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Monday, 30 May 1994
Page: 868


Senator COONEY (5.51 p.m.) —This is a unanimous report and, as chair of the committee, I thank Senator Ellison for his outstanding efforts in preparing this report. I thank Senator Spindler, Senator Chris Evans, and Senator Amanda Vanstone. I take this opportunity to congratulate Senator Vanstone on her appointment as shadow Attorney-General. I think she will make an outstanding shadow Attorney-General. She knows her law, she has a passion to put the law forward, she has a passion for politics, and I think the opposition has chosen well.

  I also thank Senator Jim McKiernan, who contributes to more committees than most of us in this chamber and he does it with considerable style and skill. I thank Senator Bill O'Chee and Senator Margaret Reynolds. I thank the secretariat, well led by its committee secretary, Mr Paul Griffiths, and the other officers, James Warmenhoven, Virginia Buring, Belinda Jackson, Catherine Cornish and the executive assistant, Margaret Lindeman.

  Many of the matters that I am about to deal with have been dealt with already, but I think they are worth repeating. The problem the committee found to exist between the media and the courts was a clash of cultures. No doubt the media is looking for a story. They want to handle it responsibly, of course, but they are looking for the human element, and that sometimes gives an imbalance to the reality. The judges, on the other hand, want to conduct a trial fairly. That often means that it moves slowly. A lot of things are said over a considerable period and often that is difficult to report. But I think that if both the media and the courts try to understand each other's cultures more, a lot of the problems will be solved.

  Political journalists in this place are quite outstanding. They understand how politics works, much more so than a lot of politicians do. They know what the issues are, and they present the issues accurately and in a way that the public can take up. Hopefully the same sort of thing can be done with people who report judicial matters. It is probably a bit more difficult than having a press gallery, but much would be gained by having a court's gallery where journalists who are learned in the law and know what the issues are could report them.

  I think an illustration of that is the treatment of Judge Bland's comments on 15 April 1993, when he was reported as saying that no sometimes means yes. If we look at the context in which he said that, and the exchange between him and the prosecutor when they were dealing with the issue of sentence, we see that his remarks are better put in context and much more understandable than how they were reported. As has been pointed out by his fellow judges, no appeal was brought from the sentence imposed by him and no exception was taken to his remarks when he passed sentence. That is just an illustration of how necessary it is for the two cultures to understand each other.

  Much has been said about sexual offences. There is no doubt that they are very bad crimes, and it is a dreadful thing that people who commit them are not punished. On the other hand, it is a dreadful thing if a person who is not a sexual offender is punished as one. As Senator Ellison said, it is for that reason that the law says that offences must be proved beyond reasonable doubt.

  In that context, it should be remembered that the criminal law is punishing offences against the community—those acts that society thinks are so bad that they ought to be visited with criminal sanctions. But it is sometimes thought by some that the criminal law is more a law that deals with disputes between people—the victim and the perpetrator. That is true to some extent but I think it is the wrong analysis of what the criminal law is all about and sometimes leads to demands, such as demands for victim impact statements, which are not as accurate as they should be.

  There has been much talk of more women being put on the bench, and I certainly agree that that ought to happen. I point out here—it has been pointed out already, but I think it is a point worth making—that in the 1950s when my wife was studying law there were very few women in her class.


Senator Bolkus —Still are.


Senator COONEY —No, the numbers are increasing. I think that is one of the reasons why not many women are judges. May I say that my wife would make an excellent and outstanding judge—


Senator Michael Baume —She is a great judge of character.


Senator COONEY —Yes. It is interesting in that context to understand—Senator Baume would understand this—that Monash University started training lawyers in the 1960s, getting on to 30 years ago. There is only one judge, Mr Justice Nahum Mushin, who has come from that university. As time goes by, there will be a lot more of them. It is an illustration that when we are looking at whether or not a proper approach has been taken to appointing judges, regard must be had to the fact that judges take some time to grow. It will be interesting to see how many women are on the bench at the turn of the century.

  There is one other point I want to make about the appointment of judges in that context. I think it would be wrong to appoint judges on the basis that they reflect society. If we do that, as somebody said, five per cent of judges ought to be convicted criminals.


Senator Chris Evans —Some would say they are.


Senator Panizza —I don't think that would be likely.


Senator COONEY —It is unlikely. But it illustrates that if there is a reflected principle, that is the sort of difficulty one comes across. What we want is a judiciary that understands the various sections of the community. We want a judiciary that is quite outstanding but, nevertheless, has an ability to understand the pressures and difficulties that people from all walks of life may have. It is the understanding that ought to be emphasised, rather than the reflected principles.

  Different qualities are required of judges in different courts. A court with a jury would be best handled by people who know their rules of evidence, what should be allowed into evidence and what should not. Appeal tribunals need judges with different qualities. Senator Gareth Evans denies that he would ever go on the High Court but that is perhaps the one court that he would suit. I hope he does not come after me for saying that. I think Senator Evans would have the ability to be a great High Court judge whereas he might not have the ability to be a great judge at first instance—not that he could not learn up his evidence; but he has chosen to come to the Senate instead, where rules of evidence do not count.


Senator Bolkus —They don't apply here at all, do they?


Senator COONEY —No, they do not. Looking at the substantive law and trying to squeeze out of that any sexual or other bias is important. The judges who made the remarks that have been criticised and referred to were not making remarks out of the air. They were making their remarks on the basis of what they had grown up with at law school. The sorts of things they said were the sorts of things that were taught in law schools in the 1950s, 1960s and 1970s. So it is the substantive law that needs to be looked at. What the judges have to do is attach themselves to the changing law so the changing culture of the law is kept up with.

  In conclusion, in my view we have in Australia a very good judiciary. It is clear of corruption; it has considerable ability and has great respect. That does not mean that when it makes a statement that ought to be criticised, that the statement should not be. Criticism in the press has been good so far, as has already been said, and has led to this inquiry which I hope is of some use. But it would be a pity if we got to the point that the judiciary became fair game, simply because it is there. I hope this report has helped get to the position where criticism that has been passed, and will be passed in the future, is legitimate.