Report Recommends 'Mixed Juries' for Trials Involving Indigenous People

The report comes as Australians prepare to go to the polls to vote on changing their Constitution.
Report Recommends 'Mixed Juries' for Trials Involving Indigenous People
Members of the Mutitjulu Aboriginal community walk through the grounds in Mutitjulu, near Alice Springs, Australia, on July 6, 2007. (Ian Waldie/Getty Images)
Daniel Y. Teng

Researchers from the University of New South Wales have called for new laws mandating Indigenous jurors in trials involving Aboriginal Australians.

Professor Jill Hunter and researcher Sharleigh Crittenden said gender and class barriers had always existed in the jury system and their research was aimed at increasing participation from Indigenous people in the justice system.

"Indigenous political disenfranchisement caused Indigenous presence on the electoral roll (and so on the jury roll or list) to be a work-in-progress taking (and continuing to take) decades. Non-enrolment on the electoral roll is a significant factor in the absence of Indigenous," they wrote.

"Australians from jury pools, jury panels, and jury rooms. But there are also other major pressure points within jury legislation—as well as beyond it—that contribute to this diminished jury franchise," according to "Barriers to Indigenous representation on juries," published by the Australasian Institute of Judicial Administration (pdf).

Tony McAvoy, barrister of Frederick Jordan Chambers and a member of The Voice referendum working group, said the lack of Indigenous jurors was more acute during the trial of Senior Constable Zachary Rolfe and the fatal shooting of 19-year-old Kumanjayi Walker.

"That trial was conducted before a jury that did not include a single Aboriginal person. That fact attracted some media attention when the jury was sworn in and a lot more attention when a not guilty verdict was returned," he wrote in his Foreword to the report.

"For my own part, there can be no justification that permits a First Nations person in the Northern Territory to be tried before an all-white jury."

Justice Jenny Blokland of the Supreme Court of the Northern Territory said the "lack of reform" to the court system could not continue.

The Concept of Mixed Juries

The researchers drew on the concept of "jury de medietate linguae" used by Western legal jurisdictions to manage "complex tensions between minority populations and the majority."

"The jury de medietate originally entitled Jews in medieval England to special mixed juries made up half of Jews and half of Englishmen. After Jews were expelled from England in 1290, foreign merchants were granted the right to special juries comprised 'one half … of Denizens, and the other half of Aliens,'" the authors wrote.

The concept has been practiced in Ireland, North America, New Zealand, and Australia—the practice was abolished in Australia in the early 20th century.

"[Aboriginal Australians] currently remain under-represented on the electoral roll and, due to their over-representation in the criminal justice system, they are likely to be disproportionally disqualified by legislative provisions limiting eligibility for jury service for those with a criminal history," the authors wrote.

"Indigenous under-representation remains, to a significant degree, the product of systemic inequalities in the jury selection process, and without appropriate representation ... First Nations people cannot have confidence in the criminal justice system."

The report comes as Australians prepare to go to the polls to vote on changing their Constitution.

The Indigenous Voice to Parliament proposal will alter the preamble of the Constitution to recognise Aboriginal and Torres Strait Islanders and embed a near-permanent advisory body that will "make representations" to the executive and legislature.

However, opponents of The Voice have argued against placing race-based policy into the Constitution, particularly after the word "race" was removed in the 1967 referendum.

"I have argued before that, in Australia, The Voice proposal, if successful, will create a society where a person’s entitlements are determined by membership in a racial group. Several reasons support this view," wrote Emeritus Professor of Law Gabriel Moens, in The Epoch Times.

"The distribution of societal benefits and burdens on the ground of a person’s race makes a mockery of reassurances to create a society where a person’s race is irrelevant."

Daniel Y. Teng is based in Brisbane, Australia. He focuses on national affairs including federal politics, COVID-19 response, and Australia-China relations. Got a tip? Contact him at [email protected].
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