The Australia Jury in Black and White by Jill Hunter and Sharleigh Crittenden for the Australasian Institute of Judicial Administration reviews claims that Indigenous Australians are under-represented on contemporary juries.
Its aim is to identify the major legal and process-linked barriers to First Nations people accessing equal jury franchise and to this end, it draws on existing literature, law reform reports, statistics, case law and legislation to determine how and why (and if) this under-representation exists and to explore strategies for change for closing this particular gap. On occasions, given the lack of statistical data on the topic, the report draws on credible anecdote. The modern jury is described in case law, in academic literature and reflected in the popular imagination as an inclusive and democratic institution. The High Court of Australia recognises the representative jury as operating as a proxy of democratic legitimacy within the criminal justice system because full jury participation is central to the integrity of the institution of the jury. The so-called ‘genius’ of the jury system requires it to be non-discriminatory. Otherwise, it does not reflect ‘the ordinary experiences of ordinary people [drawn] from collective experience of ordinary affairs’, nor does it infuse the jury with ‘a deep-seated conviction of free men and women about the way in which justice should be administered’.
However, this widely accepted conception of the jury is relatively recent. Less than 100 years ago, juries were a place reserved solely for propertied white men. While the gender barrier was removed in the latter half of the twentieth century, and class barriers generally ended slightly earlier,6 race-based obstructions have proved more obstinate. Indigenous political disenfranchisement caused Indigenous presence on the electoral roll (and so on the jury roll or list) to be a work-in-progress taking (and continuing to take) decades. Non-enrolment on the electoral roll is a significant factor in the absence of Indigenous Australians from jury pools, jury panels and jury rooms. But there are also other major pressure points within jury legislation – as well as beyond it – that contribute to this diminished jury franchise.
It is important to appreciate that the law and processes relating to Australian juries are not easily accessible. This is in part because Australian case law addressing challenges to the jury array tends to focus on restating the primacy of the governing statutory instrument, and as discussed below, this means that its emphasis is on the statutorily prescribed process of random selection as reflective of a ‘representative’ jury. Each Australian state and territory has its own legislation, and while jurisdictional differences can be small, detail is key – and it is a laborious exercise to trawl through legislative minutiae, to ascertain local practices, whilst also appreciating the historical context of the legislation and many of these practices. However, in the absence of direct comprehensive information and rigorous statistical data, this is the only available window into actual practices. ...
Law reform State and Territory law reform bodies have addressed the issue of jury selection on numerous occasions. In their reports Indigenous representation has arisen for consideration. Reports include those by the ALRC and by the Western Australian, Queensland, Northern Territory, and New South Wales law reform bodies.
In summary, these law reform bodies have recommended:
• developing strategies to increase the number of Indigenous people on the electoral roll.
• supplementing the electoral roll for the purposes of compiling jury lists with names from Centrelink and motor vehicle registry databases.
• amending jury legislation to allow for additional methods of service for jury summons.
• reducing disqualifications based on criminal history.
• monitoring/reviewing peremptory challenges.
• providing, where appropriate, support mechanisms instead of disqualifying potential jurors.
• providing, where needed, support with travel and accommodation (practical and financial) for people from Indigenous communities when they are summoned for jury service to attend court.
• reviewing jury district boundaries.
• establishing strategies to facilitate the return of juror questionnaires.
• considering, where absent, the introduction of a statutory power to enable trial judges to respond to an apparently unfair jury composition jury.
• providing culturally appropriate educational programs within Indigenous communities that promote jury service.
• conducting research to determine the extent of representation of Indigenous people on juries and the factors impacting on their jury participation.
Next steps
Legislation can correct many of the points of disproportionate and inappropriate impact on potential First Nations jurors identified by this report. However, we recommend a full-scale evaluation process be undertaken with broad Indigenous community consultation. Principles of self-determination require that Indigenous voices and perspectives lead and shape changes to make equality of Indigenous representation on juries an everyday reality. To this end, Ontario, Canada offers useful illustrations of such initiatives.
We identify the following as the major pressure points in the law and its processes compromising Indigenous representation on juries:
Non-inclusion on jury lists
• Non-inclusion on the electoral roll
• Inadequate updating to the electoral roll
• Insufficiently inclusive jury district boundaries
• Jury summons non-delivery
Removal from jury lists – Disqualifications & exclusions/exemptions
• Criminal history disqualifications inappropriately extensive
Elimination from the jury: Challenges, excusals and self-eliminations
• Jury summons non-responses and/or excusal requests — Financial burden – e.g., travel and/or arranging alternative care for family or others — The jury summons failing to adequately communicate
• Peremptory challenges
• Prosecution stand asides
• Caring responsibilities in the extended family and in the community
• Disproportionate chronic health problems
• Other issues — Language challenges — Fear, alienation and distrust of the criminal justice system — Cultural constraints: e.g., extended kinship, community ties.
The authors conclude
All-white juries, like Australia’s all-white judiciary and legal profession, were a matter of course for most of the twentieth century and non-Indigenous Australians continue to dominate these places. With the jury, the racial divide has been aided by statute, by case law and by social and economic divides from the very beginnings of the jury system in Australia. This position has been normalised by jury legislation that until late last century discriminated against women as well as ‘non-Europeans’, and against those who lacked property. This discrimination was justified by the notion that a jury of peers meant merely that a defendant was not tried by his ‘inferiors’. Explicit gender- and race-based exclusions lasted until well into the 20th century. Race-base exclusion of Indigenous Australians was comprehensive because, until the latter part of the twentieth century, they were unable to enrol on the electoral roll: the only source of jury lists. They currently remain under-represented on the electoral roll and, due to their over-representation in the criminal justice system, they are likely to be disproportionally disqualified by legislative provisions limiting eligibility for jury service for those with a criminal history.
This review has indicated the myriad of ways in which Indigenous Australians are disproportionately excluded from participating on juries. It has also shown how Australian law reform bodies have reviewed jury selection and provided recommendations directed to improving First Nations Australians’ representation on jury lists, panels and juries – yet legislatures have been largely unresponsive to implementing change. Indigenous under-representation remains, to a significant degree, the product of systemic inequalities in the jury selection process, and without appropriate representation, as prominently displayed by the Yuendumu community following the Rolfe trial, First Nations people cannot have confidence in the criminal justice system. This disenfranchisement and the inertia that permits it to continue cannot be acceptable. We began this survey adopting six guiding principles. Two of these are the principles of inclusiveness and of responsiveness to local conditions. The Australian jury system has continued to be influenced by its English heritage. As the LRCWA noted of the 1898 parliamentary debates in Western Australia, ‘nothing ... suggests that service on juries by Aboriginal people was contemplated by legislators at that time’. However, despite the eventual formal extension of jury franchise equality to Indigenous Australians towards the end of the 20th century, the Australian system has relied on random selection as the legislatively prescribed mechanism for achieving representative juries. Yet its actual application requires equal opportunity to be called for jury service. Hence, the Australian jury system fails to make a genuine attempt to provide for all Indigenous Australians.
It becomes self-evident, then, that exclusion from the jury system is one more way in which the ‘profound social, economic and political marginalisation’ of Indigenous Australians is manifested. The exclusion of First Nations from juries joins their political disenfranchisement via their under-inclusion on the electoral roll, with their disproportionate levels of ill-health and criminalisation, and their financial precarity. These are all features of systemic inequality, borne out of the impact of colonisation. For this reason we echo the views expressed by ATSILS (Qld) to the QLRC, and quoted in the Commission’s 2011 Report: We view increasing levels of education and literacy, decreasing incarceration rates and encouraging people to register to vote as just some of the important longer term options to increase Aboriginal and Torres Strait Islander peoples presence on juries. ... We do not view rectification of the exclusion of Aboriginal and Torres Strait Islander people occurring without meaningful changes.
For the two remaining issues — shifting inertia and embarking on reform through a process that is Indigenous-led and collaborative — we suggest an appropriately resourced and national focus is highly desirable because First Nations representation on juries is an issue of national importance. To this end, we support the 2006 recommendation from the ALRC Uniform Evidence Law that the Standing Committee of Attorneys-General initiate an inquiry into the operation of the jury system. Its recommendation suggested including such matters as eligibility, empanelment, warnings and directions to juries and envisaged such an inquiry would involve law reform bodies from Australian states and territories. As this report indicates, jury eligibility and empanelment are topics large enough for separate consideration to warnings and directions, particularly as Indigenous under-representation should be a focal point. The failure of parliaments to enact many of the important recommendations by law reform bodies to date is clearly a potential major concern for a future inquiry, suggesting that the process should not be rushed. It should be well-informed and planned, and engage the executive and the legal profession with a shared appreciation of its major goals. We note that the AEC began recording and publishing estimates of Indigenous enrolments on the electoral roll only relatively recently, but by doing so the AEC has been able to assess progress and adapt its strategies to improve Indigenous enrolment. In preparation for an inquiry, it should be a priority in every state and territory to maintain and make publicly available (for example, through courts’ annual reports) statistics on Indigenous representation on juries. These will enable trends to be identified as well as for strategies – aimed at improving Indigenous representation measured as part of a regular evaluation of their effectiveness – to be developed. A detailed review of overseas experiences directed to enhancing Indigenous participation on juries is a worthwhile first step.
Overall, law reform bodies, case law and academic commentary reveal a multi-pronged approach is required:
• to review legislative and regulatory provisions in terms of: — critically analysing peremptory challenges and stand asides; — rationalising criminal history disqualifications; — ensuring jury district boundaries are inclusive of all communities; — developing strategies based on an ethos of support rather than of exclusion, expulsion, or criminal penalising for non-compliance.
• to improve communications and understanding: — by collaborating with Indigenous agencies, organisations and experts to improve enrolment and response to summons and any other communication issues.
Importantly, a national enquiry has no reason to replicate previous law reform bodies’ collation of past recommendations as these are based on sparse data — the inevitable consequence of the failure to maintain statistical data of Indigenous-identifying jurors at every stage of the selection process. Instead, a sound data-base should be established. Such a base would include key statistical data relating to Indigeneity in all Australian states and territories, and establishing ongoing collection of such statistics: — on jury lists — summonsed for jury service — forming the jury pool, i.e. including figures for categories of disqualifications, exemptions and excusals, and — empanelled jurors.
In terms of ensuring Indigenous leadership and collaboration, the Ontario Debwewin approach provides a useful procedural template and strategies. The Debwewin consultations included recommendations to create Elders and Youth Councils, increasing specialty courts, and the appointment of an Assistant Deputy Attorney General position responsible for Aboriginal issues, as well as incorporating the more typical consultation process with Indigenous organisations and communities, as well as other key stakeholders within the legal system. These features will ensure a comprehensive review process is grounded in the best-available statistical and community-informed information.
Broadly speaking, the diversity of approaches across Australia do not reveal a rich mix of experimentation and development. Instead, criminal disqualifications, excusals, exemptions and jury district boundaries at times reflect a grab bag of conservative ideas, that at times disconnect from the desirability of ensuring equality of representation, inclusion and participation. As the Canadian Debwewin initiatives indicate, when seeking to provide culturally safe environments it is important to incorporate strategies that can build confidence in the jury, in courts and the justice system generally. This may take time, but such broad-based initiatives are necessary to meet the apparently intractable challenges of language, mistrust and remoteness. Noting the Debwewin reference to speciality courts, it is important to acknowledge the reality that some of the most difficult challenges may be best met through alternative structures to the current jury trial. How this is achieved, and what contexts it may operate in, are for further consideration, keeping in mind the capacity of modifications to enhance self-determination.
