5. Ineligibility based on occupation

Updates and background for this project (Digest)

• Involvement in the administration of law and justice
• Other government officials
• People exempt under Commonwealth provisions

INVOLVEMENT IN THE ADMINISTRATION OF LAW AND JUSTICE

5.1 Certain categories of people who are associated with the administration of law and justice in NSW are currently ineligible, including those who have been “at any time” a judicial officer, a coroner, police officer, Crown Prosecutor, Public Defender, Director or Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions. Also ineligible are people who answer the somewhat imprecise description of an “Australian lawyer (whether or not an Australian legal practitioner)”, as well as those “employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration”.¹

5.2 In NSW in 1977 it was suggested that people within this kind of group should be ineligible to serve because their “presence on juries would, in view of their close association with the administration of law and justice, be inconsistent with the concept of juries as a distinct element in the process of law, drawn from the community at large”.²

5.3 A number of reasons have been offered as to why such persons should not be eligible to serve on juries. They include the following:

• excluding those “whose work is concerned with the administration of justice or the enforcement of the law” is necessary “in order completely to preserve the lay character of jury service”;³
• people “with knowledge or experience of a legal or quasi-legal nature might, if on a jury, exercise undue influence on their fellow jurors”;⁴
• jurors with a background in crime detection and law enforcement, for example, police officers, might undermine the jury’s appearance of impartiality;⁵ and
• judicial officers may have “special knowledge which should not enter into a jury’s deliberations”.⁶

shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia.⁷

Provided that the judge was so satisfied, the over-all fairness of the tribunal and of the trial should not be at risk.⁸

Australian lawyers

5.5 In NSW, “an Australian lawyer (whether or not an Australian legal practitioner)” is ineligible to serve as a juror.⁹ Although a somewhat imprecise definition,¹⁰ it is assumed that it is intended to embrace any person admitted to the legal profession in NSW, or any other Australian jurisdiction, whether or not they currently hold a practising certificate.¹¹ If so, it would not include a lawyer who holds an academic position as a teacher of law, who has never been admitted to the legal profession, even though such a person might teach criminal law or criminology and have much greater relevant knowledge than a practising lawyer whose specialty is conveyancing or corporate law.¹²

5.6 While Victoria has a similar provision to the one in NSW,¹³ in all other Australian jurisdictions the restriction is limited to practising lawyers.¹⁴ Some jurisdictions include articled clerks,¹⁵ and employees of practising lawyers.¹⁶

5.7 The Victorian Law Department, in 1967, based the wider ineligibility of “duly qualified” legal practitioners on the fact that they held “legal knowledge and experience” that could possibly have an “undue influence” on other jurors.¹⁷ The Department observed that if this view was valid:

it would apply as much to academic lawyers as to practising lawyers. Accordingly no distinction is made between them.¹⁸

5.8 In Queensland, new provisions in 1995 removed lawyers from the list of exceptions.²⁰ This was contrary to the recommendation of the Supreme Court’s Litigation Reform Commission, in 1993, that “members of the legal profession (admitted to practice and in fact engaged in legal work)” be automatically exempt from service.²¹ However, the new provision did not commence before a 1996 amendment saw the reintroduction of the exemption of lawyers “actually engaged in legal work”.²² The second reading speech considered the possibility that a lawyer might influence the other members of the jury and perhaps lead to a perceived (or actual) tainted verdict. It was also suggested that jury service could lead to conflicts of interest as the result of ethical and professional responsibilities arising from the status of barristers’ and solicitors’ as officers of the court. The preferred approach for lawyers was “to put the situation beyond conjecture and make them ineligible for jury service”.²³

5.9 Lord Justice Auld considered it “unlikely” that lawyers would exercise undue influence on their fellow jurors because of their status or position, suggesting that “people no longer defer to professionals or those holding particular office in the way they used to do”.²⁴ One Queensland Member of Parliament put it so:

This provision is based on the proposition that lawyers, if allowed into the jury room, would be so convincing, so persuasive and so overwhelming in their presence that mere mortals in the jury room could not possibly arrive at a verdict without being overawed by the presence and contribution of a practising lawyer... some may say, “Oh for the good old days when that may have been so.” I am sure that my colleagues at the Bar Association would rejoice in a situation where their mere presence in a jury room would have such a persuasive effect.²⁵

5.11 Other reasons for excluding lawyers from juries, whether practising or not, which have been identified, include the contentions that:

• jurors must apply “their common sense, general knowledge and their life experience rather than any expert knowledge gained from a position within the justice system”;²⁹ and
• jurors should obtain the information necessary to their verdict through the trial process and the directions of the judge, not by referring to the specialist legal knowledge of one or other of their number.³⁰

5.13 The limitation to practising lawyers in some jurisdictions is seen by some as a “sensible compromise”.³² Some preliminary submissions to this review have, however, questioned the continuing ineligibility of lawyers as a class.³³

ISSUE 5.1

Should lawyers or a particular group of lawyers, continue to be ineligible to serve on juries?

Under what conditions, if any, should lawyers be ineligible to serve on juries?

5.14 Judicial officers are ineligible in all Australian jurisdictions,³⁴ although not so in some overseas jurisdictions. Their position is somewhat different from that of people who are directly or principally engaged in the investigation, prosecution or defence of criminal cases, by reason of the obligations of independence and impartiality that attach to their office.

5.15 Lord Justice Auld gave special consideration to the position of judges as potential jurors. He considered that their inclusion could contribute “both to the work of individual juries and to improvement of the jury system as a whole”³⁵ noting particularly that “it would be good for them and the system of jury trial if they could experience at first hand what jurors have to put up with”.³⁶ It was suggested that problems associated with a judge who is a juror being known to the trial judge or lawyers in the courtroom could be dealt with by excusing the judge on a discretionary basis in particular circumstances.³⁷

5.16 It must be recognised that judicial officers and coroners could influence other jurors if their office was known, and that, if they chose, they could supplement or explain any directions of law given by the trial judge. That would not occur if they were subject to some statutory obligation not to disclose their office or to correct or supplement the summing up.

5.17 The New York Jury Project observed that allowing serving judges to be jurors ran the risk of conflicting with the Code of Judicial Conduct which requires that a judge “should regulate [his or her] extra-judicial activities to minimize the risk of conflict with [his or her] judicial duties”.³⁸ Such a conflict could possibly arise if the judge realised that a particular jury direction was erroneous yet, consistent with the presiding judge’s charge to the jury, felt bound to give effect to it.

ISSUE 5.2

Should judicial officers continue to be ineligible for jury service?

Under what conditions, if any, should judicial officers be ineligible for jury service?

5.18 In NSW former and serving police officers, Crown Prosecutors, Public Defenders, Directors or Deputy Directors of Public Prosecutions, or Solicitors for Public Prosecutions are ineligible; as are persons currently “employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration”.³⁹ These provisions replace a more specific list which formerly made employees of certain government departments ineligible to serve, for example, employees of the Department of Corrective Services, the Department of the Attorney-General and of Justice, and the Police Department.⁴⁰ Such provisions were too broad in some respects and too narrow in others. The current formulation is potentially broad enough to cover those who are engaged but not employed in the public sector to provide some of the services previously provided exclusively by government. In Victoria this category is limited to those employed “in the public sector within the meaning of the Public Administration Act 2004”.⁴¹

5.19 The trend towards a functional description is being adopted in other jurisdictions. For example, in Tasmania ineligibility extends to “a person whose duties or activities, whether paid or voluntary, are connected with the investigation of indictable offences, the administration of justice or the punishment of offenders”.⁴² This formulation is broader than the NSW provision in that it extends to volunteers, for example, prison visitors. The Victorian Parliamentary Law Reform Committee noted that Prison Fellowship volunteers might have a conflict of interest in some cases or be unable to bring an impartial mind to the case being tried. However, it considered that their ineligibility was not justified on the grounds that such people could seek to be excused if the circumstances of the case required it.⁴³

5.20 In SA, government employees (or other prescribed employees) whose duties “are connected with the investigation of offences, the administration of justice or the punishment of offenders” are ineligible to serve.⁴⁴

5.21 Police officers are expressly ineligible in some jurisdictions, including NSW.⁴⁵ In some jurisdictions this extends to former police officers.⁴⁶

5.22 In 1965, the UK Departmental Committee on Jury Service considered it essential to the public confidence in the impartiality and lay character of the jury that all “those whose work is connected with the detection of crime and the enforcement of law and order must be excluded”.⁴⁷ The Committee also went so far as to state that civilian employees of the police service should also be ineligible on the grounds that, if they are employed for some time, “no matter in what capacity” they will:

become identified with the service through their everyday contact with its members. As such they become influenced by the principles and attitudes of the police, and it would be difficult for them to bring to bear those qualities demanding a completely impartial approach to the problems confronting members of a jury.⁴⁸

ISSUE 5.3

Should ineligibility for jury service continue to apply to people currently employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration?

Should this ineligibility apply to civil trials as well as criminal trials?

5.24 There is also a question whether the categories of people listed above, or some of them, should continue to be ineligible to serve even when they have retired from the relevant positions.

5.25 At present in NSW, judicial officers, coroners, police officers, Crown Prosecutors, Public Defenders, Directors or Deputy Directors of Public Prosecutions or Solicitors for Public Prosecutions are permanently ineligible, while those who are “employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration” are ineligible only for the term of their employment. Similarly it would seem that, once a person has been admitted to the legal profession, there would be a lifetime ineligibility, even though he or she did not have a current engagement or involvement in any activity involving the law.

5.26 The UK Departmental Committee on Jury Service while considering it desirable that some restriction ought to be placed on people associated with the administration of law and justice who have retired, highlighted the problem of a person who, at 18, was employed by the police service as a shorthand typist but never subsequently worked for the service.⁵⁰ Rather than introducing a permanent bar for some occupations but not others, the Departmental Committee recommended that such people should be ineligible only for a period of ten years after ceasing to follow the occupation in question.⁵¹ This is the approach that has been adopted in Victoria and Tasmania.⁵² It has also been adopted in the Northern Territory but only applies in relation to judicial officers.⁵³

5.27 WA has adopted a system of excluding holders of judicial office and legal practitioners for life, while imposing a 5 year ineligibility on various others involved in the administration of law or justice. This went against the recommendation of the Law Reform Commission of WA which concluded that there was no need to exclude certain people after retirement because they would be near the age of ineligibility in any case.⁵⁴

5.28 One preliminary submission to this Commission suggested that there could be a period of ineligibility of 2 years from the date resignation or retirement.⁵⁵

ISSUE 5.4

Should any categories of people who have retired from positions associated with the administration of law and justice continue to be ineligible for jury service and, if so, which of these categories?

Should there be a period of ineligibility and, if so, what should it be for any or all of those categories?

5.29 A question has been raised as to whether the spouses of ineligible people should also be ineligible to serve. This restriction was removed in NSW in 1996. The ineligibility is still in place in South Australia.⁵⁶ It also exists in the Northern Territory but is limited to judges, and includes de facto partners as well as spouses.⁵⁷

5.30 The exclusion of spouses, where it exists, is apparently based on a belief that “these people are so influenced by their partners that they would be unable to remain impartial as jurors”.⁵⁸ The UK Departmental Committee on Jury Service, in 1965, concluded that “the fact that someone is married to, or is some other close relation of, a member of an ineligible occupation, is no reason why he or she should for that reason also be ineligible”.⁵⁹ This position was endorsed by the Law Reform Commission of WA in 1980 and the Tasmanian Department of Justice’s review in 1999.⁶⁰

5.31 The South Australian Sheriff’s Office, in 2002, suggested that the practice of excluding spouses may be a safe practice to adopt and was justified in less populated areas.⁶¹

5.32 A separate question arises as to the desirability of spouses or partners removing themselves from certain cases, for example, where their spouse or partner, or others known to them, have some connection with the prosecution case.⁶² One submission suggested that “it would be a rare accused who would accept with equanimity the fact that the spouse of his/her prosecutor is sitting in judgment”.⁶³ Several law reform bodies have considered that the question of spouses being excused should be dealt with on a case by case basis when a spouse considers that his or her status may cause difficulties.⁶⁴ This could arise following a request to be excused for good cause, or possibly by way of a challenge for cause.

ISSUE 5.5

Should the spouses or partners of any categories of people who hold or have held positions associated with the administration of law and justice be ineligible for jury service?

5.33 In NSW, the Governor, members and officers of the Executive Council and Members and officers and other staff of the NSW Parliament are ineligible to serve as jurors.⁶⁵

The Governor and Lieutenant Governor

5.34 The Governor is ineligible in most jurisdictions.⁶⁶ This could be justified by reference to the numerous official duties attaching to that office, and by reference to the fact that the Governor represents the Head of State on whose behalf, or in whose name, criminal prosecutions are brought. While the exclusion does not directly refer to the Lieutenant Governor, it is invariably the case, under the present system, that the holder of such office would be ineligible by reason of their holding office as Chief Justice or President of the Court of Appeal. This would change if the ineligibility of judicial officers were to be removed.

Members of parliament

5.35 Members of parliament are generally ineligible in all Australian jurisdictions.⁶⁷ Some jurisdictions also ban former members of parliament from jury service for certain periods of time, such as 5 or 10 years.⁶⁸

5.36 The 1965 UK Departmental Committee on Jury Service recommended that members and officers of both Houses of Parliament should only be entitled to be excused as of right because of their “special and personal duties to the state”.⁶⁹

5.37 In Victoria, members of parliament and the Governor were previously entitled to exemption as of right. The Victorian Parliamentary Law Reform Committee recommended they should be redesignated as ineligible because of the need to maintain the separation of powers between the executive, legislative and judicial branches of government.⁷⁰ In Victoria, ineligibility now applies to anyone who has been a member of parliament at any time within the preceding 10 years.⁷¹

5.38 The Law Reform Commission of Western Australia considered that members of parliament should be ineligible because it is “inappropriate that a person who is involved in the making of laws should be able to serve on a jury which may be called upon to decide whether there has been a breach of any such law”. The Commission also considered that members of parliament should be excluded because the parliament’s power to punish for contempt meant that members could be called upon to exercise a judicial or quasi-judicial function.⁷²

5.39 Other reasons for exempting members of parliament which have been identified include the circumstances that:

• “being elected representatives, they could feel inhibited during jury deliberations for a variety of reasons”;⁷³
• “jury service has the potential to lead them to be in conflict with their constituency”.⁷⁴

5.40 It is recognised that the adoption of a public position in law and order debates could give rise to an apprehension of bias in particular cases. Peremptory challenges, or challenges for cause, could, however, deal with this.

5.41 The continued ineligibility of members of parliament has been questioned.⁷⁵ Moreover, their direct involvement in the criminal process could be an informative experience that might be of assistance in the performance of their parliamentary duties. While it would be undesirable for members of parliament to be required to serve while the parliament was sitting, the same demands do not necessarily arise between sittings, except for ministers and shadow ministers. Again, the availability of an application to be excused for good cause or deferred could accommodate most situations.

ISSUE 5.6

Should members of the NSW Parliament, or some members (for example, ministers or shadow ministers) continue to be ineligible for jury service?

5.42 In NSW ineligibility applies to “officers and other staff of either or both of the Houses of Parliament”.⁷⁶ It is the broadest exemption available in this context of all the Australian jurisdictions.

5.43 The Victorian Parliamentary Law Reform Committee recommended that some officers of the Parliament should continue to be exempt “in order that they may freely attend to their parliamentary duties”, but considered that the category should be limited to “senior officers whose attendance is necessary for the proper functioning of the Parliament”. These senior officers were “the Clerks of each House, the Usher of the Black Rod and the Serjeant-at-Arms”.⁷⁷

5.44 Questions do arise as to the justification for the ineligibility of the other staff members whose position is not dissimilar from that of the personal staff of ministers or of public servants who are eligible to serve. In particular, it is most unlikely that more than one or two staff members would ever be summoned at the one time, and if particular problems or emergencies arose, the right to apply to be excused would normally suffice. The ineligibility of officers of the Parliament has been questioned.⁷⁸

ISSUE 5.7

Should officers and/or other staff of the NSW Parliament continue to be ineligible for jury service?

5.45 Senior public servants were once included among the exemptions available in NSW. Permanent heads of departments and members of the Public Service Board were ineligible⁷⁹ and members and secretaries of all statutory corporations, boards and authorities were entitled to be excused as of right.⁸⁰ These no longer appear in any of the lists of exemptions, although some senior public servants will still be ineligible if they are employed in “the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration”.⁸¹ This position is consistent with the 1994 Australian Institute of Judicial Administration review which recommended amendment or removal of the exemptions relating to particular members of the public service, and statutory authorities, unless the exemptions could be justified in terms of occupation or duties.⁸²

5.46 Some jurisdictions, for example, the Commonwealth, continue to offer an exemption for higher ranking public servants.⁸³ The Queensland Supreme Court’s Litigation Reform Commission observed that the Commonwealth’s jury exemption provisions were “a good example of regulations instigated by bureaucrats for their own comfort”.⁸⁴ The Commission recommended that submissions be made to the Standing Committee of Attorneys to remove the “anomaly” of exempting such a great number of Commonwealth employees.⁸⁵

5.47 The UK Departmental Committee on Jury Service agreed with this approach when it decided not to include “members of the higher civil service” in the category of those who should be excused as of right. The Committee considered that some such office holders might “on occasions have very strong claims upon the discretion of summoning officers if they ask to be excused on account of their duties”.⁸⁶ A similar approach was taken by the Tasmanian Department of Justice’s 1999 review.⁸⁷

ISSUE 5.8

Should any public servants be ineligible to serve as jurors?

If so, what should be the relevant criteria for ineligibility?

5.48 In some jurisdictions, including NSW and Victoria, the Ombudsman and Deputy Ombudsman are both listed as people who are ineligible to serve.⁸⁸ In Victoria, employees of the Ombudsman are also ineligible.⁸⁹ It is not clear on what basis they continue to be exempt, save possibly because of the importance of their duties, or because of their specialised knowledge gained through performing their functions concerning complaints against the police.⁹⁰

5.49 The inclusion of the Ombudsman and Deputy Ombudsman raises the question of whether officers of other similar organisations ought also to be ineligible to serve. These could include the Commissioner of the Independent Commission Against Corruption, the Commissioner of the Police Integrity Commission, the employees of those organisations and their relevant inspectors. Most of these officers would currently be ineligible either as Australian lawyers or because of their law enforcement background. Victoria currently lists the Director or Acting Director of Police Integrity, the Special Investigations Monitor or acting Special Investigations Monitor and their employees as being ineligible for jury service.⁹¹

5.50 The Victorian Parliamentary Law Reform Committee recommended the repeal of the exemption for the Ombudsman and his or her officers.⁹²

ISSUE 5.9

Should the Ombudsman or Deputy Ombudsman continue to be ineligible for jury service?

Should officers of other supervisory bodies, such as the Independent Commission Against Corruption and the Police Integrity Commission, also be ineligible for jury service?

5.51 The Jury Exemption Act 1965 (Cth) exempts the following people from jury service: the Governor General, Justices of the High Court and other Courts established by the Commonwealth, members of the Parliament and Federal Executive Council, members of the Australian Industrial Relations Commission and Fair Pay Commission, members of the Australian Federal Police, Defence Force members and Reserves who are rendering continuous full-time service.⁹³ Regulations also exempt Commonwealth employees above a certain salary level and there are other exemptions relating to the “administration of justice”, “public need” (quarantine) and “public administration” (including ministerial staff and advisers and parliamentary officers).⁹⁴

5.52 It is not easy to identify any particular reason why a special category of exemption should apply to Commonwealth Public Servants, or to members of the Defence Forces who are not required to be available for current operations, where no such exemption applies to many of those who hold comparable positions within the States and Territories.

5.53 Other reviews have commented on the broadness of the exemptions and have recommended an approach be made to the Commonwealth government with a view to the repeal of many of them.⁹⁵ This has a relevance in that Commonwealth agencies look to the State and Territory courts to litigate both criminal and civil cases in which they have an interest, both in relation to the prosecution of offences under Commonwealth law and civil cases when the Commonwealth, or its instrumentalities, is a party.

ISSUE 5.10

Should NSW request that the Commonwealth repeal any or all of the exemptions under the Jury Exemption Act 1965 (Cth)?

1. Jury Act 1977 (NSW) Sch 2 Items 2, 3, 8 and 10.

2. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, at 4478, quoting United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 93.

3. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 99 and 103. See also Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.75-3.76.

4. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 99 and 104; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.76. See also Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 2.

5. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 103.

6. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.76.

7. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 147.

8. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 147.

9. Jury Act 1977 (NSW) Sch 2 item 7.

10. As it is in the context of legal professional privilege: see NSW Law Reform Commission, Uniform Evidence Law (Report 112, 2006) at para 14.82-14.100.

11. See Legal Profession Act 2004 (NSW) s 5 and s 6.

12. See New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 188.

13. Juries Act 2000 (Vic) Sch 2 cl 1(e). See Legal Profession Act 2004 (Vic) s 1.2.2 and s 1.2.3.

14. Juries Act 2003 (Tas) Sch 2 cl 3; Juries Act 1927 (SA) Sch 3; Jury Act 1995 (Qld) s 4(3)(f); Juries Act 1957 (WA) Sch 2 Part 1 cl 1(f); Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 Item 5.

15. Juries Act 1963 (NT) Sch 7.

16. Juries Act 2000 (Vic) Sch 2 cl 2(c); Juries Act 1967 (ACT) Sch 2 Part 2.1 Item 5.

17. See also the New Zealand Law Commission’s concern that jurors who are lawyers might usurp the role of the judge on both legal and factual issues: New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 189.

18. Victoria, Law Department, Jury Service in Victoria: (Joint paper presented to the Honourable the Attorney-General by the Secretary and Assistant Secretary to the Law Department, 1967) Appendix A.

19. Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.19.

20. See Jury Act 1995 (Qld) s 4(3) as originally enacted.

21. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 8.

22. Jury Amendment Act 1996 (Qld) s 3.

23. Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 16 May 1996 at 1192.

24. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 147.

25. Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 5 December 1996 at 5026.

26. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 147.

27. Criminal Justice Act 2003 (Eng).

28. England and Wales, “Guidance for summoning officers when considering deferral and excusal applications” Item 18.

29. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.85.

30. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.85-3.86.

31. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.83.

32. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.88.

33. NSW, Jury Task Force, Preliminary submission at 2. See also Legal Aid NSW, Preliminary submission at 2.

34. Jury Act 1977 (NSW) Sch 2 item 2; Juries Act 2003 (Tas) Sch 2 cl 2; Juries Act 2000 (Vic) Sch 2 cl 1(b); Jury Act 1995 (Qld) s 4(3)(d); Juries Act 1957 (WA) Sch 2 Part 1 cl 1(a)-(ea); Juries Act 1927 (SA) Sch 3; Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 items 2, 13, 16.

35. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 148.

36. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 147.

37. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 148.

38. The Jury Project (Report to the Chief Judge of the State of New York, 1994) at 29-30.

39. Jury Act 1977 (NSW) Sch 2 item 8, an exclusion which does not, however, extend to person who previously were so employed or engaged, but no longer have that status.

40. Jury Act 1977 (NSW) Sch 2 items 5, 7, 8 (as originally enacted). See also Jury Act 1995 (Qld) s 4(3)(g), (h), (i).

41. Juries Act 2000 (Vic) Sch 2 cl 1(f).

42. Juries Act 2003 (Tas) Sch 2 cl 4.

43. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.122-3.123.

44. Juries Act 1927 (SA) Sch 3.

45. Jury Act 1977 (NSW) Sch 2 item 10; Juries Act 2003 (Tas) Sch 2 cl 5; Juries Act 2000 (Vic) Sch 2 cl 1(g); Juries Act 1957 (WA) Sch 2 Part 1 cl 2(h); Jury Act 1995 (Qld) s 4(3)(g); Juries Act 1963 (NT) Sch 7.

46. That is, those that have held such an office at any time: Jury Act 1977 (NSW) Sch 2 item 10, Juries Act 2000 (Vic) Sch 2 cl 1(g); within the past 10 years: Juries Act 2003 (Tas) Sch 2 cl 5.

47. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 103.

48. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 110.

49. NSW Department of Corrective Services, Preliminary submission at 1.

50. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 113.

51. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 115.

52. Juries Act 2000 (Vic) Sch 1 cl 1; Juries Act 2003 (Tas) Sch 2.

53. Juries Act 1963 (NT) Sch 7.

54. Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.25. In NSW, however, age does not give rise to automatic ineligibility, rather it can be relied on as an exemption as of right from the age of 70.

55. NSW, Office of the Director of Public Prosecutions, Preliminary submission at 3.

56. See, eg, Juries Act 1927 (SA) Sch 3.

57. Juries Act 1963 (NT) Sch 7.

58. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 37. See also United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 116.

59. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 117.

60. Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.29; Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 2.

61. South Australia, Sheriff’s Office, South Australian Jury Review (2002) at 14.

62. See United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 117.

63. N R Cowdery, Preliminary submission at 1.

64. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.76; Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.30. See also para 9.29-9.31 below.

65. Jury Act 1977 (NSW) Sch 2 items 1, 4, 5.

66. Juries Act 2003 (Tas) Sch 2 cl 1; Juries Act 2000 (Vic) Sch 2 cl 1(a); Jury Act 1995 (Qld) s 4(3)(a); Juries Act 1927 (SA) Sch 3.

67. Jury Act 1977 (NSW) Sch 2 item 5; Juries Act 2003 (Tas) Sch 2 cl 6; Juries Act 2000 (Vic) Sch 2 cl 1(i); Juries Act 1957 (WA) Sch 2 Part 1 cl 2; Juries Act 1927 (SA) Sch 3; Jury Act 1995 (Qld) s 4(3)(b); Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 item 14.

68. Juries Act 1957 (WA) Sch 2 Part 1 cl 2; Juries Act 2000 (Vic) Sch 2 cl 1(i).

69. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 148.

70. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.154.

71. Juries Act 2000 (Vic) Sch 2 cl 1(i).

72. Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.12.

73. Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 16 May 1996 at 1192.

74. Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 16 May 1996 at 1192.

75. NSW, Jury Task Force, Preliminary submission at 2.

76. Jury Act 1977 (NSW) Sch 2 item 6.

77. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.155.

78. NSW, Jury Task Force, Preliminary submission at 2.

79. Jury Act 1977 (NSW) Sch 2 items 9 and 10 (since amended).

80. Jury Act 1977 (NSW) Sch 3 item 11 (since amended).

81. Jury Act 1977 (NSW) Sch 2 item 8.

82. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 173-174.

83. Jury Exemption Regulations 1987 (Cth) reg 4.

84. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 6.

85. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 5.

86. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 151.

87. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 2.

88. Jury Act 1977 (NSW) Sch 2 item 9; Juries Act 2000 (Vic) Sch 2 cl 1(k).

89. Juries Act 2000 (Vic) Sch 2 cl 1(l).

90. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.130.

91. Juries Act 2000 (Vic) Sch 2 cl 1(la), (lb), (lc), (ld).

92. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.131.

93. Jury Exemption Act 1965 (Cth) s 4 and Schedule.

94. Jury Exemption Regulations 1987 (Cth).

95. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.205; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 5-6.