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Monday, 30 May 1994
Page: 864

Senator ELLISON (5.33 p.m.) —I remind the Senate of the case that saw this reference come about. On 26 August 1992, after a four-day trial involving a charge of rape in marriage, His Honour Mr Justice Bollen of the South Australian Supreme Court charged the jury in the following manner:

`Consent' means free voluntary agreement to engage in an act of sexual intercourse at the time relevant. Submission is not consent. Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife's initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting. You will bear that in mind when considering the totality of the evidence about each act of intercourse.

The accused was subsequently acquitted and in January 1993, on appeal, the Court of Criminal Appeal of South Australia held that the direction that I have just recited was wrong in law. The court held that suggesting that any agreement produced by rougher than usual handling might nevertheless constitute valid consent was, in fact, wrong in law. It was saying that that particular phrase, `rougher than usual handling', was inappropriately alluded to by his honour.

  A great deal of publicity followed that. The publicity did not pertain just to South Australia but was indeed nationwide. Around that time two other cases in Victoria dealing with sexual offences also attracted much publicity. Calls were made for members of the judiciary to apologise, to resign or be dismissed. That was the extent of the publicity in which these cases were involved—something that the law from time to time experiences as a result of controversy in the facts of a case. But this particular case engendered nationwide interest and emotional reaction. As a result of all that, in May 1993 the Senate made the following reference to the Standing Committee on Legal and Constitutional Affairs:

(a) whether recent publicity surrounding judicial comment in sexual offence cases is a proper reflection of a failure to understand gender issues by the judiciary; and

(b) the appropriate response to any such failure.

In embarking on this task the committee firstly had to ask itself whether the publicity surrounding these decisions accurately reflected what had gone on. In its report tabled on 13 May this year the committee recommended that education in legal matters should comprise a more prominent part in the training of journalists and subeditors. I wholeheartedly support this recommendation as the journalist who reports the case is the link between the public and the trial itself. The public has a right to know what goes on in the courts of the land but, more importantly, the public must be reliably informed as to what has gone on.

  I would submit with the greatest of respect that one needs competent and experienced journalists to cover those cases. My experience in Western Australia where I have been involved in 100 jury trials—perhaps more—is that there are very competent journalists involved in court reporting. But I can all too readily see where a misunderstanding might arise where a journalist is not used to court reporting or is somewhat junior, and that misunderstanding is then relayed on to the public at large which read the press report. It was a further recommendation of the committee that only reporters with a thorough understanding of the operation of the courts should be engaged to report on court proceedings.

  At the end of the day, the Court of Criminal Appeal in South Australia rectified the situation—it picked Mr Justice Bollen up on appeal. The system does have in-built safeguards in these matters. But that does not mean to say that I downgrade the importance of any question of gender bias in the judiciary because, indeed, there is a good deal of reason to look into this matter both in the judiciary and in the question of the up and coming legal profession.

  In arriving at its recommendations, the committee had taken evidence from Mr Bongiorno QC, the Victorian Director of Public Prosecutions. He stated that publicity had varied from accurate reporting in some instances, in some responsible media, to sensational beat-ups by other sections of the media.

  I found it most invigorating and encouraging to see the manner in which the committee approached this somewhat emotional topic. The matter was dealt with in a calm and rational way. The committee then went on to look at whether the decisions did reflect a failure by the judiciary to understand gender issues. Apart from the publicity, the committee looked at such things as the composition of the judiciary; the appointment of the judiciary; and the accountability of the judiciary in that regard. It also looked at whether there was any need for law reform in substantive law.

  Firstly, in relation to the composition of the judiciary, the committee found that there existed a vast disparity between the proportion of women in the population and the proportion of women in the legal profession. When one looks at the statistics in relation to my home state of Western Australia, as at 30 June 1992 there were 1,537 resident practising lawyers. Of those, 526—approximately a quarter—were women. This is not a static situation and the enrolment of females in the faculty of law has increased dramatically; so much so that, at the moment, there would be a majority of women in the law faculty of Western Australia. I would suggest this is an indication of a trend in the eastern states.

  The situation is a changing one and has to be looked at in that light.  In the past, women have been vastly outnumbered in the law. When one draws from the legal profession for judges, one has a limited pool of experienced women from which to draw for judges. That has been a most important factor in this matter. As I have stated, I believe that with the effluxion of time the proportional imbalance will rectify itself and the question of that imbalance will gradually dissipate. Mr Justice Malcolm, the Chief Justice of Western Australia, summed up the problem quite adequately when, in referring to females in the law, he said:

Their sex does not give them any claim to judicial appointment. What has to be ensured, however, is that it does not disqualify them.

I believe that is the nub of the question. We do not appoint a woman to the bench merely because she is a woman, but we must ensure that she is not stopped from reaching that position because she is a woman. I echo the sentiments of Senator Spindler: at the end of the day, competence must be the main criterion for the appointment of anyone to the bench.

  Whilst looking at the composition of the bench, the process of appointment was looked at. Justice Brown of Victoria said:

There seems to be some mystique in the appointment process—the judicial whisper goes around and someone ends up miraculously on the bench. . .

At a federal level, judges are appointed by the Governor-General acting on the advice of the executive-in-council. At the state level, judicial appointments are made by the Governor, usually on the recommendation of the Attorney-General. As such, the process might seem to be somewhat transparent.

  However, the Commonwealth Attorney-General (Mr Lavarch) has suggested that judicial appointments have been characterised by the appointment of senior members of the bar, selected after informal close consultation by Attorneys-General, which may have included various bar associations, law societies, bodies such as the Law Council of Australia, some politicians and various judges. As such, there is really no defined process for the appointment of judges.

  That is perhaps a matter which needs to be looked at. In fact, it formed part of a recommendation of the committee. After extensive evidence on the subject, the committee recommended that the Commonwealth Attorney-General should establish a committee which would advise on prospective appointees to the Commonwealth judiciary. I reiterate that the independence of the judiciary must be preserved at all costs and that the appointment of judges should not be a political process; the recommendation of the committee in this regard would ensure that the perception of that independence and the integrity of the process of appointment is maintained.

  The process of judicial appointment in England is somewhat similar to our own. In 1988, Canada implemented a system similar to the recommendation I have just mentioned; namely, a committee to assess and advise on the qualification of candidates for judicial appointment at the federal level. In the United States of America, judges are elected to many courts, whilst the US Senate appoints judges on the nomination of the President to the Federal Court of America. I am not suggesting for one moment that judges should be elected. I realise that the question of the Senate appointing or selecting judges has been raised from time to time, but that perhaps is a touch too adventurous to go into here today.

  The question of where we draw our judges from was also looked at. The committee was of the view that representatives from the judiciary should come from the legal profession and perhaps the wider community. It seemed that there was some view that in the eastern states the judiciary came from barristers—members of the bar—and that it was somewhat restricted in that regard. In Western Australia, where the profession is fused—one can practice as both a barrister and solicitor—there are numerous instances where judges have come from solicitors. I would certainly endorse that approach.

  The committee also looked at the question of drawing on the wider community, such as academics, solicitors or lawyers, who practised for the government. I have no problem with the latter. In fact, in Western Australia there are a number of crown prosecutors who have been appointed to the bench. They have been very good appointments and are fine judges. As for the appointment of academics, again the question of competency must remain foremost. One most realise that, to become a judge, an appointee must have a good deal of commonsense, experience with day-to-day living and, most of all, an innate sense of fairness. With those qualities, any appointment to the bench would be a successful one.

  The committee did not find that there was prejudice on the part of the judiciary as a whole but concluded that a problem exists which is perhaps wider than a handful of isolated instances. That was concluded after a good deal of evidence had been taken on the matter. Again, the appropriate response was thought to lie in education. The committee therefore recommended that the Australian Institute of Judicial Administration develop specific programs addressing gender awareness and all aspects of judging.

  As a check on the situation generally, the committee recommended that a council of chief justices, both federal and from the states, be established to consider complaints against members of the judiciary and to suggest appropriate courses of action where a complaint might be justified or where a complaint has raised a wider issue. At this point I would dwell for a moment on the fact that inappropriate behaviour might touch not only on a lack of gender awareness or gender bias but there may be other behaviour by a judge which is considered to be inappropriate, such as rudeness and standing over witnesses. A number of aspects could come under that umbrella—

Senator Michael Baume —Attempts at humour.

Senator ELLISON —Attempts at humour, as the honourable senator says, which I have had to suffer over the years. But during that time I have had nothing but a high regard for the judiciary which this country enjoys.

  That leads me to the final aspect—namely, whether any amendment of substantive law was required in order to address this situation. Questions such as whether the law favoured a male offender over a female victim was considered; possible changes to the notion of consent and sexual assault offences were mooted and, similarly, regard was had to precedent decisions which might require amendment because of any potential for discrimination. Recently in Victoria questions have been raised in relation to sexual assaults and prostitutes. The question there has been: should the occupation of the victim have any relevance to sentencing?

  These are relevant questions, but I would urge caution in approaching amendments to substantive law merely to address what might be seen initially as some sort of gender bias. Recently in Western Australia amendments have been made to the Evidence Act which have downplayed the question of recent complaint by a complainant, and past associations with the victim have now been made more difficult to introduce in the course of a defence of a charge of sexual assault.

  We must always remember that we are dealing with a system which presumes the innocence of the person charged and, furthermore, the charge must be proved beyond reasonable doubt. When we look at any amendment of substantive law we must jealously guard those principles and not merely throw them to the wind to address some social issue. I am not saying that there are not areas of the law which might not need attention, and I support wholeheartedly the committee's recommendation that the Australian Law Reform Commission look at the question of the substantive law and identify any areas which might require any amendment. But that process would have to be a very careful process indeed and not one which is attended to by haste or indiscretion.

  At the end of the day, legislation and action by the government can go only so far in affecting attitudes of the judiciary and more widely in the legal system. As I mentioned earlier, education has been the main response of the committee and I believe that is the only direction within which an appropriate response can lie.

  This has been an emotional topic and one which has attracted a great deal of publicity. I believe the Senate's legal and constitutional affairs committee has approached this matter in a rational and balanced way. I commend my fellow members on that committee from all sections of the chamber in the way that they have deliberated over the evidence and considered this much vexed question. I believe that the unanimous report now before the Senate is one from which a community-wide response could be worked and can provide a stepping stone to greater things. I thoroughly commend the report to the Senate.