath given by the interpreter will be abided by. Their own code of conduct, which is contained in the appeal book, goes to issues such as confidentiality, faithful interpretation and integrity. What reason is there that we have to believe that they will all be put to one side and displaced simply because an Auslan interpreter is there?

BELL J: Putting to one side the suggestion that in some way the evidence being mediated through the Auslan interpreter is productive of an unfair trial – put that to one side for the moment – looking at the position first at common law, there has long been a great emphasis on the concept of the secrecy of the jury deliberations, reinforced as it is by the oath to which you refer.

Absent a statutory foundation for it, to have a 13th person there, albeit a 13th person complying with the professional requirements of being an Auslan interpreter, changes the dynamic to some degree. The other 11 jurors are conscious that there is a person who is not a juror hearing what they have to say. I am not suggesting that there might not be good reason for a legislative provision to permit that to happen, but it is a large step to think that the judge, simply of his or her own motion, may under 54(1) give leave for a jury to be comprised in that way.

MS NOMCHONG: We say not, with respect, your Honour, and that is for a number of reasons. First of all, we are now in a modern world where juries are not cloistered and kept in a room until they have reached their verdict. They are sent home, they go out to lunch, all with a direction that they not deliver their jury deliberations. The fact that there may be a change in the dynamic is a good thing because what that is doing is bringing into the fold deaf people in the way in which it should have occurred – that is, we should not be excluding them from the rest of society. We have acknowledged this in our international treaty obligations and we have acknowledged it elsewhere. We need to make reasonable accommodations to assist people who have disabilities. So it is a good thing the dynamic will change.

I think somewhere in the Law Reform Commission reports there was a comment that someone in the United States said that in fact it was a change for the good because it meant that jurors in their deliberations had to speak one at a time, so that was a good dynamic. I think that what we need to do is to say the very reason that the Queensland Parliament enacted section 4(3)(l) for this functional test was to make sure that deaf jurors and blind jurors and people with intellectual disabilities were dealt with on merit – that is, in their ability to participate in this very important civic function, as the appellant wants to do.

May I conclude by saying that what is being sought for here is an harmonious construction of the Jury Act in accordance with the Anti-Discrimination Act and, indeed, an harmonious construction of the Oaths Act in accordance with the Anti-Discrimination Act. We say that the Anti-Discrimination Act has as its principal focus equality in participation in civil and political and community activities. It is underscored by the international treaties, and you can see that in the preamble to the Act.

The construction of the Anti-Discrimination Act in the way for which we propose will give effect to fundamental human rights for deaf people to engage in their civic right to be a juror. We say that if the Court accepts the appellant’s argument as to the errors associated with section 10(5) of the Act, causation, the finding of a term, and also in relation to our proposed construction of section 4(3)(l), what will follow, we hope, is the decision and orders of this Court setting aside the Court of Appeal orders dated 28 August 2015 and an order be made in its place that there has been a contravention of either section 10 and/or 11 of the Anti-Discrimination Act.

In the notice of appeal we have sought that the matter be remitted to the Tribunal for the purposes of remedy, but your Honours will notice that Tribunal Member Roney already made a determination as to remedy that there be a compensatory order of $10,000, plus interest on that sum at four per cent per annum. So it is open to this Court in order to enforce that remedy as noted by the Tribunal member.

Finally, we have asked for no order as to costs. The appellant’s legal representatives appeared on a pro bono basis and the Queensland State has agreed not to ask for any costs orders against us in the event that they are successful.

FRENCH CJ: Thank you, Ms Nomchong. Yes, Mr Sofronoff.

MR SOFRONOFF: May it please the Court. In our respectful submission, it is one of the inherent characteristics of a jury trial in this country that, subject to specific exceptions, the evidence is given orally and the oral evidence is to be apprehended directly by members of the jury.

There are some cases in which this aspect of jury trials emerges. They are cases concerning the significance of taped audio and taped video evidence and the use that could be made of them. Could I invite your Honours to go to Butera v DPP [1987] HCA 58; (1987) 164 CLR 180? It is volume 1 of the joint bundle of authorities at page 285.

If I can encapsulate the factual issues in Butera, your Honours, Butera had been charged with heroin trafficking with some co-offenders and by means of listening devices, conversations between Butera and his co-accused had been recorded. Those conversations are taking place in three languages: Punjabi, Thai and Malay. Consequently, there was a need to interpret the content of the tapes. Two interpreters were called by the Crown and each of them had to and did prepare written translations of the content of the audio tapes and those written transcripts were then admitted into evidence and the jury took them into the jury room when they deliberated and the question for the court was whether the admission of those written transcripts had been erroneous.

If your Honours would go in Butera to page 185 of the report, your Honours will see towards the foot of the page Chief Justice Mason and Justices Brennan and Deane cited a dictum of Chief Justice Street in Conwell v Tapfield with approval. Could I invite your Honours to read that? There had been, until Conwell v Tapfield and perhaps after that, until Butera was decided, some confusion among judges as to the status of transcripts of evidence and Conwell and certainly Butera settled that issue in terms of cases, at least ones not concerning videotaped evidence of complainant children in sexual cases. At page 186, their Honours observed in the fourth line:

By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact.

If your Honours would go to page 189, to the paragraph beginning “The adducing of oral evidence” – if your Honours would read that down to the quote from another case and then at page 190 in the passage just below the quote from the other case:

The practice of requiring witnesses to give their evidence orally should not be waived lightly –

for reasons their Honours refer to. Those considerations informed their Honours’ conclusion that in a case in which there is tape-recorded evidence to be put before the jury, because of the nature of a criminal trial, it is the oral rendering of the tape that is the evidence. It is a secondary question then what can be done with the tape and what can be done with transcripts and that does not concern your Honours.

The point is it was the nature of the process at a criminal jury trial that informed the decision that their Honours came to and that process, their Honours held, is fundamentally oral and aural with no intermediate mediator of what is said between witness and juror or between a tape played in court and juror. At the foot of page 190, in the last paragraph beginning at that page, their Honours observe that a great part of the trial was taken up in the testing of the accuracy of the interpretation, a matter to which I will return.

Would your Honours then go to Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 and your Honours will find that at 371 of the authorities book. This was a case where the relevant taped evidence was a video recording of a child complainant in a sexual offence case, the recording having been made under the Evidence Act (Qld) and the question was as to the correctness of permitting the jury to have the tape itself to review in the jury room.

If your Honours would go to page 234 of the report, at the foot of the page, paragraph 86, his Honour distinguished in that paragraph between wrongly considering the record as a piece of real evidence and rightly considering the oral evidence produced by playing the record as the real evidence and if your Honours would then go to paragraph 87 on the next page, after mentioning a provision of the Act, the last sentence of paragraph 87:

When regard is had, however, to some fundamental considerations about the nature of the trial process, and to some particular textual indications found in the relevant division of the Evidence Act, it is evident that the record itself is not ordinarily admissible as a piece of real evidence.

Then if your Honours would read the next passage of his Honour’s reasons in paragraph 88, just before his Honour then quoted from Butera in the passage that your Honours have read a moment ago.

FRENCH CJ: Well, you are relying on the sentence, are you:

As a result, the focus of the trial falls chiefly upon what is said in the evidence given in the courtroom.

MR SOFRONOFF: Yes, and that is reinforced over the page at page 236 in paragraph 89, the last two sentences.

FRENCH CJ: I think if you are just taking us to a short sentence and you want us to look to it, it might be best to read it aloud in the circumstances.

MR SOFRONOFF: Certainly, your Honour. What his Honour - the conclusion that his Honour came to after considering the nature of the trial process in the context of deciding what should be done with the tape and whether the jury should be permitted to have it in the jury room, his Honour concluded:

None of those considerations suggests that the record itself is to be treated as an item of real evidence. All point only to the conclusions that the evidence is what the child says, and that the record itself is not evidence. Those conclusions are reinforced by the fundamental characteristics of a criminal trial that have been mentioned earlier.

The characteristics mentioned earlier are, of course, those in paragraph 88 including the passage from Butera:

The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct.

In our respectful submission, then, interpreters who translate the evidence of witnesses for non-English speakers or who translate whole proceedings for an accused who is not an English speaker are the exception to the rule that a witness gives evidence directly to be heard by the accused, the lawyers, the judge and the jury. But that exception conforms to the principle enunciated in Butera and in Gately because that evidence, the translation now, is given orally. Every juror hears the same translation. The parties hear the same translation. It is given in open court and it is amenable, as we have seen in Butera, to monitoring and to testing and challenging.

Your Honour the Chief Justice observed that one could take judicial notice of the fact that a translation from one language into another, including Auslan, is not a word-for-word translation and, of course, that is why there are criticisms of works of literature translated and one might be regarded as better than another for that very reason.

In this particular case, it does not seem to be controversial that an Auslan translation falls into that – is of that character. In our learned friend’s oral outline at paragraph 5.3 – paragraphs 5.32 and 5.34 we would submit are premised upon an acknowledgement that no translation over the course of a trial can be perfectly accurate, however good the translator might be.

FRENCH CJ: The question of accuracy raises a whole lot of questions when one gets into translation when if, by accuracy, you mean word for word, that is not necessarily productive of accuracy. Sir Samuel Griffith once tried translating – or translated Dante word for word with some unhappy results.

MR SOFRONOFF: His Honour translated it attempting literal translation because he wanted to keep the rhythm.

FRENCH CJ: I know.

MR SOFRONOFF: He sacrificed the language for the rhythm. But, in this particular case, if your Honours would go to appeal book number 1 at page 49, the Auslan expert called for - the appellant at first instance - Professor Napier gave evidence and was cross-examined from page 49 and she acknowledged at the foot of 49 just below line 40 that it is not a literal translation, she explains why for reasons that we can all immediately understand. Over at page 50, just below line 40 – and I am using the appeal book numbers rather than the transcript- she is asked:

So, in summary, and please tell me if I’m being too simplistic, the Auslan interpreter does not operate as a mere conduit, correct?---That’s - that’s correct, yes.

Rather, what Auslan interpretation requires, so as to convey as accurately as possible the meaning of the words spoken, is linguistic and cultural expertise?---Yes. It does require linguistic and cultural expertise, and also judging the needs of the client who’s relying on that interpretation, and their linguistic and cultural background, and what – what understanding they all have.

Professor Napier developed that at page 51 at the top, in answer to a question:

It’s more about linguistic analysis; analysing the meaning of terms that you then ensure that they can be absolutely conveyed to the person in question . . .

So in essence, the interpretation process requires the interpreter to express their act as a linguistic and cultural mediator?---That is right, yes.

Just below line 20, between lines 20 and 30:

So can you tell me if these propositions are correct. What is occurring in professional Auslan interpretation is a rendering of the message of the source text?---That’s correct.

And it’s the message as perceived by the interpreter?---Yes. That’s correct.

And this includes an adaptation of what is being said?---Adaptation as in finding the equivalent in the Auslan. It doesn’t adapt the actual content; the actual core of the message. It just finds the equivalent way of expressing that same content . . .

Okay. And that adaptation process is so as to make the form, the tone and the deeper meaning felt in the target language?---That’s right, yes.

And that is – the reference to tone is the tone as perceived by the interpreter?---Yes. So normally an interpreter would be expected to convey and if there was anger, if there was sadness or sarcasm. And any way that the actual message is altered slightly because of a particular tone of voice that speaks to you then an Auslan interpreter would convey that visually in Auslan to ensure that the full message was received by the deaf person.

And as with conveying anger or emotion, the adaptation process would also involve conveying the significance of pauses in the speaking process?---That’s right, yes. Any linguistic elements of the speech that lead to a particular kind of message would be taken into account by the interpreter and translated accordingly.

That is, I would suggest, common ground between the parties, but the difference between the position of an interpreter for a juror and the position of an interpreter for an accused or, more importantly, the interpreter for a witness is that the accuracy of the translation cannot be tested and it remains outside and must remain outside the supervision of the trial judge. It is not delivered in public. It is therefore, in our submission, not remarkable that neither the Oaths Act - - -

FRENCH CJ: Part of it is delivered in public, is it not?

MR SOFRONOFF: Yes, part of it is; the trial process is, yes.

FRENCH CJ: So the whole trial process.

MR SOFRONOFF: Yes, part of it is, your Honour, that is right. In our submission, it is consistent with the nature of a trial process and the nature of translation from one language into another in the case of jurors needing assistance but we find nothing in the Oaths Act and nothing in the Jury Act that would justify a conclusion that it was open to introduce another person to be present in the jury room during deliberations.

It is, in our submission, a fundamental precept of the common law that no person other than a juror can remain in the jury room during the deliberations. Justice Douglas in the case cited in the Court of Appeal Re, Sheriff of Queensland and the juror cited an English decision, Goby v Wetherill, [1915] 2 KB 674. We will give copies to your Honours’ associates when we adjourn.

I can tell your Honours very briefly, after the jury retired, the town sergeant attended with them in the jury room. It was found that the sergeant did that out of an excess of zeal but remained absolutely silent while he sat there for some time believing that that was his duty. The court concluded unanimously in these terms, from the reasons of Justice Shearman:

It is a cardinal principle of the jury system that a jury must deliberate in private. In the present case, during a substantial part of the time when the jury were deliberating, a stranger was present, namely, the town sergeant, and I cannot regard that as an immaterial or unimportant fact –

even though the sergeant did not do anything positively that could be pointed to as is in the case of conversations between police and juries have sometimes upset criminal trials.

GAGELER J: Do we know what the current practice in England is in relation to translation for deaf jurors?

MR SOFRONOFF: I do not know, your Honour, but if your Honours wish, we can find that out, give a copy of a note to our learned friends and deliver it in due course to the Court, if your Honours wish us to.

NETTLE J: Certainly as at 1996 the practice was that in applying Goby v Wetherill such persons were excluded and, therefore, a deaf person could not serve as a juror.

MR SOFRONOFF: Your Honour is quoting from?

NETTLE J: Re Osman [1996] 1 Cr App R 126.

MR SOFRONOFF: Your Honours, in our submission, that having been the common law position, one then has to look for something in the statutes to justify an alteration even for a legitimate purpose like that being advocated by the appellant here but one does not find it. One finds instead a catalogue in the Oaths Act of oaths that are authorised for interpreters.

If your Honours would go to the Oaths Act which is in volume 2 of the book of authorities relevantly beginning at page 780 - paragraphs 21 to 22 deal with swearing jurors; 23 and 23A, 24 and 25 deal with swearing of witnesses; 26 deals with the swearing in of interpreters in civil cases - interpreters for a client or to aid the court by interpreting a witness; 27, the swearing of interpreters in a civil case on a voir dire.

By that, one can see that the Oaths Act 1867 is descending to a very deep level of detail in terms of the forms of oath for particular circumstances – 28, an interpreter to interpret the arraignment and to interpret the trial and on a voir dire in a criminal trial; 29, an interpreter for the criminal trial in the case of a non-English speaking prisoner; 30, where a witness and the accused, neither of them speak English fluently but speak different languages, provides for two interpreters and the oaths of those two interpreters. Section 31 makes provisions for the bailiff to swear an oath and for a police officer in 31A.

It is not insignificant that section 95 of the Criminal Code makes it an offence for a person who is not authorised by law – who does not by law have any authority to do so, it is an offence to administer an oath. It is a misdemeanour punishable by imprisonment. Of course, a judge, swearing an unauthorised oath would be protected by judicial immunity, a bailiff might not be.

In any event, the two provisions together – the two sets of provisions together, section 95 and the provisions of the Oath Act, in our submission, demonstrate that the Oaths Act, apart from any other statute that might authorise the giving of oaths show, in the context of a criminal jury trial, the catalogue of oaths contemplated and the purposes for which those oaths can be required.

The Jury Act itself, if your Honours would go to section 4(3) – the Jury Act in section 4(1) first confers a privilege to act as a juror upon certain persons. They must be enrolled as electors, their addresses must be shown and they must be eligible before one thus confers a privilege. Section 5 imposes a duty on those persons to perform jury service. So, there are two sides of the same object. Subsection (2) then says:

A person who is enrolled as an elector is eligible for jury service unless the person is mentioned in subsection (3).

Subsection (3) renders certain persons not eligible. Relevantly, (k) and (l) – (l) is the provision that your Honours are concerned with – (k):

a person who is not able to read or write the English language –

It might seem strange that the provision does not say a person who is not able to speak, read or write but it may be that somebody trying to be elegant in drafting considered that first an illiterate English speaker ought not be permitted to act and, secondly, a person illiterate in English, if that person does not speak English, would be covered by this provision anyway.

Provisions in other States use the word “speak” – use the expression “speak English”. What one draws from that, in our submission, a fortiori, is that even an English speaker who is unable to read or write the English language is disqualified because of the character of a jury trial is one requiring a juror to apprehend the evidence directly.

In our respectful submission then, that signifies a great deal for the interpretation of subsection (l) and whether by a process of statutory construction there is a necessary implication that a juror who cannot participate in conversation and cannot hear evidence given at a trial may nevertheless do so with the aid of a person attending within the jury room during the deliberations.

The Jury Act in the same way in its other provisions sets out a regime of confidentiality and seclusion of the jury consistent with the common law position in Goby v Wetherill. If your Honours would go to section 54 of the Jury Act, 54 requires nobody other than a member of the jury or juror to communicate with jurors:

While the jury is kept together –

There is an exception in subsection (2). Section 55 makes provision for keeping the jury together outside the courtroom, under the supervision of a court officer and section 70(3) enacted a prohibition against inviting a juror to reveal the content of what is defined as jury information which is internal considerations and identifying matters of that kind during the conduct of proceedings. Subsection (12) makes an exception in the case of a former member of a jury, permitting such a person to disclose such information to a health professional in certain circumstances.

I point to those provisions because the common law position, in our submission, is assumed by the Jury Act and there are some alleviations of it to give the judge a discretion to give jurors some liberty to communicate the content of deliberations to others in very restricted and defined circumstances.

In our respectful submission, there is nothing in the Jury Act or the Oaths Act that is apt to alter the common law position that a jury trial is an oral proceeding in respect of which it is expected that the jurors are capable directly of apprehending the evidence for the purpose of later considering it and there is nothing in the statutes that would justify a conclusion that any 13th person can for the whole period of deliberations attend upon the jurors during their deliberations.

The previous Act, as our learned friends have submitted, the Jury Act 1929 (Qld) excluded persons who were relevantly deaf. The current Act excludes persons with a physical disability by reason of which such a person is unable effectively to discharge the functions of a juror. Our learned friends have called that the functional definition and we will adopt that.

The explanation for the change, in our submission, is this. A person, it is now recognised rightly, may be deaf and may have other physical disability and may have indeed a mental disability which is referred to in the section, but may be able to perform the functions of a juror. The easy example is a person who is devoid of hearing and is therefore deaf but with the aid of an artificial device is able to hear sufficiently well. Such a person would have fallen within the original provision, at least if one interpreted it literally or naturally, but would not be ineligible under the current provision. In our respectful submission, this change to the statute did not by a side wind alter the common law.

As to discrimination, in our submission, if the Jury Act operates, as we submit it does, so as to render ineligible the appellant, then there was no discrimination because there was merely an application of the operation of the law. If, contrary to our submission, the appellant was eligible, then the consequence is that the decision of the deputy registrar was void. She is eligible and she is entitled to be considered for selection to serve as a juror.

A provision like section 101, which, in our respectful submission, is the provision under which a complainant like the appellant would bring proceedings in the anti-discrimination provision, involves a correct application of the law, albeit voidable for taking into account irrelevant considerations such as deafness in a discriminatory way, giving rise to a right to obtain a remedy.

But in a case, in our submission, where a person simply is eligible - and it is a binary problem, the appellant either is or is not – then, on the argument we would put, in our respectful submission the decision is simply void and there has been no discrimination because the deputy registrar would be incapable of doing anything.

GAGELER J: What do you mean by “void”?

MR SOFRONOFF: What has happened here is that the deputy registrar has – excuse me, I will just go to the agreed statement of facts. In volume 1 of the appeal book, at page 6, paragraph 21, the relevant conduct of the deputy registrar was writing to the appellant telling her that she, the deputy registrar, refused to permit the applicant to participate in the jury selection, for the reasons that have been debated here. If we are wrong in our submission and she was eligible, then the communication of the deputy registrar was meaningless and had no legal effect. She is eligible.

This is not a case where a grant is withheld on the ground that somebody is of a particular race or religion. This is not a case where somebody was denied housing or education or something of that kind. This is a statement of the deputy registrar’s opinion of the application of the law and it is wrong, it is meaningless.

BELL J: But the consequence of the deputy registrar’s opinion concerning the law was that a person on the electoral roll was not selected as a prospective juror. Now, if that was done because the person was deaf and required the use of an Auslan interpreter, if that was not a requirement of the Jury Act and it was a wrong decision, it was an exercise of power, was it not, that involved treating that elector as favourably in the matter of selection as a prospective juror than a person who was not deaf?

MR SOFRONOFF: Your Honour, no, because it was not an exercise of power.

BELL J: Not an exercise of power to determine not to select a person in accordance with the scheme of the Jury Act so that they may be required to serve as a juror.

MR SOFRONOFF: It was not an exercise of power. It was void. It was nugatory. She was entitled on the facts that we have to get a declaration from a Supreme Court judge as quickly as that could be done. That was incorrect and - - -

BELL J: Was this the way this matter was run below, Mr Sofronoff?

MR SOFRONOFF: No, it was not. I do not want to say anything more, your Honour.

FRENCH CJ: That cuts into 101, too. It raises the question of whether 101 itself imposes a constraint on power, making a discriminatory exercise void.

MR SOFRONOFF: Yes, and I am not going there, your Honour.

FRENCH CJ: No; good idea.

MR SOFRONOFF: Those are our submissions.

KEANE J: Mr Sofronoff, before you sit down, what was the relevance of the requirement for the provision of two Auslan interpreters? Was there any relevance of that? On the face of things, it seemed to be a demand – in paragraph 21 of the agreed statement of facts - - -

MR SOFRONOFF: Yes, thank you, your Honour.

KEANE J: - - - that two Auslan interpreters were required. Does that have any significance at all in relation to the application of section 101?

MR SOFRONOFF: Mr Scott informs me that there was evidence, he thinks, that one might get tired. There is a team.

KEANE J: I was really asking about the significance of the requirement in relation to the suggestion that there has been an administration of the Act in a discriminatory fashion in failing to accede to the requirement provision of the Auslan interpreter.

MR SOFRONOFF: I am not following the significance of your Honour’s question, I am afraid.

KEANE J: If one accepts that section 101 is the operative provision here, and that the norm it lays down is that there not be a discrimination in the administration of a State Act, if the State Act does not provide for the provision of such a service, how can there be discrimination?

MR SOFRONOFF: Yes, if it is not authorised by legislation. If the deputy registrar had no power to pick up a telephone and hire somebody, as there is not, then there cannot be discriminatory conduct for that reason, as well.

KEANE J: Now, Ms Nomchong says the case has not been litigated on that footing. What are we to do about that?

MR SOFRONOFF: Your Honour, I do not understand that the case was litigated on the basis that that was an additional ground why there was not discrimination. Rather, it was litigated below on the footing of a principle whether or not the requirement for an Auslan interpreter, whoever paid, was contemplated by the statute. It has not been argued, your Honour.

KEANE J: Thank you.

MR SOFRONOFF: Thank you, your Honours.

FRENCH CJ: Thank you, Mr Sofronoff. Yes, Ms Nomchong.

MS NOMCHONG: The only matter which we wish to raise in reply was in relation to my learned friend’s contentions concerning the application, and indeed interpretation, of section 4(3)(k). There was no evidence below that the appellant is unable to read or write English. She can read or write English; it does not have any application. That was not the reason on which the deputy registrar exercised her decision. It was all to do with the presence of two Auslan interpreters.

The second point, your Honours, in relation to your Honour’s question that he seems to think that there was something untoward about the appellant’s advising that she would require the presence of two Auslan interpreters; two are required because they do get tired - - -

KEANE J: No, no, sorry, nothing at all about asking for two; simply making the requirement that they be provided might have been thought to be outside the possible scope of the administration of the Act, but that point was not taken against you.

MS NOMCHONG: No, it was not taken below, your Honour. Nothing else in reply.

FRENCH CJ: Thank you, Ms Nomchong. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 4.11 PM THE MATTER WAS ADJOURNED