RESPONSE OF AUSTRALIA TO THE VIEWS OF THE COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES IN COMMUNICATIONS NO. 11/2013 (G.B. v AUSTRALIA) AND 13/2013 (M.L. v aUSTRALIA) The Australian Government (Australia) presents its compliments to the members of the Committee on the Rights of Persons with Disabilities (the Committee). Australia has given careful consideration to the Views of the Committee expressed in Communications No. 11/2013 (G.B. v Australia) and 13/2013 (M.L. v Australia), adopted 1 April 2016 and published 25 April 2016. These Views have been published on the website of the Australian Attorney-General’s Department. Australia acknowledges its obligations under the Convention on the Rights of Persons with Disabilities (the Convention) and takes its obligations under international human rights law seriously. The NSW Government is committed to removing structural and attitudinal barriers to access and participation that impact on the lives of persons with disabilities. It seeks to foster an inclusive society that enables persons with disabilities to fulfil their potential as equal participants in society. However, Australia respectfully disagrees with a number of the Committee’s views that Australia has violated the authors’ rights under the Convention. Article 5(1) and (3) – Equality and Nondiscrimination The Committee formed the view that ‘while the State party argues that the use of [Auslan interpreters/stenographers] has an impact on the complexity, cost and duration of trials, it does not provide any data or analysis to demonstrate that it would constitute a disproportionate or undue burden’. It further considered that ‘while the confidentiality principle of jury deliberations must be observed, the State party does not provide any argument justifying that no adjustment could be made to enable the Auslan interpreter to perform his/her functions without affecting the confidentiality of the deliberations of the jury such as a special oath before a court’. The Committee also accepted that States parties ‘enjoy a certain margin of appreciation’ in assessing the reasonableness and proportionality of accommodation measures, but must ensure ‘that such an assessment is made in a thorough and objective manner, assessing all the pertinent elements’. The Committee concluded that Australia had refused to provide
There are also people who have the right to claim exemption from service under the Act. These people, set out in Schedule 2 of the Act, generally fall within certain professional and other employment categories, including dentists, pharmacists, medical practitioners and persons who reside with and have the fulltime care of a person who is sick, infirm or disabled. In addition, a person may request the Sheriff exempt him or her from jury service by showing ‘good cause’. The Sheriff may also exempt a person for ‘good cause’, whether or not on request. ‘Good cause’ is defined under section 14A of the Act and includes where some disability associated with the person would render him or her, without reasonable accommodation, unsuitable for or incapable of serving as a juror. Other persons are also ineligible for jury service because of the Jury Exemption Act 1965 (Cth). On this basis Australia respectfully disagrees with the interpretation of the Committee on the content of Article 9. Australia notes that the Committee has not provided any analysis in its views to support such an interpretation such that its views on this Article are unconvincing. Even accepting the Committee’s interpretation of Article 9, the Committee has not demonstrated that jury duty is an ‘aspect of life’ even though it is not open to the public writ large, as detailed above. Further, Article 9 only requires States parties to ‘take appropriate measures’. That is, a State is not required to take any measures that would be considered inappropriate. As set out above in paragraphs 8 and 10, Australia does not consider the provision of Auslan interpretation and stenography to potential jurors to be an appropriate measure to ensure accessibility. Article 13(1) – Access to justice, including in conjunction with Articles 3, 5(1) and 29(b) The Committee considered that ‘the performance of jury duty is an integral part of the Australian judicial system, and as such, it constitutes a “participation” in legal proceedings’. It further considered, particularly in reference to Article 29(b), that ‘[a]ttention must therefore be given to the participation of persons with disability in the justice system in capacities besides those of claimant, victim or defendant, including in jury service, on an equal basis with others’. On this basis, the Committee concluded that