Trial by jury is one of the cornerstones of our justice system. However, being called up for jury duty can be a problem for home educating families. Here the NCHENZ Government Liaison Officer outlines the processes, the law, and how to respond if you are unable to serve at this time. This article is just a brief summary of relevant information. A great deal more information about jury service and all that is involved can be found here on the Ministry of Justice website.
There are approximately 3,500 trials by jury in New Zealand every year. For each trial, more than 100 potential jurors are usually summonsed (depending on type of trial), from which the jury will be chosen. This means that around 350,000 jury summons are issued per year. Jury duty summonses are based upon the electoral role. With approximately 3,000,000 people on the roll, that means that everyone has greater than a 1 in 10 chance of being summonsed in any given year. However, only a small portion will actually be selected for jury service.
When the registrars are issuing summons for a trial, they first generate a list of people within 45km of the court. From that list, they eliminate anyone who obviously does not fit eligibility criteria according to their records. They then select the number of people they need for this particular trial and send out a summons.
When you receive a summons, you are asked to respond to either confirm you will be there or to ask for a deferral or to be excused. If you do not gain a deferral or excusal, and simply don’t turn up on the day, you may be fined up to $1000. Applications for deferral/excusal are not processed at each individual district court, but rather by two small teams of people in two locations.
The ability to have a trial-by-jury is a right that is very important to a fair justice system. Of course, without a jury, there can be no trial-by-jury. Serving on a jury is one important way NZ citizens can serve their country and local community. Laws were changed a few years ago to tighten up on the requirement to attend jury duty when summonsed, as many people shirked this duty without real reason, and there were difficulties getting sufficient suitable jurors for trials. Click here for a list of legal reasons to defer from jury duty.
The summons will give a date and time you need to appear. This is usually a Monday or Tuesday morning. They tell you to be prepared to be available for the full week, though that will only happen if you are actually selected to serve on the jury. There will also be a number you can call the day before or that morning to check whether you still have to show up – sometimes the accused changes their plea or other events occur to cause a trial to be delayed or cancelled or to no longer require a jury.
On the day, you will be in a room with all the other people summonsed. Everyone’s name will be in a ballot box, and names will be randomly chosen – those people will be called before the judge and lawyers one at a time. The lawyers may decline (challenge) people on certain grounds. The potential juror may also give the judge a reason why they cannot or should not serve on this jury. Each person who is not challenged or otherwise excused takes their place on the jury benches. This process continues until a full jury is selected, and everyone else is sent home.
The jury is then empanelled, and the trial set to begin. Trials may last anywhere from one day to a full week, to multiple weeks for certain high-profile cases.
While serving on a jury, you can apply for childcare payments and are eligible for attendance fees from the courts, and may be able to claim transport costs. However, the way the childcare criteria are set up are based on an assumption that the children attend school during the day (if school age). They generally don’t fit well for the needs of a home educating family, although reported experiences differ on this. It is also possible to apply for payments above the attendance fees where a family is unable to meet their reasonable commitments due to jury duty.
“When I asked for childcare costs for my five school-aged kids for the week I spent on the jury, there were no issues. I had to send in their exemptions to prove that they weren’t at school and I had a quick phone call with someone from the Ministry of Justice. It turned out to be an enormous amount of money – five kids at $40 each per day … 5.5 days of jury duty – it paid for my husband to have days off work and my father to drive up and spend time with the kids as well.”
Anyone who fits any of the following criteria is automatically eligible to be excused:
- Lives more than 45km from the courthouse
- Is over 65 (can choose to serve if they wish, but are not required)
- Works in the justice sector – eg. a lawyer, Corrections employee
- Has done jury duty in the last two years (this includes showing up in response to a summons and not being selected)
- Has been sentenced to imprisonment for three years or more, or to preventative detention, or sentenced to three months or more within the last five years.
- Has already been excused from service by a judge for a period of time that has not yet expired.
The Ministry of Justice (MOJ) recognises that not everyone summonsed will be able to attend on the stated date. A deferral of service can be applied for by writing to the MOJ with information and proof as to why you cannot attend. Reasons for deferral must fit into one of the categories described in law, which are:
- A special or pressing engagement for your business or job
- Your health or disability
- Family commitments
- Other personal circumstances
When applying for a deferral, you must nominate dates during which you will be available within the next 12 months and covering at least a four week period (other than mid December to mid January). If you don’t nominate alternative dates, the court will assign them. Once a deferral has been granted and alternative dates nominated, they can’t be changed.
So long as you can give a reasonable reason, it is not difficult to gain a deferral the first time. However, there is a requirement that you will then be available during the deferred dates (unless something major and unforeseen comes up). If, however, you were previously deferred on the basis of home education, you should be able to apply to be excused when the next summons comes up if you are unable to serve. For a home educator whose circumstances are unlikely to change, it is probably better to apply to be excused rather than deferred. However, be aware that the law requires the registrars in the first instance to seek deferral rather than excusing applicants. Therefore you may have to be quite insistent if it’s excusal you seek.
You are legally required to do jury service. However, you can apply to be excused from jury service if you are unable to defer your service, or unable to perform your duties. When applying, you must give a reason for being excused, and provide evidence or proof to support that (except if over 65, have done jury duty in the last two years, or on the basis of imprisonment). Your reasons to be excused must fit into either one of the automatic categories listed above, or the category of being part of a religious order which does not believe in taking part in jury service, or one of the same categories listed for deferral. However, for the latter, you will need to also explain why this prevents you from simply deferring the jury service.
A person who has been summonsed can apply to the registrar to be excused prior to the date of jury duty, or they can ask to put their application before the judge on the day. If an application to be excused is declined by the registrar, the applicant has the right to appeal directly to the judge.
More on how to apply for excusal below, but first what happened when we met with Ministry of Justice staff to discuss these issues …
NCHENZ meeting with the Ministry of Justice (MOJ), February 2017:
NCHENZ representatives met with MOJ staff in Wellington to discuss the issue of home educators and jury service. Some of the main points raised with them may also be useful in preparing your own application for excusal:
- Most home educators believe strongly in civic and community responsibility and duty. Many home educators serve their communities in various ways, as they are able, and if summonsed for jury duty would be happy to serve if at all possible. However, their duties as home educators and their individual situations sometimes make this difficult or impossible without undue hardship.
- The legislation regarding reasons for deferral or excusal from jury duty are quite broad and non-specific, and it is up to the registrar to interpret and apply this legislation to an individual applicant’s circumstances. The acceptable reasons given for excusal are:
- The nature of that person’s occupation or business, or of any special and pressing commitment arising in the course of that person’s occupation or business
- That person’s disability
- That person’s state of health, or family commitments, or other personal circumstances
(See Juries Act 1981, Sections 14B and 15)
- “Home educator” is the occupation of parents who are homeschooling their children. This unpaid but important role is regulated by legislation requiring parents to provide plans and evidence that satisfy the Ministry of Education (MOE) that their children “will be taught as regularly and well as in a registered school.” Under MOE policy, there is an onus on the main home educating parent to personally provide supervision and teaching to their children.
- Home education is not a 9am-3pm, five days a week role. It is a 24/7 lifestyle. There are few, if any, “days off” and many home educating families have little support from relatives and friends.
- Home educators most often have a number of children of various ages in their care. These children may be in the midst of important study such as for their NCEA qualifications, or they may have special needs or high anxiety issues that make leaving them in the care of someone else difficult or inappropriate. In all cases, the delivery of the child’s education is dependent on the availability and commitment of the parents.
- Because of the above, NCHENZ contends that both the “nature of the person’s occupation,” the commitment that arises in the course of that occupation, as well as their “family commitments” are indeed reasonable grounds for excusal from jury duty.
One Deputy Registrar told a parent:
“… homeschooling is not a reason for excusal under the legislation – you need to either provide deferral dates in the school holidays and arrange alternative childcare for your children, or arrange a substitute teacher for the time you are on jury service”
During the meeting with MOJ, NCHENZ also made clear that:
- Home education is not structured according to school terms; learning goes on all year round. That aside, many families have no reasonable child care possibilities. Most childcare facilities are set up for preschooler or afterschool care only. Many families do not have extended family support. And, those things aside, no childcare provider could reasonably be expected to take on the actual education of the children during that time, meaning that the children are therefore forced to “miss school” by virtue of the absence of their only teacher.
- There are no “substitute teachers” for home education, and if there were most parents could not afford to pay one. Even if it were possible, this would be disruptive to the children’s education as home education is highly individualised and not easily taken over by someone else. It would also be unreasonable to ask another home educator, already busy with the needs of their own children, to serve as “substitute” and thus disrupt the education of both families.
- The legislation allows for an applicant’s jury service to be deferred or excused. Deferral is to a date within 12 months. This is not generally a reasonable course for home educators – their circumstances are very unlikely to change within a 12-month period, as the commitment to home educate is long term in most cases.
- In summary, home educators have a specific and legislated commitment to personally ensure and supervise the learning of their children. They often do so with limited, if any, support or financial resources. To expect a home educator to put their children in the care of strangers and, in doing so, to disrupt their educational process while the parent performs jury duty is both impractical and unreasonable, as well as going against the strong personal convictions of many home educators.
- Being forced to attend jury service would cause home educating families financial hardship, as well as significant disruption and potentially long-lasting difficulties in trying to then overcome the flow-on affects from the disruption in education that may result.
- Because the law does not specifically refer to home education, interpretation has been left to individual registrars and their deputies. We propose that there should be some discussion around these issues, and then the creation of a national workable policy for those home educators who are unable, due to their circumstances, to serve.
- We reminded the MOJ that the total number of home educating families in NZ is 3062*. We are only talking about a small number of people needing to be excused from jury service. Of all home educated students, 77% of them are ages 6-13*, and cannot be legally left on their own.
“I find it frustrating that one government department says I must teach my children as regularly and well as if they were at school while another tells me I must put them in childcare while I do something else.”
Ministry of Justice response:
The MOJ staff were receptive to what NCHENZ representatives were saying. We had some useful discussion around process, eligibility, and how to apply to be excused, most of which is included in this article.
Applying to be Excused
There are application forms available on the MOJ website. Along with completing these, you need to provide details of why you believe you should be excused, and evidence or proof to support your reasons.
The MOJ recommends you include as much pertinent information as possible. Details that may be relevant or have bearing on your application might include:
- Having a breastfed child in your care
- Having a child with high needs, disabilities, or severe anxiety problems that would make it unreasonable to leave them in someone else’s care
- The ages of your children, inability to leave them on their own, and unavailability of reasonable alternative care
- Home education – your commitment to their educational needs, and the requirements of Section 21 of the Education Act
- Other points mentioned above in the meeting between MOJ and NCHENZ
- Why deferral is not practical, ie. how/why your circumstances are unlikely to be any different within 12 months
Suitable proof or evidence to accompany your application might include:
- Birth certificates
- Exemption certificates
- Letter from a doctor or other relevant professional
- Letter of support from NCHENZ, your regional home education support group or similar (to confirm your membership/involvement and home ed status and commitment)
The more relevant information and proof you provide, the greater the likelihood that you will be excused. MOJ staff told us that they often receive applications which basically say “I can’t do it” with no information provided. Don’t be that person 🙂
While the courts have gotten tougher about jury duty, no one wants a jury member who is not able to fully concentrate and work for the system. A parent who is deeply worried about their children while they are at court is not a useful jury member. If you are truly not in a position to serve on a jury, and that is unlikely to change, then gather your information and apply to be excused. Remember: the registrar’s first response will likely be to try and make it a deferral, and if they refuse to excuse you, you do have the right of appeal to the judge. However, if you are in a position to make it work so you can do jury duty, we encourage you to do so. You could also make this a great topic study for your home educated students!