The roll compilation and jury selection procedures instituted by the Jury Act, 1977 further these aims. This Chapter, after describing those procedures, describes the ways in which these aims are promoted. ithe second part of the Chapter discusses ways in which the procedures might be improved to more fully reflect the goals wind the philosophy of the jury system: to make the jury system fairer, more efficient and more effective.

A. Compiling the Jury Roll

3.2 The jury roll for each jury district, of which there are seventy-two in New South Wales,¹ is renewed every three years. The current electoral roll for each subdivision allocated to the jury district is put into a computer and the computer selects at random the number of names requested.² The number selected varies greatly between jury districts. For example, the last draft jury roll for Sydney totalled 202,541 while in districts such as Kiama and Tumut the draft jury roll contains fewer than five hundred names. In major towns the numbers still tend to be below five thousand: for example, Wagga Wagga, 3039; Lismore, 2646; Dubbo, 2953. Each person selected receives a notification of inclusion on a draft jury roll. If the recipient is disqualified from or ineligible for jury service or wishes to claim an exemption as of right (the schedules to the Act listing classes within the above categories are set out on the notification form) he or she must so notify the Sheriff within fourteen days.³ The Sheriff then deletes the names of all those people whose reasons for deletion he or she accepts. Although the proportion varies greatly between jury districts, an average thirty-two per cent of people included on a draft jury roll are deleted before the final roll is certified. Another large percentage is deleted while the jury roll is in force so that the actual available numbers can be less than half the number on the draft roll.

B. Selection of Jurors

3.3 Once the Sheriff has certified a jury roll, it will supply jurors for the district for the next three years . In response to an order from a judge or registrar of a court to summon a specified number of jurors for a trial or inquest, the Sheriff selects the required number at random, again usually by computer, from the appropriate current jury roll. Each person selected is issued a summons through the post requiring his or her attendance at a specified place, date and time. The Sheriff must give at least seven days notice and usually gives at least fourteen days notice.⁴

3.4 People so summoned may apply to the Sheriff, personally or in writing, to be excused from jury duty on that particular occasion. If’ the Sheriff grants this application, the person continues to be liable to serve on a later occasion; his or her name is not removed from the jury roll. If the application to be excused is not made until the day specified in the summons, it must be made in person to the presiding judge.⁵ The size of each jury roll is calculated so that each person included will be summoned for jury service not more than three times over the three year period for which the roll is current. This is not by any means a universal rule, however. A very few jury rolls may not even be used at all.⁶ This will occur where no jury trial is convened in the district: during the currency of the jury roll. The following table shows the number of people who were summoned to perform jury duty in New South Wales in the year ended 31 May 1984.

Jurors Summoned - New South Wales - 1 June 1983 to 31 May 1984,⁷

Jurisdiction	City	Outer Metropolitan and Country	Totals
Supreme Court:
Civil	8,893	1,122	10,015
Criminal	20,376	5,337	25,713
District Court:
Civil	3,380	802	4,182
Criminal	40,500	54,718	95,218
Coroners Courts	30	306	336
Totals	73,179	62,345	135,464

II. THE PHILOSOPHY OF THE SELECTION PROCEDURES

A. Shared Responsibility for Jury Service

3.5 The philosophy underlying the 1977 Act was stated to be “that jury service, so far as is practicable, will be shared equally by all adult members of the community.”⁸ The Jury Act, 1977 makes “every person who is enrolled as an elector for the Legislative Assembly” both qualified and liable to serve as a juror.⁹ All people aged eighteen years and over who:

• are natural born or naturalized subjects; and
• who have lived in Australia for at least six months continuously and in any subdivision for at least one month immediately preceding the date of the claim for enrolment,

are entitled and, indeed, required, to enrol as electors for the Legislative Assembly. In order to qualify for a grant of Australian citizenship one must, among other criteria, have lived in Australia for at least one year and have an adequate knowledge of the English language. Some Australian citizens are not eligible to vote: mental patients and prisoners serving sentences of twelve or more months imprisonment. These people are not permitted to serve as jurors.¹⁰

B. Representative Panels and Pools

3.6 The Jury Act, 1977 thus tries to ensure that jury panels and pools will be representative by initially making all adult citizens liable for jury service, and implements Parliament’s recognition that:

The jury system aims to provide the courts with a tribunal that is both impartial and representative of the ordinary citizen.¹¹

The importance of having juries that are representative has long been recognised. An English committee stated in 1965 that,

A jury should represent a cross-section drawn at random from the community, and should be the means of bringing to bear on the issues that face them the corporate good sense of that community. This cannot be in the keeping of the few, but is something to which all men and women of good will must contribute.¹²

The United States Supreme Court has held that the constitutional requirement that juries must be impartial necessarily implies that juries must be selected from a cross-section of the community.¹³ According to one commentary:

The rationale for the cross-sectional or representative jury is that the various biases held by members of such a jury will essentially offset each other, causing the final verdict to be the product of a ‘diffused impartiality’. Thus, representative juries guarantee that ‘a range of biases and experience will bear on the facts of the case’.¹⁴

3.7 The 1977 Act improved representativeness in a number of ways. Most importantly, women are now equally qualified and liable to serve. Again, the old system of permitting the Executive to exempt occupational groups as it saw fit has been abolished and all exemptions must now be embodied in a schedule to the Jury Act, 1977, requiring passage through Parliament. A wide range of government employees were exempted by regulation prior to 1977.¹⁵ Such people are now liable for jury service.

3.8 The process used to compile jury rolls since 1977 is also designed to enhance representativeness. Names for each roll are selected at random by computer from the relevant electoral roll. Each roll lasts up to three years and then a new roll is compiled.¹⁶ People are not required to serve on consecutive rolls.¹⁷ In this way the responsibility to serve is rotated and a random selection ensures, so far as is possible, that each roll is representative.

C. Impartiality

3.9 Random selection by computer also ensures that no partiality on the part of the Sheriff or Sheriff’s officers can bias the selection made. As has been recognised,

....it is the very randomness of the jury which has provided a bulwark against an oppressive state....¹⁸

The Sheriff in New South Wales controls the numbers of jurors summoned to each panel or pool, as well as the total number of people included on each jury roll, but cannot choose particular individuals or classes of people.

3.10 Obvious partiality in the jurors themselves is also limited by excluding from jury service people involved in or with the legal system. The likelihood that people convicted of the more serious offences will be biased is dealt with by disqualifying them from serving. The Act of 1977 determines which offences are serious enough to warrant disqualification by reference to the penalty imposed. Thus a person convicted, in New South Wales or, elsewhere, of an offence carrying a penalty of life imprisonment, or sentenced to a term of imprisonment exceeding two years, is disqualified for life. A person who ham; served any shorter prison sentence is disqualified for ten years from the expiration of the sentence. A young person found guilty of an offence and detained in a juvenile institution is also disqualified for ten years. Lesser offenders are disqualified for five years.¹⁹

3.11 Other participants, direct and indirect., in the legal system are ineligible to serve on juries: judges, legislators, lawyers, magistrates, police officers, prison officers and all employees of the Attorney General’s Department, the Corrective Services Department, the Security Service of the State Rail Authority, the Legal Services Commission and the Corporate Affairs Commission.²⁰ Quite apart from any concern about the impartiality of such people, they are people,

... whose 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 ;k distinct element in the process of law, drawn from the community at large.²¹

D. Avoiding Hardship

3.12 Jury service has been described as “one of the fundamental. obligations of citizenship”.²² Yet it is a duty which removes people from their workplaces, sometimes for lengthy periods, confining them to an unfamiliar environment and demanding of them great attention to, and conscientious consideration of, an issue of some moment to the community as a whole. The responsibility placed on each juror and on the group of twelve as a whole is considerable. There will inevitably be some people whose daily tasks are considered to be so essential to the community that they should not be allowed to serve. The uninterrupted performance of the ordinary duties of such people will be of greater value to the community than their availability for jury service. In New South Wales the occupations so highly valued are chiefly emergency and rescue services. Also ineligible are permanent heads of State Government departments and the members of the State Public Service Board.²³

3. 13 People outside these occupations might also experience hardship, or cause hardship to others, by performing jury service. There are some categories of people who, the Act accepts, are likely to be in this position and who should be free to weigh up for themselves the hardships involved. The Act lists seventeen categories of people who may claim exemption from jury service as of right; that is to say without the need to explain the nature of the hardship, but simply by identifying themselves as fitting within one or other of the listed categories. The list includes practising dentists and medical practitioners, people aged 65 or, more, people having the sole full-time care of a child under 18, of an aged person or of an invalid, and people living more than 56 kilometres from the place at which they would be required to serve.²⁴

3.14 It can further be envisaged that people unable to describe themselves as so listed would yet experience considerable hardship if required to perform jury service; hardship which the system may be unwilling to impose. The excusal of such people is at the discretion of the Sheriff, in the first instance, and ultimately the responsibility of the presiding judge. A person summoned to attend for jury service may be excused for “good cause”.²⁵ The Act does not attempt to define the term “good cause” but the Sheriff probably sympathetically considers temporary and unavoidable absence from the jury district, temporary illness, and probable serious detriment to a sole business.²⁶ The judge is likely to be persuaded by similar reasons and will also be likely to excuse a person who, though willing to serve for a day or a week, would be likely to suffer unduly from being committed to a trial lasting some weeks or months. The judge will also recognise that a deeply resentful juror would not make a “good” juror and will probably excuse, for example, a person with a conscientious objection to jury service.²⁷

E. Competence

3.15 While it is important that a jury should be drawn from a genuine cross-section of the community, it is also important that each member of the jury should be capable of participating in a decision. This is what is meant here by competence. The question whether, in some or all cases, a high level of competence is necessary, based, for example, on intelligence or qualifications, is considered in Chapter 10. The competence currently demanded is the capability of hearing and understanding the proceedings of the court and of participating in a group determination. The Jury Act, 1977 does not permit children or people who are deaf to serve on juries, for example, nor people who do not understand English.²⁸

III. DEFICIENCIES IN THE SELECTION PROCEDURES

3.16 There is no doubt that the selection procedures established by the Jury Act, 1977 can be improved to more effectively implement the stated philosophy. The optimum achievement of the goals of the jury system is significant to its acceptability to the community and its effectiveness as an instrument of justice.

... in the day-to-day administration of justice nothing is of more importance than that the jury system should work, and that it should work justly and efficiently.²⁹

It is the Commission’s view that, in order for the jury system to work justly and efficiently, the principles of random selection, representativeness, competence and impartiality, as well as the avoidance of undue hardship, must be fully implemented. Currently, however, the representativeness of juries is undermined in ways which cannot be explained by reference to other aims such as competence or impartiality. The following paragraphs describe the ways in which the selection procedures exclude people and groups of people, thus undermining the representativeness of jury rolls, panels and pools.

A. Exclusions in the Roll Compilation Process

3.17 As we have seen, all people enrolled to vote in New South Wales are stated to be qualified and liable for jury service unless disqualified, ineligible or exempt as of right pursuant to the schedules to the Jury Act, 1977. Looking more closely at the situation, however, it appears that numbers of electors are excluded because the electoral rolls containing their names are not used in the preparation of jury rolls. The Jury Act, 1977 requires that jury districts be established comprising “such electoral districts or sub-divisions as are prescribed.’’³⁰ In fact subdivisions have been used. Over 10 per cent of electoral subdivisions, however, have not been allocated to any jury district.³¹ The Commission has been unable to discover why these subdivisions have been excluded. Some of them are located at a considerable distance from any court house at which a District Court will be convened. However, a person unwilling to travel more than 56 kilometres each way in order to perform jury service is entitled to claim an exemption as of right³² and, as the former Attorney General, the Hon. F.J. Walker, Q.C., M.P., has stated, “a person who resides more than the prescribed distance from the place at which he is required to serve and is prepared to attend for jury duty, should not be precluded from doing so.³³ Moreover, some of the excluded subdivisions are well within 56 kilometres of the nearest court, as can be seen from the following table.

Excluded Subdivision	Nearest Jury District	Approximate Road Distance
Blayney	Orange	26 Km
Bogan Gate	Parkes	38 Km
Broken Bay	Gosford	18 Km
Coolamon	Wagga Wagga	29 Km
Crookwell	Goulburn	49 Km
Culcairn	Albury	51 Km
Forster	Taree	34 Km
Junee	Wagga Wagga	37 Km
Katoomba	Lithgow	38 Km
Kyogle	Lismore	43 Km
Manilla	Tamworth	44 Km
Mount Wilson	Lithgow	32 Km
Narromine	Dubbo	40 Km
Raymond Terrace	Maitland	26 Km
Richmond	Penrith	20 Km
Wee Waa	Narrabri	42 Km
Windsor	Penrith	23 Km

Other excluded subdivisions may have mainly elderly populations, perhaps of retired people. Again such people can claim an exemption as of right if they do not wish to serve.³⁴

3.18 In his second reading speech on the Jury Bill, the Hon. F.J. Walker, Q.C., M.P., then Attorney General, stated:

... it is the Government’s intention that all bar a few electoral subdivisions will be used in the selection process. Two that come to mind are the subdivisions of Wilcannia and Menindee in the electoral district of Broken Hill. It will be obvious to honourable members why it is not intended to use these subdivisions as a source of prospective jurors.³⁵

Presumably Mr. Walker was referring to the very high Aboriginal populations in those subdivisions. In the light of the continuing over-representation of Aborigines as accused people, it is unfortunate that a number of the excluded subdivisions have proportionately very high Aboriginal populations, While the total. Aboriginal population of New South Wales is a mere 0.7% of the State’s population,³⁶ the proportion of Aborigines in Wilcannia is 30.7 per cent and in Menindee it is 20.4 per cent. Other excluded subdivisions include Cargelligo with 7.1 per cent Aboriginal population; Coonabarabran, 7.7 per cent; Gilgandra, 9.9 per cent; Narromine, 6.0 per, cent; and Warren, 9.2 per cent.³⁷ While Aborigines are still disproportionately subjected to criminal sanctions,³⁸ it is important that Aborigines should also be adequately represented on jury panels. The Commission considers that all electoral subdivisions should be allocated to jury districts imposing the obligation and the privilege of jury service on all electors in the State.

B. Exclusions for Bias

3.19 We have seen that people involved in the administration of justice - judges, Lawyers, police and others are not permitted to serve on juries. The? advantage of’ the understanding of Law and procedure which such people could contribute to a jury is outweighed by the belief that they will. not approach the task with a fresh, open and impartial mind, and the fear that they would dominate the other members of the jury to detriment of a full discussion by all participants.

The Jury Act, 1977, however, also makes spouses of some of these people ineligible: the spouses of judges, of members and officers of the Parliament and Executive Council, of coroners and Magistrates, of police officers, of Crown Prosecutors and public defenders, and of prison officers.³⁹ The Law Reform Commission of Western Australia has recommended that “extension of ineligibility to the spouses of those in ineligible occupations is unjustified.”⁴⁰ That Commission believed,

... while shared attitudes may exist in some cases the Commission is not aware of any research which shows that this is to any significant extent, or, that the spouses of those concerned are not as capable as anyone else of fulfilling their duty as jurors. If spouses of those in ineligible occupations are to be made ineligible, so probably should their children, parents relations or. even close friends. It would be undesirable in principle to extend ineligibility so far.⁴¹

3.20 Even if shared attitudes do not operate, however, an accused person may well fear that the spouse of a police officer or Magistrate, out of loyalty to his or her wife or husband, would be more inclined to adopt the known attitude of that person than to put personal loyalties aside and consider the case objectively. The accused person will be aware that a juror may discuss the trial with his or her spouse, if not while it is proceeding at least after it is over, and that a spouse in an ineligible occupation might bring emotional pressure to bear on the juror. An accused might also fear that a police officer could reveal to a juror-spouse that the accused has a criminal record or “is known to police”. Moreover, although actual bias might not occur if spouses of those in ineligible occupations were permitted to serve, it could be argued that they should not be permitted to do so if accused people, on reasonable grounds, fear or suspect bias. One commentator disagrees, and argues that:

Although shared attitudes may exist, it is doubtful that they exist to such zt large degree that spouses would not be as capable as any other member of the community of rendering an impartial decision. Because discarding spouses of ineligible persons results in an unwarranted loss of possible jurors and thus injures the representative nature of the jury, this ineligibility should be withdrawn.⁴²

Preliminary research in New South Wales suggests that less than 2 pet. cent of people deleted from jury rolls are spouses of people in ineligible occupations. In Victoria, Queensland, the Australian Capital Territory, New Zealand and the United Kingdom spouses of people in ineligible occupations Ewe not themselves ineligible. In the Northern Territory only judges’ spouses are excluded while spouses of police officers must serve.⁴³ The Commission invites submissions as to whether spouses of those in ineligible occupations should continue to be ineligible. It may be that the spouses of those in some occupations should continue to be ineligible while others become liable to perform jury service.

3.21 Also excluded are people who have been punished for certain offences, including serious traffic offenders. 44 One commentator has argued that offenders should be able to serve because it is “wrong morally and from a point of view of practice to exclude citizens with convictions”. This is because,

Inevitably it focuses on the question of penal policy. The rationale of sentencing is to rehabilitate an offender, which literally means to make whole again, to take part in society.⁴⁵

Disqualification for a period after the expiration of a sentence is inconsistent with this goal. The same commentator has also noted that,

There is no statistical evidence to suggest that people with convictions are less likely to be impartial and objective.⁴⁶

The risk of bias, on the face of :It, would seem to be small where the person was convicted of a minor offence and/or given a non-custodial sentence such as a good behaviour bond, a fine, or simply a driver’s licence disqualification. The Commission invites submissions as to whether such offenders should continue to be disqualified from jury service.

C. Exclusions on the Ground of Hardship: Exemption

3.22 We have seen that the list of occupations who may claim exemption from jury service as of right was drawn up on the assumption that people in those occupations are most likely to experience hardship (or to cause it to the people they serve) if required to serve on juries. The Government also expected that many such people would in fact elect to serve.⁴⁷ The Sheriff allows for a 40 to 50 per cent attrition of each draft jury roll as a result of the exclusion of those disqualified, ineligible and exempt as of right.⁴⁸, the final jury roll is unlikely to include many people who elected to serve although entitled to claim the exemption as of right. The Commission’s own preliminary research indicates that over 50 per cent of deletions from jury rolls are of people claiming an exemption as of right. The procedure for granting exemptions as of right does not require hardship to be established. Rather, hardship is assumed from the nature of the individual’s occupation. ‘This approach has been abandoned recently in California in the interests of improving; representativeness. In order to avoid serving there each individual must show “undue hardship on the person or the public served by the person”.⁴⁹

3.23 In a 1983 survey, the Law Foundation of New South Wales found that “the occupational background of jurors in the sample compared quite closely with that of the general community”.⁵⁰ However, the broad occupational groups used - professional, administrative, clerical and sales, farmers - would not show up any under-representation of medical practitioners, dentists, pharmacists and other occupations exempt as of right. The Commission favours the Californian approach to exemptions which, however, will impose a greater burden of decision-making on the Sheriff. Each application for exemption would have to be individually assessed, although it might be expected that guidelines would soon be developed to assist the responsible officers. We also note that people whose applications are refused by the Sheriff would, under the Jury Act, 1977 in its present form, be entitled to appeal to a Magistrate.⁵¹ In this way, too, guidelines on what constitutes hardship would be developed. In spite of the likely increase in administration required, the Commission considers that such a step may be demanded by the principle requiring juries to be representative of the community. The occupational groups to be affected should be surveyed as to their responses to this proposal and to ensure that no particular and unfair difficulty would be imposed.

3.24 We would exclude from this proposal two groups of people who may currently claim an exemption as of right. People who are on an existing jury roil and people who have been granted an exemption from jury service either for a period or permanently by a judge at the end of a period of lengthy jury service⁵² should continue to be exempt as of right. if possible the names of such people should be tagged or coded on the computer lists so that the computer does not select them while so tagged. The feasibility of such a procedure should be examined by the Sheriff. If it is possible, it will relieve these people of the need to claim and establish an exemption and would avoid the need for the legislation to create a special category of exemption as of right containing only these two groups.

3.25 Hardship is also a reason for permitting people aged 65 and over to claim exemption as of right. The Law Foundation’s survey found, in 1983, that the elderly were under-represented on juries.⁵³ As the proportion of those aged over 65 increases, more and more people are able to avoid jury service and juries are becoming increasingly less representative of the community. The Commission considers that people aged under 70 should not be exempt from jury service unless they can show individual hardship. This age has been chosen chiefly because it is the retiring age for judges . We leave open the question whether people aged over 70 should continue to be eligible for jury service or should be ineligible. Some may consider that people aged over 70 are no longer competent to per-Form jury service. If those aged over 70 are to continue to be eligible to perform jury service the need may arise to distinguish those who are competent and those who are incompetent because of age. The Commission invites submissions as to how competence could be determined.

3.26 Also able to claim exemption as of right are people having the care, custody and control of children under the age of 18. If, as we have suggested, the classes of exemption are repealed and replaced by a single provision requiring the proof of individual hardship, people caring for young children will probably still be exempted on their application. The Commission’s preliminary research indicates that over one-quarter of deletions from the jury roll are of people claiming the exemption by virtue of their responsibility for children under the age of 18. We invite submissions as to whether measures should be taken to encourage those responsible for caring for young children to make themselves available for jury service. For example, child care facilities could be provided on or near court premises to assist those responsible for young children. Similarly, those caring for elderly relatives may be enabled to attend by arrangement with community nursing services or public home care facilities.

D. Exclusions on the Ground of Hardship: Excusal

3.27 The Sheriff’s office does not currently record the reasons accepted by the Sheriff for excusing people from jury service. On the whole we have no means of knowing whether an already unrepresentative jury roll is further skewed by the excusal process. We expect, however, that one group of people, those responsible for small partnerships or sole businesses, are generally excused and are, therefore, under-represented on juries. In 1983 the Law Foundation (of New South Wales was generally satisfied with the representativeness of a sample of actual jurors on indices of age, occupation and country of origin.⁵⁴ The Commission is conducting a further survey which, among other things, will discover the reasons accepted by the Sheriff for excusing people from jury service.

E. Exclusions on the Ground of Incompetence

3.28 As we have seen, the required standard of competence for jury service is relatively low: one must simply be well enough to perform a juror’s duties, be in possession of one’s mental and physical faculties and be able both to read and understand English.⁵⁵ Some courts in Sydney are equipped for mobility-impaired jurors and where these people wish to serve they are encouraged to do so. In most districts, however, such people cannot be accomodated. Such people and other handicapped people who apply to be deleted from the jury roll on the ground of illness or infirmity are generally deleted by the Sheriff. Courts are public buildings and should be accessible to all members of’ the public. Handicapped people maybe present in court as accused, plaintiffs, witnesses, jurors, family or simply as members (of the public, and their access and accomodation should be facilitated. It is to be hoped that the policy of the State Government to improve access to public buildings for physically handicapped people will soon lead to all court houses being made accessible with proper accomodation for mobility-impaired jurors. The Commission invites submissions as to whether physically handicapped people should continue to be deleted from the jury roll at their request as ineligible to perform jury service.

3.29 The requirement that jurors be able to read English has the result of excluding many people from jury service and probably selectively excludes people from particular ethnic communities. The Senate Standing Committee on Language and the Arts recently estimated that at least 287,000 and possibly as many as 442,000 Australians born in non-English speaking countries do not read English. At least 66,000 people over the age of 14 years do not read English at all.⁵⁶ Groups among whom literacy in English may be expected to be poor are concentrated in New South Wales (38 per cent of people whose first language is not English) and Victoria (35 per cent).⁵⁷ While nationally about 97 per, cent of the population speaks English,⁵⁸ there is growing concern about the standards of literacy of people for whom English is their first and only language. For example, in a 1976 survey the Australian Council for Educational Research found that 25 to 30 per cent of 10 and 14 year old students were unable to fully comprehend continuous prose of the kind contained in normal school texts and reference books.⁵⁹ The question whether the literacy requirement should be abandoned (ie. whether people who speak and understand, but do not read, English should become eligible for jury service) must be considered in the light of decisions made about the amount of written material to be made available to juries.

F. Other Exclusions

3.30 There is one class of people who are ineligible for jury service in New South Wales and for whom no excuses on the grounds of partiality (or hardship can be offered. They are Commonwealth public servants who have been withdrawn by the Commonwealth itself in Federal legislation⁶⁰ backed up by the Jury Act, 1977.⁶¹ There are 38,570 Commonwealth public servants in New South Wales, just over one per cent of electors in the State.⁶² Now that most State public servants are liable for jury service there seems to be no reason for excluding Commonwealth public servants. Third and Fourth Division officers of the Commonwealth Public Service are generally liable for jury service in Victoria, Western Australia, Tasmania, the Australian Capital Territory and the Northern rerritory while exempt in the other three States.⁶³ The release of these people, however, must be a subject of negotiation between the State and Federal governments, although there is some doubt as to the constitutionality of the Commonwealth legislation exempting Commonwealth public servants.

IV. TENTATIVE PROPOSALS

3.31 The Commission considers that the goals of the jury selection procedures are proper and that their full implementation is vital to the just anti efficient working of the jury system. Amendments to the Jury Act, 1977 as suggested below would more fully implement the goal of representativeness in particular. The following amendments are proposed.

1. All. electoral”. subdivisions should be allocated to jury districts pursuant to section 9(2) of the Jury Act, 1977 (paragraph 3.18).

2. The only ground for exemption as of right should be hardship to the applicant or to others. Schedule 3 to the Jury Act, 1977 should accordingly be repealed (paragraph 3.22).

3. Commonwealth Public Servants, Divisions 3 and 4, should be available to perform jury duty in New South Wales courts. Clause 16 of Schedule 2 to the Jury Act, 1977 should be repealed (paragraph 3.30).

3.32 A number of other issues have been raised for consideration in this Chapter. We do not make tentative proposals with respect to these questions but list them here for further discussion. They are:

• whether spouses of people in ineligible occupations, or some of them, should be liable to perform jury service. (Currently the spouses of Judges, Masters, Members and officers of the Parliament, Magistrates, police officers, Crown Prosecutors, Public Defenders and prison officers are ineligible for jury service (paragraph 3.20);
• whether people given non-custodial sentences should be disqualified from jury service. Currently a person who has been:
  
  (a) convicted of an offence which may be punishable by imprisonment;

  (b) bound by recognizance to be of good behaviour or to keep the peace;

  (c) the subject of a probation order; or

  (d) disqualified from holding a licence to drive for a period in excess of six months;

  is disqualified for five years (paragraph 3.21);

• whether people aged between 65 and 70 should be required to perform jury service. Currently people of or above the age of 65 may claim an exemption as of right (paragraph 3.25);
• whether people of or above the age 65 and 70 should be ineligible for jury service. (Currently such people are qualified but may claim an exemption as of right (paragraph 3.25);
• whether measures should be taken to encourage people with the responsibility for caring for young children to make themselves available for jury service. Currently people having the care, custody and control of children aged under 18 may claim an exemption as of right (paragraph 3.26);
• whether mobility-impaired people should be considered to be ineligible for. jury service by reason of illness or infirmity. Currently such people are deleted from the jury roll on this ground if they so request (paragraph 3.28); and
• whether the ability to read English should be a necessary qualification for at juror. Currently those unable to read English are ineligible for jury service (paragraph 3.29).

FOOTNOTES

1. Jury Regulation 471 of 1981.

2. Jury Act, 1977, ss.10, 12.

3. Id., s.13(1) and Jury Regulation 191 of 1977, Schedule 2, Form 1.

4. Jury Act, 1977, ss.23, 26-27.

5. Id., s.38(1).

6. The rolls for Grenfell, Walgett, Wellington, Tumut, Corowa and Temora were certified in December 1982 and have not been used . The rolls for Braidwood, Quirindi, Scone, Tenterfield and Port Macquarie were certified in January 1983 and have not been used.

7. Personal Communication, then Under-Sheriff of New South Wales, Mr. D. Lennon.

8 NSW Parliamentary Debates, L e g is l a in it) e Assembly, 22 February 1977, p.4254 per tine Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

9. Jury Act, 1977, s.5.

10. Parliamentary Electorates and Elections Act 1912, ss.20(1), 21, 34; Australian Citizenship Act 1948 (Cth), s.14(1).

11. NSW Parliamentary Debates, Legislative Assembly, 22 February 1977, p.4254 per the Hon. F.J. Walker, Q.C. M.L.A., Attorney General.

12. Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965), para.53.

13. Taylor v Louisiana 419 US 522 (1975)

14,. W.A. Macauley and E.J. Heubel, “Achieving representative juries : a system that works” (1981-1982) 65 Judicature 126, footnotes omitted.

15. NSW Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4479 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

16. Jury Act, 1977, ss.10, 12.

17. Id., schedule 3, clause 8.

18. H. Harman and :J . Griffith, Justice Deserted; The Subversion of the Jury (National Council of Civil Liberties pamphlet, 1979) at p.13.

19. Jury Act, 1977, schedule 1 and see NSW Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4477 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

20. Jury Act, 1977, schedule 2.

21. NSW Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4478 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

22. Id., 22 February 1977, p.4254 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

23. Jury Act, 1977, schedule 2.

24. Id., schedule 3.

25. Id.,s.38.

26. P. R. Weems , “A Comparison of Jury Selection Procedures for Criminal Trials in New South Wales and California” (1984) 10 Sydney Law Review 330, at p.335.

27. New South Wales Law Reform Commission, Conscientious Objection to Jury Service (December 1984, LRC 42), para.2.19.

28. Jury Act, 1977, schedule 3, clause 12: “a person who is unable because of illness or infirmity to discharge the duties of a juror” is ineligible; clause 11: “a person who is unable to read or understand the English language” is ineligible.

29. NSW Parliamentary Debates, Legislative Assembly, 22 February 1977, p.4254 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

30. Jury Act, 1977, s.9(2).

31. Jury Regulation No.471 of 1981.

32. Jury Act, 1977, schedule 3, clause 10 and Jury Regulation No.191 of 1977.

33. NSW Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4478 per the Hon. F.J. Walker, Q.C, M.L.A., Attorney General.

34. Jury Act, 1977, schedule 3, clause 4.

35. N.S.W. Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4479 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

36. Australian Bureau of Statistics, 1981 Census of Population and Housing.

37. Ibid, by towns only. Figures for Local Government Areas cannot be directly compared with electoral subdivisions.

38. Commission of Inquiry into Poverty in Australia: Outline of first main report (April 1975), at p.265.

39. Jury Act, 1977, schedule 2.

40. Law Reform Commission of Western Australia, Report on Exemption from Jury Service (Project No.71, 1980), para.3.29.

41. Ibid.

42. P.R. Weems, note 26 above, at p.336.

43. Juries Act 1967 (Vic), schedule 2; Jury Act 1929 (Qld), s.8; Juries ordinance 1967 (ACT), s. 11; Juries Act 1981 (N.Z.), s.8; and Juries Act 1974 (U.K.), schedule 1; Juries Act 1962 (N.T.), schedule 7.

44. Jury Act, 1977, schedule 1.

45. E. Reid, “Excluding jurors” (1984) Legal Action 12.

46. Ibid.

47. NSW Parliamentary Debates, Legislative Assembly, 24 February 1977, p. 4479 per the lion. F.J. Walker, QC, M.L.A., Attorney General.

48. P.R. Weems, note 26 above, at p.336.

49. D.W. Brown, “Eliminating exemptions from jury duty: what impact will it have?” (1978-1979) 62 Judicature 436.

50. P. Grabosky and C. Rizzo, Jurors in New South Wales (Law Foundation of New South Wales, 1983), at p.6.

51. Jury Act, 1977, s.15.

52. Id., schedule 3, clauses 8, 9.

53. P. Grabosky and C. Rizzo, note 50 above, at p.6.

54. Ibid.

55. Jury Act, 1977, schedule 2, clauses 11 and 12.

56. Senate Standing Committee on Language and the Arts, A National Language Policy. (AGPS, 1984), at p.36.

57. Id., at p.13.

58. Id., at p.18.

59. Education Research and Development Committee, Australian Studies in School Performance: Vol I: Literacy and Numeracy in Australian Schools: A First Report (AGPS, 1976), at pp.105-106.

60. Jury Exemption Act 1965 (Cth).

61. Jury Act, 1977, schedule 2, clause 16.

62. Australian Public Service Board, Annual Report 1984, pp.150-151. There were 3,440,404 people enrolled to vote in New South Wales at the end of January, 1985.

63. Jury Exemption Regulations, 1970 (No.131), clauses 6, 7.