Lyons v Queensland [2016] HCA 38.

Material facts

Ms Lyons, a deaf but proficient lip reader, was summoned for jury service. After which, she informed the Deputy Registrar that she required the assistance of two Auslan interpreters to participate as a juror. Following confirmation from the Sheriff at the Brisbane Supreme & District Courts, the Deputy Registrar acting in accordance with s 4(3)(l) of the Jury Act 1995 (Qld) excluded the appellant as a potential juror.[1]

Subsequently, Ms Lyons filed complaints, alleging she was, directly and indirectly, discriminated against under the Anti-Discrimination Act 1991 (QLD), to the anti-discrimination commissioner. The complaint was not resolved via conciliation, and the complaint was referred to the Queensland Civil and Administrative Tribunal (QCAT) who in turn, dismissed her complaint. Ms Lyons then appealed to the Appeal Tribunal of (QCAT) and then to the Queensland Court of Appeal. Both of which were unsuccessful.[2]

By grant of special leave, Ms Lyons appealed to the High Court of Australia.[3]

Grounds of appeal

The first ground of appeal was that the Tribunal, the appeal panel and the Queensland Court of Appeal erred in finding that the Deputy Registrar did no more than make a simple application of s 4(3)(l) of the Jury Act 1995 (Qld). Instead of an undertaking a functional assessment or interpretation of 4(3)(l) and then apply that.[4] The second ground of appeal relates to Deputy Registrar wrongly finding that there had not been a term imposed within the meaning of section 11(4).[5] The third ground is that there was no causative link between the conduct of the Deputy Registrar and that of course was informed by a manifest misconstruction of section 10(5) of the Anti-Discrimination Act 1991 (QLD).[6]

What was said in the Court of Appeal?

Their Honours held, in regard to indirect discrimination under Section 11 of the Anti-Discrimination Act 1991 (QLD), the Appeal Tribunal was right to find that the exclusion of Ms Lyons had not involved the imposition of a condition that she communicate by conventional speech.[7]

Answering Ms Lyons claim of direct discrimination, the Court of Appeal held that the Appeal Tribunal did not err in their interpretation of the test, under s 10(4) of the Anti-Discrimination Act (QLD), relating to the Deputy Registrar’s treated Ms Lyons. Stating that this was because the Tribunal found that Ms Lyons’ deafness was not a reason for her exclusion.[8]

Consequently, the Court of Appeal held that the Tribunals application of section 10(5) of the Anti-Discrimination Act 1991 (QLD), did appropriately consider as a notional comparator a hypothetical person who required the assistance of a person other than a jury member rather than a hypothetical comparison to a person who required no such assistance. Referring to the current legislation, their honours said: “it is difficult to see how jury members could discuss the case in the presence of an interpreter without breaking their oath.”[9]

What did the High Court decide?

The High Court unanimously dismissed the appeal holding that Ms Lyons was not subject to direct or indirect discrimination under the Anti-Discrimination Act 1991 (Qld).[10]

The plurality FRENCH CJ, BELL, KEANE AND NETTLE JJ in their reasoning based on s 4(3)(l) of the Jury Act 1995 (Qld) reached the view that a 13th person is not permitted to be present amongst jurors during deliberations. Their honours held that Ms Lyons claim that the disclosure of jury deliberations to an Auslan interpreter is ‘allowed by law’ must be rejected. The common law has long required that the jury be kept separate and that there is no correspondence with a person other than a fellow juror or an officer of the court. The prohibition of a 13th person to be present in the jury room promotes the free exchange of views and avoids any suggestion of external influence.[11]

The plurality also rejected Ms Lyons claim that section 54(1) of the Jury Act 1995 (QLD), extended a grant of leave to an Auslan interpreter to be present during jury deliberations. Their Honours held that the power conferred by s 54(1) to grant leave to a person to communicate with the jury while they are being kept together is not a power to permit a person to be present during the jury’s deliberations.[12]

Accordingly, the plurality held that their conclusions are reinforced by an absence of a specific legislative provision allowing an interpreter to take an oath of secrecy.[13] Furthermore, the treatment of the disclosure of jury information under section 70 of the Jury Act 1995 (QLD).[14]

The Deputy Registrar rightly concluded that Ms Lyons was incapable of serving as a jury member. Moreover, the Deputy Registrar was required by Queensland law to exclude her. The exercise of such power by the deputy registrar did not infringe the Act’s prohibition on unlawful discrimination under Queensland law.[15]

While mostly agreeing with the plurality, Gageler J came to a different conclusion by acknowledging the conflict between s 4(3)(l) of the Jury Act 1995 (QLD) and the Anti-Discrimination-Act 1991 (QLD).[16] Firstly, rejecting Ms Lyons claim that the application of s 4(3)(l) of the Jury Act 1995 (QLD) is controlled by s 101 of the Anti-Discrimination Act 1991 (QLD). Explaining that 4(3)(l) requires the making of a functional assessment, whereas section s 101 requires that the assessment is made in a non-discriminatory way.[17] Secondly, rejecting the States claim that an inconsistency exists between the Jury Act 1995 (QLD) and the Anti-Discrimination Act 1991 (QLD) and should be resolved by favouring of the Jury Act 1995 (QLD). Highlighting inconsistency presumes that both pieces of legislation are supposed to operate.[18]

To avoid such conflict, his honour held that the ‘better answer’ to circumvent direct or indirect discrimination would be to administer the Jury Act 1995 (QLD) solely to give effect to the provision in s 4(3)(l). The imposition of a term that does no more than give effect to the definition in not unreasonable.[19]

[1] Lyons v Queensland [2016] HCA 38 [7]-[10].

[2] Ibid [15]-[23].

[3] Ibid [24].

[4] Lyons v State of Queensland [2016] HCATrans 60 [5].

[5] Ibid [5].

[6] Ibid [6].

[7]Lyons v State of Queensland [2015] QCA 159 [19]-[27].

[8] Ibid [28]-[33].

[9] Ibid [34]-[40].

[10] Lyons v Queensland [2016] HCA 38 [39].

[11] Ibid [33].

[12] Ibid [34].

[13] Ibid [35].

[14] Ibid [36].

[15] Ibid [38].

[16] Ibid [49]-[52].

[17] Ibid [50].

[18] Ibid [51].

[19] Ibid [52].

• Case Summaries