[158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.

[159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:

The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.

However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.

[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

[161] Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd Lockhart J said:

The plain words of the legislation ... necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably.

[162] His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground - in that case, sex.

[163] In University of Ballarat v Bridges, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:

[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.

[164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.

[165] It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.

[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied - which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.

[167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:

[T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder.

[168] The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia.

[169] The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour.

[170] In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan."

[123] As Justice McHugh said in Waters v Public Transport Corporation "on the ground of" and "by reason of" require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of "the victim". The protected attribute, to use the language of the Queensland Act must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently "on the ground of" that matter this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then "the ground of" the act of the discriminator was the status or private life of the victim.

[124] Notwithstanding the recognition by Justice McHugh of the proposition that the court or tribunal hearing these matters is not bound by the verbal formula which the discriminator has used, there may be seen what might be thought to be an even narrower approach to the resolution of what actuated particular conduct to be found in the recent Court of Appeal decision in Dovedeen Pty Ltd & Anor v GK [2013] QCA 116.

[125] The complaint invoked the prohibition in the ADA of direct discrimination in the supply of accommodation on the basis of the attribute expressed in section 7(l) of the ADA as "(l) lawful sexual activity". The ADA defined that expression as meaning "a person's status as a lawfully employed sex worker, whether or not self-employed".

[126] This Tribunal at first instance found that the sex worker was told by a hotelier, in effect, that she would not be provided with accommodation at the Drovers Rest in future because she had engaged in prostitution whilst at the hotel in the past and the proprietors did not want her to engage in prostitution during any future stay, and that "Mr and Mrs Hartley were not refusing future accommodation to the sex worker because of her occupation as a sex worker, but rather because they did not want prostitution undertaken in their motel". The Tribunal member then applied the test expressed in section 10(1) of the ADA by comparing the treatment accorded to the sex worker with the treatment which would have been accorded to a person without the sex worker's attribute as a lawfully employed sex worker, but with the same desire to obtain a room for the purpose of prostitution.

[127] The Court of Appeal observed that after the Complainant had engaged in prostitution during her stay at the Drover's Rest, she went to the motel reception on the following day to settle her account. The hotelier told her that the next time she came to Moranbah she would have to stay somewhere else. She said that she was not going to allow prostitution in her motel. The Complainant acknowledged that she had not been refused accommodation at the Drovers Rest in her own capacity, but rather because she was "performing the work of a sex worker at the motel".

[128] The hotelier the aforementioned Mrs Hartley gave evidence that she watched men come and go from the room which had been rented to the Complainant. On one occasion the hotelier had called out to a young man who was wandering through the motel grounds; he said he was looking for that room. The hotelier said that another motel guest complained about "men coming and going" from the room being used by the Complainant.

[129] Another director of the hotelier and a licensee of its liquor licence, gave evidence that his understanding was that "legally he could not allow people to operate out of the room to, for example sell shirts, do tax returns or anything else", and that his understanding of a "business" which was not approved for conduct at the motel "might be selling shirts or working as a working girl". He gave evidence that "he understood the legal position to be that he could not discriminate against a 'working girl' as such, but that under the Liquor Act he could not allow her to use the room for her work."

[130] In the Court of Appeal, Fraser JA with whom the other members of the court agreed held;

"[20]...when the definition of "lawful sexual activity" is taken into account, the proper construction of the Act is that it prohibits discrimination on the basis that a person is a lawfully employed sex worker. Mr Hartley was right in understanding the law to be that "he could not discriminate against a 'working girl' as such". The relevant distinction is also expressed in (the sex worker's) own evidence that she had not been refused accommodation at the Drovers Rest in her own capacity, but rather because she was "performing the work of a sex worker at the motel". Discrimination on the basis that she was a lawfully employed sex worker was prohibited, but discrimination on the basis that she proposed to perform work as a sex worker at the motel was not prohibited. Contrary to the Appeal Tribunal's conclusion, the relevant prohibition did not comprehend "...the treatment of a person less favourably because he or she carries on lawful sexual activity on ... particular premises..."

[21] That analysis is required by the definition of "lawful sexual activity" as "a person's status as a lawfully employed sex worker, whether or not self-employed." The definition applies "except so far as the context or subject matter otherwise indicates or requires", but there is no such indication or requirement in the context or subject matter of the Anti-Discrimination Act 1991. It is impossible to accept that the definition of "lawful sexual activity" was not intended to apply to that term in s 7(l), given that the attributes listed in s 7 are at the heart of the operation of the Act. That this is so is also suggested by the fact that the expression "lawful sexual activity" is used in only one other provision, s 28, which makes it not unlawful to discriminate on the basis of lawful sexual activity or gender identity in a work or work-related area if the work involves the care or instruction of minors and the discrimination is reasonably necessary to protect the wellbeing of minors "having regard to all the relevant circumstances of the case, including the person's actions."[30] Consistently with the ordinary meaning of the definition, s 28(1)(b) treats activity ("the person's actions") as a relevant circumstance of the particular case, rather than as an attribute which might form the basis of prohibited discrimination.

[22] If the definition were not present in the Act, the Act could be read as prohibiting discrimination against a person in the supply of accommodation on the basis that the person has engaged in or will engage in lawful sexual activity in that accommodation. The definition precludes that approach by making it clear that the relevant prohibited basis of discrimination is only "a person's status as a lawfully employed sex worker". (Emphasis added).

[131] Later in his reasons Fraser JA said at [27] "Section 10 is akin to a deeming provision, the purpose of which is "to control the meaning and application of the other provisions of the Act...". Accordingly, the statutory definition must be applied in order to decide whether, as (the sex worker) contended, there was "[d]irect discrimination on the basis of an attribute" within the meaning of s 10(1) of the Act. In order to apply the test in s 10(1) it is necessary to identify the relevant characteristics of the comparator described in s 10(1) ("another person without the attribute"). It follows from the definition of "lawful sexual activity", that the comparator must be a person who does not have the status of a lawfully employed sex worker. The question under s 10(1) is whether (the sex worker) was treated less favourably than another person who did not have that status would have been treated "in circumstances that are the same or not materially different". Those circumstances include "all of the objective features which surround the actual or intended treatment" of the person claiming to be discriminated against.

[132] Later in his reasons Fraser JA said at [30] "I would accept the submission for the Attorney-General that the most appropriate comparator in the application of s 10(1) was a person who was not an employed sex worker who sought accommodation with a view to a series of separate sexual encounters with different people coming to and going from the person's motel room. There was no basis in the evidence for finding that Dovedeen Pty Ltd or Mrs Hartley would have provided accommodation to a person in those or similar circumstances or that they would have charged an amount for accommodation which differed from the amount that (the sex worker) was charged".

[133] One may ponder at just how many times these Moranbah hoteliers have had to consider how to deal with a circumstance where they had a potential customer who was seeking accommodation with a view to a having a series of separate sexual encounters with different people coming to and going from the person's motel room. Obviously if that sort of behaviour became common practice the Drovers' Rest Motel would be up for a name change. As a suggestion; "the Moranbah Ibiza" perhaps?

[134] And it is difficult to accept that the comparator was to be determined by reference to the number of sexual encounters expected to be engaged in. Would a less successful or less busy sex worker be in a different position conceptually to either the Complainant there, or the chosen comparator? Was it not the fact that prostitution not multiple sexual encounters, was going on which, particularly the female hotelier, objected to?

[135] That aside, it would be rare for any court or tribunal in this jurisdiction to have evidence of what precisely an alleged discriminator "would have done" if confronted with the "most appropriate comparator". Usually that would be a matter of inference, or to the extent that it involved ex post facto expressions of intent, speculation, or of questionable weight.

[136] It would appear that at the heart of the Court of Appeal's conclusion is the finding implicit in the reasons that since discrimination "on the basis that she was a lawfully employed sex worker was prohibited, but discrimination on the basis that she proposed to perform work as a sex worker at the motel was not prohibited" then because the discrimination here was not in the former category , it was not in the latter category and therefore it was not discriminatory to decide, as the Court of Appeal explained the evidence of the motelier , she was "not going to allow prostitution in her motel". So subtleties of that nature are, according to that analysis, to be recognised in identifying what the basis for the relevant conduct was.

[137] The court was not apparently referred to, or at least did not regard it as appropriate to seek to reconcile that conclusion with the terms of section 10 of the ADA which provide that "the person's motive for discriminating is irrelevant.

[138] It follows from what the High Court said in Purvis that there may be cases in which it becomes necessary to identify the appropriate comparator in the sense discussed by the court in that case. There, the comparison which was to be made was said to occur "once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different". And as the court also recognised, the purpose of the legislation was not evaded by using such characteristics as proxies for discriminating on the basic grounds covered by the legislation. Hence the comparator issue was not to be determined in a way that "enabled the characteristics of the disabled person to be attributed to the comparator". So in this case, the characteristic of the disabled person was that she was deaf, and required an Auslan interpreter to be able to "hear" the evidence, and the addresses and what others were saying in the jury room.

[139] The relevant decision here was the one made by the Deputy Registrar, not the Sheriff. And the circumstances in which she decided to do that were such that the appropriate comparator is a person who, although they do not have the particular Applicant's impairment, are unable to "effectively perform the functions of a juror". The comparator could not be a person who is able to effectively perform the functions of a juror because if they could the Deputy Registrar would not have excluded the juror.

[140] For the Respondent it was submitted that:

"the question posed by section 10(1) is whether the Deputy Registrar would have treated another person without the applicant's impairment in the same way if that other person had a "disability that makes the person incapable of effectively performing the functions of a juror". If the answer is yes, then they both would have been refused permission to perform on a jury. So the Complainant was not treated less favourably than the comparator."

[141] In my view this argument inverts the true position. In seeking a comparator one does not, as the High Court in Purvis made clear, look for another person with the same disability or an equivalent disability and see whether they too would have been treated as the Complainant here. Nor is the question answered by adding to the proposition that another disabled person who was incapable of effectively performing the functions of a juror (assuming that could be objectively determined), would also have been prevented from participating on the jury, then there was no discrimination. In that example both are incapable for reasons that involve a protected attribute.

The comparator and the effect of section 10(5) of the ADA

[142] Submissions were made for the Respondent concerning the effect of section 10(5) in the context of the claim for direct discrimination. Section 10(5) provides:

"In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant."

[143] The Applicant sought to distinguish the conclusions in Purvis and Dovedeen on the basis that here section 10(5) applied because it had been agreed that Auslan interpretation was a special facility within the terms of that section.

[144] As the submissions for the Respondent correctly identify, the fact that special services or facilities may be required is not an excuse where existence of the impairment or disability is the basis for the discriminatory conduct in that context, the precise submission put on behalf of the Respondent was that the relevant fact was that "the decision-maker believed that the Applicant met the statutory criteria for exclusion provided by section 4(3)(l) of the Jury Act".

[145] I accept that, by extrapolation, if not precisely in those terms, the Deputy Registrar was purporting to reach a conclusion as to incapacity on the basis of that Act. For the reasons I state elsewhere, she was probably doing so incorrectly as a matter of law at the time.

The Jury Act - restrictions in juries' communications

[146] It is clear here that an antecedent aspect of the reasoning of the Deputy Registrar, or at least the Sheriff who was advising her, and whose advice she accepted, was the premise that a deaf person would require an Auslan interpreter. It was because the juror was deaf that she required the interpreter. And had there been no further consideration of the matter by reference to what section 10 of the Act required, then it seems to me that it is likely that the relevant conduct would have been discriminatory, and the conduct based upon the relevant attribute. But the process of reasoning did not end there. It involved a consideration of whether the interpreter would be capable of taking an oath, and more importantly whether the interpreter would be capable of participating in the deliberative processes of the jury. It is common ground that those processes take place in private, and persons who are not members of the jury are neither entitled to participate, nor entitled to be present in the jury room. There have been occasions, depending upon the extent to which juries have been able to be influenced by having contact with or interference by non-jury members, that vitiated jury verdicts.[5]

[147] Having regard to the reasoning of the Registrar it seems to me that the appropriate comparator is another person without the Complainant's disability or impairment but who requested another person to be present in the jury room. That other person might have been an interpreter, to assist the juror in case they did not understand all that was going on there or did not have a sound grasp on the English language as thought might be appropriate, without actually falling into the category which would have excluded them from jury service on the basis that they did not read or write the English language. It seems to me to follow from the Registrar's reasoning, that if applied consistently in that situation the comparator would also have been excluded from the jury on the basis that that other person would not be permitted to accompany the juror.

[148] What this throws into sharp focus is the anomaly in these provisions in the Jury Act. Potential jurors who are deaf and require an Auslan interpreter would indeed be persons not "incapable of effectively performing the functions of a juror" at least to the extent that they could participate in the trial process and before they retire to consider their verdict. But of course if all of the other jurors selected on the jury were able to communicate in Auslan, for example, a deaf juror who also used that language would be perfectly able to communicate and participate in the deliberations without the necessity for any other person to be in the jury room. In those circumstances there could be no impediment to a juror effectively performing all the functions of a juror, and that is enabled because of the individual characteristics of his or her fellow jurors. I imagine it would be difficult to find a jury panel in which all of those sworn happen to be proficient in Auslan, however it is not an impossibility but it does demonstrate that there are circumstances in which the application of section 4(3)(l) of the Jury Act might not necessarily disqualify a juror who was deaf. Their capacity to effectively perform their functions are enabled by the skills of that person's co-jurors. In practice of course it would be impossible to ascertain whether jurors who are potentially to be selected on the panel by the parties at the commencement of the trial were ever likely to have those skills. It would therefore be all but impossible to ascertain that a person who required Auslan communication skills from co-jurors would be incapable of effectively performing the functions of a juror. If the Jury Act in fact came to be amended to facilitate the presence of interpreters in jury rooms, in my view there is unlikely to be any impediment which would exclude persons with the protected attributed from performing jury service.

[149] There are a number of provisions of the Jury Act which, together appear to recognise that ordinarily juries conduct their deliberations absent the influence of anyone outside of the jury room, once they retire to consider their verdict. Section 50 of the Jury Act, which deals with the procedure following selection of a jury, requires that they be "sworn to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury's deliberations except as allowed or required by law". This of course is what the jurors are sworn to do. But section 50 does not directly touch upon the question of whether a deaf juror could be so sworn, in circumstances in which the Auslan interpreter who would be required to assist that juror would need to disclose things that other jury members were saying within the jury room to that particular juror. On one interpretation of section 50, other jurors might potentially be in breach of their oath were they to disclose matters to an Auslan interpreter within the jury room once deliberations had commenced were that not "allowed or required by law". Section 50 does not say that no one other than jurors may be present during a jury's deliberation.

[150] Section 54 of the Jury Act is directed to restrictions on communications while the jury is kept together. This, read with section 53 is concerned with keeping the jury together, generally before they retire to consider their verdict (subject to them being allowed to go home each day and during other adjournments) and that whilst they are kept together "a person (other than a member of the jury or a reserve juror) must not communicate with any of the jurors without the Judge's leave". Of course section 54 does not provide an absolute prohibition on extended communication. There might well be circumstances in which a Judge might grant leave for an Auslan interpreter to communicate with the jurors.

[151] Section 54(4) provides however that:

"The validity of proceedings is not affected by contravention of this section but, if the contravention is discovered before the verdict is given, the Judge may discharge the jury if the Judge considers that the contravention appears likely to prejudice a fair trial".

[152] Section 70, which was also referenced in the submissions for the Respondent, seeks to preserve the confidentiality of jury deliberations. It prevents former jurors from disclosing "jury information", prohibits the publication of jury information to the public, prevents persons seeking disclosure of jury information and imposes limits on juries from disclosing jury information. Section 70(17) defines "jury information" as including information about statements made, opinions expressed or votes cast in the course of a jury's deliberations. On the face of the language which appears in section 70 it is questionable whether it would have any application to circumstances in which a Judge granted leave under section 54 of the Jury Act for an Auslan interpreter to be present in the jury room to assist another juror to understand and participate in the deliberations. The notion of "publication" of jury deliberations is not readily adapted to be applied to a situation where there is an interpreter telling the juror that is being assisted what the deliberations are whilst they are occurring. Nor does the process of interpretation by the interpreter readily fall within the language of section 70 which is concerned with seeking disclosure of jury information or disclosure of it.

[153] There is some authority in support of the view that having persons present in the jury room other than jurors might have serious consequences.[6]

[154] In Re Osman a juror had his jury summons discharged by the presiding Judge, Sir Lawrence Verney. The juror drew to His Honour's attention that he suffered from severe deafness. The juror explained that he was able to manage on a one to one basis needing to see the person speaking to him and in those circumstances he could follow what was said, but in Court it would not be possible for him without help to be sure of hearing the questions of Counsel or the answers of witnesses or the speeches of Counsel or the summing up. What he said he needed was the service of a communicator or interpreter in the equivalent to Auslan. The court recognised that although it was possible given notice to obtain those services, the court decided that it could not allow for the juror to have an interpreter retire with him to the jury room to interpret the deliberations.

[155] The conclusion was based upon an interpretation of language similar to that in section 4(3)(l) of the Jury Act here, namely the question of whether the person was incapable of effectively performing the functions of a juror. The trial Judge concluded that that was the case here because the juror could not "on account of his disability be able to follow the whole of the evidence and in those circumstances he cannot be capable of acting effectively as a juror". As a separate issue, not referable to capacity, Sir Lawrence Verney said:

"More difficult - and I think insoluble - is the problem in the jury room on retirement. In court there is a reasonable prospect of ensuring that only one person speaks at a time, although that is not always achieved. In retirement all jurors may pay contribution - or so it is hoped - and they may try to do so simultaneously. How is the juror who requires an interpreter to make an equal contribution? It would seem that this can only be achieved by the presence in the jury room of the same interpreter.

It has long been held that it is an incurable irregularity for an independent person to retire with the jury even though he may take no part in the discussion. An interpreter would be bound to take part even though not expressing any personal opinion. In Goby v Wetherill [1915] the law was made clear on an appeal from a county court. That the same considerations apply to a jury in a criminal case is established by the judgment in Reg. v McNeil [1967] given by Diplock L.J. I have been provided with a transcript. Although in each case it was held that no harm had been done on such facts as were established the verdict was not allowed to stand. Probably both these cases are binding upon the Crown Court - the latter certainly is - and they have not overturned by legislation."

[156] For the complainant here it was submitted that such a rule "may be part of the common law in England but that the decisions of the English Courts in those cases are not binding on Australian Courts and that in any event the English law appears to be changing. The example given of change was not one that related to an interpreter being present and participating in deliberations. It concerned whether a miscarriage of justice occurred when a court officer helped them use a video player.

[157] The decision of Justice Anwyl in Re A Juror (Geffrey McWinney) is referenced in the Queensland Law Reform Commission Deaf or Blind Jurors Report 114 of 2006. There, Justice Anwyl, in excusing a juror from jury service because he required an interpreter who would be a 13th person in the room, His Honour held:

"I am satisfied that on a practical basis, sensible positioning of the interpreter can minimise the distraction caused by any signing and I do not see that there are practical hurdles to there being a sign interpreter assisting a juror in court. There is nothing in the law to prevent a deaf juror from being assisted in court by a [stenographer] or Sign Interpreter ..."I ... do not find that there would be any difficulty about Mr McWhinney being able to follow, and be allowed to follow, what was going on in the Courtroom ... It is quite plain from the experience of the American Courts, where deaf people have been allowed to sit on juries and be aided by a thirteenth person in the jury room, that far from a hindrance it has been felt in many cases to be of assistance.

[158] In September 2006, the New South Wales Law Reform Commission then comprised a distinguished group of Commissioners. Collectively the Commissioners had a vast range of experience in the administration of justice. The report took some four years of research before its ultimate publication following upon terms of reference provided in March 2002.

[159] On the issue of secrecy in the jury room, the New South Wales Commission acknowledged that juries deliberate in secret, and that this was a principle of common law, supported by, in that case, provisions of the New South Wales Jury Act. It recognised that the rule was "designed to preserve the integrity of the deliberative process, shielding jury members from the influence of non-jurors, and creating an environment conducive to frank and uninhibited discussion.

[160] The Commission then discussed a number of English and US decisions regarding the effect of presence of strangers in the jury room.

[161] On the issue of the presence of interpreters, the Commission made reference to a report by Justice Auld in the English Criminal Courts Review[7]

"there is understandable caution about the prospect of such a thirteenth person in the jury room. But accredited interpreters work to agreed professional standards that should preclude any attempt to intrude on or breach the confidence of juries' deliberations".

[162] The NSW Commission rejected the suggestion that the presence of an interpreter in the jury room would influence jury deliberations directly or indirectly and this could be overcome by requiring interpreters to swear on oath and take care not to participate.

[163] The ultimate conclusion of the Commission was as follows:

"2.82 The Commission is concerned, foremost, with maintaining confidence in the administration of justice in NSW. However, it does not regard the removal of the general prohibition on deaf people serving on juries as undermining the fairness of the trial. The Commission's inquiry leads it to conclude that the practice of not allowing deaf people to serve is most likely based on unfounded assumptions about the nature of deafness and the ability of deaf people to comprehend and communicate. There is no reasonable basis for the conclusion that a person, by virtue of deafness alone, is incapable of discharging the duties of a juror. They should not therefore be subject to blanket ineligibility. Whether such a person should be ineligible for service for a particular trial should depend upon the particular circumstances of the trial, including its length and the nature of the evidence and issues involved, and the extent to which suitable adjustments can be made. For example, it would be inappropriate to have deaf jurors where the issue before the jury is voice or word identification from an intercepted communication whose sound quality is poor.

[164] It made four critical recommendations, they being as follows:

The Jury Act 1977 (NSW) should be amended to reflect the following:

(a) that people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone;

(b) that people who are blind or deaf should have the right to claim exemption from jury service;

(c) that the Court should have power to stand aside a blind or deaf person summoned for jury duty if it appears to the Court that, notwithstanding the provision of reasonable adjustments, the person is unable to discharge the duties of a juror in the circumstances of the trial for which that person is summoned. This power should be exercisable on the Court's own motion or on application by the Sheriff;

(d) that interpreters and stenographers allowed by the trial judge to assist the deaf or blind juror should swear an oath faithfully to interpret or transcribe the proceedings or jury deliberations;

(e) that interpreters or stenographers allowed by the trial judge to assist the deaf or blind juror should be permitted in the jury room during deliberations without breaching jury secrecy principles, so long as they are subject to and comply with requirements pertaining to the secrecy of jury deliberations;

(f) that offences be created, in similar terms to those arising under s 68A and 68B of the Act, in relation to the soliciting of third parties of interpreters or stenographers for the provision of information about the jury deliberations, and in relation to the disclosure of information by such interpreters or stenographers about the jury deliberations.

The Sheriff should develop guidelines for the provision of reasonable adjustments, including sign language interpreters and other aids for use by deaf or blind jurors during the trial and deliberation.

A blind or deaf person receiving a notice of inclusion on the jury roll or a jury summons should be required to complete a form either claiming exemption from jury duty or notifying the Sheriff of the reasonable adjustments required by that person to participate as a juror.

All relevant personnel, including judicial officers and court staff, should be given the opportunity to participate in professional awareness activities that focus on practical measures to facilitate the inclusion of blind or deaf persons as jurors. The Judicial Commission should develop supporting materials and procedural guidelines as part of this process."

[165] On the question of whether there was a difficulty with evaluating evidence, and particularly that of demeanour, the Commission said:

"2.39 We do not propose dealing at length with credibility and demeanour issues here as they are discussed in DP 46 and in the following chapter of this Report. It is sufficient to note, at this point, that deaf jurors would generally have no difficulty in relation to those aspects of demeanour that involves the visual presentation of the witness.

2.40 Otherwise, it may be accepted that demeanour has a bearing on the meaning of what is being communicated and, by extension, the way in which we relate to each other and make judgments. At the same time it should not be assumed that everyone relies on the same cues in order to do this. In the case of the deaf juror the precise meaning will be relayed by the interpreter, and in any event, uncertainty can be pursued in cross-examination or re-examination. So far as hesitations or verbal mannerisms can sometimes be suggestive of anxiety or dissembling, these too can be conveyed by interpretation and where appropriate explained in cross-examination." (footnotes omitted)

[166] The earlier New South Wales Law Reform Commission Report referenced described the participation of deaf persons in jury service in the United States as "an infrequent but unremarkable occurrence".

[167] In dismissing a challenge to a deaf juror who required an American Sign Language interpreter, Goodman J of the Supreme Court of the New York County in People v Guzman (1984) 125 misC.2d457 said:

"In any case when a prospective juror does not have a sufficient grasp of the English language, or is obviously biased in some way, or is, for any other statutory reason, incompetent to sit on a particular case, a challenge for cause will be granted. Thus, with respect to disability, the court must determine whether the scope of a disabled person's impairment would preclude him from serving as a reasonable juror or would adversely affect the rights of the litigants.

There is certainly no question that deaf persons are as capable as anyone else of understanding legal jargon or any other technical jargon used by expert witnesses. The deaf are found in many highly technical professions including medicine, engineering, and the law.

Defence counsel argues, in essence, that no deaf person can sit as a reasonable juror since we cannot be sure that the translation by the interpreter is accurate; and that the deaf person will lose words if more than one person speaks at a time; and that the deaf person cannot hear subtle nuances of vocal inflections which are crucial in determining the credibility of any witness; and that the sanctity of jury deliberations will be violated by the presence of the interpreter; and that the presence of the interpreter will be too disruptive to both the trial and the deliberative process and will shift the focus of the trial from the defendant to the deaf person.

Defence counsel's challenge is based on a lack of information.

The blunt constraint that no deaf person can be qualified to sit as a juror is a passé conclusion which defies and has no connection with reality or common sense. The law is a reflection of life ... It is imperative that we here recognise the crucial role which uniformed and irrational thinking has played in the perpetuation of this misapprehension about the deaf and reject such thinking. No longer can we lump all deaf persons together and discard them in a faceless silent heap, as in the past, on the assumption that they are all the same - inept and unable to fulfil this requirement of citizenship

The truth of the matter is that "they", like blacks, Jews and women, to name but a few, are not all the same and anyone who has had any contact with the deaf knows that. Truly "[i]t is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV." Today it is well known that with appropriate education, the deaf can learn and do anything a hearing person can.

We, as members of a community which profoundly affects the lives of our fellow citizens, must always keep our minds open and alive to new information lest we fall victim once again to the same kind of static prejudiced thinking which has plagued our populace throughout the years with regard to such issues as race, gender and age. Thought in legal community, and therefore in the law itself, changes slowly and ponderously, but change it does and must if it is to continue to have raison detre. It is now time to reappraise our previously held ideas on the individual abilities of the deaf. Both information and experience have shown this court that those ideas are in fact outdated and thus no longer applicable.

[168] As the Complainant here has properly submitted, the process of excusing jurors before they are even empanelled, and before an application has been made to the court pursuant to section 54(4) of the Jury Act to permit an interpreter to be present during deliberations means that jurors who are deaf are excluded when they may be capable of effectively performing their functions if the judicial discretion is exercised in their favour in that regard.

[169] It seems to me to be unnecessary to decide what precisely the effect of these provisions is. That is because there is no serious challenge to the process of reasoning which the Sheriff and Deputy Registrar adopted in this case. I accept that they adopted the reasoning that they each described and I find that it was based upon their interpretation of what was permissible at law, albeit that this required as an element, an appreciation of the fact that the Complainant was deaf and required an Auslan interpreter to be present in the jury room.

[170] Section 106 of the Act authorises an act that is necessary to comply with or is specifically authorised by an existing provision of another statute. Existing provisions are those which were in existence at the commencement of section 106. That section commenced in 1992. Sections 54 and 70 of the Jury Act post date the ADA. Therefore section 106 would not provide a basis for the conduct of the Deputy Registrar were that conduct in fact engaged in on the basis of the Complainant's attribute, whether that be her deaf characteristic that she had as a result of being deaf, namely that Auslan was her primary means of communication. But neither of those characteristics was in truth the basis for the Deputy Registrar's conduct in this case. I accept the submission made on behalf the Complainant that there was nothing in the Jury Act per se which provides a complete prohibition upon there being any person in the jury room other than jurors during their deliberations. Nor is there any conclusive statutory result that would flow were such a person permitted. It is true that were another person present whose presence might lead to a miscarriage of justice might result in the verdict being vitiated, however, it is not immediately obvious why the presence per se of an interpreter who did nothing more than interpret, and did not for example personally participate in the deliberations, would mean that a verdict would be vitiated.

[171] The basis for the decision here was not the relevant attribute in the sense contemplated by section 10 of the Act. The claim therefore based upon direct discrimination must fail.

[172] Section 11 of the Act provides as follows:

(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term -

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example -

(a) the consequences of failure to comply with the term; and

(c) the financial circumstances of the person who imposes, or proposes to impose, the term.

(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

term includes condition, requirement or practice, whether or not written.

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress."

[173] As has been often recognised in this context, it is important that the term which it is alleged was imposed be formulated with some precision; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989-1990) 168 CLR 165 at 185.

[174] The "term" or condition relied upon here by the Complainant is the "condition of being able to communicate by conventional speech in the jury room".

[175] This condition or requirement as it came to be ultimately articulated, was nuanced from the proposition advanced in the course of the Complainant's opening that the condition was that she "be able to communicate with others by a conventional speech". The refocus upon the capacity to communicate in the jury room reflects the reality that the decision made by the Deputy Registrar here was in part, if not entirely unrelated, to the Complainant's capacity to participate in the trial up until the moment when the jury retired.

[176] The submission then moves to an argument to the effect that this was a term which a higher proportion of persons who are able to hear was able to comply with, and that it was not reasonable. As section 11 of the ADA makes clear indirect discrimination must also be on the basis of an attribute, but in this context it is deemed to be on the basis of an attribute if there was a term imposed with which a person, in this case with the attribute of deafness and consequential inability to communicate by conventional speech is not able to comply, and with which a higher proportion of people without the attribute comply or are able to comply. In those circumstances the requirement creates a discriminatory effect and it is not necessary that the person imposing or proposing to impose the term is aware of the indirect discrimination. Hence, those aspects which require a causal connection or identification of what is actuating the alleged discriminatory conduct is not a consideration in this context.

[177] The difficulty with the argument put for the Complainant is in fact at no stage did the Deputy Registrar impose as a condition of her remaining on the jury panel, that she be able to communicate by conventional speech in the jury room. It may well have been that had the Complainant been able to assure the Deputy Registrar that she could communicate by conventional speech in the jury room, and did not require an Auslan interpreter to be present then she would not have had any reason to exclude her from jury service. It is true that in excluding persons from jury service who were required to have an Auslan interpreter present in the jury room, and to the extent that persons without the attribute of deafness were able to comply might have had a discriminatory effect. But here it was not the fact that the person to attend in the jury room was an interpreter but rather the mere fact that that person would be required to be present in the room was the relevant factor. The solicitor for the Complainant did not seek to develop the argument as to how it was that the term or condition relied upon here was in fact imposed. For example it is not suggested that the Registrar informed the Complainant that if she were to be on the jury she would have to be able to communicate by conventional speech whilst in the jury room. And that is the precise formulation of the term which it is alleged was imposed here.

[178] Most of the submissions put forward in this context on behalf of the Complainant went to the question of whether the term which it is said was imposed was not reasonable. For the Complainant it was submitted that the term was not reasonable on various bases set out in paragraph 51 of the written opening statement. The points made in the Applicant' written outline go rather to the question of whether it would be reasonable to permit a person who required an Auslan interpreter to participate in juries, and for necessary resources and perhaps even amendment to the Jury Act be carried out to permit that to occur.

[179] The question of whether the conduct of the Registrar here, with the assistance of the Sheriff's advice, involved the imposition of a term or condition which was not reasonable has troubled me greatly and arriving at a clear conclusion has not been without its difficulties. That is because, in the case of the Registrar, her decision was really based upon acceptance at face value of what the Sheriff had told her was the legal position, no doubt given considerable weight by the statement of the Judge to the effect that her participation as a juror would not occur. Although Deputy Registrar Britton dealt with the Complainant in a civil and sympathetic way, she did very little to ascertain whether in fact there were alternative ways in which the matter could be dealt with without excluding the complainant from the jury panel.

[180] The result may well have been inevitably that a Judge, with ultimate power to control who would or would not be allowed on a jury panel, would have exercised that discretion to exclude the Complainant on the basis that the presence of an Auslan interpreter would lead to a mistrial. At the time Ms Britton was also unable to actually procure the services of an Auslan interpreter although by the time several days had passed from the commencement of the sittings, it may well have been that one could have been obtained but for the fact that the Complainant was going to be excluded from the panel for other reasons. It is hardly surprising that a court officer would seek to give effect to the expressed views the Judge who would be conducting the trial be given due weight and also to ensure that she applied the law, including that which had been summarised for her by the Sheriff.

[181] Had she had an opportunity for proper reflection, she may well have been able to conclude that there was an alternative to the exclusion of the Complainant from the jury panel. That does not of course mean that the Complainant would have been selected as a juror, and sworn as a juror even had the Judge given leave for an Auslan interpreter to be present in the jury room.

[182] But as the Queensland Law Reform Commission Report recognises, persons with disabilities ought not, except for good reason be excluded from participation in that service. Knee jerk reactions to circumstances where jurors with disabilities seek to exercise their right to participate by excluding them, when they might well be accommodated is prima facie not a reasonable reaction.

[183] Because of the generality of the questions which jurors were sent the Complainant was quite properly entitled to take the view that she was not a person incapable of effectively performing her functions, even though ultimately others might take the view, as the Respondent has here, that that cannot be met if the juror is required to have someone else in attendance in the jury room. But the juror questionnaire did not ask such a question. Had it done so the Registrar may have been in a better position to make an informed decision, in good time as to whether there were circumstances in which a Complainant could remain on the jury panel. There is nothing in the terms of section 18 of the Jury Act, which requires a questionnaire to be sent to prospective jurors which requires it to adopt the precise language of section 4 as to those who are eligible and the powers of the Sheriff (in this case) delegated to the Deputy Registrar to exclude names appears only to arise in the context of keeping the jury roll for a jury district;

[184] Section 10(2) which requires the Sheriff to exclude from the roll the names of persons who are to the Sheriff's knowledge, not qualified for jury service, otherwise than under section 19 on an application by a juror to be excused. Otherwise section 20 permits a Judge to exercise the power to excuse from jury service on the Judge's own initiative. So in this case the power purportedly being exercised by the Deputy Registrar, according to the submissions for the Respondent is that in section 24 of the Act. That however is a power to revise the list by exclusion of persons who "in the Sheriff's opinion" is not qualified for jury service and in that context section 24(3) requires the Sheriff to make reasonable enquiries to find out whether the name of a person on the list of prospective jurors should be excluded because the person is not qualified for jury service. So the Act itself requires a level of enquiry and requires the conclusion to be reached that the juror is not qualified for jury service. Not merely that it is perhaps undesirable or that it might have an unpredictable effect, or that it might be inconvenient or difficult to accommodate a particular juror.

[185] For the Respondent it is contended that no term was imposed of the kind that the Applicant contends for. But if that submission is rejected, it contends that the imposition of the term was reasonable because:

1. It was necessary to impose it to comply with the Jury Act.

2. It repeats various of the submissions I have already mentioned about what it contends to be the construction of that Act.

[186] In this context, it does not limit itself to the contention that there may not be an interpreter in the jury room. The submission extends to arguments that:

1. A term is reasonable in the circumstances if it is necessary to comply with the requirement of an Act of Parliament;

2. This juror could not perform jury service because she could not effectively perform the functions of a juror, and that is because the Applicant required an Auslan interpreter; and

3. That the functions of a juror required her to listen to the evidence, draw inferences from it given orally in open court and assess witness credibility based upon a juror's impression based on demeanour.

[187] I have already rejected the proposition that what the Deputy Registrar did was necessary to comply with the terms of the Jury Act. What she did may have been justifiable on one reading of those legislative provisions, however, there was certainly no legal necessity associated with what she did. There is certainly room for doubt as to what the language of section 4(3)(l) is concerned with. It does not seem to me to be open to conclude that its reference to persons with a physical or mental disability means that every person with a disability who may require assistance to perform their duty and cannot do so otherwise, is ipso facto incapable of effectively performing the functions of a juror. It is highly questionable whether incapacity can involve secondary considerations which are not caused by the physical or mental disability itself, but caused by the necessity for example for something else to occur which may or may not be permissible by statute, e.g. to allow for the presence of a non-juror during jury deliberations. I have already rejected, for reasons set out elsewhere, the proposition that jurors to perform their functions it is necessary that they be capable of listening to the evidence given orally in open court.

[188] I have mentioned that a deaf juror would not "hear" any evidence but rather observe an interpreter translate using Auslan the sign language of a witness. Credibility based upon physical demeanour is of course still possible, and one aspect, albeit of relatively little import is the tone in which the witness gives their evidence. But of course the High Court has now cast doubt upon the reliability of credit findings based upon demeanour[8].

[189] Because I have found that there was no term or condition imposed of the kind which is relied upon, it is not strictly necessary to decide the question of whether, had such a term been imposed it would have been reasonable.

[190] Had I concluded that the term or condition to which the Complainant contends was in fact imposed, I would not have accepted that the imposition of that term by the Deputy Registrar was reasonable in the circumstances of this case.

[191] There were limited consequences of the failure to comply. The ultimate discretion remained in the Judge, and there was power in the court to have allowed an Auslan interpreter into the room with the jurors. I think it unlikely that this being the first time that a deaf juror would ever have been permitted on a jury in Australia that a Judge would have taken the risk associated with that leading to a miscarriage of justice. And of course the Complainant may not have been selected on any jury in any event. There is no suggestion that there was a significant cost associated with accommodating the Complainant's needs and of permitting her to remain on the jury panel available for selection. Hence to use some of the examples of matters which are to be considered in determining whether a term is reasonable in section 11(2) of the ADA, those considerations tend to demonstrate that the conduct was not reasonable.

[192] There is no doubt that the Deputy Registrar was well motivated in her decision and was not seeking to be discriminatory either directly or indirectly. But as section 11(3) makes clear, her awareness of the nature of the indirect discrimination is irrelevant. In substance the only basis put forward for the Respondent as demonstrating reasonableness misstates the legal effect of the Jury Act and wrongly bounds it argument upon the proposition that it was necessary to exclude the Complainant from the jury panel to comply with that Act.

Implied repeal of the ADA by the Jury Act

[193] The Respondent contends what amounts to a rather abbreviated submission on the point that the removal of the Complainant from the jury panel was not unlawful discrimination, but that if it was, there was an implied repeal of the ADA "to the limited extent of the inconsistency between the two Acts". The submission does not condescend to an analysis of the extent of such an inconsistency. The submission concedes that to determine whether the Jury Act impliedly repeals the ADA, it is necessary to consider whether the competing provisions have "sensible and concurrent operation"[9]. It is also conceded that if they can have a concurrent operation, there is no implied repeal of the ADA. But if the Jury Act requires what would otherwise be unlawful discrimination under the ADA, then the Jury Act must impliedly repeal the ADA.

[194] The real question is not whether the Jury Act impliedly repeals the ADA, it is whether the power purportedly being exercised by the Deputy Registrar amounted to a specific power, conferred in a later enactment dealing with persons with a protected attribute, excluded the operation of the general provisions of the ADA.

[195] The applicable maxim is expressum facit cessare tacitum. That was applied in the Court of Appeal in Attrill, it in turn applying Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power".

[196] In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, [2006] HCA 50 referred to above, Gummow and Hayne JJ provided some clarification of the principle:

"Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power", or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power". (Citations omitted.)

[197] In Goodwin v Phillips (1908)7CLR1 at 7, Griffiths CJ identified the general rule, "that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act".

[198] In Attrill the Court of Appeal posed the question thus at [29];

"To determine whether Pt 7 has effected an implied repeal or exclusion of s 15, it is necessary to consider whether, in fact, the provisions "are capable of a sensible concurrent operation". If the conclusion were that application of the Anti-Discrimination Act provisions meant that the chief executive could not lawfully exercise his powers under Pt 7, the appellant's case for repeal or exclusion would be made out."

[199] In supplementary submissions delivered some months after the trial, the Respondent sought to develop this argument by reference to what it contended was the basis of the exercise of the power here by the Deputy Registrar, namely sections 24 or 36, insofar as they applied section 4(3)(l) of the Jury Act.

[200] To the extent that jurors or potential jurors were not otherwise disqualified from service are disqualified from service because they have physical or mental disabilities that make them incapable of effectively performing the functions of a juror, then demonstrably both the provisions of the Jury Act itself, and its supplementary provisions which allow for a Sheriff to exercise powers to give effect to section 4 impliedly repeal the provisions of the ADA which would deem the exclusion of persons from participation on the basis of protected attributes as unlawfully discriminatory.

[201] But I have already found that the power being exercised in this case was not being exercised pursuant to either section 24 or 36 because the times for which those provisions were to be applied by the Registrar had already passed. Furthermore, and I do not intend to repeat the conclusions I have already reached as to the proper construction of the Jury Act. Those provisions require or at least assumes that the objective conclusion is open that the relevant person is incapable of effectively performing the functions of a juror. Reasonable minds may differ upon this, but in my view the language of section 4(3)(l) is not concerned with secondary aspects of disability which mean for example the requirement for the presence of a translator might offend some legislative provision. Even if I am wrong about that construction of section 4(3)(l) it does not follow that a person is incapable of performing the functions of a juror merely because they require a translator to be present because of the remnant discretion in the court to allow that to occur. Hence, in my view it is quite wrong to suggest, as does the Respondent, that in the circumstances of this case the powers being exercised by the Deputy Registrar under delegation were incapable of being applied in a way which applied for a sensible concurrent operation with the provisions of the ADA. I pause to mention again that this is not a case in which the Deputy Registrar formed the view that the Complainant had a physical or mental disability that of itself made her incapable of performing the functions of a juror. Indeed in a number of places in their final written submissions, Counsel for the Respondents expressly repudiated any suggestion that that conclusion had been reached, or was a relevant consideration except to the extent that that incapacity related to the necessity for a translator to be present in the jury room.

[202] If I am wrong in my interpretation of section 4(3)(l) and an incapacity in that context can include the likes of the necessity to include a translator, then to the extent that the inclusion of a translator is impermissible at law under the Jury Act then there is a direct inconsistency and the Jury Act will prevail. For the reasons I have already mentioned however, it does not seem to me that it necessarily follows that under the Jury Act the inclusion of a translator in the jury room to assist a juror in deliberations is absolutely prohibited.

[203] As Justice Holmes recognised in Attrill[10] a construction which gives to arguably conflicting Acts, their affect is to be preferred. The provisions of both Acts can indeed work effectively in respect of the exercise by non-judicial officers of powers under the Jury Act to decide who shall remain on a panel for potential jury selection. They do not, contrary to the submissions made on behalf of the State, leave the Applicant aggrieved by a decision to the effect that they are not capable of performing jury service with the only remedy namely that by way of judicial review rather than under the ADA.

[204] For the reasons I have already provided, I intend to dismiss the complaints of both direct and indirect discrimination. Whether or not a finding had been made of direct, or indirect discrimination, the relief that ought to have been granted would have been the same in either case.

[205] For the Applicant it is submitted that orders ought be made:

1. requiring the Respondent not to commit a further contravention of the Act by refusing to permit her to participate in jury selection process and perform jury duty. However I would be disinclined to make such an order since it is anticipatory of an event which is yet to occur and hardly necessary. If indeed the refusal to permit her to participate in jury selection process is unlawful under the Act, then the operation of the Act itself is sufficient to provide the relevant relief.

2. The second order is for the Respondent to make a private apology to her for the discriminatory conduct. I do not consider this to be a case where the Respondent's conduct lacked sensitivity or showed any malafides or caused any intentional hurt or humiliation. I do not regard this as an appropriate case for an apology.

[206] Finally, it is submitted that the Respondent ought be ordered to pay the Complainant compensation in the amount of $20,000.00. These claims were set out in material filed as part of the Complainant's opening statement. Her final address did not deal with the question of compensation although in written submissions filed on or about 29 October 2013, further submissions were made which addressed this issue.

[207] For the Complainant it was contended that she was embarrassed, hurt, humiliated and distressed by the way she was treated by the Sheriff. Presumably that is intended also to refer to the Deputy Registrar's conduct. It was submitted that the conduct was a serious assault upon her dignity and sense of equality and that it has been implied that she is incompetent to perform jury duty because of stereotypical views about the effects of her impairment. No reference was made to any comparable authority on the measure of compensation which might be made in a case such as this. I accept that the Complainant was humiliated and frustrated by the way she was treated, and her reaction to it may readily be seen from the content of the emails she wrote to the court about that time. It is indeed an important part of the civic duties of all members of the community that they be permitted to engage in important community functions, including participation in the jury. The importance of this has been recognised by the Law Reform Commission, whose comments on this issue are mentioned earlier in these reasons.

[208] For the State it is contended that the appropriate range for compensation is in the range of $5,000.00 to $10,000.00. Reference has been made to the decisions of Irvine and Portus v Mermaid Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482 and Carey v Cairns Regional Council [2011] QCAT 26. In the former case an award of $15,000.00 for damages was made in circumstances in which a Complainant was subjected to sexual harassment and discrimination by termination of her employment on the grounds of pregnancy. There was a significant level of depression and other medical indicia which justified an award of $15,000.00. The decision in Carey involved an employee who suffered considerable distress, depression, hopelessness and loss of self esteem as a result of an unlawful dismissal.

[209] I have no doubt that the Complainant believed herself wronged, and felt she was treated as incompetent simply because she was deaf. This no doubt would have caused her distress and frustration. She did strike me as an intelligent, and perhaps quite robust person who was capable of expressing herself and acting reasonably in response to what had happened to her. She did not strike me as a person who would unreasonably allow herself to suffer in the false belief that she had been treated as incompetent because she was deaf, when the true position was explained to her at an early stage following her complaint.

[210] In the circumstances, had I upheld the claim in my view a reasonable allowance to compensate her for the effects of the conduct in question would be the sum of $10,000.00. I would have allowed interest upon that sum at the rate of 4% per annum for a period of 1.5 years.

[211] The formal order that I make is to dismiss the complaints.

[1] See Anti-Discrimination Act 1991 (Qld) section 204; O'Callaghan v Loder (1994) EOC 92-024 at 75,511; Qantas Airways Ltd v Gama (2008) 167 FRC 537 at [132].

[2] Wentworth v Wentworth [2000] NSWCA 350.

[3] See also Nudd v R [2006] HCA 9; (2006) 225 ALR 161 at 162, Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170 at 180, R v Miller (2007) 177A CHRIM R328 at par 45 and 48, Cesan v R (2008) 236 CLR 358.

[4] [1989] HCA 56; (1989-1990) 168 CLR 165 at 176-7.

[5] See R v Simeon Szypusz and David Anthony Gaynor [2006] EWCA Crim 1552 and Re Osman [1995] 1 WLR 1327

[6] See Re Osman [1995] 1 WLR 1327; R v A Juror (Jeffrey McWinney) an unreported decision of the Woolwich Crown Court U19990078, 9 November 1999; Simeon Szypus and David Anthony Gaynor [2006] EWCA CRIM 1552.

[7] Re Auld review of the Criminal Courts of England and Wales; report (the Chancellor's department, London 2001 at 153

[8] Eg CSR Ltd v Della Maddalena [2006] HCA 1 at [46].

[9] State of Queensland v Attrill & Anor [2012] QCA 229 at [36].