Lyons v State of Queensland

Holmes and Gotterson JJA and Mullins J

28 August 2015

This was an application for leave to appeal a decision of the Appeal Tribunal of QCAT, pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009. The applicant for relief was deaf and was aggrieved because she had been excluded from jury service by a Deputy Registrar.

She had made complaints of indirect and direct discrimination pursuant to ss 10 and 11 of the Anti-Discrimination Act 1991, which the Member had dismissed. The grounds of the proposed appeal were that:

1. the Appeal Tribunal had erred in its construction of s 11 of the Anti-Discrimination Act by failing to conclude that terms constituting indirect discrimination had been imposed on the applicant;
2. in considering direct discrimination, the Appeal Tribunal had erred by failing to consider whether the applicant’s impairment was a substantial reason for her treatment;
3. the Appeal Tribunal had erred in taking account of the applicant’s need for the assistance of an Auslan interpreter in determining whether she had been treated less favourably; and
4. the Appeal Tribunal had erred in concluding that the Deputy Registrar had correctly construed and applied the Jury Act 1995. [5].

In opposing the granting of leave to appeal, the respondent contended that, in the event leave were granted, the Appeal Tribunal should have held that if the conduct in question were unlawful, the Anti-Discrimination Act ought be read as being impliedly repealed by the Jury Act to the extent that the former Act made the conduct unlawful. [6].

At the outset, her Honour Holmes JA (with whom the other members of the court agreed), indicated that she had formed a view of the merits of the prospective appeal grounds and in accordance with that assessment, concluded that leave to appeal should not be granted. [7].

The relevant Anti-Discrimination Act provisions

Examining ss 6(1); 10 and 11 of the Act [8]–[10], her Honour observed that the applicant’s case before the Tribunal was that the Deputy Registrar had discriminated against her on the basis of impairment in the provision of services, contrary to ss 9 and 46 of the Act. Alternatively she argued that discrimination had occurred in the administration of a State law (the Jury Act) and program (the administration of the jury system), contrary to ss 9 and 101 of the Act. [11]. There was an inherent difficulty in the argument that the determination of eligibility for jury service could be construed as involving the supply of a service under s 46 of the Act.

Grounds of appeal:

Indirect discrimination – alleged error in construction and application of s 11

The applicant argued that in determining whether a term of the kind contended for (that she be able to communicate by conventional speech in the jury room) [20] had been imposed on her, it was necessary to consider whether the Deputy Registrar had imposed “any form of qualification or prerequisite” (see Waters v Public Transport Corporation (1991) 173 CLR 349 at 393) as a condition precedent to her obtaining a relevant status or benefit. It was unnecessary to show that there was any positive act or statement by the Deputy Registrar; a term could be implicit in conduct. [23]. The applicant did not identify how it was that the Appeal Tribunal had erred in its construction or application of s 11 in its consideration as to whether the Tribunal Member should have formulated a different term. [24].

In a context where it was not within the confines of the Deputy Registrar’s role to determine the conditions for the applicant’s eligibility for jury service; that was a matter for the statute – and The Deputy Registrar merely determined as a question of fact that the statutory conditions for eligibility were not met [26], in relation to this ground her Honour determined that:

“The conclusion that the Deputy Registrar did nothing amounting to the imposition of a term or condition, as opposed to the application of an existing statutory requirement, was plainly available. There is no real prospect of the applicant’s demonstrating error in the Appeal Tribunal’s conclusion that it was irrelevant to speak of the imposition of a term.” [27].

Direct discrimination – alleged error in failing to consider whether impairment was “a substantial reason”

The applicant argued that both the Appeal Tribunal and the Tribunal Member had incorrectly sought to determine the reason for the Deputy Registrar’s exclusion of her, in lieu of considering whether her impairment was a substantial reason for the exclusion. [29]. She also argued that her need for an Auslan interpreter was inextricably connected to her deafness. [30].

In closely examining the applicant’s submissions together with the Appeal Tribunal’s decision, her Honour took the view that there was no misapprehension as to the appropriate test under s 10(4) apparent in the Tribunal’s reasons. It was not the case that more than one reason for the Deputy Registrar’s conduct had been identified – and the Tribunal Member had plainly found that her conduct was not based upon the applicant’s deafness, nor her requirement for Auslan services. That was a finding of fact with which the Appeal Tribunal saw no reason to disagree. As such, the question of the impairment’s being a “substantial reason” for less favourable treatment simply did not arise. [33].

Direct discrimination – alleged error in taking the requirement for a special service into account in determining the “comparator”

The Appeal Tribunal had rejected a submission that by taking into account the applicant’s need for an Auslan interpreter in the jury room, the Tribunal Member had disregarded s 10(5). [34].

Seeking to distinguish the High Court’s decision in Purvis v New South Wales (2003) 217 CLR 92, the applicant submitted that the Tribunal Member and Appeal Tribunal erred in formulating the characteristics of the “comparator” for the purpose of s 10(1) by failing to exclude from consideration the need for an interpreter. As a result, contrary to s 10(5), that amounted to taking into consideration the applicant’s need for special services. It was submitted that the appropriate comparator was a person without the applicant’s disability who wished to perform jury service. [35].

In relation to this ground, her Honour agreed that the appropriate comparator was indeed a person without the applicant’s attribute of deafness or need to communicate through Auslan. However, she articulated that:

“… to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred. Here the circumstances in which the Deputy Registrar made her decision were that she was required to apply a law which, at least in her view, precluded the presence of an outsider in the jury room. That was not a question of the applicant’s needing a special service: the Registrar did not exclude her because of her need for the assistance of an interpreter but because of the perceived impossibility of an interpreter, as a person extraneous to the jury, being present in the jury room. The Tribunal Member appropriately had regard to that consideration as part of the circumstances of the relevant treatment in formulating the comparator of a person with hearing seeking the assistance of another in the jury room.” [39].

Alleged error by the Appeal Tribunal in concluding that the Deputy Registrar correctly applied the Jury Act

The final ground of appeal was one which the court determined was not strictly necessary for it to form a view on, since it had not detected any error of law by the Appeal Tribunal and in any event, the Tribunal had considered the appeal before it on the grounds there advanced. [40].

Nonetheless, the court – for completeness [40] – determined that this ground had little prospect of success. [47]. It noted that even if a trial judge were able to exercise the power to grant leave enabling an interpreter to communicate with jurors, the difficulties in having someone other than a sworn juror present during deliberations would remain.

Section 50 of the Jury Act requires that the members of the jury be prevented from disclosing anything relating to their deliberations “except as allowed or required by law”. Given the ambit of that section, the court found it difficult to see how jury members could potentially discuss the case in the presence of an interpreter without breaking their oath, or how a trial judge could grant leave for that to occur. [47].

Conclusion

In the circumstances, the court held that the applicant’s proposed appeal had insufficient merit to warrant the granting of leave to appeal, and refused the application. [48].