Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill - Submission to the Law and Order Select Committee [2011] NZHRCSub 9 (26 May 2011)

Last Updated: 28 June 2015

Submission by the

_{Human Rights Commission}

_{Juries (Jury Service and Protection}

of Particulars of Jury List

_{Information) Amendment Bill}

_{To the Law and Order Committee}

26 May 2011

Contact person: Sylvia Bell
Principal Legal and Policy Analyst
_{Phone [phone]}

1. INTRODUCTION

1.1 This submission is made by the Human Rights Commission. The Commission is an independent Crown Entity with responsibility for administering the Human Rights Act

1993 (HRA). One of its primary functions is to advocate and promote respect for

human rights in New Zealand society.

1.2 The Commission also administers a disputes resolution process that deals with complaints about discrimination on a number of grounds, including age.

1.3 The Bill proposes a number of changes to improve the administration of the jury system and maintain jurors’ privacy, safety and security. The Commission supports measures to protect jurors’ privacy and security. However, we have some concerns about the intention to allow permanent excusal of people over the age of 65 from jury service and believe that this amendment is unnecessary and that the status quo should prevail.

1.4 The Commission considers that the proposed amendment has the effect of perpetuating stereotypical ideas about older people’s ability to contribute constructively to society and, given changing demographic profiles, has the possibility of impacting on the right to trial by one’s peers.

2. HUMAN RIGHTS APPROACH

2.1 In dealing with proposed legislation the Commission adopts a human rights approach, which is designed to promote the development of robust, non- discriminatory legislation and policy that is consistent with international standards. In this context we note that Article 25 of the International Covenant on Civil and Political Rights, for example, specifically refers to the right of everyone to have access on general terms of equality to public service.

2.2 A human rights approach also emphasises the importance of participation and non- discrimination. While we recognise that at present people over 65 already have the right to opt out of jury service, the right to do so (which is strengthened in the Bill) appears to be based on the assumption that people over 65 are somehow less capable and more subject to stress¹ than those who are younger. This runs counter to other government policy affirming and encouraging wider societal and public participation by older people and to human rights standards that prohibit discrimination on the grounds of age.

2.3 We note that the Attorney-General’s advice on compliance under s.7 of the New Zealand Bill of Rights Act 1990 accepts that the Bill raises a possible issue of discrimination on the grounds of age in terms of s.19 but goes on to argue that it does not amount to prima facie discrimination because it does not perpetuate historical disadvantage or prejudice nor is it based on a stereotype of older persons, “but corresponds with their actual situation.” The Commission believes this argument is fundamentally flawed. First, older people have frequently been disadvantaged historically by being excluded from civic duties on the assumption that they are incompetent – an obvious example being the fact that before 2000 they were not able to serve on juries in New Zealand when they turned 65. Second, the notion that people over the age of 65 are somehow less capable of carrying out a public role is based precisely on stereotypical assumptions and, therefore, discriminatory against older people.

¹ Explanatory note, Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill at 1

2.4 The reason given by the Attorney-General for people over 65 being able to seek to be permanently excused is that “it recognises the contribution made by individuals in performing their civic duties before reaching that age.”² While it may not have been intended, this statement is inherently paternalistic and will offend many older people who continue to perform their civic duties well beyond an arbitrary 65 years. The reasoning is also not reflected in the cabinet paper that preceded the Bill’s introduction.

2.5 The reasons for introducing the right to grant permanent excusals identified in the cabinet paper include the fact that the age of 65 is consistent with the current age of superannuation³ and that the Minister and Ministry received regular complaints from members of the public who were periodically summoned for jury service despite previous excusals because of their age, chronic health problems or other disabilities. In other words, a significant reason for making the right to be excused permanently appears to be primarily a matter of administrative expediency.

2.6 The Commission, of course, supports the rights of those older New Zealanders whose mobility or health issues would prevent them from undertaking jury service just as we would strongly affirm the rights of those older people who are able to, and want to, serve on a jury.

2.7 As noted already, before an amendment to the Juries Act in 2000, people over 65 were not able to serve on juries at all. This was changed because it was considered to be discriminatory. The Commission cannot see how the proposed amendment would be any less discriminatory.

2.8 We do not consider that the discrimination can be justified in terms of s.5 of the BORA. Given the apparent reasons for the proposed change we are unable to see them as sufficiently important to curtail the right to be free from age–related discrimination nor do we see what is proposed as impairing the right more than reasonably necessary or in due proportion to its objectives.

2.9 The Commission therefore suggests maintaining the status quo which affirms the autonomy of older New Zealanders in their decision-making about their availability for jury service and not making the proposed amendment or at least consulting more widely on the issue with civil society groups including Age Concern and Grey Power.

3 CHANGING POPULATION DEMOGRAPHIC

3.1 New Zealand is undergoing major demographic, economic and social changes with the number of New Zealanders turning 65 in the 12 month period from June 2011 to June 2012 expected to be 18 per cent higher than in the previous 12 month period. The increasing numbers of older New Zealanders staying on at work include members of the judiciary in New Zealand whose retirement age has been progressively increased by statute to the age of 70 years.

3.2 People over the age of 65 are playing an ever increasing role in society. They are in better health and better educated than they have ever been. Approximately 17.8 per cent of those over the age of 65 are in the workforce. Statistics New Zealand

² Crown Law, Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment

_{Bill: Consistency with the New Zealand Bill of Rights Act 1990 at para 5}

³ This also raises the issue of what will happen if the age of entitlement for superannuation is raised sometime in the future. Will the age of excusal be raised to comply as well?

estimate that by 2031, the number of New Zealanders aged 65 and over is expected to exceed one million, almost double the current number.

3.3 Acknowledging these changing demographics, the Government has progressively taken steps to better recognise and accommodate those over the age of 65. Most recently the Ministry of Social Development introduced “The Business of Ageing” proposals for Cabinet which are designed to attract older workers to stay in work.

3.4 There are good arguments for ensuring that people over 65 are available for jury service. Not only does it ensure that a jury consists of a representative sample of the community but older people bring a wealth of life experience to the role.

3.5 Extending the Registrar’s power to grant permanent excusal solely because a person is aged 65 or over, appears to us to be a step backwards and at odds with the progressive measures advanced by the Government over recent years to eliminate ageism, stereotypes and to promote participation (Positive Ageing Strategy, Goals 8,

9, and 10).

4 RECOMMENDATION

4.1 The Commission strongly recommends maintaining the status quo which affirms the autonomy of older New Zealanders in their decision-making about their availability for jury service.

4.2 If the proposed amendment is to proceed, then the Commission recommends wider consultation with civil society including Grey Power and Age Concern.

The Commission would appreciate the opportunity to appear before the Law and Order

Committee to speak to this submission.