Jury Duty

I managed this week to avoid jury duty, mainly by politely begging them to give me an exemption because it was end-of-financial year (which is one of the three or four busiest weeks for me at work).

I do feel somewhat guilty about it. The jury system is a vital part of our legal system, and it is really important that juries have a genuine cross-section of the community, so that people are really tried by a jury of their peers. But for me, and my employer, jury service is a real tax. The trial was for sixteen weeks. For that amount of time, my employer would have had to hire a short term replacement for me – probably at a greater cost than my average salary for that time. They wouldn’t have replaced me completely; I would have had to continue to cover many things, particularly at the beginning when my accumulated knowledge of the company was essential. So I would have had to work long hours after I was let out of the jury room.

Back 15 years ago, when I was last on a jury (admittedly a much shorter one) the company for whom I worked would have had much more scope to cover for an employee than the company where I work now. But that is true across the whole financial services industry. Companies, even large ones, are much less likely to have much spare capacity that can be deployed in that kind of situation.

Jury Duty isn’t one of the five non-negotiable conditions that are required under Australian Workplace Agreements. So if I had moved onto one, my employer wouldn’t have to give me any leave – paid or unpaid. I don’t know whether the Officer of the Court would have given me an exemption in that case.

Historically, self-employed people have got immediate exemption (taxi drivers, for example). So the employers of larger workforces have effectively paid the “jury service” tax where small employers (and the self-employed) were exempt. But the workplace is getting towards a position where that tax is going to increasingly fall on the employee themselves, in the form of unpaid leave, or dismissal. Not for the small trials, but for the big ones.

So juries will, even more than they are already, be full of those who can most afford the time – retirees, the under- and un-employed. And people will be less likely to be tried by a “jury of their peers”.

There isn’t a good answer to all of this. An economic rationalist would suggest that the tax should be made explicit, and be part of general revenue. That would mean that those who are called for jury duty would be paid an amount to compensate them for the opportunity cost of them being on the jury. But that would be politically unpalatable, if a senior Macquarie Banker, for example, were paid 40 times as much as the retiree they were on the jury with.

But the system as it is now will be made more and more unrepresentative (or else more and more burdensome on those who are called for jury duty) unless the changing nature of our workplaces is recognised in the jury system.