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Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill (Consistent) (Sections 19, 25(a)) [2011] NZBORARp 8 (14 March 2011)

Last Updated: 28 April 2019

Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill

14 March 2011 Attorney-General

Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill PCO 15016/1.1

Our Ref: ATT395/156

1. I have reviewed the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill for consistency with the New Zealand Bill of Rights Act 1990. I conclude that, while the Bill raises possible issues with s 19, the right to freedom from discrimination and s 25(a), the right to a fair trial, of the Bill of Rights Act, the Bill is consistent with that Act.
2. The Bill amends two aspects of the Juries Act 1981. Part 1 of the Bill amends the criteria for exemption from jury service to account for changes in penal laws and provide for permanent exemptions. Part 2 of the Bill provides for certain

information about jury members, defined as “protected particulars”, to be withheld

from the accused.

Permanent excusal from jury service

3. The Bill provides for a person to be granted permanent excusal from jury service when because of the person’s disability or state of health he or she is unable to satisfactorily perform a juror’s duties or when he or she is 65 years or over (clause 10). [1]
4. A prima facie limit on s 19 of the Bill of Rights Act arises if there is differential treatment or effects on the basis of a prohibited ground, that has an impact that is discriminatory in that it perpetuates historical disadvantage or prejudice, or stereotypes in a way that does not, having regard to the relevant context, correspond to actual characteristics or circumstances. [2]
5. The Bill raises a possible issue with the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act on the basis of age as individuals are treated differently depending on whether they are under or over 65. [3] This differential treatment does not, however, have a discriminatory impact as it does not perpetuate historical disadvantage or prejudice nor is it based on a stereotype. Allowing only those over 65 the benefit of being able to voluntarily apply for permanent excusal from jury service recognises the contribution that has made by individuals in performing their civic duties prior to reaching that age. It is not based on a stereotype of older persons, but corresponds with their actual situation. Further, the use of age 65 as a proxy for when individuals are more likely to be consistently unable to attend jury summons is legitimate. [4]

6. Providing for permanent excusal of persons who are unable to perform a juror’s duty due to a disability or ill-health does not raise an issue with the right to freedom from discrimination on the prohibited ground of disability. The clause provides for individuals to be treated differently depending on their capacity to perform a juror’s duty, not on the basis of disability. A person may have a disability in terms of the definition in the Human Rights Act 1993, and not be eligible for a permanent excusal because they are capable of performing a juror’s duty. [5]
7. No discriminatory impact arises from either the differential treatment on the basis of age or disability. Accordingly, there is no prima facie limit on s 19. If there were it would, for the reasons discussed above, be a justifiable limit under s 5 of the Bill of Rights Act.
   

Protection of particulars of jury list information

8. The Bill creates a new category of “protected particulars” of certain information about persons on a jury list. [6] The protected particulars may be made available to counsel and court staff, but not to the accused. A person who discloses protected particulars to the accused will be in contempt of court (clause 17). [7] A self- represented accused can request counsel be appointed to access the protected particulars for the purpose of exercising rights of challenge (clause 17). [8]
9. No issue of inconsistency with the fair trial right in s 25(a) of the Bill of Rights Act arises simply because the accused is prohibited from personally reviewing the protected particulars. This is because defence counsel or, if the accused is self- represented, counsel appointed by the court, will still be able to review the

protected particulars and exercise any rights of challenge on the accused person’s

behalf.

10. A potential issue arises if a self-represented accused elects not to have counsel appointed by the court. In those circumstances, the Crown is precluded from making protected particulars available to the accused even if there is a real risk that a potential juror might be prejudiced against the accused. [9] A fair trial can still be ensured however, for example by the Crown raising the potential prejudice with the trial judge (who could be expected to take appropriate steps to ensure the fairness of any proceedings).
11. Accordingly, no inconsistency arises with the fair trial right in s 25(a) of the Bill of Rights Act.
12. This advice has been reviewed in accordance with Crown Law protocol, by Martha Coleman, Crown Counsel.
    

Jane Foster Crown Counsel

Footnotes:

1. New s 15A.
2. The Crown considers this purposive approach is correct, but the legal test for s 19 is not settled in New Zealand. In the recent decision in Ministry of Health v Atkinson HC Auckland CIV-20101-404-287, 17 December 2010 the Court did not accept that discriminatory impact of this kind was required to establish a prima facie breach of s

19. The Crown has been granted leave to appeal the decision. The Supreme Court of Canada in Withler v Canada (Attorney-General) (2011) SCC 12 has recently reaffirmed that discrimination only arises where, taking account of the full context the actual impact of the measure, there is a discriminatory impact of this kind.

3. Section 21(1)(i) of the Human Rights Act 1993, defines age as any age commencing with the age of 16 years.
4. In Law v Canada (Minister of Employment & Immigration) [1999] 1 SCR 497 at [102] the Supreme Court of Canada distinguished between unobjectionable use of age as a general reflection of different capacities on the one hand, and the stigmatisation on the other.
5. Section 21(1)(h) of the Human Rights Act defines disability as including: physical disability or impairment; physical illness; psychiatric illness; intellectual or psychological disability or impairment; any other loss or abnormality of psychological, physiological, or anatomical structure or function; reliance on a guide dog, wheelchair, or other remedial means; and the presence in the body of organisms capable of causing illness.
6. This is information about a person that is specified by the jury rules (clause 14

definitions of “protected particulars” and “jury list information”).

7. New s 14AB.
8. New s 14AC.
9. In Gordon-Smith v R [2009] NZSC 20; [2009] 2 NZLR 725 at [22] the Supreme Court held that, while there was no issue in principle with an asymmetry of information about potential jurors between the Crown and the accused, the Crown was obligated to make available to the accused the information regarding the previous criminal convictions of potential jurors if that information gave rise to a real risk that the potential juror might be prejudiced against the accused.
   

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice

provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.