I. INTRODUCTION
5.1 Our reference raises two issues for determination. The first is whether there should be explicit provision in the Jury Act, 1977 for exemption from service on a jury where a potential juror objects to such service on the ground of conscientious belief. The second is, if explicit provision for such exemption should be made, what procedure should be adopted to deal with applications for exemption? We have seen that respect for individual conscientious beliefs is an accepted principle in Australian law in a number of contexts. The approach to conscientious objection to jury service has not, however, been uniform among the Australian States.
5.2 In making our recommendations we have been guided by our concern that the administration of justice in New South Wales should specifically acknowledge the conscientious beliefs of those asked to participate in jury service. Where conscientious objection to jury service is concerned, we consider that this aim cannot be achieved unless explicit recognition of this objection as a valid ground of exemption from service is made in the Jury Act 1977 and a uniform procedure is adopted to deal with each case as it arises. The current procedure has been unsatisfactory for many religious groups, in particular Christadelphians who have attempted for a number of years to have their right to follow the dictates of their consciences recognised and uniform procedures for exemption from jury service introduced. The current method of dealing with this issue has led to unevenness of treatment and a degree of inconvenience and embarrassment. Our recommendations are aimed at eliminating such unsatisfactory features.
II. EXPLICIT PROVISION FOR CONSCIENTIOUS OBJECTORS
5.3 The failure to provide explicitly for the excusal of conscientious objectors before they arrive at the courtroom can be criticised on grounds of principle as well as administrative efficiency.
5.4 The majority of submissions we received favoured an explicit recognition of conscientious objection as a ground for exemption in the Jury Act 1977.1 The Religious Society of Friends (Quakers) simply made the more general statement that no one should be forced to do anything against his or her conscience.”2 Those who opposed it did so for one of two reasons: either because they thought the existing practice in dealing with conscientious objectors was satisfactory and no change was warranted;3 or because they considered, as a matter of principle, that citizens who accept the benefits of their community have a basic obligation to participate in the legal processes of that community.4 The latter view would reject the recognition of conscience as a ground of exemption at all and insist that conscientious objectors perform this civic duty in spite of their beliefs.
5.5 We accept the significance of the argument on which this latter submission was based, namely that it is important for citizens to be involved in the administration of justice. A jury represents, in a special way, the “conscience” of the community; more readily reflecting its changing values and standards than do the legal precedents which bind judicial decision-making. However, to recognise the importance of wide community participation on juries does not in our view, prevent the recognition of freedom of conscience as an equally important feature of a democratic society.
5.6 It is fundamental to such a society that people should not be compelled to act against their consciences in the performance of civic duties except in matters of overriding importance or urgency such as a national emergency. We accept that jury duty is an important duty, and that the judicial system has a real interest in ensuring that jurors are drawn from the broadest possible range of citizens. However, we do not consider that these factors outweigh the need to respect the conscientious beliefs of citizens. The existing exemptions from jury service recognise that there may be grounds which justify, overriding the general obligation to serve on juries. We are persuaded that the citizen’s claim to freedom of conscience raises an important principle deserving the same kind of recognition.
5.7 In practice, those involved in the administration of justice are wary of placing on juries people who find jury service to be repugnant to their beliefs. Such jurors could create “hung” juries or lead to excessive delay in reaching decisions. Conscientious objectors who make their objections known to the court are usually excused from serving. In the light of current practice, to exempt such people as of right would make little difference to the composition of juries in New South Wales.
5.8 Further, we consider that explicit exemption of conscientious objectors should include all conscientious objectors whatever the basis of their beliefs. We received two submissions from religious congregations appearing to favour the creation of exemption from jury service as of right only for those whose religious beliefs preclude service.5 Other religious groups took a broader view.6 In its recent Report on Discrimination and Religious Conviction,7 the New South Wales Anti-Discrimination Board recommended that
The Board did not address the general question of conscientious objection since its report was concerned only with discrimination on the ground of religious conviction.
5.9 The Saskatchewan and Canadian Law Reform Commissions in 1979 and 1980 respectively, recommended, without giving reasons, that exemption from jury service should extend only to those with objections based on religious grounds.9 The reasons for making this distinction may have been the possible administrative difficulties in testing non-religious conscientious objectors and the potential for a flood of applications for exemption on this ground. We would not be persuaded by these reasons. We prefer the view of the Supreme Court of the United States in Shapiro v. Thompson10 that:
A distinction between religious and non-religious objectors would arguably be reasonable if an exemption for non-religious objectors would be more difficult to administer. It would have to be shown, however, either that non-religious applicants are far more likely to be fraudulent, or that it is more difficult to detect a fraudulent non-religious applicant Neither of these propositions would seem to be justified; the latter in particular falls because a non-religious objector, like the religious objector whose church does not take a position .... must show concrete evidence of his opposition, usually in the form of past conduct or study. The administrative difficulty that would result solely from a flood of claims could not in any case justify an otherwise arbitrary distinction between religion and non-religion.11
This type of reasoning appears to have influenced the Law Reform Commission of Manitoba to recommend the extension of exemptions from jury service to those with non-religious conscientious objections.12
5.10 The Industrial Registrar of New South Wales is satisfied that he is able to apply the criteria of conscientious belief in a non-religious context without problems and there is no evidence in the advice received from Sheriffs of other States that there has ever been a flood of applications for exemption on this ground, whether there is an exemption as of right or at the discretion of the Sheriff.13 There appears to be no persuasive reason to restrict exemption to objectors on religious grounds. We consider that to do so would unjustifiably discriminate against those with sincere moral convictions which are unrelated to religious tenets.
III. PROCEDURE FOR EXEMPTION
5.11 We have considered two options for amendment of the Jury Act, 1977 to provide for the excusal or exemption of those who object to serving on juries for reason of conscience:
- adding conscientious objection as a further ground for claiming an exemption as of right; or
- defining the term “good cause” to make it clear that the Sheriff has power to determine applications to be excused based on conscientious belief.
We favour the first alternative. The excusal provision is designed specifically to deal with temporary or emergency circumstances preventing service on a jury on a particular occasion. As such it is inappropriate for the purpose of excusing conscientious objectors generally. However, a conscientious objector might wish to make use of this provision when a conscientious belief is reached between two occasions of jury service. This would be a rare case. For most objectors the holding of a conscientious belief will be a durable matter, unlikely to change during the three year life of a jury roll.
5.12 Provision for claiming an exemption as of right before the jury roll is finalised gives the Sheriff a degree of certainty as to the numbers on the roll and promotes administrative efficiency. This is preferable to a situation in which a proportion of jurors summoned may seek to be excused very shortly before they are required. Also, if on each occasion a conscientious objector was called during the life of each roll the Sheriff was required by legislation to conduct the same inquiry, this would not only be administratively inefficient but could greatly inconvenience the conscientious objector. At present a judge is required to deal with this issue each time a conscientious objector is called. The Law Society of New South Wales submitted to us that this is satisfactory.14 We do not agree. To require multiple visits to the court house by conscientious objectors is not only inconvenient but, considering that under current practice they are almost invariably excused, also unnecessarily harsh. We consider that such a procedure does not enhance the administration of justice or add to the esteem in which the jury is held.
5.13 We think that it is appropriate that all conscientious objectors should be exempted from jury service as of right. If conscientious objectors were eligible to claim exemption as of right, they would be required, on receipt of notification of inclusion on a draft jury roll, to advise the Sheriff of that fact within 14 days. The Sheriff would have a discretion to accept or refuse the application.
5.14 The Sheriff of New South Wales has expressed a preference not to decide applications on the ground of conscientious belief himself. He believes, as does the Law Society of New South Wales, that the judge in open court is the appropriate person to determine such applications.15 We consider that the experience of the Industrial Registrar of New South Wales in determining similar applications demonstrates that an administrative officer is competent to consider the matter. This is particularly so as Australian case law provides excellent guidance on the principles which should be applied. We note also that both the Sheriffs of Victoria and Western Australia, without specific legislative provisions, take responsibility for considering applications to be excused on the ground of conscientious belief. Both are confident that they make proper decisions and that the availability of the exemption is not abused by prospective jurors. The Sheriff of South Australia also determines applications on the ground of conscientious objection, pursuant to the South Australian Juries Act 1927, with the confidence of judges in that State. We are, therefore, of the view that the Sheriff of New South Wales is the appropriate officer to deal, in the first instance, with applications for exemption on the ground of conscientious belief.
5.15 We see no reason to follow the New Zealand approach which, while allowing exemption on broad grounds, establishes different procedures for religious and non-religious objectors. In our view it is undesirable to differentiate between classes of conscientious objectors. Both groups can be accommodated without difficulty within the existing procedures applicable to people who may claim exemption as of right.
5.16 If conscientious objectors were included in Schedule 3 of the Jury Act 1977, an application for exemption would be made on the form accompanying the Sheriffs notification of inclusion on a draft jury roll. The Sheriff may require it to be verified by statutory declaration.16 If the Sheriff should refuse such an application the applicant would be entitled to appeal to a Court of Petty Sessions.17 This procedure was acceptable to the majority of those who made submissions to us on the issue.18 As in the case of all others who may claim exemption as of right, a claim for exemption on the ground of conscientious belief would have to be made each time a person was included on a draft jury roll. We do not consider it appropriate that permanent or lifetime exemption should be offered to conscientious objectors. This would put them in a privileged category compared with others who are exempt as of right. The current procedure would not generally require a conscientious objector to do more than apply for exemption and, in appropriate cases, swear a statutory declaration each time he or she is included on a draft roll. We consider that the necessity for a further application in such circumstances would allow for changes in belief over a period of time.
5.17 We anticipate that if our recommendation is implemented, the majority of genuine conscientious objectors will be successful in applying to the Sheriff to be exempt as of right and to have their names removed from a draft jury roll. It is possible that as a practical matter, the Sheriff will deal more easily with religious objections than with conscientious objections for other reasons because people who establish membership of a religious sect known to hold jury service as contrary to its tenets, may more readily be fitted within established criteria than those who cannot or do not do so. We do not agree that the Sheriff will be unable fully and properly to consider the claims of conscientious objectors on non-religious grounds, even though the problems of evidence may be greater in such cases. However, if an application to the Sheriff to be exempt as of right is unsuccessful, our recommendation would ensure that the applicant has a right of appeal to a Court of Petty Sessions. We consider that, in the application of the current procedures over a period of time, a body of law will be developed to assist the Sheriff in testing claims of conscientious objection. His task should become progressively easier as criteria are considered and explained by magistrates applying the already considerable Australian case law on this subject to this particular context.
5.18 Conscientious objectors who become entitled to claim exemption as of right will be subject to other relevant provisions of the Jury Act, 1977. For example, under the current legislation if a person entitled to claim exemption as of right within 14 days fails to do so, his or her name is placed on the final jury roll. Upon receipt of a summons to attend on a particular occasion, he or she may apply to be excused on that occasion. This will not be granted unless he or she had a reasonable excuse for failing to claim the exemption as of right at the proper time.19 An example of a reasonable excuse would be conversion to a religious faith which precludes jury service as contrary to its tenets during a period of inclusion on a jury roll. Where the Sheriff refuses to entertain an application for excusal in such a case the applicant may raise the matter with the presiding judge20 again explaining his or her failure to apply for exemption at the proper time. To support such an application to either the Sheriff or a judge a conscientious objector may be required to swear a statutory declaration or to be examined on oath.21 We consider that it is appropriate that this provision should apply to conscientious objectors. It is directed towards administrative efficiency and certainty in the jury rolls. We have explained in Chapter 2 that the Sheriff has expressed concern at the considerable numbers of Commonwealth public servants who fail to notify the Sheriff of their ineligibility for service and thus create administrative inconvenience.22 We do not wish to add to the Sheriff s difficulties. We note that should a person fail without reasonable excuse to make the appropriate application there will still be, in appropriate cases, a residual discretion in the judge to excuse him or her from service.
IV. THE ROLE OF JUDICIAL DISCRETION
5.19 In addition to their power under the Jury Act, 1977 to excuse people from jury service for “good cause”, judges have an inherent power to excuse prospective jurors where there are adequate grounds for doing so.23 This power is not dependent upon application being made by a juror because it is not specifically directed to the empanelling of jurors but is a much broader power concerned with the judge’s obligation to secure a fair trial. For example, in Duffus v. Collins24 one of the jurors had discussed the case with a solicitor for one of the parties. Mr. Justice McClemens explained the judge's inherent power as follows:
The judge has the responsibility for the proper conduct of the trial and his function is to see that cases are disposed of, having regard to the rights of the litigants, without delay. In those cases where the Jury Act covers the field he is under a mandatory obligation to comply with its terms strictly, but where the field is not covered he has a duty to exercise his judicial discretion for the purpose of ensuring the proper conduct of the trial, and involved in that is an inherent power to excuse from attendance jurymen where there is adequate ground to do so.25
5.20 We realise that if the Jury Act, 1977 is amended according to our recommendation it will create a legislative code under which conscientious objections will be considered. However, this will not fetter the general discretion of the presiding judge to secure a fair trial. If the presiding judge were to take the view in a particular case that to permit the conscientious objector to serve might impede or prejudice the conduct of the trial, we consider that he or she would have a power to excuse or dismiss the objector, which would be separate from, and in addition to, the power to excuse under the Jury Act. For example, our recommendation would not require a judge to allow a person who claims to be a conscientious objector to serve in circumstances where a “hung” jury is likely to eventuate, even if the judge were not able to excuse such a person within the terms of the Jury Act The administration of justice requires that this general discretion should continue to operate in conjunction with the legislative provisions.
V. RECOMMENDATIONS
5.21 We recommend that conscientious objection to jury service should be recognised as a ground of exemption as of right from such service pursuant to section 7 of the Jury Act, 1977. Accordingly, we recommend that Schedule 3 to the Act should be amended to include the following:
A person who objects on the grounds of conscientious belief to serving on a jury whether the grounds of that belief are or are not of a religious character and whether that belief is or is not part of the doctrine of any religion.
We have adopted the definition in the Industrial Arbitration Act 1940,26 which has proved satisfactory in that context and which is, in our view, a suitable model for the Jury Act 1977.
FOOTNOTES
1. Submissions 1, 4, 6, 7 and 9.
2. Submission 2.
3. Submission 8.
4. Submission 5.
5. Submissions 1, 4.
6. Submissions 2, 6.
7. New South Wales Anti- Discrimination Board, Discrimination and Religious Conviction (1984).
8. Id., para.4.48.
9. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), p.43; Law Reform Commission of Saskatchewan, Proposals for Reform of the Jury Act (1979), p.7.
10. (1969) 394 U.S. 618.
11. Id., at p.633.
12. Law Reform Commission of Manitoba, The Administration of Justice in Manitoba: Part 11: A Review of the Jury System (Report No. 19, 1975), p.24.
13. Letters from Mr. G.K. Robertson, Deputy Industrial Registrar, New South Wales, to New South Wales Law Reform Commission, dated 29 March 1984; Mr. D.L Nicholls, Sheriff, Western Australia, to New South Wales Law Reform Corn mission, dated 30 December 1983; Mr. J.W. Mulvey, Sheriff, Victoria, to New South Wales Law Reform Commission, dated 4 January 1984; and Mr. J.A. Carr, Sheriff, South Australia, to New South Wales Law Reform Commission, dated 11 January 1984.
14. Submission 8.
15. Letter from Mr. G.F. Hansom Sheriff. New South Wales, to Mr. T.W. Haines, Under Secretary of Justice, New South Wales, dated 7 February 1984.
16. Jury Act 1977, s.13(2).
17. Id., s. 15.
18. Submissions 3, 4, 6 and 9.
19. Jury Act, 1977, s.38(2).
20. Id., s. 3 8 (1) (b).
21. Id., s.38(4),(5).
22. See para.2.15.
23. Duffus v. Collins (1966) 83 W.N. (Pt.1) (N.SW.) 399, at p.402, per McClemens J.
24. (1966) 83 W.N. (Pt 1) (N.S.W.) 399.
25. Id., at p.402, per McClemens J.
26. Section 129B(11)(a).
