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Independent contractors and jury service
18 May 2008

Update: E-mail exchange [19 May]
Update: AIC Report [24 May]


Tim Harding, an ICA member, has written to the Minister for Independent Contractors about the fact that independent contractors do not have financial support when called for jury service in the way that employees do. Click here for Tim's letter and the Minister's response. [PDF]

The Minister referred Tim to a recent report on jury selection by the New South Wales Law Reform Commission. [Link 1, Link 2]

The relevant part of the report says:

7.35 The plight of small business owners, and of sole practitioners, has been raised formally from time to time, and is frequently raised in support of an application to be excused for good cause by reason of the interruption to the running of the business or practice, and the risk of a possible loss of clients or of income. Some submissions also raised the issue of the apparent unfairness of the current system to proprietors of small business, especially in light of the poor remuneration offered to jurors and the calls upon their time.

7.36 We accept that, in appropriate cases, this can provide good cause for a juror to be excused or deferred upon sufficient proof of the likely adverse effect to the business or practice, and of the absence of suitable alternative arrangements. Additionally, there would be occasion for such a person to be excused if he or she works in a business or practice with fewer than 25 staff members and another member of the staff is serving as a juror at the same time, or has served as such during the preceding 12 months. Accordingly, we consider it appropriate for this to take its place in the guidelines.

ICA view
It would appear that the problem of independent contractors' loss of income when called for jury service is well recognised. Independent contractors caught in this situation have good cause to request exemption---a request which should be considered favourably. It would probably make sense to be armed with this information sourced by Tim Harding.


Follow up

Shortly after we published Tim's letter (see link above) we received e-mail correspondence from an ICA member, Steve, which raised a number of interesting points. To help promote a clearer understanding of the competing claims that can arise (civic responsibility, adequate compensation) we here print the short exchange of e-mails between Steve and ICA Executive Director, Ken Phillips. ICA welcomes further thoughtful comments on this issue from independent contractors.

1. Steve:
    The recent article on Jury Service misses the point entirely.

    Serving on a Jury when called, is a pivotal part of our Westminster system. Serving on a Jury is not only a right and privilege that belongs to all citizens, but also an obligation. This latter component, the obligation, is missed by many. I am often disgusted when employers routinely provide a letter which supports excusing a prospective juror from service. It is in the employer's interest to have employees excused, obviously. The employees to be excused are often just doing their routine job.

    How can we expect the justice system to function when most professionals, teachers, all lawyers, contractors and anybody else who is in full-time employment can be excused? Courts need to call about 40 prospective Jurors so that they might end up with sufficient to serve after all the excuses have been granted. This is disgusting. It also means that the jury will contain none of the above categories of professionals---no wonder some juries have trouble electing a foreman. The same people who excuse themselves from jury service will no doubt complain about the competence of jurors if they are ever unlucky enough to come before same.

    My point is that all members of society must be prepared to serve on a jury if called and have the means to be at least partially compensated or insured against the cost of attending. It is pivotal to the function of our legal system that jurors should only be excused if they face a genuine circumstance that would create a serious problem. Perhaps Jury service should be a component of insurance that we can buy along with other income protections.

    Perhaps Jury service should also be written into all employment contracts and appointments as a matter of course. Another thought is that when someone is excused from Jury service, they are automatically rescheduled for 3 months later. This would stop a lot of the routine "excusing" that occurs.

    Regards,
    Steve
2. Ken:
    Steve,
    Your points are all totally valid.

    The countering point, however, is: who pays for justice?

    The state pays judges, pays for legal aid, etc., but the juror is expected to wear the cost of loss of income. The IR system transfers that loss to employers. Independent contractors bear the loss personally. So instead of the community paying for justice, as it should, the cost of justice is personally borne by an individual, thus creating an injustice. If the state/community is serious about justice, the payment to jurors would be substantial and at least cover a juror's reasonable losses of income. The current payment to jurors is a pittance and would not cover most jurors' travel and lunch expenses for the day.

    So the issue is not about seeking to avoid juror service. It's an honour to be a juror. The issue is the community/state needs to face up to its responsibility to ensure that the cost of justice is borne across the community. I think that's the point Tim Harding was making in his correspondence.

    Rgds
    Ken Phillips
3. Steve:
    Ken,
    Many thanks for your prompt reply and I agree with everything you say.

    So what can we do, as an association, to improve the outcome for contractors when called upon to be jurors? Should we make a representation to Justice Ministers for example? Should we also point out that a lot of private-sector employers routinely provide documentation to excuse employees from jury duty, thereby imposing an unfair burden on contractors to serve? Adding to this, Contractors serve without meaningful compensation for loss of income.

    It would be interesting to know the feelings of other contractors on this issue.

    Steve

Further Information: AIC Report

Tim Harding has subsequently drawn our attention to an Australian Institute of Criminology Report which deals with juror remuneration among other things:
    Remuneration
    Of particular concern to jurors is the financial burden of jury duty. One of the strongest messages to emerge from this study from jurors and other stakeholders is that jury remuneration is inadequate. Overall, less than one-quarter (24%) of jurors were satisfied with their remuneration, while only 18 percent were satisfied with their travel allowances. Sixty-four percent of jurors (82% in South Australia) agreed that 'jurors need more compensation for their expenses'. There was near unanimity amongst stakeholders that the amounts should be increased. Furthermore, a small percentage of jury-eligible citizens identified financial, work and child care responsibilities as barriers to jury participation, and a substantial percentage reported avoiding jury service due to financial hardship.

    Dissatisfaction with remuneration may be a significant barrier to participation in jury service, and thus the representativeness of juries. Increasing financial compensation is particularly crucial for self-employed citizens, casual workers and those whose employers do not pay them while serving on a jury, and in states where daily allowances do not meet citizens' financial needs. Thirteen percent of jurors felt that serving on a jury placed their job at risk.

    [Executive Summary, page xiv]
The full IAC Report, Practices, policies and procedures that influence juror satisfaction in Australia may be downloaded here.