Yuendumu trial: Electoral rolls key to Indigenous jurors

Labor legal affairs spokesman Mark Dreyfus has called for a ­concerted effort to get more ­Indigenous people on to the ­nation’s electoral rolls.

Labor legal affairs spokesman Mark Dreyfus. Picture: AAP

Labor legal affairs spokesman Mark Dreyfus has called for a ­concerted effort to get more ­Indigenous people on to the ­nation’s electoral rolls, an essential step in becoming eligible to sit on juries, where they are under-­represented.

His comments followed calls to reform jury selection after Northern Territory police officer ­Zachary Rolfe was acquitted of charges arising from the 2019 shooting death of Kumanjayi Walker.

After the trial, Warlpiri elders said the jury had not included any noticeably Aboriginal people.

“The best way to tackle this is for the commonwealth to be doing much more to raise the level of Indigenous electoral enrolment,” Mr Dreyfus said on Wednesday.

He said juries were meant to represent their local community.

“Unfortunately, as we know, there is significant under-­enrolment of Indigenous people in the Northern Territory, and as such they are under-represented in jury pools,” Mr Dreyfus said.

Law Council of Australia president Tass Liveris also called for further examination of Indigenous representation on ­juries.

“A diversity of persons, including First Nations will also make a significant contribution to Closing the Gap,” he said.

A spokesman for Attorney-General Michaelia Cash said questions about Indigenous jury representation were best directed to states and territories because the Federal Court of Australia had very limited criminal jurisdiction.

Leading jury researcher and Monash University associate law professor Jacqui Horan said it was imperative that everyone eligible for the electoral roll be signed up.

“You have people who do not get into the jury pool for selection because they have been excluded from jury service,” she said.

Dr Horan said geographical isolation and in some cases criminal convictions were other exclusionary grounds. Conditions vary, but in Victoria, for example, ­people more than 50km from Melbourne courts or 60km from a circuit court in the regions do not have to present for jury duty.

In the NT, potential jurors are drawn only from the Darwin and Alice Springs municipalities.

The final hurdle for those who comprise a jury pool is that lawyers from either side of the case are able to reject them.

“The challenge process was problematic about 10 years ago, but then each of the state and territory prosecutorial offices decided as a matter of policy not to challenge any jurors,” Dr Horan said.

“Prosecutorial challenges are seldom used now, although the ­defence still uses them.”

Challenges are also an issue in other countries such as Canada and the US. Canada amended its criminal code in 2019 to eliminate the right of both crown and defence lawyers to reject jurors without stating a reason – a process known as a peremptory challenge.

At about the same time, a preliminary report on jury representation in Canada found that selection had “a systemic bias which favours financially stable urban homeowners”. Other barriers included criminal records and language requirements.

In 1986, the US Supreme Court ruled out peremptory challenges based on intentional racial discrimination but the practice continued. In recent years it has become easier in some jurisdictions to uphold the requirement, and last year Arizona, for example, abolished peremptory challenges.