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On the Rights and Wrongs of Unvaccinated Jurors
by Eli Bernstein
Senior Associate at Nakamoto Legal and member of the Access to Justice committee of the Law Society of WA. The views expressed in this article are his own.
Last month the Supreme Court of WA heard a challenge by Senior Constable Ben Falconer to the mandatory vaccination requirements directed by the State’s Chief Medical Officer Dr Andrew Robertson as imposed on the WA Police Force through its then Commissioner (now Governor General, His Excellency the Honourable) Chris Dawson, resulting in Officer Falconer, alongside forty-eight police officers and staff, being stood down from active service. While the mandates have since been withdrawn, those stood down have not been allowed to return to work and some like Falconer now face disciplinary action. Falconer sought a judicial review on the grounds that such direction was irrational. Following a three-day trial, Justice Allanson has reserved his judgment.1
This article does not seek to analyse that case or second guess its outcome, but instead seeks to explore a related issue, the impact of those same directions on our jury system.
Twenty-two months after a state of emergency was made on 23 March 2020, and pursuant to those extraordinary powers, Dr Robertson issued the Court and Tribunal Worker (Restrictions on Access) Directions2 (Directions). A public notice3 was followed shortly thereafter by the Supreme Court on the same day in which His Honour Chief Justice Quinlan stated the effect of the Directions as follows:
In addition to judicial officers and all court and tribunal support staff, a ‘court or tribunal worker’ is defined to include any person who attends a court or tribunal site for court or tribunal work-related purposes. Importantly, this includes legal practitioners (and their support staff), journalists and media court reporters. Court or tribunal workers is also defined to include persons summoned as part of a jury pool, who must also comply with the vaccination requirements in the Directions to enter a court site.4
The effect of this was that as of 5 March 2022, a person who is “a court and tribunal worker” (defined so broadly to include paralegals, journalists and potential jurors) must not enter, or remain at, a court or tribunal site if they are not fully vaccinated. When read in conjunction with the Booster Vaccination (Restrictions on Access) Directions (No 2)) issued on 7 January 2022, any person who is eligible for a booster who has not yet been boosted is deemed not to be fully vaccinated and would therefore be unable to serve on a jury.
There are a number of issues at stake that ought to be considered:
1. What is the impact of these directions on the makeup of the jury pool?
2. Do unvaccinated jurors pose a disproportionate and unacceptable risk of harm to others by serving on a jury?
3. To the extent a risk of transmission exists, could the court mitigate that risk in any other way?
While unvaccinated jurors are not a homogeneous group, they are nonetheless made up of distinct groups
that can be categorised politically and racially. In a recent US case, US District Court Judge Polster reversed his earlier decision banning unvaccinated jurors after finding that such a ban would undermine the “fair cross section of the community” standard for jury trials, noting key differences between the statewide vaccinated and unvaccinated populations along gender, racial, age, income, education level, geographic and political lines.
In Australia, vaccination status is a proxy for politically held views. This holds true for both fringes of the political left and right. An article by ABC News titled “Australian attitudes on the COVID-19 vaccine differ on political lines”5 cited a recent survey by Professor Julie Leask6 which found that “19 per cent on the right are now saying they’re “very unlikely” to take the vaccine. That compares to 8 per cent of those identifying with the centre and 4 per cent for those on the left.” Arguably, even among the left and centre, the unvaccinated are a distinct sub-category made up of the naturalist left (who generally oppose vaccines) and libertarian centrists (who oppose mandates rather than vaccines). It is common knowledge that the unvaccinated are likelier to vote for minor parties.
Vaccination status may also be considered a proxy for race. While 68.7% of eligible Australians and 86.3% of eligible West Australians at the time had received their booster shots, only 52.5% of the Indigenous population has done so.7 The net effect of the Directions would mean that Indigenous West Australians would therefore be further underrepresented on WA juries, exacerbating an existing problem identified by the Law Reform Commission of Western Australia8 and other studies on the subject that have found that “Indigenous people are significantly overrepresented as defendants in criminal trials and in prisons and yet vastly underrepresented on juries in criminal trials in Australia…”.9
Any exclusion based on vaccination status would therefore have the unintended consequence of altering the racial and political makeup of our jury system. This in turn undermines the representative nature of the jury system as noted by Deane J stated in Brown v The Queen:10
. . . guilt or innocence of a serious offence should be determined by a panel of ordinary and anonymous citizens, assembled as representatives of the general community, at whose hands neither the powerful nor the weak should expect or fear special discriminatory treatment. The essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached.11
Clearly, such an undermining of the jury system should not take place unless and until there is a clear and present danger that cannot be mitigated in any other way – which brings us to the next point of inquiry:
There have been a number of US cases on the subject, mainly from the era or the Alpha covid variants, based on the premise that “an unvaccinated juror would be considerably more likely to contract COVID-19 and to spread it to other jurors.”12 It would appear that these are the reasons behind the Directions and Public Notice.13 However, while this premise was true for the Alpha variant of COVID-19, it is questionable for the Delta variant and mostly untrue for the Omicron variant.
In relation to the Delta variant, evidence has emerged challenging the effectiveness of the vaccination in preventing spread of COVID-19, with a recent study published in The Lancet finding that:
Vaccination reduces the risk of delta variant infection and accelerates viral clearance. Nonetheless, fully vaccinated individuals with breakthrough infections have peak viral load similar to unvaccinated cases and can efficiently transmit infection in household settings, including to fully vaccinated contacts.14
In the case of Omicron, the scientific consensus emerging is that “vaccinated cases seem to have the same transmission capacity [as] non-vaccinated people.”15
In the recent New Zealand High Court decision in Yardley v Minister for Workplace Relations and Safety & Anors,
16
the court upheld a judicial review challenge against vaccine mandates for police officers, finding that the Order imposed an unjustified limitation on the applicants’ rights, and that the limit was not demonstrably justified, with Cooke J stating: I take it from this evidence that vaccination may still have some effects in limiting infection and transmission, but at a significantly lower levels than was the case with the earlier variants. It is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant. It is equally clear that it does still provide protection from serious illness and death, although this effect wains after the second dose, and seems to wain in a similar way after the booster. I accept on the basis of Dr Town’s evidence that vaccination might contribute to preventing contracting and spreading the Delta and Omicron variants to some extent, although not nearly as much as it did against the original versions of COVID-19.17
The risk posed by the unvaccinated is a core issue in question in the Falconer case in determining the rationality or otherwise of the Directions. A full analysis of the merits of such directions is beyond the scope of this article. However, even if the court held that the unvaccinated pose an unacceptable risk and that the Directions in relation to police officers was rational, considering the impact on the jury system, we must first determine whether no better alternative is available before undermining the representative nature of the jury system.
3. Could the court mitigate that risk rather than exclude potential jurors?
The current reality is such that vaccinated jurors pose a greater threat to unvaccinated jurors than vice versa, since the two groups have a similar capacity to spread Omicron but the impact on the unvaccinated is significantly higher.
Even to the extent that a risk of transmission does exist (or may exist in future variants) by the mere presence of an unvaccinated person, no restrictions on unvaccinated jurors should apply if such a risk could be mitigated through other measures, such as:
Mandatory masking, including provision by the court of the highly effective N95 masks;
Well-ventilated court and jury rooms, or if required, an outdoor courtroom;
Limiting the maximum juror age to 70 (such age discrimination being borne out by medical evidence18 and not affecting all political groups, racial groups and sexes proportionally);
Attendance via video conferencing; or Other measures the court may see fit to reduce the risk of infection.
4. Other considerations and concluding remarks
One may argue a utilitarian argument that the exclusion of jurors may promote vaccination and that such a policy is highly beneficial to society at large (e.g. by reducing the load on the medical system), we say that government must refrain from using the jury system as cudgel to promote public health objectives. However, this argument is spurious for the following reasons. First and paramount, the legal system must bend to no other principle but the fair administration of justice. Second, the exclusion of jurors for policy ends is dangerous as it has no logical end. (Should we exclude smokers and the morbidly obese? What of those with unpaid fines or overdue taxes?) Third, the court need not interfere with this voluntary assumption of risk, in much the same way as the court does not discriminate between jurors who arrive to court riding public transport and those arriving on motorcycles. Finally, the reality is that to the extent that such a policy may motivate vaccination behaviour, it is far likelier that people will delay booster shots to avoid jury duty than get fully vaccinated in order to serve on a jury.
There are a number of issues beyond the scope of this article that the Directions give rise to, among them:
Whether the separation of power doctrine is observed when the Judiciary is subjected to orders from the Executive branch that ultimately determine the make-up of the court’s arbiters of fact;
Whether in rubber-stamping the Directions made by the Chief Medical Officer, the court opened itself to an apprehension of bias in any case challenging the government’s mandates (such as the Falconer case); and
Whether classifying jurors as ‘court and tribunal workers’ may affect a juror’s (or society’s) perception about the independent nature of the jury system.
While the Directions in question have since been withdrawn, the issue at stake may become pertinent yet again. The landscape around this is changing rapidly, both in terms of the virus and in terms of society’s response to it. There is unlikely to be a ‘one size fits all’ policy that could be applied. Regardless of the nature of the virus and the best policy and medical response to it, the sacrosanct role of the jury must not be tampered with unnecessarily.
The exclusion of unvaccinated from the jury pool by classifying jurors as ‘Court and Tribunal Workers’ undermines the representative nature of the jury and society’s confidence in the jury system, and should therefore only be considered where there is a clear and present danger that is incapable of being effectively mitigated. After all, “equal opportunity to participate in the fair administration of justice is fundamental to our democratic system.”19
End Notes
1 ABC News, “WA police officer Ben Falconer’s fight against ‘irrational’ COVID-19 jab mandate goes to trial (13 July 2022) Available at < https://www.abc.net. au/news/2022-07-13/wa-police-officer-ben-falconercovid-vaccine-mandate-trial/101232376> 2 “Court and Tribunal Worker (Restrictions on Access)
Directions,” WA Government (31 January 2022)
Available at <https://www.wa.gov.au/government/ publications/court-and-tribunal-worker-restrictionsaccess-directions > 3 “Public Notice – COVID-19,” Court and Tribunal Worker (Restrictions on Access) Directions, Supreme Court of WA (31 January 2022) Available at < https://www. supremecourt.wa.gov.au/_files/Media/2022/Court-an dTribunalWorkerrestrictionsonaccessdirectionspublic notice31January2022.pdf > 4 Ibid 2 5 Nick Sas, “Australian attitudes on the COVID-19 vaccine differ on political lines — but the vast majority are still keen for the jab”, ABC News (5 Mar 2021)
Available at <https://www.abc.net.au/news/2021-0305/australia-covid-vaccine-survey/13203170> 6 Professor, Sydney Nursing School, Faculty of
Medicine and Health; Adjunct Professor, School of
Public Health; Visiting Fellow, National Centre for
Immunisation Research and Surveillance; World
Health Organization advisor. 7 COVID-19 Vaccine Roll-out, Commonwealth
Department of Health (10 April 2022) Available at: < <https://www.health.gov.au/sites/default/files/ documents/2022/04/covid-19-vaccine-rollout-update10-april-2022.pdf> 8 Hands T, Williams V and Davies D (2006) Aboriginal
Customary Laws: The Interaction of Western
Australian Law with Aboriginal Law and Culture: Final
Report Project No. 94. Perth, Western Australia: Law
Reform Commission of Western Australia Available at <www.lrc.justice.wa.gov.au/_files/p94_fr.pdf> 9 Anthony T and Longman C (2017) Blinded by the white: A comparative analysis of jury challenges on racial grounds. International Journal for Crime, Justice and Social Democracy 6(3):25-46 at 2. DOI:10.5204/ ijcjsd.v6i3.419. 10 Brown v The Queen (1986) 160 CLR 171 11 Ibid at 202 12 Joffe v. King & Spalding LLP, No. 1:2017cv03392 -
Document 354 (S.D.N.Y. 2021) 13 as indicated by the Directions citing World Health
Organization’s declaration as of 11 March 2020, at the peak of the Alpha wave. 14 Anika Singanayagam, Seran Hakki, Jake Dunning et al, Community transmission and viral load kinetics of the SARS-CoV-2 delta (B.1.617.2) variant in vaccinated and unvaccinated individuals in the UK: a prospective, longitudinal, cohort study The Lancet VOLUME 22,
ISSUE 2, P183-195, FEBRUARY 01, 2022 15 Javier Del Águila-Mejía, Reinhard Wallmann, Jorge
Calvo-Montes et al, Secondary Attack Rates, Transmission, Incubation and Serial Interval
Periods of first SARS-CoV-2 Omicron variant cases in a northern region of Spain. (2022, https://doi. org/10.21203/rs.3.rs-1279005/v1) 16 [2022] NZHC 291 17 Ibid at [91] per Cooke J 18 For instance, a 70+ year old double vaccinated with
AstraZeneca (2nd dose 4 to 6 months ago) is over 100 times likelier to die from Covid as an unvaccinated 3039 year old. (Risk of Dying From Covid-19, Estimated deaths per 10,000 COVID-19 cases by age, sex, and vaccination status Immunisation Coalition Australia (January 2022 Version 2.0) Available at: <https://www. immunisationcoalition.org.au/diseases/covid-19/> 19J.E.B. v. Alabama, 511 U.S. 127, 145 (1994).
