If you’re waiting for sensible analysis from law societies and bar associations about recent suggestions that Indigenous defendants should be heard by a jury that includes some – and possibly half – Indigenous members, take a seat in a very crowded waiting room.
Or read on, and we’ll do it. In a speech late last month former Queensland Supreme Court judge Roslyn Atkinson echoed findings of a 2023 report by the Australasian Institute of Judicial Administration to overhaul who sits on juries.
It’s sensible to encourage more Indigenous people to sit on juries. In fact, we ought to find better ways to encourage all Australians to do so, because currently it’s easier to find someone who has escaped jury duty than someone who has taken on that onerous civic responsibility, often at great cost to themselves.
What’s not sensible is Atkinson’s implied endorsement of AIJA’s suggestion that jury selection be altered to “affirmatively include First Nations jurors”. AIJA researchers focus on a model called “juries de meditate linguae” – where a minority defendant is granted the right to be tried by a jury comprising half of people from that same minority. The report notes that this model originally entitled Jews in medieval England to special mixed juries, made up of half Jews and half Gentiles.
Indigenous Leader Warren Mundine says he feels “sorry” for academics in universities that think about “critical race theory” and “victimhood”. “I’m looking forward to the day that they will give me reparation and money just for being an aboriginal person,” Mr Mundine told Sky News host Cory Bernardi. “I can’t wait for that to happen.”
While justice in the United Kingdom has progressed from this Middle Ages model of special rights for certain minorities, these legal researchers under the auspices of senior Australian judges want to go backwards.
They draw comparisons with how women were once excluded from juries, so why not advance the jury system some more by including Indigenous people? Hold on a second while I find my trucker’s licence to drive through the hole in this argument.
It was, of course, wrong to deny women – and Indigenous people – the right to be jurors. But we don’t currently exclude Indigenous people from sitting on juries. Moreover, there is a fundamental difference between, on the one hand, encouraging universal participation on juries and, on the other hand, mandating quotas for one group, in this case Indigenous people.
The suggestion that justice won’t be done, or be seen to be done, for an Indigenous defendant unless a jury includes some (unspecified) number of Indigenous jurors is impractical and offensive.
Impractical because it may be hard or even impossible to ensure the right number of people with the right racial characteristics are available for every single trial at every single venue, or even most of them.
Offensive because it suggests that a jury without the correct racial makeup won’t make the right decision. In other words, the real gripe with the current model is with the decisions by current juries.
If AIJA has the imprimatur of the nation’s judges, we should be very concerned. The output from this body reads like a Greens manifesto. Last year AIJA proposed juryless trials for sex offences – presumably to increase convictions. Its suggestion that we mandate Indigenous jury members for Indigenous defendants appears to come from a place of wanting fewer convictions.
happierinverted on
This, ladies and gentlemen, is how you undermine the basic principles of justice being blind and equal rights for all under the law.
It is unAustralian and antidemocratic.
It is worrying that our Judges and most powerful legal minds could even contemplate this.
eholeing on
“AIJA researchers focus on a model called “juries de meditate linguae” – where a minority defendant is granted the right to be tried by a jury comprising half of people from that same minority.“
To even use the word ‘minority’ you have to already have presupposed 2 things.
You must conclude that there is something different about people, enough to differentiate between the two to justify mold the makeup of juries to fit a certain way. This might be called ‘race realism’.
You also have to consider that this is only an issue for the ‘majority’ population, and not for so called ‘minorities’. If you’re trying to get a ‘fair’ or ‘correct’ ruling, you’d correspondingly have to take into account that ‘minorities’ also have this ‘race realist’ problem.
Given that Roslyn Atkinson wouldn’t take this position, it seems like she’s made the assumption that the outcomes produced by the juries are ‘wrong’ in some manner. Fortunately for us, that’s not on her to decide, atleast for now…
No-Cauliflower8890 on
this is an interesting proposal. i usually find such things racist and oppose them greatly, but there are a few considerations to weigh here.
we do want a “jury of our peers” for a reason, and reducing racial bias in our judicial system is always a good thing. however, this does also raise problems. you’d have to do this for everyone: men get 50% men, gay people get 50% gays, arabs get 50% arabs, etc. this would get complicated very quickly, considering every individual has multiple racial/gender/sexual/ethnic identities that would need to be considered. you also may get the opposite effect, where juries become too lenient as they’re dealing with their “own people”.
could be tweaked into something I might support.
MindlessOptimist on
Also an insult to intelligence. A presupposition that the view of a jury is entirely mediated through a cultural lens. Have been on a jury – this was not the case, although clearly one can’t generalise from an individual example
perseustree on
Lol of course it’s the Australian, the experts on everything. Throw in a few buzzwords about CRT and you’re golden!
This isn’t really that different to the current arrangement, where prosecution and defense have the opportunity to object to certain jurors to try and obtain a diversity of views. Probably a pretty good idea to ensure that you’re being judged by someone who is actually your peer.
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If you’re waiting for sensible analysis from law societies and bar associations about recent suggestions that Indigenous defendants should be heard by a jury that includes some – and possibly half – Indigenous members, take a seat in a very crowded waiting room.
Or read on, and we’ll do it. In a speech late last month former Queensland Supreme Court judge Roslyn Atkinson echoed findings of a 2023 report by the Australasian Institute of Judicial Administration to overhaul who sits on juries.
It’s sensible to encourage more Indigenous people to sit on juries. In fact, we ought to find better ways to encourage all Australians to do so, because currently it’s easier to find someone who has escaped jury duty than someone who has taken on that onerous civic responsibility, often at great cost to themselves.
What’s not sensible is Atkinson’s implied endorsement of AIJA’s suggestion that jury selection be altered to “affirmatively include First Nations jurors”. AIJA researchers focus on a model called “juries de meditate linguae” – where a minority defendant is granted the right to be tried by a jury comprising half of people from that same minority. The report notes that this model originally entitled Jews in medieval England to special mixed juries, made up of half Jews and half Gentiles.
Indigenous Leader Warren Mundine says he feels “sorry” for academics in universities that think about “critical race theory” and “victimhood”. “I’m looking forward to the day that they will give me reparation and money just for being an aboriginal person,” Mr Mundine told Sky News host Cory Bernardi. “I can’t wait for that to happen.”
While justice in the United Kingdom has progressed from this Middle Ages model of special rights for certain minorities, these legal researchers under the auspices of senior Australian judges want to go backwards.
They draw comparisons with how women were once excluded from juries, so why not advance the jury system some more by including Indigenous people? Hold on a second while I find my trucker’s licence to drive through the hole in this argument.
It was, of course, wrong to deny women – and Indigenous people – the right to be jurors. But we don’t currently exclude Indigenous people from sitting on juries. Moreover, there is a fundamental difference between, on the one hand, encouraging universal participation on juries and, on the other hand, mandating quotas for one group, in this case Indigenous people.
The suggestion that justice won’t be done, or be seen to be done, for an Indigenous defendant unless a jury includes some (unspecified) number of Indigenous jurors is impractical and offensive.
Impractical because it may be hard or even impossible to ensure the right number of people with the right racial characteristics are available for every single trial at every single venue, or even most of them.
Offensive because it suggests that a jury without the correct racial makeup won’t make the right decision. In other words, the real gripe with the current model is with the decisions by current juries.
If AIJA has the imprimatur of the nation’s judges, we should be very concerned. The output from this body reads like a Greens manifesto. Last year AIJA proposed juryless trials for sex offences – presumably to increase convictions. Its suggestion that we mandate Indigenous jury members for Indigenous defendants appears to come from a place of wanting fewer convictions.
This, ladies and gentlemen, is how you undermine the basic principles of justice being blind and equal rights for all under the law.
It is unAustralian and antidemocratic.
It is worrying that our Judges and most powerful legal minds could even contemplate this.
“AIJA researchers focus on a model called “juries de meditate linguae” – where a minority defendant is granted the right to be tried by a jury comprising half of people from that same minority.“
To even use the word ‘minority’ you have to already have presupposed 2 things.
You must conclude that there is something different about people, enough to differentiate between the two to justify mold the makeup of juries to fit a certain way. This might be called ‘race realism’.
You also have to consider that this is only an issue for the ‘majority’ population, and not for so called ‘minorities’. If you’re trying to get a ‘fair’ or ‘correct’ ruling, you’d correspondingly have to take into account that ‘minorities’ also have this ‘race realist’ problem.
Given that Roslyn Atkinson wouldn’t take this position, it seems like she’s made the assumption that the outcomes produced by the juries are ‘wrong’ in some manner. Fortunately for us, that’s not on her to decide, atleast for now…
this is an interesting proposal. i usually find such things racist and oppose them greatly, but there are a few considerations to weigh here.
we do want a “jury of our peers” for a reason, and reducing racial bias in our judicial system is always a good thing. however, this does also raise problems. you’d have to do this for everyone: men get 50% men, gay people get 50% gays, arabs get 50% arabs, etc. this would get complicated very quickly, considering every individual has multiple racial/gender/sexual/ethnic identities that would need to be considered. you also may get the opposite effect, where juries become too lenient as they’re dealing with their “own people”.
could be tweaked into something I might support.
Also an insult to intelligence. A presupposition that the view of a jury is entirely mediated through a cultural lens. Have been on a jury – this was not the case, although clearly one can’t generalise from an individual example
Lol of course it’s the Australian, the experts on everything. Throw in a few buzzwords about CRT and you’re golden!
This isn’t really that different to the current arrangement, where prosecution and defense have the opportunity to object to certain jurors to try and obtain a diversity of views. Probably a pretty good idea to ensure that you’re being judged by someone who is actually your peer.