A key objective of the Act is to increase the representative nature of juries by broadening the pool of available jurors. Many categories of people who are currently ineligible or excused ‘as of right’ will soon be required to undertake jury service unless they can establish that participating in jury service will cause ‘undue hardship or serious inconvenience to the person, the person’s family or the general public’. Importantly, any claimed hardship or inconvenience may only excuse attendance in the short term. A system of deferral of jury service will be implemented and this will mean that if the excuse put forward is only temporary the person will be expected to be available for jury service at a later time (ie within the next six months).
The Act was informed by a comprehensive reference on the selection and eligibility of jurors undertaken by the Law Reform Commission of Western Australia (‘the Commission’) in 2009–2010. Many of the Commission’s recommendations were implemented by the government, including that persons aged up to 75 years should be eligible for jury service; that the categories of excuse as of right should be abolished; that a system of deferral of jury service should be introduced; and that many categories of persons should no longer be ineligible for jury service. Interestingly, the government initially rejected one recommendation of the Commission — that practising lawyers should remain ineligible for jury service. After lengthy debate in parliament and concern that lawyers may dominate jury deliberations, the government agreed with the opposition’s view that Australian legal practitioners should be ineligible for jury service.
The Commission recommended that the number of peremptory challenges available to an accused should remain at five. It was also recommended that the number available to the prosecution should be equal to the total number available to all accused in trials involving more than one accused. This was designed to minimise the potential for ‘jury stacking’ in trials involving multiple accused. However, the Attorney General, who openly stated his personal preference for a total ban on peremptory challenges, reached a compromise position by reducing the number of peremptory challenges available to each side from five to three.
Western Australia will join New South Wales and South Australia as the jurisdictions with the lowest number of peremptory challenges (the range in other jurisdictions is generally between six and eight). While the Commission warned that abolishing peremptory challenges may lead to a rise in the cumbersome and time consuming practice of challenging for cause and may also cause a loss of confidence in the jury system, only time will tell if a reduction from five to three challenges will have any detrimental impact.
VICTORIA WILLIAMS is co-author of the Law Reform Commission’s Discussion Paper (2009) and Final Report (2010) on the Selection, Eligibility and Exemption of Jurors.