VOLUME 49
NUMBER 3
L A W W E E K M AY 2 0 2 2
Special Edition:
Law| Week2022 |
Monday, 16 May to Friday, 20 May
ALSO INSIDE
Justice Inclusion Community Time to Try a “Nutha Way” The Voice of Indigenous Young People Access to Justice in a COVID-19 World Case Notes: Inside Djokovic v Minister for Immigration, Citizenship, Migrant Services The Women Should Have a Voice Edith Cowan’s Legacy of Social Justice in Western Australia
Human Rights Highlights: A selection of articles from our recent Human Rights special feature How to Find a Lawyer Online
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SOURCE STRENGTH FUTURE your essential membership
LawWeek2022
Justice | Inclusion | Community 2022 Programme
Monday, 16 May – Friday, 20 May The Western Austra profession’s annua lian legal l law and justice in thecelebration of community.
Dive into Law Week 2022 with our full programme of events happening in the Western Australian community.
Get involved! Learn | Contribute Celebrate!
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BRIEF - LAW WEEK EDITION
Look “behind the curtain” at the legal profession of Western Australia and the issues we champion on behalf of the community of Western Australia.
Volume 49 | Number 3 | Law Week - May 2022
Get involved, Learn, Contribute, Celebrate!
CONTENTS
LAW WEEK 2022 PROGRAMME
PAGE 12 onward
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DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief.
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“Nutha Way” - The Voice of Indigenous Young People
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Access to Justice in a COVID-19 World
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(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law
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The Perils of Independence: The Australian Human Rights Commission’s Role in Protecting Human Rights in Australia
Case Notes: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
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Edith Cowan’s Legacy of Social Justice in Western Australia
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Change the Culture is Here A Blessing of Unicorns - Address by the Hon. Justice Jenni Hill
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Perspectives of Diverse Women in the Law
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Small Court House, Big History
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Human Rights Obligations to Family and Domestic Violence The Importance of the Right to an Effective Remedy in Human Rights Legislation Magistrate Wendy Hughes: Have You Considered What Actually Makes a Good Leader? Indigenous Incarceration, Addressing an Upward Trend
COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Corporate Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Des McKenzie RRP $16.00 incl GST.
Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Dianne Caruso, Lucy Clark, Tracy Cole, Megan Cramp, Patricia Femia, Jessica Henderson, Anlee Khuu, Roselina Kruize, The Hon John McKechnie QC, Grace Ritter, Dr Pat Saraceni, Robert Sceales, Eu-Min Teng, Johann Andreas von Altenstadt. Proofreaders: Ingrid Briggs, Sonia Chee, Cassandre Hubert Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au.
President: Rebecca Lee Senior Vice President: Ante Golem Junior Vice President & Treasurer: Paula Wilkinson
REGULARS 02
Message from the President
Immediate Past President: Jocelyne Boujos Ordinary Members: Ben Bullock, Rebecca Bunney, Dr Brett Davies, Angie Gimisis, June Kenny, Gary Mack, Judy McLean, Kellie Woods
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Junior Members: Thomas Camp, Selina Gates, Hamish Glenister
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Message from the President Rebecca Lee President, The Law Society of Western Australia
Welcome to Law Week 2022!
a number of special events. It is our privilege to host guest participants, to see their ideas dance, and to support their voices being heard.
Taking place 16 May – 20 May, the week showcases a dynamic programme of events for both the legal profession and the community.
We have over 30 community events which provide opportunities for members of the community to learn more about the law, to attend free advice sessions and to learn more about your rights and responsibilities before the Law. The Law Society itself is hosting and promoting a number of special events including a free online forum with the formidable I. Stephanie Boyce, President of the Law Society of England and Wales, where we will hear her in conversation with our esteemed panellists to open Law Week; the Walk for Justice to raise money for the Law Society’s wholly owned subsidiary Law Access Ltd; Book Club Forum discussing the gripping memoir of Sydney lawyer Arman Haydar; our CPD Day for Country practitioners provides
Law Week is an opportunity to place a spotlight on issues affecting access to justice in the community. This year, in pursuit of this overarching theme, the Law Society of Western Australia has put a focus on Justice, Inclusion and Community. To quote Vernā Myers, well-known inclusion strategist, cultural innovator, thought leader, and social commentator: “Diversity is being invited to the party; inclusion is being asked to dance.” With this as inspiration, we have extended an invitation for other voices in the legal profession to join us centre stage this Law Week through
focused professional development and networking opportunities for our country colleagues; and the closing event for the week, the Long Table Lunch Live, which provides the opportunity to showcase our community of diverse lawyers and contributors to the profession and to celebrate the value that diversity offers the profession. From social, educational, and fundraising events to free legal assistance clinics and informative webinars, there is something of value for everyone this Law Week. Finally, I would like to thank The Public Purposes Trust Fund for their continued support of Law Week, and importantly, all the volunteers who have so generously given their time to make this week a highlight on our calendars. I wish you all a great Law Week!
Find a lawyer online with the Law Society website The Law Society of Western Australia’s “Find A Lawyer” program lists over 300 WA Lawyers classified by specialisation, location and language. Visit our web page at www.lawsocietywa.asn.au/find-a-lawyer/ to find a lawyer to suit your specific needs.
lawsocietywa.asn.au/find-a-lawyer/
A BIG SHOUT OUT! Thank you to our members and all the volunteers who have given their time to make Law Week a highlight!
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LawWeek2022 Justice | Inclusion | Community
Full Event Details Online Law Week has a variety of events with something for everyone. For more information and detailed descriptions of all events visit lawsocietywa.asn.au/law-week Law Week has a long history, going back to the first ‘Law Day’ organised by the Law Society in 1983. Over the decades it has gone from strength to strength, evolving into a week-long celebration. Law Week has always been about connecting the legal profession with the community, demystifying our justice system, and keeping people informed about their rights and responsibilities before the law. The Law Society is once again offering a platform to come together, share stories and celebrate the good work of the profession. Through a series of events and initiatives, Law Week will highlight the important role of the profession in providing access to justice, inclusion and community service. This year’s programme includes some new opportunities from the Law Society and the legal profession, so read on to find out how you can become involved.
All Week Events Law Week Free Legal Assistance Clinics Proudly offered by HHG Giving Back (the charitable arm of HHG Legal Group) Presented by HHG Legal Group All week: Monday, 16 May 2022 to Friday, 20 May 2022, 4.00pm to 5.00pm HHG Legal Group Perth, Albany, Mandurah, Bunbury & Joondalup. Register here – https://hhg.com.au/2022-law-week-clinics
The Corruption and Crime Commission: Powers, Functions and Role in the Justice System Free Presentation for Schools and Universities Presented by the Corruption and Crime Commission Monday, 16 May 2022; Wednesday, 18 May 2022 or; Thursday, 19 May 2022 Register here – legal@ccc.wa.gov.au or (08) 9215 4824 if you are interested in a 45-minute presentation by the CCC to speak at your school
Old Court House Law Museum Free Tours: Small Court House, Big History Discover the early history of the Swan River Colony at the oldest building in Boorloo (Perth). Hear stories of trials and social events that occurred within the Old Court House, then finish with a private viewing of an empty court room in today’s Supreme Court. Presented by the Law Society of Western Australia Tuesday, 17 May 2022 – 12.00pm to 1.15pm; Wednesday, 18 May 2022 – 11.00am to 12.15pm and Friday, 20 May 2022 – 1.00pm to 2.15pm Old Court House Law Museum, Perth. Register here – https://www.lawsocietywa.asn.au/old-court-houselaw-museum-small-court-house-big-history-law-week-tours/ 4 | BRIEF LAW WEEK | MAY 2022
Monday, 16 May 2022 - Law Week Opening Event
In Conversation with
I. Stephanie Boyce
FREE ONLINE FORUM
President of the Law Society of England and Wales Monday, 16 May 2022, 5.00pm to 6.30pm Presented by the Law Society of Western Australia
Register here: https://www.lawsocietywa.asn.au/events-overview
Department of the Attorney General Department of Education
New ways to access advice: Legal Aid WA's Virtual Office Service – Free Online Event
R U Legal? for parents and educators – Free Online Event
Presented by Legal Aid Western Australia
Monday, 16 May 2022, 5.00pm
Monday, 16 May 2022, 2.00pm to 2.30pm
Presented by Legal Aid Western Australia Register here - cle@legalaid.wa.gov.au
Register here - cle@legalaid.wa.gov.au
Representation in protection and care proceedings Moving towards better outcomes Free Online Event Presented by Legal Aid Western Australia Monday, 16 May 2022, 3.30pm to 4.30pm Register here - cle@legalaid.wa.gov.au
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Tuesday, 17 May 2022
Law Access Walk for Justice Tuesday, 17 May 2022, 7.30am – 9.00am (approximately)
FREE EVENT
Presented by Law Access Starting at the Bell Tower, walking to Point Fraser and back via footpaths along the river, Perth CBD Register here - https://www.mycause.com.au/events/lawaccesswalkforjustice2022
Property Settlement Q & A Free Event
Legal Aid WA: How We Help Free Online Event
Presented by the Gosnells Community Legal Centre
Presented by Legal Aid Western Australia
Tuesday, 17 May 2022, 10.00am
Register here - cle@legalaid.wa.gov.au
Tuesday, 17 May 2022, 3.00pm to 4.00pm
Gosnells Community Legal Centre Register here - tara@gosclc.com.au
Subiaco Justice Centre Law Week Quiz Night Presented by Subiaco Justice Centre Tuesday, 17 May 2022, 5.30pm for a 7.00pm start Subiaco Football Club, Subiaco Register here - https://www.eventbrite.com.au/e/lawweek-quiz-night-tickets-313160791357
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Wednesday, 18 May 2022
Book Club Forum
FREE EVENT
The Mother Wound by Amani Haydar Wednesday, 18 May 2022, 5.30pm – 7.30pm Presented by the Law Society of Western Australia Old Court House Law Museum, Perth Register here - https://www.lawsocietywa.asn.au/events-overview “Gripping, transcendent, tender and, at times, infuriating. With a daughter’s heart and a lawyer’s mind, Amani Haydar maps the territory that connects the wars we fight abroad to the wars we endure in our homes.” – Jess Hill Join us for a special Law Week Book Club Forum event facilitated by Karess Dias, Solicitor on Wednesday, 18 May 2022. Spend an evening with our panelists to discuss and explore the themes of this must-read memoir by Amani Haydar. Read the book, join in the discussion, ask a question or simply immerse yourself in the conversation. This special event is free to attend and will include the chance to network with colleagues and fellow book enthusiasts over light food and refreshments.
Karess Dias, Solicitor
David Cain, Executive Director Strategy and Growth, Communicare
Rebecca Bunney, Head of Practice – Family Law, Cullen Macleod Lawyers
Photo credit: The State Library of New South Wales Book cover design and illustration: Akiko Chan Published by Pan Macmillan Australia
Dr Jennie Gray, CEO, Women’s Legal Service WA
Shadia Rahman, Assistant State Thomas Camp, Senior Associate, Solicitor, State Solicitor’s Office Butcher Paull & Calder
More Wednesday events on the next page
Wednesday, 18 May 2022 continued
Lunch & Learn Wednesday, 18 May 2022, 1.00pm – 2.00pm Presented by the Law Society of Western Australia
Mindfulness for Managing Triggers
FREE EVENT The Law Society of Western Australia Level 5, 160 St Georges Terrace Perth Register here – https://www.lawsocietywa.asn.au/events-overview
Criminalising Coercive Control the current debate in family violence – Free Event Presented by the Office of the Commissioner for Victims of Crime Wednesday, 18 May 2022, 5.00pm start to 6.00pm approximate finish WA Museum Boola Bardip, WA Museum Learning Studio 3 Register here - https://justice.wa.gov.au/coercive-control-WA-public-debate for general details please call (08) 9264 9877 or email coercivecontrol@justice.wa.gov.au
Law in the Malls Free Legal Advice 20-minute appointments Fremantle Community Legal Centre
Family Law – Free Clinic Presented by Gosnells Community Legal Centre Wednesday, 18 May 2022, 9.00am to 12.00pm
Wednesday, 18 May 2022, 9.30am to 3.00pm
Gosnells Community Legal Centre 2232C Albany Highway, Gosnells
Fremantle Community Legal Centre
No registration required; walk-in clinic
Register here - (08) 9432 9790 or fclc@fremantle.wa.gov.au
Law Hub: Legal Aid WA’s resources for Lawyers Free Online Event Presented by Legal Aid Western Australia Wednesday, 18 May 2022, 3.00pm to 3.30pm Register here - cle@legalaid.wa.gov.au
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Child Support Free Walk-in Clinic Presented by Gosnells Community Legal Centre Wednesday, 18 May 2022, 12.00pm to 3.00pm Gosnells Community Legal Centre 2232C Albany Highway, Gosnells No registration required - walk-in clinic
Thursday, 19 May 2022 Panel Event: FREE EVENT Inclusion and Personal Perspectives: the lived experiences of people with disabilities in the legal profession – The Law Week Panel hosted by the Law Society of Western Australia's Young Lawyers Committee
Thursday, 19 May 2022, 5.30pm – 7.30pm Venue sponsor: Corrs Chambers Westgarth, Perth Register here - https://www.lawsocietywa. asn.au/events-overview
FREE ONLINE EVENT
Elder Abuse: Top 5 Most Frequently Asked Questions Thursday, 19 May 2022, 10.00am – 11.00am Presented by Northern Suburbs Community Legal Centre (NSCLC)
Strata Community Association WA Law Week Seminar Creating a fair and just environment for those living in strata where neighbours are mindful of their responsibilities towards others to create a safe harmonious community. Presented by Strata Community Association WA
Free Online Event Register here: https://events.humanitix. com/elder-abuse-top-5-most-frequentlyasked-questions
Law Week Art Competition Awards Ceremony Showcasing Artwork with the theme “Law and the Pandemic” Presented by Regional Alliance West
Thursday, 19 May 2022
Awards ceremony for winners to be held on Thursday, 19 May 2022 at 3.30pm
Session 1 – Morning 9.00am to 12.00pm, lunch to follow
For more information - (08) 9938 0600
Session 2 – Afternoon 12.45pm to 3.30pm, sundowner to follow The University Club of WA Register Here, call (08) 9381 7084 or email education.wa@strata.community
Wage Theft Free Online Event Presented by Circle Green Community Legal (Workplace) Thursday, 19 May 2022, 11.00am to 12.00pm Register here - administration@circlegreen.org.au
Family Law FAQs Free Seminar Presented by Family Law Practitioner’s Association Thursday, 19 May 2022, 5.30pm O’Sullivan Davies Family Lawyers Register here - https://www.eventbrite.com.au/e/lawweek-2022-family-law-faqs-tickets-321179615877 JUSTICE
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Friday, 20 May 2022
CPD Day for Country Practitioners Friday, 20 May 2022, 8.30am – 4.30pm Presented by the Law Society of Western Australia Special all-day event followed by networking drinks. Also available as a webinar. The Law Society of Western Australia Level 5, 160 St Georges Terrace Perth Register here: https://www.lawsocietywa.asn.au/cpd-seminars
Trauma Informed Lawyering – Free Seminar In-Person or Online Presented by Ruah Legal Services Friday, 20 May 2022, 2.00pm WA Museum Boola Bardip
Register here: In-person https://lawweekcpdevent.eventbrite.com.au/ Livestream event https://lawweekcpdeventlivestream.eventbrite.com.au/
Attachment Theory in Child Protection Proceedings Free Seminar In-Person or Online Presented by Ruah Legal Services Friday, 20 May 2022, 3.10pm WA Museum Boola Bardip
Register here: In-person https://lawweekcpdevent.eventbrite.com.au/ Livestream event https://lawweekcpdeventlivestream.eventbrite.com.au/
The Insanity Defence – Pitfalls, Tips and Tricks for Trial Free Seminar In-Person or Online Presented by Ruah Legal Services Friday, 20 May 2022, 4.20pm WA Museum Boola Bardip
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Register here: In-person https://lawweekcpdevent.eventbrite.com.au/ Livestream event https://lawweekcpdeventlivestream.eventbrite.com.au/
Friday, 20 May 2022 – Law Week Closing Event
Long Table Lunch Live Friday, 20 May 2022, 12.00pm – 2.30pm Presented by the Law Society of Western Australia The Westin Perth With our collaboration partners, the Law Society invites you to join us for a very special Long Table Lunch Live. This event, centred on great food and live discussions, is co-curated with our collaboration partners, where you will experience diverse insights and opinions, with a Q&A-style to create a vibrant, interactive and social atmosphere. Come to lunch and help us sign off Law Week 2022 on a high. Registrations close Monday, 16 May, 12 noon. Register here: https://www.lawsocietywa.asn.au/event/law-week-long-table-lunch-live/ In collaboration with:
Aboriginal Legal Service of WA
Society of Jewish Jurists and Lawyers
Supported by:
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Special Law Week Edition This special Law Week 2022 edition of the Law Society’s Brief Journal highlights some of the stand-out articles and features from the past twelve months as well as a handful of new articles penned specifically for this ‘Justice | Inclusion | Community’ edition. Take a look “behind the curtain” at the legal profession of Western Australia and the issues we champion on behalf of the community.
reBriefed this article originally appeared in our June 2021 edition
Time to Try a “Nutha Way”
The Voice of Indigenous Young People By The Nutha Way Team A joint initiative of the Law Society of WA, Millennium Kids and Media on Mars
Nutha Way is an Indigenous youth leadership initiative of the Law Society of Western Australia focused on building better relationships between young people, their communities, the justice system, local police and stakeholders. In partnership with Millennium Kids Inc. and Media on Mars, Nutha Way engages with young people in ways meaningful and relevant to them and garners their input to identify issues faced by them in their community. An important feature of Nutha Way is the 25+ year commitment and the ‘skills for life’ approach that aims to build capacity and empower youth led initiatives.
youth and supporting them to pitch their ideas for solutions to the issues identified. This is critical if we are to help change outcomes for young Indigenous people and their communities. This approach also helps Indigenous youth build confidence, find and share their voice, develop community bonds and form partnerships to facilitate implementing solutions.
The Law Society, Millennium Kids Inc. and Media on Mars believe in championing the voices of Indigenous
An example of what building community bonds and partnerships looks like is Nutha Way in Coolgardie. Young
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Indigenous people in Coolgardie identified that they need somewhere to go when they need a break. The community realised that the empty house next to the police station would be an ideal location for this and could also function as a place to build a positive, culturally appropriate youth program. Over the last year, the Nutha Way team with the local youth, Elders and the Coolgardie Police have been working with us to secure that house for the Nutha Way team and the local community to use as the Nutha Way Youth Hub. This initiative has received a WA Police Community Grant to run an ‘On Country’ planning workshop with the young people and the local Police to co-design how the Nutha Youth Hub will work.
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Time to Try a “Nutha Way”
Another purposeful design element of the program has been connecting young people with Country. Being 'On Country' helps break through barriers, build relationships and creates a safe space to share stories. We take our young people on trips to the Great Western Woodland region along with Indigenous Elders to learn about their history, significant sites in the area, and the role of Woodland custodians. Quote from Brenden Ah - Kim - Nutha Way Indigenous Leader “There’s a lot of momentum with this program building positive relationships with the Police. The program breaks down barriers and is a great template for other communities wanting to build better relationships between young people and police.”
Quote from Sergeant Gary Simpson – Officer in Charge, Coolgardie Police “We used to drive past kids and we’d either get nothing or possibly the bird, but now we drive past and they wave and call out to us. We can stop to have a chat and talk about the basketball program we’ve got going on. The fact that they call us by our first names in itself, is a sign of success.” While we do not have all the answers to addressing the complex social issues with Indigenous young people in small regional towns, we can see this program making steps in the right direction. Partnering with young people and championing their solutions is a great way to create positive change with, and by, young Indigenous citizens. In consultation with their communities, the journey creates positive
More information
reinforcement for them and their longterm futures. For the first two years in the Goldfields, the program has been funded by Lotterywest and the Department of Justice’s Criminal Property Grants Confiscation Program. It is being delivered by Millennium Kids Inc. and Media on Mars. Based on the success in Coolgardie the Law Society and Nutha Way partners have been invited to run Nutha Way in other regional locations. We are actively looking for ongoing funding and corporate support to maintain engagement in Coolgardie and the Goldfields whilst also potentially expanding to other regions.
More information on Nutha Way in Coolgardie can be accessed via the Nutha Way 2020 Annual Story. For more information about Nutha Way please visit www.nuthaway.org.au or follow us on: FaceBook: https://www.facebook.com/NuthaWay-104342954405582/
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The Voice of Indigenous Young People
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reBriefed this article originally appeared in our April 2021 edition
Access to Justice in a COVID-19 World by Dr Jacoba Brasch QC President of the Law Council of Australia
Dr Jacoba Brasch QC
The Law Council of Australia’s President, Dr Jacoba Brasch QC, presented “Access to Justice in a COVID-19 World” at a special fundraiser to support the Women’s Legal Service WA. The University of Western Australia, in partnership with the Law Society and supported by the WA legal profession, hosted this special lecture on 25 February 2021. Permission has kindly been granted by the Law Council of Australia to publish this presentation. Thank you for providing me with the opportunity to speak to you all here at the Law Society of Western Australia and University of Western Australia Law School, CPD Fundraiser. I acknowledge the traditional owners and custodians of Country throughout Australia and recognise their continuing connection to the land, sea, and community. We pay our respects to them and their cultures, and to their Elders past, present and emerging. When I was first asked to attend this event a little while ago, I did wonder to myself - isn’t COVID ancient history for WA (and similarly so-2020 for Qld) … but then, only last month you had your six day lock down and we, our three days. Both your State and mine have very recently been reminded how things can change so quickly. So now I speak to the topic of Access to Justice in a COVID world with, sadly, a new sense of relevance. 16 | BRIEF LAW WEEK | MAY 2022
Tonight, I will touch on a few topics with broader implications to and observations about our profession, and some of the IT positives that have come from it – if you have IT access. The topics are: • • • •
access to justice in this new normal; the electronic execution of documents; new ways to practice; and the importance of professional associations.
On the last point, I immediately observe that tonight’s event – where the WA legal profession, the WA Law Society and University of Western Australia have come together to support the Women’s Legal Service WA – is a prime example of the importance of professional associations working together. There is no doubt that we have endured a tumultuous 12 months, with COVID influencing each and every one of us in some way. I must admit though that I had a sense of being safe and protected ensconced here in Brisbane,
with our hard border closures, perhaps as many of you did in Western Australia. I also had a Pollyanna expectation that all would be good at the stroke after mid-night on 1 January 2021 … but our respective Januarys were stark reminders that we will be living with this virus, and working around it, for months to come. Indeed, having assumed the Presidency of the Law Council of Australia in the midst of the COVID-19 pandemic, part of my year will be spent engaging and supporting the profession, as it deals with some monumental changes to the way that we do business and the ways we can continue doing business, whilst also ensuring justice is done and is seen to be done. The COVID-19 pandemic marks an undeniable paradigm shift for the legal sector. At the same time, we know that demand for – and the importance of – accessible legal assistance is heightened in times of crisis. But, crisis proffers no excuse for any diminution in our role as defenders and promoters of the rule of law. And let me pause to acknowledge that in times of crisis, the legal profession steps up to the plate – for example, volunteering to assist people in your recent and tragic bushfires, or, in my state, when we had flood waters that ravaged and killed. In times of crisis, we act in the finest traditions of what the French call, noblesse obligee.
From left to right: Law Society President Jocelyne Boujos; Greg McIntyre SC, Barrister at Michael Kirby Chambers, Treasurer of the Law Council of Australia, Past President of the Law Society of Western Australia; and John Butler, Special Counsel/Director Butlers Lawyers & Notaries.
Let’s stop for a moment and think about how we are convening this evening – you are a 10-hour, expensive return flight away from my hometown of Brisbane. Yet here we are. This time last year, there would have been little thought to whether I could participate by Zoom; rather, the thinking would have been along traditional lines of physical attendance.
But that said, all approaches by every professional association have been underpinned by the same values and goals:
And then COVID hit our shores.
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Very quickly, we had to learn a new way of practicing, a new way of living, and a new way of connecting with friends in other locations … and new ways of assisting our most vulnerable.
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Whilst this paradigm shift presented countless challenges – many of these challenges also provided opportunity to innovate, and to create a legal sector able to respond to our new normal - and perhaps most importantly, a legal sector that can look at the last 11 months, and identify efficiencies for how we deliver our services going into the future. Of course, each state and territory had their own responses to managing the pandemic, with, perhaps, your state and mine being closely aligned in approaches. Equally, each state and territory Law Society and Bar Association also approached their offering to members in their own fit for purpose way.
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technologies. However adapt we had too, with perhaps the most uttered phrase of 2020 being “you’re on mute”. And adapt we did.
to ensure that the administration of justice may continue as smoothly as possible; that members of our communities have continuity of access to legal services; to keep a watchful eye that constraints imposed for health purposes do not encroach upon open and transparent justice; and that legal practitioners are able to weather the pandemic’s economic and social impacts as well as possible.
Last year and continuing now, the legal profession has shown itself to be remarkably agile, and capable of swiftly adapting to new technologies and ways of working. In the initial pandemic response in March 2020, Australia’s legal profession and court systems had a very narrow window to transition to remote service delivery and to identify priority legal services to be maintained. As a result, a digital transformation, which may otherwise have occurred over several years, surged through our profession in a matter of weeks. Research tells us that lawyers are, for the most part, notoriously bad at adopting JUSTICE
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At the Law Council, we moved to weekly executive meetings where I too was guilty of not adopting new technologies. For a period of time, I declined to attend by Zoom, but rather, phoned in as we had done for years. Sensing the then President’s increasing frustration with my failure to engage with the tech, I reluctantly yielded, and have since become the biggest convert to Zoom I bought myself a second monitor, a really good camera and a green screen. An early adopter I was not, but late convert, I certainly am. When your Law Society President, Jocelyne and I met in January, we met by Zoom, with your CEO David Price beaming in too. Just being able to see someone whilst talking to them, as opposed to what would have been a phone call, added a depth and dimension to our meeting. For my part, it was certainly a warmer discussion than a phone call would have allowed. Similarly, for our Directors’ meeting in March, a number of Directors and CEOs will beam in via Zoom. Some are physically attending but others, particularly where the travel is long and expensive, and those from states where INCLUSION
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Dr Jacoba Brasch QC on screen with panellists from left to right: The Hon. Robert French AC; Chief Judge Julie Wager from the District Court; Nicola Ashford, Women’s Legal Services WA; and Natalie Skead, Dean and Head of the UWA Law School at the podium.
borders are closed with only short notice, are attending electronically. Three of our four Directors’ meetings last year were held this way. Whilst we did not enjoy the collegiality of having a chat over a coffee before and after meetings, there was no detraction from the business of the Law Council being conducted with rigorous debate and input from all. I also give you another specific example of not only adaption, but also the importance of collegiality between professional associations and collaboration with the court. In early March last year, I was contacted by the CEO of our (my) Qld Women’s Legal Service who told me of children who were not seeing the “other” parent because of COVID restrictions, and, of the increased spike in calls about family violence where people were locked down under one roof unable to escape. I am well aware your Women’s Legal Service – like every counterpart across the nation – has seen an increase in demand for services due to COVID-19. Back to the Qld example, Angela Lynch, the Qld CEO, was able to reach out because of the collegiality we had developed over years. In turn, I asked Angela to put her concerns in writing, addressed to the Chief Justice/Chief 18 | BRIEF LAW WEEK | MAY 2022
Judge, send it to me, and I would ensure it got before him. By the end of the week, the Family Court of Australia and Federal Circuit Court had the COVID-19 list where parenting or family violence matters would be heard expeditiously. And because we were all using new IT platforms for hearings, it did not matter where the national family court COVID judge sat, or the FCC COVID judge – everyone would be on-line and the matter dealt with within 72 hours of filling. That is a real example of the profession and the courts working together for a truly beneficial outcome for members of our communities in crisis. It is something we must continue to do – the collegiality and the creative use of technology. Indeed, in my own practice, even though we can travel freely within the state (touch wood) many clients are now expecting more efficient delivery of legal services. Why would someone (unless they wanted to) drive 2.5 hours each way from say Toowoomba to the west of Brisbane to have a conference with me, and to pay for the privilege of the solicitor doing the same? Why would someone, again, unless they wanted to, pay for me to fly to say Cairns for a mention, when the courts have been
able to offer electronic hearings. Last year, I also conducted an unprecedented number of arbitrations by Zoom, with parties in locations from Cairns, to Adelaide, Sydney and Melbourne, as well as my own Brisbane. I was only talking to solicitors from Melbourne earlier this week about continuing to arbitrate by Zoom even if we can travel, because it will save parties, especially when in varying locations, costs of travel, accommodation, babysitting and disruption to their lives. I used to be a believer in the “see the whites of their eyes” approach to cross-examination. However, even before COVID, I had read a goodly body of research which concluded that determining credit by observation was a flawed methodology, and, I had conducted enough trials by video-link pre-Covid to know (at least in my courts) you in fact get a closer and better view of witnesses by this means. I hasten to add that I am not a criminal law lawyer, nor do I suggest jury trials could be conducted this way. On a different topic, in my view, the electronic execution of documents - not just affidavits as I understand to be the case in WA, but for deeds and wills too – was and will remain a game changer.
But we need consistency in approach – disputes (like viruses) do not stop at borders. Of course, we need to ensure against undue influence, unconscionable conduct and turn our mind to issues of capacity, but the electronic execution of documents offers real potential for some aspects of law to be more efficient and cost-effective. For the upheaval that was 2020, these are potentially positive outcomes and so long as we can ensure fidelity and veracity of the process, they are efficiencies I would like to see remain in place. It is also my hope that the Courts, especially the federal courts where the LCA has its focus, will continue with electronic hearings for Directions Hearings, mentions and many interim or interlocutory hearings. We have discovered that the savings to clients, both in dollars and convenience, are considerable. However, while the introduction of technology to legal services, may be seen by some as the answer that nonurban Australians have been waiting for, it is not a complete silver bullet. Technology will not tear down the inequality that exists, where access to the basics of online access is still lacking. Many years ago, I was volunteering at the Qld Women’s Legal Service. We were rostered on to give advice one night a week every six weeks at the drop-in, no appointment necessary nights. Most of the inquiries were about family law. To one woman asking me about divorce, I replied “you can download the court forms on-line.” She looked at me and said, “but I don’t have a computer.” That reality check, 21 years ago, still haunts me today that my middle-class, first world life was not the common, shared experience of everyone in this nation. It was a salutary reminder to me that we are not, in fact, all equal in accessing the law. It is a reality that has particularly stuck with me this last year as many of us easily “pivoted” (as the saying goes) to digital services. But it is not the lived experience of all. As we forge a path to on-line service delivery where appropriate, we must remember there are the IT rich and the
From left to right: Nicola Ashford, Women's Legal Services WA; Law Society President Jocelyne Boujos, Natalie Skead, Dean and Head of the UWA Law School; The Hon. Robert French AC; and Chief Judge Julie Wager from the District Court.
IT poor. That is not to say we forgo the incredible enhancements which on-line service delivery offers many of us; but we just need to be alert to and inclusive of those who do not have: • • • • • •
ready access to a computer or mobile device; good bandwidth; language proficiency; sufficient levels of literacy; adequate levels of IT literacy; or an income to support IT access and subscriptions.
In short, we are not all on a level playing field. And on a separate issue, a closed court system is an anathema to us. The courts are generally open, and any citizen may enter at any time, just like our parliaments. Chief Justice Gibbs of the High Court said in Russell v Russell that it is the ‘ordinary rule’ of courts of Australia that their proceedings shall be conducted ‘publicly and in open view’; without public scrutiny, ‘abuses may flourish undetected’. JUSTICE
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Gibbs J went on to say: ‘Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court.’ That is not to say we should be doing anything other than using technology for the advancement of the provision of legal services and access to justice, but it does mean we need to be conscious of bringing everyone along with us, or at least as many as possible. But we must not forget the IT poor as they are likely to have a range of vulnerabilities and disenfranchisement. I invite you all to look at the whole of the person who is your client, and the whole of their needs and circumstances. Thank you. INCLUSION
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Case Notes Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Before January, not many of us knew a great deal about the Minister for Immigration’s power under s 133C(3) of the Migration Act 1958 (Cth) to cancel visas without any requirement to afford natural justice. The decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 highlights the extraordinary breadth of that power, and the very limited prospects that even an exceptional visa holder has of seeking to quash a cancellation decision. And the visa holder in this case truly was exceptional.
Novak Djokovic and his views on vaccination For the past decade, Novak Djokovic has dominated men’s tennis. One of the key contributors to his success has been said to be his complete professionalism in taking care of his body and mind. This dedication has led him to hold the world no. 1 ranking for a total of 356 weeks, to become the only man to win all majors twice, and to have almost been in position to reach his coveted 21st slam in January of 2022. Had he not been deported, he could have overtaken his rivals’, Roger Federer and Rafael Nadal’s, joint record of 20 majors each. Throughout the 2010s, Djokovic repeatedly indicated a preference for alternative methods of medicine. His 2013 book, Serve to Win, details his decision to adopt a gluten-free diet following consultation with a ‘holistic practitioner’ and in 2016-18, Djokovic added Spanish former-player-turnedmeditation-guru Pepe Imaz to his team, who brought the philosophy of Amor Y Paz (Love and Peace) to tennis coaching. During this period, Djokovic was affected by an elbow injury that many in his team (including his then coach Andre Agassi) believed would require surgery to heal satisfactorily. After some time off from competition, and a drop to 22nd place in the rankings, Djokovic grudgingly agreed to undergo the procedure in 2018, telling Simon Briggs of The Telegraph, ‘I am not a fan of surgeries or medications … I am
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Chris Burch
Chair, Young Lawyers Committee
just trying to be as natural as possible, and I believe that our bodies are selfhealing mechanisms’.1 Later, in 2020, Djokovic hosted several Instagram interviews with Chervin Jafareih, a former real estate agent and hedge fund manager turned wellness guru. These discussions became a platform for Jafareih to peddle various ‘wellness’ products such as ‘brain nutrients’, and included discussions on topics such as how prayer and gratitude can change toxic foods into healthy/ healing ones.2 In a livestream discussion with other Serbian athletes in April 2020, Djokovic stated he is opposed to vaccination and would not wish to be forced to take a vaccination in order to compete in international tournaments.3 Though Djokovic has more recently narrowed these remarks by referring specifically to a COVID-19 vaccine, such a vaccine was not available at the time and the comments led to widespread speculation within the tennis community that he may have been opposed to vaccinations more generally. In early 2020, Djokovic faced heavy criticism for the lack of social distancing procedures enforced during the Adria Tour; an exhibition tennis tour that was Djokovic’s brainchild. The tour was held across Serbia and Croatia, and resulted in a cluster of COVID-19 cases.4 Throughout 2021, Novak continued to decline to reveal his vaccination status, declaring it a private matter and reiterating his freedom of choice stance. Conversely, the 2021 Serbia Open — a clay court tournament which Djokovic was heavily involved in organising, and at which his younger brother Djordje held the role of the tournament director — offered vaccination clinics for players, coaches and officials.5 That led to speculation that perhaps Djokovic was honestly opposed only to being obliged to be vaccinated in order to compete, or that he might have been vaccinated but merely unwilling to disclose his vaccination status for privacy reasons. On 4 January 2022, Djokovic shared a post on Instagram with a caption stating
Vaughan Jameson
Law Student University of Notre Dame Fremantle
that he was heading to Australia with an ‘exemption permission’, providing what was at the time the most definite answer to the question of his vaccination status. 6 Djokovic landed at Melbourne airport late on 5 January 2022, was quickly escorted to passport control and was later formally interviewed by Australian Border Force officers. The interview lasted for 8 hours and resulted in the decision to cancel Djokovic’s visa and relocate him from the airport to the Park Hotel where he would remain under detention until the Federal Circuit Court later ordered he be released. The first definitive response Djokovic gave to an enquiry as to his vaccination status is found in the transcript of the interview with the Border Force officers in the early hours of 6 January. In response to the question ‘… regarding your vaccination, are you vaccinated[?] - - -’. Djokovic responded ‘I am not vaccinated’; repeating again in response to the clarification ‘- - - for COVID-19? Not vaccinated?’, ‘I am not vaccinated’.7
The visa cancellation and the Federal Court challenge When the decision made at the end of that long interrogation to cancel Djokovic’s visa was quashed, the Commonwealth’s Counsel informed the Court that the Minister for Immigration would consider whether to himself cancel Djokovic’s visa under s 133C(3). That power, relevantly, gives the Minister discretion to cancel a visa if they are satisfied that the presence of the visa holder in Australia is or may be, or might or would be, a risk to the health, safety or good order of the Australian community or a segment of it, and are satisfied that it would be in the public interest to do so. Its exercise also results in a person being excluded from Australia for three years, absent limited exceptions. The Minister exercised that power four days later, cancelling Djokovic’s visa for a second time. The hearing that followed before the full court of the Federal Court was remarkable both for how quickly it convened — on a Sunday morning within 2 days of the decision, and for what it
reBriefed While protests had occurred only after the first cancellation decision, the Court found Djokovic’s apparent position on vaccination may nevertheless encourage rallies and protests, and may lead to heightened community transmission: [81]
Source: Shutterstock.
this article originally appeared in our February 2022 edition
and the decision that followed reveal about the nature of the Minister’s power to cancel visas. The Court was at pains to get across to the tens of thousands of viewers of its livestream that it was not in a position to consider the merits or wisdom of the Minister’s decision; only its lawfulness by reference to the complaints made by Djokovic’s legal team. Those complaints related broadly to the findings open to the Minister on the material before him, and to whether the Minister should have but did not compare the consequences of cancelling Djokovic’s visa against the position if he were allowed to remain in Australia. Each was dismissed. As to the proposition that it was not open to the Minister to conclude Djokovic had a well-known stance in opposition to vaccination, the Court simply noted he had previously expressed views about his opposition to vaccination, and had not by January 2022 become vaccinated: [71], [72], [74]. In those circumstances, it was plainly open to the Minister to infer Djokovic was opposed to vaccination or did not wish to be vaccinated: [74], [76].
Next, the Court dispensed with the argument that the Minister lacked evidence that Djokovic’s presence in Australia may foster anti-vaccination sentiment: [78]. It was open to the Minister to infer that Djokovic was publicly perceived as not in favour of vaccinations, had chosen not to be vaccinated, and that anti-vaccination groups portrayed Djokovic as a hero and icon of freedom of choice: [79]. While protests had occurred only after the first cancellation decision, the Court found Djokovic’s apparent position on vaccination may nevertheless encourage rallies and protests, and may lead to heightened community transmission: [81], [83], [85]. More than that, the Minister relied on Djokovic’s stance affecting those who may be uncertain or wavering as to whether to be vaccinated: [80]. The latter effect did not need evidence; it arose from common sense and human experience — an iconic world tennis star may influence people, especially the young and impressionable, to emulate him: [82]. Further, that Djokovic had recently attended public activities while COVID positive to his knowledge and without wearing a mask left open the inference that, if emulated, his behaviour may encourage breaches of public health
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regulations: [86]. Finally, the Court addressed the contention that the Minister should have but did not consider whether cancelling Djokovic’s visa may itself foster antivaccination sentiment: [92]. It simply wasn’t necessary for the Minister to consider and weigh that potential consequence where the power to cancel Djokovic’s visa arose once the Minister was satisfied that his presence in Australia may be a relevant risk: [95]. The Minister was not required to consider the consequences of cancellation by way of a counterfactual: [95]. The Court noted, though, that it was open to the Minister to consider that potential consequence in assessing the public interest or in exercising his discretion: [96], [97]. The Court concluded the Minister was aware of ‘any number of’ consequences that might ensue from cancellation, including unrest, but was to be taken as not having regarded them as something necessary to weigh in making his decision: [100]. In any event, the Court identified that any failure to consider the potential consequences of cancellation would not affect the group that was hesitant or unwavering about getting vaccinated, who would not be influenced by
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Case Notes
In the Park Hotel alone, which Djokovic endured for a countable number of hours, are refugees and asylum seekers who have spent years of their lives detained.8 Pictured: Victoria Police observe Novak Djokovic supporters, refugee supporters, and antivaccination protestors at The Park Hotel in Swanston Street, Carlton. Source: Shutterstock.
Djokovic’s absence from as they would his presence in Australia: [101].
The breadth of the Minister’s power to cancel visas In its decision, the Court explained how the Minister’s power to cancel visas arose. First, it made plain that it need not be the fact that Djokovic was a risk to the health, safety or good order of the Australian community, only that the Minister be satisfied that his presence may or might be such a risk: [20], [41]. Those words, introduced into the Migration Act in 2014, lowered the requisite threshold of satisfaction to that of a possibility: [36]. Next, where the Minister’s satisfaction turned on factual matters on which reasonable minds could reasonably differ, Djokovic’s battle to show that no reasonable Minister could have cancelled his visa was ‘very difficult’ and ‘not easily made’: [27], [33]. Meanwhile, the Minister’s task was only to consider future possibilities by drawing inferences from known facts, based on reasonable conjecture within the parameters set by historical facts, and by taking into account common
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sense, a reasonable appreciation of human experience and the Minister’s and Department’s personal or specialised knowledge: [39]. All of that highlights the hard task Djokovic faced in challenging the Minister’s decision. He set to that task with a highly paid and well-resourced legal team and eminent counsel. They were able to prepare for a final hearing within days. But they were unable to overcome the breadth of the Minister’s power. Djokovic is exceptional in another way, then. Very few visa holders could hope to fund such a thorough legal challenge, and to have it heard in so short a time. Instead, many former holders of cancelled visas find themselves in immigration detention — somewhere Djokovic spent only days while others languish indefinitely. In the Park Hotel alone, which Djokovic endured for a countable number of hours, are refugees and asylum seekers who have spent years of their lives detained.8 Assuredly, they are unlikely to all have been represented by leading silks and large law firms in their legal challenges. What they have in common, though,
is how unlikely their challenges were to succeed in the face of a Minister’s unilateral power to cancel visas, once satisfied only of a future possibility, and whether or not a person in fact poses any risk at all. Perhaps the inquiry that will inevitably flow from Djokovic’s deportation should not be into the tripartite debacle of the Commonwealth, Victoria and Tennis Australia, but instead into how our immigration system leaves the lives of the powerless subject to a single person’s whim.
Endnotes 1
https://www.telegraph.co.uk/tennis/2018/11/09/ novak-djokovic-exclusive-cried-three-days-hadsurgery-felt/
2
https://youtu.be/IsjipEwuFYg?t=3267
3
https://www.huffpost.com/entry/novak-djokovictennis-anti-vax_n_5e9daf8cc5b63c5b587220db
4
https://www.abc.net.au/news/2020-06-24/novakdjokovic-charity-tennis-tournament-becamecoronavirus-mess/12387086
5
See, eg, https://twitter.com/i/web/ status/1385897312287956993
6
https://www.instagram.com/p/CYTe9fer_1K/
7
https://www.fedcourt.gov.au/__data/assets/pdf_ file/0004/95053/Parties-jointly-agreed-Transcript-ofInterviews-conducted-by-the-ABF.pdf
8
https://www.theguardian.com/australia-news/2022/ jan/07/novak-djokovic-refugees-hope-tennis-starshotel-detention-will-cast-light-on-their-torture
Trailblazing Women of Law
reBriefed this article originally appeared in our August 2021 edition
IN WESTERN AUSTRALIA
The Women Should Have a Voice Edith Cowan’s legacy of social justice in Western Australia By Toni Church
“The women should have a voice” – Edith Cowan MLA OBE, Inaugural Speech to Western Australian Parliament, 28 July 1921. On 28 July 2021, it was 100 years since Edith Cowan delivered her inaugural speech to the Western Australian Parliament – the first woman in Australia to do so. Marking this centenary, an exhibition was launched at the Old Court House Law Museum focusing on Cowan’s legacy of social justice. “The Women Should Have a Voice”: Edith Cowan’s legacy of social justice in Western Australia commemorated Cowan’s enduring influence in her community, displaying objects loaned by the organisations she established and supported that are still operating in Western Australia today. Edith Dircksey Brown was born on 2 August 1861 at Glengarry, her family’s homestead on a large pastoral station near Geraldton, Western Australia.1 The descendant of prominent colonial Swan River families, Brown and Wittenoom, Edith was raised in a well-regarded family and was sent to boarding school in Perth at the age of seven, after her mother died in childbirth. In 1876, Edith experienced the lifealtering personal tragedy of her father’s hanging after he was found guilty of the murder of Mary Ann Tindall, his wife and Edith’s stepmother. The emotional effect of such violence and the ensuing fight for justice in her early life had a profound influence on Edith Cowan’s later advocacy work.2
years of shocking and sustained domestic violence by Brown. Criminal proceedings against Brown commenced from 5 April 1876 before Chief Justice Archibald Paull Burt at the Supreme Court of Western Australia – held in the Old Court House. The trial attracted national attention not only for its shocking content, but also for the rumoured perversion of justice by two hung juries populated by Brown’s influential friends and colleagues.3 The Brown family were wealthy pastoralists, members of whom also served in the ranks of magistrates, and so held power and influence in the colony. Burt’s frustration at this influence culminated in the Chief Justice closing the court at the end of the second trial, selecting members of the jury himself from those in the public gallery before swiftly carrying out the final trial on the same day the former ended: 26 May 1876.4 This third trial jury promptly returned a guilty verdict and Brown received his death sentence.5 On 12 November 1879, Edith Brown married James
On 3 January 1876, Kenneth Brown shot Tindall, at the culmination of what was later proven to be Edith Cowan MLA, Member for West Perth, 1922. Courtesy of the State Library of Western Australia 6004B.
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to Animals in 1892.9 Today the modern RSPCA WA continues to educate and advocate for the prevention of cruelty to animals in the community.10 Cowan was a foundation member of the Children’s Protection Society in 1906, which highlighted the extent of child cruelty and neglect within the community; emphasising that children were victims rather than criminals. This advocacy work was instrumental in establishing the Children’s Court of Western Australia in accordance with the State Children Act 1907.11 Cowan was elected as a Magistrate of the Children’s Court in 1915 and the legacy of her focus on early intervention and rehabilitation continues in the modern work of the Children’s Court of Western Australia.12
Edith Cowan (seated) with Marion Ethel “Ettie” Burt, c.1882-3. Cowan and Burt were members of the St Georges Reading Society, which supported many of the causes for which Cowan is known. Ettie Burt was married to Alfred Earl Burt, son of the first Chief Justice of Western Australia: Archibald Paull Burt. Courtesy of the State Library of Western Australia BA2843/22.
Cowan, a Registrar and Master of the Supreme Court of Western Australia (and the brother of her boarding school headmistress). By 1891 Edith and James had five children, and James had been appointed Perth Police Magistrate.6 The Cowan’s household dynamic was unusually modern, with both parents working outside the home as Edith took an increasingly public role from the 1890s; engaging with social justice causes, establishing various societies and organisations to advocate for change in the wider community. As displayed in the new exhibition at the Old Court House Law Museum, among her many commitments and
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causes, Edith Cowan worked for over 30 years with the House of Mercy which provided ‘shelter and reformation’ for unmarried mothers from the early 1890s.7 Over a century later this organization has transformed into Ngala; an inclusive and diverse community service organisation, focused on the well-being and development of children and young people across Western Australia.8 Concerned for the welfare of horses, Cowan and fellow female members of the St George’s Reading Society established the Western Australian chapter and objectives of the Royal Society for the Prevention of Cruelty
This ongoing work is represented in the exhibition at the Old Court House Law Museum by the Tree of Life painting shown on the next page. It was painted by detainees at Banksia Hill Detention Centre to commemorate the twentieth anniversary of the Children’s Court of Western Australia Drug Court program in December 2020. The Drug Court, located within the Perth Children’s Court, is aimed at early intervention by breaking the cycle of disadvantage, drug-use and re-offending for young people in Western Australia. Through the provision of therapeutic rehabilitation services, the Drug Court program assists young offenders who are either battling drug addiction or those whose offences relate to drug use (such as stealing to fund the purchase of illicit substances) and provide regular ongoing support for the duration of their engagement with the justice system. Successful participants ‘graduate’ from the Drug Court program with a lesser sentence than a regular remand court, owing to their achievements in rehabilitation and embracing positive steps towards long-term recovery within their community.13 Cowan significantly contributed to the establishment of the King Edward Memorial Hospital for Women in 1916, the first maternity hospital in Western Australia. She served as the Honorary Secretary of the Hospital’s Advisory Committee from 1909, and was later appointed Secretary of the Advisory Board once the Hospital had opened.14 It was most important to Cowan that maternity care within the Hospital was extended to both married and unmarried mothers, regardless of their
Magistrate Andrée Horrigan (left) and Superintendent Michael Heslington (right) photographed with the Tree of Life painting gifted by Banksia Hill Detention Centre for the Drug Court’s twentieth anniversary in December 2020. Courtesy of the Children’s Court of Western Australia.
circumstances.15 Today, King Eddies (as the hospital is colloquially known in Perth) continues as a public hospital for all women in the community; accounting for twenty percent of all births in Western Australia and supporting thousands of premature and unwell newborns in the largest neonatal unit in the southern hemisphere.16 As a foundation member of the Western Australian Historical Society in 1926, Cowan played a prominent role in the state’s centenary celebrations in 1929 and contributed to a number of articles in the Society’s Early Days publication, which highlighted the experiences of early colonial women well before Australian feminist historiography became established from the 1970s.17 Today, the Royal Western Australian Historical Society continues hosting events and advocating for history and heritage across the state, as well as operating a Museum with a unique art collection, extensive reference library and photograph archive for researchers.18 Cowan is most prominently remembered as the first woman elected to a Parliament in Australia. She served as a Member of the Legislative Assembly (MLA) for West Perth, representing the Nationalist Party in the Western Australian Parliament from 1921-24. The election in 1921 was the first in which women were eligible to
serve as parliamentarians in Western Australia. Notably, Cowan was one of four women to run for state Parliament in 1921 but only the second to become a female parliamentarian in the British Empire.19 During her election campaign and parliamentary career, Cowan received public admonishment from newspapers and commentators about the abandonment of her wifely duties at home, as well as from her political colleagues who frequently interrupted her addresses to Parliament.20 In her inaugural speech, Cowan emphasised the necessity which existed for women to support one another and serve in positions of power in Western Australia, stating that “the women should have a voice”.21 Against custom, her inaugural speech was regularly interrupted by her parliamentary colleagues with sexist remarks. When addressing additional costs required to install a women’s toilet in Parliament for her use, Cowan was interrupted by Mr Lambert suggestively asking “Will you invite us to see how the money was spent?”.22 Needless to say, Cowan’s dignity prevailed in this moment and she continued with a speech that foretold her parliamentary service; steadfast dedication to promoting migrant welfare, infant and maternal health centres, and women’s rights.23 Although she unseated the serving
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During her election campaign and parliamentary career, Cowan received public admonishment from newspapers and commentators about the abandonment of her wifely duties at home, as well as from her political colleagues who frequently interrupted her addresses to Parliament. Attorney-General with her election in 1921, Cowan was not successful in gaining re-election in 1924. In fact, only three other women were elected to the Western Australian Parliament until 1970.24 On 13 March 2021, Western Australians elected the 100th woman to the state Parliament and, in stark contrast to 1921, about half of the Western Australian Parliament in 2021 are women. Upon her death, aged 70 in 1932, Cowan was remembered as a trailblazing feminist who dedicated her life’s work to the welfare of women and children in her community.25 Her likeness adorns the Australian $50 note, her name was given to Edith Cowan University and her memorial clocktower stands at the entrance to King’s Park, Perth. Cowan’s legacy is
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her social justice advocacy; work that is carried on by the organisations and institutions she established across her lifetime which continue to serve the Western Australian community today. “The Women Should Have a Voice”: Edith Cowan’s legacy of social justice in Western Australia was on display at the Old Court House Law Museum until early September 2021. The Museum is open 10.00am to 4.00pm, Tuesday to Friday. Entry is free. Objects courtesy of The Royal Society for the Prevention of Cruelty to Animals Western Australia, Ngala, Children’s Court of Western Australia, Western
Australian Medical Museum, Royal Western Australian Historical Society. Supplementary research about the trial of Kenneth Brown supplied by Dr Alexandra Wallis and Elizabeth BurnsDans.
End notes 1 ‘Place Record: Glengarry’, City of Greater Geraldton Municipal Inventory of Heritage Places, 9 March 2005, https://www.cgg.wa.gov.au/Profiles/cgg/Assets/ ClientData/Document-Centre/Planning/Heritage/ Greenough/Greenough_Heritage_Place_Number165-MCH126990.pdf ; ‘Glengarry Station Complex’, Heritage Council, 31 December 2016, http://inherit. stateheritage.wa.gov.au/Public/Inventory/Details/ e4252b7f-ec8b-4a4c-88cd-815694c35082
2 Clare Wright, ‘Cowan, Edith Dircksey’, The Encyclopedia of Women & Leadership in Twentieth-Century Australia, Australian Women’s Archives Project 2014, https:// www.womenaustralia.info/leaders/biogs/WLE0162b. htm 3 Aidan Kelly, ‘The Search for Kenneth Brown Esq (1837-76)’, Early Days: Journal of the Royal Western Australian Historical Society, vol 14, part 4, 2015, pp.574-577 4 Burt’s manuscript of directions given to the jury of Brown’s third trial is held in the collection of the Old Court House Law Museum; Old Court House Law Museum collection 1989.33q, p.90 5 Old Court House Law Museum collection 1989.33q, p.128 6 Margaret Brown, ‘Cowan, Edith Dircksey (1961-1932)’, Australian Dictionary of Biography, 1981, https://adb. anu.edu.au/biography/cowan-edith-dircksey-5791 7 Jennie Carter and Bevan Carter, King Eddies: A history of Western Australia’s premier women’s hospital 19162016, King Edward Memorial Hospital Alumni, 2016, p.28; Brown, ‘Cowan, Edith Dircksey (1961-1932)’ 8 Information provided via email by Ngala 9 ‘Our History’, RSPCA WA, https://www.rspcawa.asn. au/about/history.php 10 Information provided via email by RSPCA WA 11 Brown, ‘Cowan, Edith Dircksey (1961-1932)’ 12 Elizabeth Heffernan, ‘Edith Cowan (1861-1932), Royal Australian Historical Society, https://www.rahs.org.au/ edith-cowan-1861-1932/ ; Debra Rosser, ‘Children’s Protection Society (1906-1994?), Find & Connect Web Resource Project for the Commonwealth of Australia , 9 January 2019, https://www.findandconnect.gov.au/ref/ wa/biogs/WE00899b. 13 Information provided via email by Children’s Court of Western Australia 14 Carter and Carter, pp.37-38 15 Carter and Carter, pp.25-26 16 ‘History’, King Edward Memorial Hospital, https:// www.kemh.health.wa.gov.au/About-us/History 17 ‘Edith Dircksey Cowan’, Members Biographical Register, Parliament of Western Australia, https://parliament.wa.gov.au/parliament/ Library/MPHistoricalData.nsf/ LookupName/ 80E6430BA5F9A78648 577E50028A58 8?opendocument 18 Jack Honniball, ‘Royal Western Australian Historical Society: Three Score Years and Ten’, Royal Western Australian Historical Society Newsletter, October 1996, https://www.histwest.org.au/brief-history ; ‘The Society’, Royal Western Australian Historical Society, https://www.histwest.org.au/society 19 ‘Defining Moments: Edith Cowan’, National Museum of Australia, 9 April 2021, https://www.nma.gov.au/ defining-moments/resources/edith-cowan 20 Defining Moments: Edith Cowan’, National Museum of Australia 21 ‘Inaugural Speech: Mrs Edith Dircksey Cowan, MLA (Member for West Perth)’, Parliament of Western Australia, 28 July 1921 https://www.parliament. wa.gov. au/parliament/library/MPHistoricalData. nsf/32e457f9ba 32e457f9ba7d7c5148257b5500242416/ 80e6430ba5f9 786482577e50028a588 /$FILE/Cowan,%20Edith%20 Dircksey,%20Inaugural%20Speech.pdf, p.1-4 22 ‘Inaugural Speech: Mrs Edith Dircksey Cowan, MLA (Member for West Perth)’, p.2 23 Brown, ‘Cowan, Edith Dircksey (1961-1932)’ 24 Defining Moments: Edith Cowan’, National Museum of Australia 25 ‘Cowan, Edith Dircksey’, The Bicentennial Dictionary of Western Australians pre-1829-1888, vol 1, Rica Erickson (ed), University of Western Australia Press, Nedlands, 1987, p.684
‘The New “House” Wife’, The Bulletin, 31 March 1921. Courtesy of the National Library of Australia.
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reBriefed this article originally appeared in our October 2021 edition
Change the Culture is Here By Áine Whelan
General Manager Marketing, Business Development and Community Engagement, The Law Society of Western Australia
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exual harassment is under the spotlight like never before, but how do we effect change and shift a culture that allows it to flourish? Understanding that sexual harassment is everyone’s business is a good starting point. Sexual harassment doesn’t just affect some of us or others i.e., victims, it affects everyone. Trauma on victims and bystanders, impact on effectiveness and productivity, poor stakeholder relations and subsequent economic fallout are all symptoms of the effects. Sexual harassment is an issue of gender inequality, power imbalance and the abuse of power in the workplace, giving rise to unsafe and toxic work environments. To quote the Sexual Discrimination Commissioner, Kate Jenkins, we need to “shift from the current reactive model that requires complaints from individuals, to a proactive model, which will require positive actions from employers. Ultimately, a safe and harassmentfree workplace is also a productive workplace”1. I would advocate positive actions from colleagues as well to shift from reactive to proactive. The definition of sexual harassment according to the Australian Human Rights Commission (AHRC) is “Any unwelcome or offensive sexual behaviour that is repeated, or is serious enough to have a harmful effect, or which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment. Sexual harassment can involve spoken, or written material, images, digital material or a physical act” Sexual harassment in the workplace has been prohibited since the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) was introduced 37 years ago and is unlawful under antidiscrimination legislation at the federal level and in all Australian State and Territory jurisdictions. And yet, laws alone are only part of the picture. Sadly, the evidence indicates that sexual harassment is alive and well despite legislation. Taking the most recent survey results from Western Australia, conducted by Women Lawyers WA in 2019 with over 500 responses, this is what we know2:
72% of those surveyed had experienced sexual harassment in the workplace.
National inquiry into Sexual Harassment in Australian Workplaces, Respect@Work: 2020 - (AHRC).
The most common type of harassment was lewd jokes or suggestive comments.
Us Too? Bullying and Sexual Harassment in the Legal Profession 2019 – International Bar Association.
Almost 95% of respondents stated their harasser was male.
Sexual Harassment in the Victorian Legal Sector 2019 – Victorian Legal Services Board + Commissioner.
85.64% did not address the issue with the harasser.
WLWA Sexual Harassment Survey and Submission to ALRC 2019 Women Lawyers Western Australia.
Only 7.73% addressed the harassment by making a formal complaint. Research conducted throughout Australia in the last few years clearly demonstrates consistent trends in sexual harassment, including that 90% of harassers are male, predominantly over the age of 40 and in a senior role in an organisation. Around one in three (36%) legal professionals said they had personally experienced sexual harassment at work with women significantly more likely to experience sexual harassment than their male counterparts (61% compared to 12% respectively). Most incidents of personally experienced sexual harassment went unreported (81%). Four in five (80%) stated it was easier to keep quiet.3 The AHRC national inquiry into Sexual Harassment in Australian Workplace in 2019 includes the following findings4:
Seven Strategies for Addressing Sexual Harassment in the Legal Profession 2019 - Australian women Lawyers. All the above reports indicate a high occurrence of sexual harassment in the legal profession, the majority of victims are female, there are high levels of bystanding behaviour and non-reporting and most importantly, low levels of trust in the system and processes to respond adequately to claims.
Sexual Harassment in the Workplace 2021 - Clayton Utz, commissioned by the Australian Institute of Company Directors.
As the peak advocacy body for the legal profession in Western Australia, the Law Society responds to issues locally and nationally on a regular basis. In its statement to the WA legal profession on sexual harassment in 2020, the Law Society stated there is no place for sexual harassment in any profession, any workplace. Sexual harassment is both unlawful and entirely unacceptable. On a national level, the Law Society supports the Law Council of Australia’s (LCA) advocacy on sexual harassment and provided a submission to the LCA on reformulating Rule 42 of the Australian Solicitors Conduct Rules (the anti-discrimination and harassment rule). The Law Society also contributed to the LCA’s submission on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 which implements some (but not all) of the recommendations from the Respect@ Work Report, making amendments to the laws that currently exist under the Sex Discrimination Act, the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth).
Review of Harassment in the South Australian Legal Profession 2021 – Report by the Equal Opportunity Commission to the Attorney-General.
The Law Society is also actively involved in consultations on the LCA’s National Model Policy on Sexual Harassment and on a state level is preparing a submission
More than half of respondents reported they had not received training or information at their current workplace about sexual harassment. The most common type of sexual harassment experienced was “lewd jokes or suggestive comments” (77.95%). Less than 10% of those experiencing harassment addressed it by making a formal complain. The following reports provide valuable evidence and compelling arguments for change:
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Change the Culture to the Discussion Paper released by the WA Law Reform Commission on our own outdated Equal Opportunity Act.
4. Confidential Support: Support
What is clear, laws and legislation alone are not a panacea to deterring unacceptable sexual harassment in the workplace. We must apply a strategic approach to addressing factors and work cultures that allow it to happen. The Law Society in reflecting on this has developed a strategic approach through four pillars under the call to action Change the Culture.
This four-pronged holistic approach requires each pillar to be activated and used in order to have an impact on culture and the systemic issues around workplace sexual harassment.
Change the Culture offers tools and training under four key pillars:
1. The Evidence: Recent research data
which sets out the facts about sexual harassment and bullying in the legal profession and supports a call for change within the legal profession.
2. Behavioural Change: Tailored
training for individuals and law firms to undertake as a means of taking action to shift the culture.
3. Systems and Procedures: Tools to support positive work cultures in response to sexual harassment.
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aving been approached by senior members of the legal community to provide the necessary support for this training, the College of Law WA invested heavily in terms of financial support, time and resources to enable this event to take place. The College of Law believes that training needs to be accessible, contemporary, credible and practical. For that reason, the College utilised the experience of its extensive local practitioner teaching team, together with College alumni from a wide range of legal workplaces to contribute to the development and delivery of What’s Our Story? In addition to the above training, the Society is also delivering a training initiative licensed from the Queensland Law Society which is an Australian first legal industry training resource. Called Change the Culture – Addressing Sexual Harassment in the Workplace, this training utilises simulated scenarios of real events in a legal environment gathered from research. The training is interactive, structured over six chapters
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mechanisms for individuals impacted by sexual harassment and bullying.
This article will focus on the behavioural change component of the above Law Society strategy. The Law Society is offering two different training avenues to encourage open and safe conversations, motivate people to think about the holistic effect of workplace sexual harassment and examine their role in responding to and promoting a positive work culture. A suggestion for training with a difference came from the Joint Law Society Women Lawyers Committee (JLSWL) of the Law Society on recommendation from committee members Charmaine Tsang and Libby Fulham. Both had seen Equal Opportunity Specialists (EEO) present an interactive live theatre training environment which had strong resonance with audiences. The Society and The College of Law agreed to work with the
The International Bar Association (IBA) and The College of Law have recently collaborated to develop a set of free e-learning modules designed to assist individuals and organisations make the changes recommended by the 2019 landmark report Us Too? Bullying and Sexual Harassment in the Legal Profession. This free training is available now from the IBA website and is designed to guide individuals and workplaces towards making positive cultural change. Neville Carter, Chief Executive Officer of The College of Law, said: “Bullying and sexual harassment have no place in any profession.
incorporating four video resources which address real life stories. Standout takeaways from this training are: Awareness of predominant traits and culture of the legal profession which drives poor culture Understanding bystanders and the 5Ds in becoming an Active Bystander
EEO to deliver a similar event which we called What’s Our Story? Its strength is the live interactive dramatisation of sexual harassment in a legal workplace guided by the expert facilitator Franca Sala Tenna, Director of EEO. Professional actors played convincing characters in a legal workplace, with the script developed in partnership with the Law Society and local teaching staff and alumni from the WA College of Law. The audience played a vital part with opportunities to interact with the characters and the facilitator, to call out poor behaviour, reflect on the issues and change the narrative. The event in August was received very favourably with a feedback survey stating that 70% of respondents will definitely promote What’s Our Story? to others and 89% believing it is extremely important for as many people as possible from the legal profession to have access to sexual harassment training. As a result of the overwhelmingly positive response, the Law Society and The College of Law are looking to develop the concept with Equal Opportunity Specialists further so that others in the legal profession get to experience this memorable training.
Catherine Stokes, BA LL.B (Hons.) Executive Director, The College of Law (WA) and Accredited Mental Health First Aid Instructor
We are committed to providing our sector with the support it needs to improve its culture and practices. The 2019 report emphasised that frequent, high quality training is needed to address inappropriate workplace behaviours, which is why The College of Law is making the modules we have developed in collaboration with the IBA free for all individuals and organisations.”
Understanding the importance of policies and procedures to deal with sexual harassment Valuing the role of leadership in modelling positive workplace behaviour Training at the Law Society and at law firms on request, is being delivered by two trained and respected facilitators, Margie Tannock and John Poulsen.
Reflect on your own behaviour
Have proper induction processes and policies
Model the behaviour you want to see
Follow reporting and complaint processes
Be an “Active Bystander” - 5Ds
Behavioral changes and the 5Ds of Active Bystanding - integral parts of the toolkit the Law Society use in the delivery of the Change the Culture Workshops.
Margie Tannock ESG Legal “I have long been committed to an inclusive, supportive work environment to encourage the best in the practice of law. I am very pleased to be involved in this important initiative by the Law Society of WA, to deliver better integrity, transparency and accountability in identifying illegal and inappropriate behaviour in law firms.” Margie is an experienced senior lawyer, recently concluding 10 years as a partner of a global law firm. She now runs her own practice, ESG Legal, focussing on key strategic issues for clients in environmental, social and governance challenges. Margie advises clients on corporate governance and project development and works closely with clients to resolve regulatory risk across all aspects in corporate decision making, especially relating to major projects, climate change management and land access authorisations.
John Poulsen People Passion Performance “I am passionate about mental wellbeing in the workplace, which to me is all about creating an environment of trust and living values. Sexual harassment in
5Ds of being an Active Bystander the
1 Direct Intervention: talk directly to the harasser
2 Distraction: talk about something unrelated
3
5
4
Delegate: ask Delay: check Document: for help from a in with the record details third party person after the ASAP incident
the workplace is the antithesis of this. I want to help to make a difference and providing training on sexual harassment to the legal profession is one way I can do that.” John is the Principal of People, Passion & Performance and has deep ‘hands on’ experience in creating and developing workplaces where people have a shared vision and purpose, are fully motivated, engaged and empowered. From 2006 to 2017, John was the Australian Managing Partner and CEO of Squire Patton Boggs (initially as Managing Partner of Minter Ellison Perth), a top 10 Global Law Firm and led the firm to be one of the fastest growing law firms in Australia. Since the introduction of the Sex Discrimination Act 1984, the rate of change has been at such a slow pace that Australia has now fallen behind global trends in addressing and responding to sexual harassment . The Society recognises that the majority of those in the legal profession hold their professionalism and behaviour to high standards, however it is unfortunate that poor workplace behaviour and sexual harassment still prevails to the detriment of the whole profession. The conversations and feedback from the Society’s training events are helping shape conversations and action for much-needed improvement.
“Thanks for arranging what was a great and through provoking presentation” - Adam Levine, Partner K&L Gates
in the workplace is everyone’s responsibility, together, top down, bottom up, we will be the powerful agents of change”. #ChangetheCulture
End notes 1 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020 – Australian Human Rights Commission 2 https://www.wlwa.asn.au/our-projects/workplaceequality-reform-and-policies/workplace-harassmentin-the-legal-profession-survey/ 3 Sexual Harassment in the Victorian Legal Sector - 2019 study of legal professionals and legal entities (Victorian Legal Services Board) 4 National Inquiry into Sexual Harassment in Australian Workplaces 2019 - Australian Human Rights Commission 5 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020 – Australian Human Rights Commission
To finish with a quote from our previous President, Jocelyne Boujos, in her closing statement for What’s Our Story? “I invite you all to be part of Change the Culture, because sexual harassment
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A Blessing of Unicorns
Address to the Asian Australia Lawyers Association Lunar New Year Dinner 2022 By The Honourable Justice Jenni Hill Supreme Court of Western Australia 18 February 2022
The Honourable Justice Jenni Hill at the Australia Lawyers Association Lunar New Year Dinner 2022
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hank you for the very kind invitation to speak at the AALA Lunar New Year dinner on a topic very close to my heart – the importance of diversity and inclusion. I would like to begin by acknowledging the Whadjuk people of the Noongar nation, the Traditional Custodians of the land on which we gather tonight and pay my respects to their Elders past and present. I extend that respect to any Aboriginal and Torres Strait Islander peoples here today.
Diversity is the mix of people in your organisation. This includes all the differences between people in how they identify in relation to their social identity, including their cultural background, disability, faith, gender, and sexual orientation, and their professional identity including their profession, education, and organisational role. Inclusion is getting the mix of people in your team to work. It occurs when diverse people feel respected, connected and have the ability to progress in and contribute to their organisation.
As has been observed by two of my judicial brothers at their recent welcome ceremonies, this acknowledgement of country is important because words, and the language that we use, matter. This is particularly the case when it comes to issues of diversity and the often unintended impact of the words we choose.
Diversity and inclusion are seen as having two primary benefits. First, there is a strong business case for diversity and inclusion due to its correlation with stronger financial performance. Second, it recognises the value of differences in people and positively embraces these differences.
In speaking tonight, I make the same acknowledgement that I did at my welcome ceremony, namely that gender is the only aspect of diversity that I have brought to my workplaces, including the Supreme Court, and is but only one measure of diversity.
Since 2015, McKinsey and Co have undertaken global research on diversity and inclusion and published a series of reports on diversity,2 which I recommend to you. There are a few points from these reports that I want to specifically comment on.
Over the last 10 years, much has been written about the importance of not only diversity, but true inclusion for workplaces. So, what do these terms mean, and why are they important? Like every good lawyer, it is important to start with a definition. In defining ‘diversity’ and ‘inclusion’, I have used the definitions of the Diversity Council of Australia, which are:1
First, there is now longitudinal data showing that companies in the top quartile for gender, racial and ethnic diversity are more likely to have financial returns above the median for their industry sector and outperform the bottom quartile by 25%. Ethnic diversity had a particularly strong impact on financial performance, with companies in the top quartile of ethnic diversity performing on average 33-35%
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above those companies in the bottom quartile.3 A possible explanation as to why ethnic diversity is having a greater impact is that companies have been focussed on gender diversity for a longer period and some gains have been made, although there remains much work to be done on that front. While it is important to recognise that correlation does not equate to causation, it does show the benefit and impact that where commitment to diversity occurs, a business is likely to be more successful. Several reasons have been advanced for this proposition: diverse workplaces are more likely to win the war on talent, they have higher employee satisfaction and diversity within a team leads to better decision making and less risk of group think. Second, the reports stress the continuing lack of diversity in executive teams, particularly when it comes to ethnic and cultural diversity and women of colour who suffer from what they term ‘the double burden of bias’. Put another way, it has been the subject of growing commentary that the primary beneficiaries of the increasing focus on diversity are people like myself: white, private school educated, middle or upper class, heterosexual females. In their most recent paper, the authors looked at five factors:4 the representation in executive teams; leadership accountability for diversity and inclusion (both of which are evidence of a systematic approach); equality; openness; and belonging. All of these factors are core components of inclusion. Notably, while overall sentiment
Address to the Asian Australia Lawyers Association Lunar New Year Dinner 2022 on diversity was relatively positive, sentiment on inclusion was markedly worse. This shows that hiring diverse talent is not enough—it is the workplace experience that shapes whether people remain in the workplace and thrive. On the three indicators of inclusion—equality, openness, and belonging—a critical factor was fairness and equality of opportunity. These studies show that companies that are diversity leaders take a systematic approach to promote a diverse workplace and take active steps to strengthen inclusion within it. This requires a strategy to work out which forms of diversity to prioritise and for datadriven targets to be set. So, why does data matter? Apart from the inherent beauty in maths and numbers, data matters because it enables us to measure performance and in any business what matters gets measured. A particular challenge in measuring and reporting on workforce cultural diversity has been how to implement this. A new report from the Diversity Council of Australia and the University of Sydney Business School has developed a standardised approach for defining, measuring, and reporting on workforce cultural diversity in a respectful, accurate and inclusive way.5 As Lisa Annese, the CEO of the Diversity Council, notes in her forword to the report, until now, we haven’t had a meaningful and contemporary way to measure and benchmark cultural diversity in Australian organisations or more accurately, the lack thereof.6 Being able to effectively ‘count culture’ in businesses will help us better reflect the diversity of Australia and help us to build inclusion by better understanding our workforces. One of the matters the report talks about is the importance of listening to those with lived experience. This is critical because those of us who come from a position of privilege, whether due to our race, gender, education, upbringing, physical ability or sexuality, simply have not been subject to or had the same experiences as those who do not. I will give one recent example that highlighted this for me. Not that long after my own appointment, I read of the appointment of Judge Raffia Arshad as a deputy district judge in the United Kingdom. Judge Arshad is the first UK judge to wear a hijab, which I believe is an advance on Australia where the current total is zero. Judge Arshad spoke of her experience appearing in court as a barrister when an usher asked her whether she was an interpreter. When she said no, the usher asked whether she was “here on work experience,” to which she replied: “No,
I’m actually the barrister”. Her published reflections on the incident were that she had nothing against the usher who made the comment, but it reflected that as a society, even for somebody who works in the courts, there is still this prejudicial view that professionals at the top end do not look like her. While I have been asked by security whether I am an associate, this pales into insignificance with the experience of her Honour Judge Arshad. Her experience is not something I have experienced, nor am I likely to. In this regard, it is important to emphasise that being able to empathise is not the same as having a lived experience. The importance of experience was noted by Oliver Wendell Holmes, the great American jurist, who observed that ‘The life of the law has not been logic: it has been experience’.7 So, what is the current experience in the Australian legal system? As was noted in an opinion piece by Andrew Leigh in the Australian Financial Review in December last year, in 120 years, no Asian Australian or judge of colour has ever been appointed to the High Court.8 Estimates from AALA are that only approximately 1% of Australian judges are Asian-Australian, despite Asian Australians comprising 10% of the Australian population.9 Diversity and inclusion matter because we need to ensure that everyone in the profession can look ahead, see there is a pathway, see someone who looks like them, and feel that they belong. As others have noted, ‘you can’t be, what you can’t see’. If this is not your experience, and you are feeling alone, I want to draw your attention to two things. First, the important role that sponsors, mentors and allies can have. For those who have not heard me explain what I mean by these terms, sponsors are those people who have actively championed me and leant down to help lift me up to the next level in my career. Mentors are the senior people who have given up their time to impart wisdom and provide guidance. Allies are those people in my life with whom I can have an honest conversation, who won’t judge me for that honest disclosure and who have been there to support me through the various challenges I have faced. Each of these can play an important role in finding a pathway and assisting you to feel that you belong. The second is an article by Susan Dunlap of the Women’s Leadership Forum entitled ‘There are Herds of Unicorns in Law Firms’.10 The article, which was specifically aimed at women lawyers, discussed how many women who practice law feel unique,
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different, alone, and sometimes abnormal. I pause to observe that these feelings are not restricted to women but are felt by many in the profession, particularly those who do not feel that they look like those who are more senior to them. The article talks of the importance of story-telling, something that is important in all cultures. If we want to change our profession for the better, we need to share our stories, including stories of lived experiences of racism, stereotypes and assumptions. On that note, I was delighted to see that the AALA has launched a newsletter entitled “To Aus, with Law”11 to share the stories of foreign qualified lawyers. As was noted by the editor in her LinkedIn post, ‘Stories matter’. In this year of the Tiger, I ask you to have the courage and bravery to share your stories. In sharing your experiences and stories, you may realise that you are not in fact alone. From Susan Dunlap’s article, I learnt that the collective noun for a group of unicorns is a ‘blessing’. This is on the basis that seeing a single unicorn is believed to bring good luck and fortune, but to see more than one is truly remarkable. I encourage all of you to share your stories, to work towards a more diverse and inclusive profession and to find other unicorns – this will indeed be a blessing.
End Notes 1 Diversity Council of Australia, Diversity & Inclusion Definition, Sydney (2017). 2 McKinsey & Company (V. Hunt, D. Layton & S. Prince), Why Diversity Matters, (January 2015); McKinsey & Company (V. Hunt, S. Prince, S Dixon-Fyle & L. Yee), Delivering through Diversity, (January 2018); McKinsey & Company (S. Dixon-Fyle, V. Hunt, K. Dolan & S. Prince), Diversity Wins: How Inclusion Matters, (May 2020). 3 McKinsey & Company (S. Dixon-Fyle, V. Hunt, K. Dolan & S. Prince), Diversity Wins: How Inclusion Matters, (May 2020) 3 – 4. 4 McKinsey & Company (S. Dixon-Fyle, V. Hunt, K. Dolan & S. Prince), Diversity Wins: How Inclusion Matters, (May 2020). 5 Diversity Council Australia and the University of Sydney Business School (R. D’Almada-Remedios, D. Groutsis, A. Kaabel, and J. O’Leary) Counting Culture: Towards a Standardised Approach to Measuring and Reporting on Workforce Cultural Diversity in Australia, Sydney, Diversity Council Australia, 2021. 6 Diversity Council Australia and the University of Sydney Business School (R. D’Almada-Remedios, D. Groutsis, A. Kaabel, and J. O’Leary) Counting Culture: Towards a Standardised Approach to Measuring and Reporting on Workforce Cultural Diversity in Australia, Sydney, Diversity Council Australia, 2021, 5. 7 Holmes, The Common Law, Little Brown & Co (1881), page 1. 8 Andrew Leigh, ‘Why has no person of colour ever served on the High Court?’, Australian Financial Review (21 December 2021). 9 Asian Australian Lawyers Association, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015 (2015), 4. 10 Susan Dunlap, ‘There Are Herds of Unicorns in Law Firms’, The Women’s Leadership Forum (12 November 2020). 11 Asian Australian Lawyers Associate Inc, To Aus, with Law (Edition 1, 2022). Asian Australian Lawyers Association, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015 (2015), 4.
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Advocacy Panel Wrap-up: Perspectives of Diverse Women in the Law By Karess Dias
Above (L-R) the panellists: Pnina Levine, Lecturer, Curtin University, Verity Long-Droppert, Barrister, Francis Burt Chambers, Rebecca Lee President of the Law Society, Wendy Hughes, Magistrate, Children’s Court of Western Australia, Inzwie Murapata, Senior Lawyer, Circle Green Community Legal and Dr Rita Kleinfeld-Fowell, Senior Solicitor, Midlas.
“This should not just be happening on international women’s day, but we should be having more panels which are this diverse throughout the year…part of breaking the bias is to make it normal to have such a diverse panel” – Inzwie Murapata On 2 March 2022, representatives from the Asian Australian Lawyers Association, the Society of African Australian Lawyers, Pride in Law, the Society of Jewish Jurists and Lawyers and Midlas came together for an evening full of storytelling and conversations. The panel was organised by the Joint Law Society/Women Lawyers of WA committee. The overarching question was, what does it mean to truly embrace diversity and
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foster a profession where everyone can feel that they belong? The panellists were Magistrate Wendy Hughes, (Magistrate, Children’s Court of Western Australia), Dr Rita KleinfeldFowell (Senior Solicitor, Midlas), Pnina Levine, (Lecturer, Curtin University), Verity Long-Droppert (Barrister, Francis Burt Chambers) and Inzwie Murapata (Senior Lawyer, Circle Green Community Legal). The evening was chaired by Rebecca Lee (President of the Law Society). Each panellist generously shared their stories and experiences, and throughout the evening the achievements of these incredible women were celebrated. The panellists also spoke of the hurdles that they had experienced and reflected on how our profession could become a more inclusive one. The overarching advice to those in positions of leadership was not to fear the unknown that diversity brings. There
Law Society Advocacy Help Make a Difference in Your Profession Progress and change within the legal profession and community requires open discussion and continued focus on developing initiatives and supporting the teams within them. The Law Society Advocacy and Professional Development teams work tirelessly with our diverse committees to create avenues and panel events where this can happen. If you have future suggestions for discussions, please email advocacy@lawsocietywa.asn.au
Perspectives of Diverse Women in the Law is much more power in embracing it as a strength and using it to learn, to change, and to grow. The session was closed by Rebecca Lee, who reflecting on the discussions, said “may we all be given the space to be discovered for who we truly are.” Below is a summary of what each panellist spoke about on the evening.
Magistrate Wendy Hughes Magistrate Hughes began her story at the very beginning, when she was adopted as an eight-month-old baby and moved to Australia. She spoke about her journey growing up in Australia and the experience of reconnecting to her culture in university. After beginning her career with the Director of Public Prosecutions, Magistrate Hughes later moved to the Aboriginal Legal Service before setting herself up as a sole practitioner. Reflecting on being a Magistrate in the Children’s Court, she said, “even if I won lotto tomorrow, I’d still come to work. That’s how much I love my job.” When speaking about discrimination and bias, Magistrate Hughes said that we need to dig into what underpins our uncertainty about certain people. For example, when you see the potential in someone, but you don’t advance them, what underpins that hesitation? Is the question mark that we just cannot picture that person doing that role? The importance of understanding what underpins decisions cannot be understated. Magistrate Hughes said: When we don’t have diversity in our leaders, when we look up at the people that we want to be…if you don’t see people that look like you or you can relate to on some level, then what happens is we start to question, ‘do we need to change?’ and that’s where I think it’s very dangerous for people to think and question, ‘should I change fundamentally who I am in order for me to achieve my goal’, because ‘that’s what a judge should look like, that’s what a magistrate should look like, that’s what a barrister should look like, that’s how a partner at a large firm should behave’. And it’s a little bit dangerous because what happens then is that we may start making decisions or behaving in a way that is not authentically ourselves. One of the things I think is really important for juniors, lawyers coming through is that you have to be yourself. Fundamentally, truly authentically yourself. Magistrate Hughes went on to say that the dangers of having to change yourself is that
you begin questioning why you are putting up with the difficult, stressful and timeconsuming nature of the job. She went on to say that, if lawyers are not able to turn up to work and be their authentic selves, then the challenges will be harder, and it will become more difficult to get up after being knocked down.
“It’s the constant battle of knowing how much you can offer and other people only seeing something else.” - Dr Rita Kleinfeld-Fowell
“I really encourage everyone to turn up to work as bravely as they can and be their true authentic selves. Don’t change fundamental things about you.” - Magistrate Wendy Hughes Speaking on the need to reframe biases into the strengths that they are, Magistrate Hughes said, “if you speak more than one language and when you speak English it’s with an accent, to me that does not matter because it shows you’re cleverer than I am because I can only speak one language.” She said that “if you have different experiences in life then bring that to the workforce because it’s going to make you a stronger person.”
Dr Rita Kleinfeld-Fowell Dr Kleinfeld-Fowell was born in NSW. Medical professionals did not diagnose her deafness until three years later when her family had gone back to the UK. As she grew up her eyesight also began to deteriorate.
Deciding a change of weather was needed, Dr Kleinfeld-Fowell moved to WA. While she had ample support in the UK, she described the challenges of establishing herself in Perth. She reached out to Perth service providers who provided assistance, this included being given her guide dog, Ivy. Dr Kleinfeld-Fowell spoke about trying to find work in Perth. She gave an example of when she was shortlisted for an interview at a Perth firm. When she got to the four-person panel, they were more focussed on Ivy than on her own accomplishments, which included having a Doctor of Laws and being on a ministerial advisory committee. However, when she walked into the interview room, the panellists “only saw the disability and only saw the dog”, and their whole perception of her changed instantly. |
Dr Kleinfeld-Fowell described the lack of institutional support for lawyers living with a disability in WA. The UK’s equivalent of the Legal Practice Board had a committee for lawyers living with a disability or who were caring for someone with a disability. She found this mechanism useful as it promoted the rights of lawyers living with a disability. She said there is no similar body in WA.
Pnina Levine
After finishing her schooling, which she described as a difficult experience, Dr Kleinfeld-Fowell began working as a public servant. She began studying law in her 30s and began practising when she was 40. In the UK, Dr Kleinfeld-Fowell specialised in judicial review matters, particularly around community care systems.
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After being diagnosed with cancer, Dr Kleinfeld-Fowell stepped away from law and worked for the National Disability Insurance Agency for four years. When she re-entered practice again, it was as a volunteer at Midlas. She started working there soon after and moved into a disability rights role, where she works on disability discrimination matters. For the last three years, her role has been funded through the Law Society’s Public Purposes Trust. She stressed the importance of the work they do, because in WA “there are only two organisations that do this type of work for free”.
After graduating from UWA, Pnina spent some time in Israel where she undertook a short Hebrew course before completing the equivalent of her articles in the International Corporate division of an Israeli firm. Upon returning to Perth, Pnina began working as a graduate at what was then Malleson Stephen Jaques. She is a Co-President of the Society for Jewish Jurists and Lawyers. In relation to their accommodation of her religious practices, Pnina recalls her experience as “excellent”. They catered for her dietary requirements and made sure that she did not have to be in the office on the Sabbath and on Jewish festivals. She said, “this was not always easy given the constantly high-powered working environment.” Pnina’s believes that “a diverse community means that everyone is respected and that we just have to make sure of that.” When reflecting on her experiences and what made a difference, Pnina spoke of the importance of small gestures. She recalled being invited to a colleague’s house and finding that they had bought kosher biscuits especially for her. Pnina’s career pivoted when after having her first child, she took up some sessional work at Curtin’s business school and
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Perspectives of Diverse Women in the Law For more discussion centered on diversity in the legal profession register for our opening Law Week event , In Conversation with I. Stephanie Boyce, here.
LawWeek2022
Justice | Inclusion | Community
Department of the Attorney General Department of Education
found that she loved teaching. She went back into practice, though continued to do sessional work until ultimately moving into a full-time role as an academic at Curtin. Pnina said that she appreciates the way that Curtin University embraces diversity, for example by announcing all of the religious festivals in the Vice Chancellor’s newsletter. She also appreciates that her colleagues take the time to learn the correct greeting for festivals, so that they can greet her properly.
“I have been successful in my career in spite of or because of my religious beliefs. Judaism is an integral part of my identity and I feel very fortunate to live in a society where I can practice my Judaism and have a very enjoyable, fulfilling, and successful professional life.” - Pnina Levine
Verity Long-Droppert Verity is the membership enquiries officer for Pride in Law Western Australia, which is the WA branch of a national organisation that specialises in advocacy and education for LGBTQIA+ issues in the law. She spoke about respectability as well as the need for intersectional and inclusive feminism. On the issue of respectability and the standards that women can be held to where power hierarchies exist, Verity reflected on her experience of being reprimanded for behaviour as counsel in circumstances where she had been entirely justified in her position. The legal profession remains hierarchical and it can be a difficult balance to strike. Sometimes the choice will be between doing what those in positions of power expect you to do and standing up for yourself, standing up for your values and being brave.
“We all need to start thinking about the way civility politics and
34 | BRIEF FEBRUARY 2022
respectability politics are sometimes used by the patriarchy to ensure that the structures of powers remain in place.” - Verity Long-Droppert Verity went on to reflect on her place in feminism and in law and on who gets to occupy the places of privilege. That is, who gets to be included and protected and advocated for. Verity talked about the privileges that she had and the resulting responsibility to make sure that the type of feminism she is advocating for is truly inclusive. This means “including of transwomen and including of the types of women in the room today”. Verity said that feminism “is not just about promoting a version of feminism that simply advocates the value and worth of people who look like me or who have similar experiences to me, but all women. True feminism should be inclusive of all voices and of all people and promote equality for everyone.”
Inzwie Murapata Inzwie has been practising for 13 years, she says “I’ve stayed because there are things that are being done right.” Inzwie graduated in Queensland during the global financial crisis. In addition to an already difficult job market, she was told that the complexity of her name, Inzwirashe Murapata would be an additional barrier to obtaining a job. Getting a job was important as she was on a student visa, so she agreed to use a shortened version of her name Inzwie – which was “more palatable”. She relocated to a small regional town in Queensland where there was a need for lawyers and apparently her name was not perceived as a barrier. Inzwie reflected on the importance of cultural awareness for those in leadership positions. She recalled an example where
once a client was told her name, the client said “can I get an Australian lawyer? Someone who can speak English”. Her manager stepped in and spoke to the client about the inappropriateness of the comment, Inzwie said “he spoke for me, when I couldn’t have had that voice, because I just wanted the career. I wanted to be there”. It was in a time when Inzwie needed the job and was prepared to do what she needed to do because as a junior and starting out on her legal career she did not have enough leverage to respond to biases, overt and subtle. For her, having someone with power intervene made all the difference. Her manager had confidence in her competency. Her message to those in positions of power or who hold positions of seniority is to be an advocate, “use your power to challenge biases and call out unacceptable behaviour” (both within the firm and from external sources, such as clients). Throughout her career, Inzwie has had to field questions from clients and colleagues about where she learnt her English and whether she got her law degree in Australia. These are questions that most of her colleagues are not asked because they look and sound “Australian”. She said it affects “you because you have to constantly be explaining yourself and explaining your competency and it can get exhausting.” The assumptions can come from anywhere. Inzwie recalled attending court with a client, who was also African. When they attended court, an assumption was made that they were simply friends and that Inzwie was a support person.
“If you decide to be the voice and you tell the story, then that is a way to dispel those biases” - Inzwie Murapata Inzwie said that she has been at workplaces where, when they wanted to demonstrate diversity they would put her front and centre in photos. She was only wanted for the photo, but when it came to decision making on policies that affect people from her background, she was not included. She said that this kind of tokenism is not good enough. Reflecting on her current organisation, Circle Green, she said that because of the diverse clientele and workforce, the organisation is culturally aware and that she does not face those additional barriers. Rather, it is an environment of support, something which makes a big difference. The Law Society thanks sponsor legalsuper for their support.
The Old Court House Law Museum Small Court House, Big History By Natasha Fenner, Museum Curator, Old Court House Law Museum
Left image: Exterior of the Old Court House Law Museum. Michal Lewi 2010.
It
was Whadjuk country, on the banks of the Derbal Yarigan, that Captain James Stirling chose to establish Perth as the administrative centre of the Swan River Colony. Of prime importance was the development of a court system to maintain law and order in the fledgling frontier settlement. Colonists expected to have the institutions of their homeland replicated, however Aboriginal peoples who had been living in the region for over 45,000 years under their own system of Lore, did not understand that they had become subject to a different system of justice. Early court hearings took place in the Anglican Church of St James, a small wattle and daub building with a leaky thatched roof on the corner of Irwin and Hay Streets. However, the Colonial Government desired a building that was fit for purpose so on 5 February 1836, Governor James Stirling called for tenders to build a substantial court house for the young community of just over 600 settlers. Limited government funds dictated a simple design. The local gazette deemed civil engineer Henry Reveley’s design ‘chaste and appropriate’ yet lamented its rather barn-like appearance (the distinctive Doric entrance in Classical Greek Revival style was a later addition).1 Whilst not a decorative masterpiece; the construction was
Above image: Entrance to the Old Court House Law Museum virtual tour.
strong, using locally made bricks and quarried stone.
temporary church for all denominations. It also soon hosted a school, weddings, meetings and popular entertainment in the form of musical recitals and amateur theatrical performances.
The result was the largest public building in Perth, a clear representation of the supremacy of British Law. Opening with the Quarter Sessions on 2 January 1837, the courthouse was used for its original purpose for much of the next 130 years. The Supreme Court operated out of the Old Court House from 1863-1879 and later the State Arbitration Court from 1905-1964. Originally on the Buneenboro (Perth Water) foreshore until reclamation works pushed back the waterfront, the site of the Old Court House and its surrounding area is of great spiritual and cultural significance to the Whadjuk-Noongar people.2 However the trial of Aboriginal people under a foreign legal code and in a foreign language turned the courthouse site into a place of suffering. In 1842 the Crown prosecuted Weewar, a Binjareb Nyungar warrior, for carrying out tribal payback, a punishment sanctioned under traditional Aboriginal Lore. Weewar’s trial became the test case in Western Australia which determined that British Law took precedence over Aboriginal Lore. For settlers, the court house quickly became the hub of community life. In addition to its primary use for court sessions, the building served as a
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One of the most important public meetings held in the court house would have a major impact on the development of the colony. On 23 February 1849 some 200 settlers crammed into the courtroom to petition for the establishment of a Penal Colony. The following year convicts arrived in Western Australia. Today the Old Court House is the oldest building in the City of Perth. It houses the Old Court House Law Museum, which tells stories about the development of the justice system in Western Australia and explores injustices that have occurred enroute to the multicultural society we live in today. Although the building now seems small, the Old Court House has a big history to share. Come and explore from Tuesday-Friday, 10am-4pm.
End Notes 1
THE WESTERN AUSTRALIAN JOURNAL. (1836, February 27). The Perth Gazette and Western Australian Journal (WA : 1833 - 1847), p. 658. Retrieved April 21, 2022, from http://nla.gov.au/nla. news-article640525
2 Department of Biodiversity, Conservation and Attractions (2021). Perth Water Buneenboro Locality Plan, Retrieved April 21, 2022, from https://www. dbca.wa.gov.au/sites/default/files/2021-08/PW%20 LOCALITY%20PLAN-Print-Aug2021.pdf
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(Why) Aren’t We There Yet?
The Long and Winding Road to Equal Opportunity in Law
By the Honourable Justice Janine Pritchard1 An edited version of the Quayside Oration delivered by Justice Janine Pritchard on 4 November 2021
In this paper I focus on two areas where women lawyers continue to struggle to secure equal opportunities in the law: in securing briefs with speaking roles in court, and in appointment to the judiciary, having regard to the conditions of judicial life.
government agencies) should prepare and maintain an internal referral list or database of female barristers; and that they should include female barristers in any list of proposed barristers who might be engaged by a client.3
In June 2016, the Law Council of Australia (LCA) adopted its Equitable Briefing Policy (EBP).2
A key target of the EBP was that, by 2020, female barristers would be briefed in at least 30% of all briefs.4 In its most recent report on the EBP, published in September 2020, the LCA noted that ‘on current projections the target of 30% for 2020 will be exceeded by one percentage point’.5 So, according to the LCA, the aim of the EBP – that briefing entities will brief female barristers 30% of the time should by now have been achieved.
The aim of the EBP was to set targets for the briefing of female counsel. The LCA’s aim was to encourage genuine consideration of women barristers, based on their skill, experience, expertise and interest. The EBP did so by encouraging practices such as that briefing entities (that is, firms of solicitors or
A survey conducted in 2020 by a number of WA judges (gender representation survey) demonstrated that briefing practices in this State are not consistently meeting that target, and that there is a considerable disparity in the number of appearances by female counsel in different practice areas.
1. The Equitable Briefing Policy
2. Briefing practices in WA: the gender representation survey Towards the end of 2019, some judges in this State had cause to reflect on how infrequently women appeared in proceedings before them, and invited their colleagues to collect some statistics to see what was occurring. Not all judges and tribunal members participated, so the data collected does not constitute a complete picture. However, the purpose of the survey was to obtain a reasonably representative picture of the gender of counsel appearing in court and tribunal proceedings in WA, with a view to releasing the data to the profession to prompt discussion about the issue. The statistics were collected for the period February 2020 to December 2020 for the Court of Appeal, the Supreme Court, the District Court, the Federal Court and the State Administrative Tribunal (SAT). The statistics collected are summarised below.
Survey Results Court of Appeal In criminal appeal hearings and hearings of applications for leave to appeal in the Court of Appeal, female counsel constituted 39% of the counsel who appeared:
Number of counsel Female Appellant
12
Female Respondent
10
Male Appellant
17
Male Respondent
17
Total
In directions hearings for criminal appeals in the Court of Appeal, female counsel constituted almost 39% of the counsel who appeared:
% of total counsel 21.4%
22
34 56
36 | BRIEF LAW WEEK | MAY 2022
17.9% 30.4% 30.4%
Number of counsel Female Appellant
39.3%
60.7%
4
Female Respondent
25
Male Appellant
11
Male Respondent
35
Total
% of total counsel 5.3%
29
46 75
33.3% 14.7% 46.7%
38.7%
61.3%
Court of Appeal (continued) In civil appeal hearings in the Court of Appeal, female counsel constituted 13% of the counsel who appeared:
Number of counsel Female Senior
1
Female Junior
9
Male Senior
25
Male Junior
39
Total
10
64
In civil directions and applications in the Court of Appeal, female counsel constituted 19% of the counsel who appeared:
% of total counsel 1.4% 12.2% 33.8% 52.7%
13.5%
86.5%
74
Number of counsel Female Senior
0
Female Junior
5
Male Senior
1
Male Junior
20
Total
5
21
% of total counsel 0.0% 19.2% 3.8% 76.9%
19.2%
80.8%
26
Supreme Court For criminal trials and substantive pre-trial hearings in the Supreme Court, female counsel constituted 35% of the counsel who appeared:
Number of counsel Female Prosecution
54
Female Defence
54
Male Prosecution
97
Male Defence
103
Total
108
% of total counsel 17.5%
35.1%
17.5% 200
For sentencing hearings in the Supreme Court, female counsel constituted 19% of the counsel who appeared:
31.5% 33.4%
64.9%
308
Number of counsel Female Senior Counsel
4
Female Junior Counsel
15
15.0%
Male Senior Counsel
32
32.0%
Male Junior Counsel
49
Number of counsel Female Senior Counsel
47 117
34.9%
Number of counsel 2 16
19.0% 22.6%
Male Senior Counsel
40
11.9%
Male Senior Counsel
19
Male Junior Counsel
178
Male Junior Counsel
47
335
Number of counsel Female Senior Counsel
24
Female Junior Counsel
58
Male Senior Counsel
85
Male Junior Counsel
262
Total
78.6% 56.0%
84
For civil minor or consent matters in the Supreme Court, female counsel constituted nearly 20%of the counsel who appeared:
% of total counsel
Number of counsel
% of total counsel
Female Senior Counsel
22
13.5%
Female Junior Counsel
153
17.3%
19.8%
Male Senior Counsel
127
14.4%
Male Junior Counsel
582
5.6% 82
19.1%
347
80.9% 61.1%
429
21.4%
66
Total
For civil special appointments, interlocutory applications and appeals to a single judge in the Supreme Court, female counsel constituted 19% of the counsel who appeared:
2.4% 18
20.9%
Total
% of total counsel
Female Senior Counsel
70
65.1%
49.0%
For civil trials in the Supreme Court, female counsel constituted 21% of the counsel who appeared:
Female Junior Counsel
53.1%
81%
100
Female Junior Counsel
218
19%
81
% of total counsel 14.0%
4.0% 19
Total For criminal directions hearings in the Supreme Court, female counsel constituted almost 35% of the counsel who appeared:
% of total counsel
2.5% 175
19.8%
709
Total
80.2% 65.8%
884
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(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law
Survey Results continued District Court For criminal trials and substantive pre-trial hearings in the District Court, female counsel constituted 45% of the counsel who appeared:
Number of counsel Female Prosecutor
24
Female Defence
16
Male Prosecutor
18
Male Defence
30
Total
40
% of total counsel 27.3%
45.5%
18.2% 48
20.5% 34.1%
54.5%
88
Number of counsel Female Prosecutor
101
Female Defence
68
Male Prosecutor
114
Male Defence
143
Total
For criminal directions hearings in the District Court, female counsel constituted 44% of the counsel who appeared:
Number of counsel 16
Female Defence
10
16.9%
Male Prosecutor
12
20.3%
Male Defence
21
26
33
27.1%
35.6%
44.1%
55.9%
59
For shorter civil matters - appeals and special appointments for interlocutory applications inthe District Court - female counsel constituted about 24% of the counsel who appeared:
Female Senior Counsel
2
Female Junior Counsel
17
Male Senior Counsel
6
Male Junior Counsel Total
33.6%
60.3%
Female Senior Counsel
1
Female Junior Counsel
12
Male Senior Counsel
3
Male Junior Counsel
47
% of total counsel 1.6%
13
20.6% 19.0% 4.8%
50
79.4% 74.6%
63
For minor or consent matters in the District Court, female counsel constituted 44% of the counsel who appeared:
Number of counsel
% of total counsel
21.3%
Female Junior Counsel
0
0.0%
7.5%
Male Senior Counsel
9
50.0%
Male Junior Counsel
1
23.8%
76.3% 68.8%
38 | BRIEF LAW WEEK | MAY 2022
26.8%
8
61
80
257
Female Senior Counsel
19
39.7%
16.0%
Number of counsel
% of total counsel 2.5%
55
23.7%
426
Total
Number of counsel
169
% of total counsel
For civil trials in the District Court, female counsel constituted 20% of the counsel who appeared:
% of total counsel
Female Prosecutor
Total
For sentencing hearings in the District Court, female counsel constituted around 40% of the counsel who appeared:
Total
44.4% 8
44.4%
10
55.6% 5.6%
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(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law
Survey Results continued Federal Court The first category of appearances recorded was for Full Federal Court appeals and reviews.6 In this category, female counsel constituted 6% of the counsel who appeared:
Number of counsel
% of total counsel
Female Senior Counsel
2
Female Junior Counsel
0
0%
Male Senior Counsel
8
25.8%
Male Junior Counsel
21
6.5% 2
6.5%
29
Total
93.5% 67.7%
31
Number of counsel 6
Female Junior Counsel
39
Male Senior Counsel
14
Male Junior Counsel
2
Female Junior Counsel
26
19.1%
Male Senior Counsel
26
19.1%
Male Junior Counsel
82
43
The next category was for single judge appeals in the Federal Court.9 In this category, female counsel constituted 28% of the counsel who appeared:
Number of counsel
Female Junior Counsel
6
13.7%
Male Senior Counsel
0
Male Junior Counsel
15
55.9% 42.2%
102
79.4% 60.3%
136
38.2%
57
20.6%
108
0
44.1%
1.5% 28
Female Senior Counsel
5.9%
% of total counsel
Female Senior Counsel
% of total counsel
45
Total
Number of counsel
Total
The next category of hearings was for contested interlocutory and case management hearings in the Federal Court.8 In this category, female counsel constituted 44% of the counsel who appeared:
Female Senior Counsel
The next category was for Federal Court hearings and trials.7 In this category, female counsel constituted 20% of the counsel who appeared:
% of total counsel 0%
6
28.6% 28.6% 0%
15
Total
71.4% 71.4%
21
Finally, data was collected for short consent and case management hearings in the Federal Court.10 In this category, female counsel constituted 25% of the counsel who appeared:
Number of counsel Female Senior Counsel
2
Female Junior Counsel
13
Male Senior Counsel
3
Male Junior Counsel
41
Total
% of total counsel 3.4%
15
25.4% 22.0% 5.1%
44
74.6 % 69.5%
59
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(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law State Administrative Tribunal For final hearings in the SAT,11 female counsel constituted 27% of the counsel who appeared:
Number of counsel Female Senior Counsel
8
Female Junior Counsel
16
Male Senior Counsel
13
Male Junior Counsel
50
Total
% of total counsel
18.4%
Female Junior Counsel
177
48.6%
14.9%
Male Senior Counsel
14
3.8%
Male Junior Counsel
164
27.6%
63
72.4% 57.5%
The survey revealed that there is a very clear discrepancy in the rate at which female counsel are appearing in criminal matters as opposed to civil matters. The rate at which female counsel are appearing in criminal matters is evidence that a more equitable approach to briefing women and men is being adopted in the criminal jurisdiction. Anecdotally, judges report that in criminal matters, female counsel more regularly have substantial speaking roles. The position could not be more different in relation to civil work. The number of female counsel as a percentage of all counsel appearing across all jurisdictions in civil matters is far lower than in criminal matters. Anecdotally, judges report that female counsel who appear (especially if they are appearing with a male leader) frequently do not have a substantive speaking role at all. There is also a very clear discrepancy in the rate at which female counsel are appearing in civil appeals in the Court of Appeal and appeals in the Federal Court (13% and 6.5% respectively), as opposed to other civil trials and contested matters (at least 20% of appearances). The number of female counsel as a percentage of all counsel appearing in civil matters apart from Full Court appeals, even in interlocutory hearings or minor civil matters, in the Supreme and District Courts is relatively low by comparison (around the 20% mark12).
40 | BRIEF LAW WEEK | MAY 2022
% of total counsel
9
24
3. What conclusions can be drawn from the WA gender representation survey?
Number of counsel Female Senior Counsel
9.2%
87
For minor or consent hearings, such as directions hearings, in the SAT, female counsel constituted 51% of the counsel who appeared:
Total
4. Briefing equality: Why aren’t we there yet? Why the significantly better results for women counsel in criminal matters? A number of possible explanations spring to mind. First, relevant government agencies (the DPP and Legal Aid) employ a considerable number of female counsel, including senior and experienced counsel. These agencies are more likely, by virtue of agency culture, to adopt an equitable approach to briefing counsel. Secondly, much of the criminal defence work is publicly funded through Legal Aid. There may be less scope for choice in securing legal representation, due to the volume of work and the available pool of counsel, which limits the opportunity for those engaging counsel to adopt inequitable approaches, even if they were inclined to do so. Thirdly, solicitors undertake a significant proportion of counsel work in criminal matters in this State. There is more opportunity for women who do not want to go to the bar to undertake counsel work from the amalgam. Given that female counsel are frequently being briefed in the criminal jurisdiction, where the work can be very challenging, and carries enormous responsibility, why aren’t they being briefed to the same extent in civil matters? Some of the possible explanations for the results include the following. First, ignorance of the talented women who are at the bar may be a factor. Solicitors who brief counsel need to be informed as to the available counsel with expertise relevant
2.5% 186
51.1%
178
48.9% 45.1%
364
to the matters with which they are dealing. That requires effort and the opportunity to meet and get to know barristers. Secondly, the effect of habit must be acknowledged. If a male barrister does a good job, and the client is happy, there may be little practical incentive to look further afield when engaging counsel on another occasion. The effect of that unconscious bias is to exclude the possibility of the client’s work being undertaken by a range of talented barristers, both male and female. However, the bias appears to work more often in favour of male barristers than female barristers. Thirdly, perhaps there are some clients who prefer to brief male barristers, but it is difficult to know the extent to which this is an issue (if at all). Fourthly, perhaps there is a perception that there are not enough women at the bar. As an explanation for failing to brief female counsel, it is hardly plausible. It is undoubtedly true that there are few female senior counsel in this State, and they are busy. But there are plenty of female senior counsel interstate. There is also an increasing pool of talented female junior barristers at the bar. Finally, perhaps there is a perception that stereotypical personal traits of male barristers make them more suited to civil litigation or that women are suited to particular areas of law because of stereotypical assumptions about their abilities and interests. If such assumptions really exist, they are out of touch with reality. In that respect, the statistics from the SAT are a useful point of comparison because of the nature of the civil work for which the
(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law SAT has jurisdiction. The SAT handles a vast range of civil work, but little in the nature of purely commercial litigation. Female counsel appear more often in the SAT than in other civil jurisdiction.
5. What can be done about briefing inequality? A truly equitable approach to briefing counsel can make an enormous difference. By way of example, the New South Wales government has adopted an equitable briefing policy for women barristers, which ‘operates to entrench equitable briefing practices in all NSW Government agencies that brief barristers’.13 That policy is modelled on the EBP and adopts the same targets as the EBP. According to the NSW Government’s Equitable Briefing Report for the 2019-20 financial year, NSW government agencies briefed counsel on 2,916 occasions.14 Female counsel received 994 briefs (34% of the total). Given female counsel represented 23% of counsel at the NSW bar, that represents a significant proportion of the available briefs being given to female barristers. Female junior counsel (25% of total junior counsel at the bar) received 34% of briefs to junior counsel, while female senior counsel (12% of total senior counsel) received 33% of the briefs for senior counsel. What measures can be taken to encourage compliance with the EBP or an equitable approach to briefing counsel more generally? There are things every barrister and solicitor can do to ensure equitable briefing practices become a reality. If you are in a firm, speak up to ensure that your firm adopts equitable briefing practices. Encourage your clients to brief qualified female barristers and include the names of qualified female barristers in the lists of counsel you suggest could be briefed. If you are at the bar, sign up to the EBP or at least comply with its principles. When you are offered a brief but cannot accept it, make sure that those you suggest as replacements include female barristers. Senior counsel should include the names of female junior counsel in those you recommend for every brief, and female juniors should be given an opportunity to have a speaking role in every hearing. There are two larger strategies which could make a substantial difference to the implementation of equitable briefing practices in this State.
First, there is a real need for mandatory CPD training in discrimination and unconscious bias.15 Some States in the United States, for example, require CPD training in ethics or professional responsibility to include training in the elimination of bias in the profession.16 Mandatory CPD training of this kind would be of benefit to the entire profession, and would go some way towards addressing not just equitable briefing, but other pressing issues including sexual harassment in the profession.
and their associates are not best placed to collect the information. But others may be prepared to devote the resources: the Law Society or Law Council, or Australian Women Lawyers or Women Lawyers of WA. The information collected could then be used to educate and inform the profession and the community about briefing practices, and to provide an impetus for change.
Secondly, one of the biggest impediments to progress in relation to equitable briefing is the lack of transparency in what is occurring. Some commentators have suggested that the EBP needs amendment to provide for a tougher approach, including mandatory quotas and mandatory public reporting.17 However, mandatory reporting seems unlikely to increase the number of briefing entities who sign up to the EBP. Another solution is required. The information that is needed to identify briefing practices is publicly available. In courts every day, counsel give their appearance, and often indicate the firm which has briefed them, or alternatively, their instructors will be noted on publicly available court documents. Hearings are held in public, so who gets to speak, and for how long, is also information in the public domain. It would be a useful next step in discerning whether equitable briefing practices are being implemented, and to what extent, and by whom, if the following information were to be collected, in every hearing: The parties’ names; The counsel who appeared; The instructing solicitors; The nature of the hearing; The duration of the hearing; Who spoke at the hearing, and for how long. In other words, I am suggesting a more comprehensive, and more detailed, approach to collecting the sort of information that the courts and the SAT collected in 2020.
There are several reasons why the equitable briefing of female counsel is important. First, to ignore a pool of talented counsel because of their gender, or because the briefing entity holds outdated and stereotypical views about the abilities of female counsel, or because the briefer is not motivated to ascertain the range of qualified counsel who are available, is to deny a client the opportunity to consider the full range of suitable counsel who would be available to represent them. That cannot be in the client’s best interests. Secondly, lawyers should be concerned to act justly in their dealings with each other. It has been suggested that lawyers have an ethical obligation to address the impediments within the legal profession that perpetuate a work environment that is unsafe or unwelcoming for women.18 To ignore the pool of female counsel who might be briefed on a matter is to act unjustly and unethically towards them. Thirdly, most judges are drawn from the ranks of counsel - whether from the bar or within the amalgam. If women are not given the opportunity to become the best advocates they can be, then we deny the community the possibility of the best range of candidates for appointment to the bench. A diverse judiciary promotes public confidence in the judiciary itself and in our justice system. To hinder the achievement of a diverse judiciary is to contribute to undermining confidence in the judiciary, and in our justice system.
7. Diversity in the judiciary Why aren’t we there yet?
The collection and collation of that information would permit analysis of the briefing decisions made by particular firms, the gender of the counsel they brief, of who has been given a speaking role, and for how long. The collection and collation of this information requires resources. Busy judges
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6. The importance of equal opportunity for female counsel
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Inequality of opportunity is not just confined to the profession. There is more work to be done to address this issue within the judiciary. Almost 50% of the judges of the District Court are women. And just under 50% of this State’s Magistrates are women. On the other hand, only 5 out of 23 judges on
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(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law the Supreme Court and Court of Appeal are women (22%). On the raw numbers alone, there is more to be done before our judiciary reflects the gender make-up of our community. But beyond the number of judges, there is more work to be done to achieve equality of opportunity for women and men in the judiciary in this State, and thus to achieve a judiciary which is as diverse as the community itself. I propose to focus solely on the Supreme and District Courts to demonstrate why this is so. The model of work for the judges appointed to the Supreme and District Courts is little different from what it was in the 1950s. The model assumes that judges have spouses or partners who have complete responsibility for their domestic affairs - so that the judge is free to concentrate entirely on their judicial work. The flexibility in the working hours of the judges is limited at best, and nonexistent at worst. In the District Court, where most of the judges are predominantly doing criminal trials and sentencing, the judges are listed back-to-back for trials and sentencing days. Ordinarily, no preparation time is given for criminal trials. In the weeks where they are listed for sentencing, judges will be listed on three days a week for five or six sentencing matters on each of those days. Listings are done years in advance. There is no ‘slack’ in the system. It is virtually impossible to have a day off at short notice, other than in the case of incapacitation of the judge or emergency. Leave must be booked months in advance, and must be taken in blocks of a week at a time. If the judge is listed in the civil jurisdiction, the judge will be allocated to do civil trials which might take a week or two, or multiple civil applications and appeals each day. There is no allocated judgment writing time proximate to the time spent in civil hearings. Instead, judges are allocated 2 weeks of judgment writing time each year and there is a recess in July, and at Christmas / New Year when there will be no listings (save for urgent matters) which also permits time to catch up on judgment writing. However, those times for judgment writing might be months after the judge’s civil hearings. That means civil judgments must largely be written on weekends and weeknights, after the judge has finished preparing for the criminal matters for which they are listed, and for which they receive no preparation time.
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In the Supreme Court, things are a little better. Judges in the CMC list have somewhat more control over the listing of matters in their docket, but are not completely in control of their hearings, because they are frequently asked to take on unexpected matters when they are not listed, in addition to any matters with which they may have to deal as the duty judge. So while they might try to factor in judgment writing time when they list a matter for hearing (usually months in advance) there is a real risk that that time will be taken up with unexpected matters from their own CMC docket, or urgent matters which are allocated to them. There is no recognised formula for allocating trial preparation time or judgment writing time in the judge’s calendar. For judges undertaking criminal work in the Supreme Court, the position is similar to that for District Court judges. Those judges are listed back to back on criminal trials all year round, with sentencing hearings, bail and miscellaneous criminal matters slotted in around those substantive hearings. Like the District Court, leave must be booked months in advance. If you are a judge listed in the criminal jurisdiction of the Supreme Court your prospects of taking a day off at short notice are remote, other than if a criminal trial is vacated because an accused enters a late guilty plea (which is far less common these days, given the Supreme Court’s jurisdiction is, in practice, largely limited to homicides). In the Court of Appeal, the fourth week of every month is reserved for judgment writing. But during the previous three weeks of that month, the workload is extremely heavy and relentless. Appeals are listed on the basis that they are ready to be heard, so that appellants, especially in criminal appeals, are not kept waiting for their appeals to be heard. This can result in very significant numbers of appeals being listed each month, especially in those months which follow recesses or holiday periods, when less appeals can be heard. Judges of the Court of Appeal, Supreme Court and District Court keep up by working long hours during the week, and on weekends. There are, of course, exceptions. Some judges are exceptionally gifted, and they complete their work in an extremely fast and efficient manner. Others are very experienced in their particular area of specialisation, and are naturally efficient for that reason. The rest work extremely hard during weekdays, and inevitably for a substantial part of each weekend.
The only way a judge can do that is by relying on a spouse or partner to take care of all their domestic affairs. There is no option for part time work in the Supreme Court or District Court, irrespective of whether that might be a desirable option for a judge with family responsibilities, or who has interests in other areas of life (such as charitable work) or who is eligible for retirement but not ready to stop working completely. Serving as a judge is an enormous privilege and responsibility. It is a job which requires and deserves a very significant commitment from anyone appointed to the bench. Judicial positions are well remunerated, particularly when the judicial pension is factored in. They also come with long service leave entitlements. But many, if not most, judges retire with a lot of leave in credit because taking months of long service leave would leave other judges to take up that judge’s workload. What has any of this got to do with diversity in the judiciary? Increasingly, the 1950s model of work is not attractive to many people who aspire to a life which balances work with other pursuits. For talented lawyers who bear the primary responsibility for domestic affairs within their household (and they are more likely to be women than men) they will rightly be concerned about juggling a judicial role along with those other responsibilities.19 I would find it very difficult to recommend a judicial appointment to the Supreme or District Court to anyone who had the primary domestic responsibility in their household, or to anyone who aspired to have real worklife balance, or who wanted work which would permit some flexibility. Women and men may be deterred from accepting a judicial appointment because of the lack of flexibility or because a part time appointment is not available. I am aware of one woman who has declined for that reason. From a diversity perspective this is an issue of real concern. Some potentially excellent appointees who have domestic responsibilities, or outside interests that they wish to pursue while working, are likely to be deterred by the inflexibility of the work, or by the fact that a part-time appointment is not available. Yet these are the very people, with a diverse range of life experiences, who would add to the diversity of our judiciary.
(Why) Aren’t We There Yet? The Long and Winding Road to Equal Opportunity in Law 8. What can be done to increase diversity in the judiciary? Why is this the position in the Supreme and District Court? To some extent, heads of jurisdiction, and the judges themselves, are responsible, in the sense that they are extremely conscientious, concerned about accused persons spending any more time in custody than they absolutely have to while awaiting trial, and thus willing to work in the way I have described, to try to get through the work as quickly as possible. At the same time, within the judiciary, a premium is still placed on a judge being willing and able to work long hours. Because judges have been willing to absorb the increasing workload of these Courts, largely without complaint, it is not entirely surprising that funding for an adequate increase in judicial resources has not been forthcoming from government. The solution to these issues lies with government, in two ways. The first concerns funding for judicial appointments. In 2006, at the end of Chief Justice Malcolm’s term as Chief Justice, there were 20 judges, and 2 Masters, on the Supreme Court and Court of Appeal. In the 15 years since then, the workload of the Court has increased significantly in complexity and volume. Yet the number of judges on the Supreme Court and Court of Appeal, including the Master, is presently 22 judges, plus the Master. The result is that in 15 years, there has been an increase of one judicial officer on the Court. There has been an increase in the number of judges appointed to the District Court over the past 15 years. In 2006 there were 28 judges of the District Court. There are now 33 judges. That increase has reflected the fact that during the same period, the jurisdiction of the Court has increased significantly, as has the number of matters to be dealt with each year. However, the listing practices adopted by the Court to cope with the volume of work provide compelling evidence that more judicial resources continue to be needed in that Court. Even a small number of additional judicial appointments to each Court would permit greater flexibility in the listing practices of those Courts. That would go a long way towards excluding the possibility that excellent appointees might decline appointment because of the sacrifice of any work-life balance or flexibility that that presently involves.
The second way in which government could do something to increase diversity on these Courts would be to introduce legislation to the Parliament to permit judges to be appointed on a part-time basis.
4 Ibid 2. 5 Law Council of Australia, Equitable Briefing Policy Annual Report 2018-2019 Financial Year (Report, 18 September 2020) 8.
Some might argue that there would be little demand for part-time appointments. I do not accept that. Potential appointees with family responsibilities may welcome that option. I certainly would have welcomed such an opportunity when, after maternity leave, I returned to work, full time, as a judge on the Supreme Court, with a 1-year-old baby and a 4-year-old child. Part-time judicial service would facilitate the diversity of the judiciary in that it would enable potentially excellent appointees with domestic or other responsibilities or interests to accept appointment without sacrificing their ability to pursue those responsibilities or interests for some or all of their judicial career. In addition, the availability of part-time appointments would be likely to assist in retaining judges who have reached retirement age but do not wish to continue to work full time. Without that option, we are increasingly likely to see our judiciary comprised of judges aged between 50 and 60 years old, who will complete their minimum years of service, and then retire, because they would prefer to combine work with the pursuit of other interests, which is not possible while in a full time appointment.
6 This category which encompassed appeals and reviews heard by the Full Court, constituted by three or more judges. The data collected included appeals from WA Registry primary decisions where the appeal court was constituted by local or interstate judges. 7 This category included traditional trial work and other significant hearings leading to the determination of liability, such as the determination of separate questions, applications for judicial review and appeals from some Commonwealth decision making bodies (such as the AAT). 8 This category included hearings capable of involving some complexity, and which would usually require the provision of written submissions, a hearing, and would result in written reasons for judgment. 9 This category comprised appeals from the Federal Circuit and Family Court of Australia which are required to be heard by a single judge of the Federal Court. 10 This category covered hearings of up to 15 minutes, dealing with programming and minor procedural disputes. Solicitors on the record commonly appear. 11 This category included any hearing for the final determination of an application, whether in SAT’s original or review jurisdiction. 12 Excluding the data from District Court minor or consent matters, which appears unlikely to be representative. 13 New South Wales Government, NSW Government Equitable Briefing Report 2019-20 Financial Year (Report, 16 April 2021) 4. 14 Ibid 8. 15 Cf Kristy D’Angelo-Corker, ‘Don’t Call Me Sweetheart! Why the ABA’s new rule addressing harassment and discrimination is so important for women working in the legal profession today’ (2019) 23(1) Lewis & Clark Law Review 263, 304 – 310. 16 Cf Helia Hull, ‘Diversity in the Legal Profession: Moving from Rhetoric to Reality’ (2013) 1(4) Columbia Journal of Race and Law 1, 20. 17 Ryan Chan, ‘Sexism at the Bar and the Equitable Briefing Policy: A Well-Meaning but Misguided Response to Gendered Briefing Practices’ (2017) 29(2) Bond Law Review 1, 27. 18 Ashley Badesch, ‘Lady Justice: The Ethical Considerations and Impacts of Gender-Bias and Sexual Harassment in the Legal Profession on Equal Access to Justice for Women’ (2018) 31(4) Georgetown Journal of Legal Ethics 497, 498.
9. Concluding remarks
19 Cf Lauren T Katz, ‘Tearing down the maternal wall in the legal profession: A perspective inspired by difference feminism’ (2021) 22 Georgetown Journal of Gender and the Law 213, 230 - 236; Kerry Abrams, ‘Family, Gender and Leadership in the Legal Profession’ (2020) Women & Law 1, 9 - 11.
For women to have the opportunity to flourish at the bar is not just important for them. It is important for our justice system, and for our entire community. Achieving equitable briefing practices, and more flexible work practices for judicial officers, are necessary elements of the just operation of our justice system. It’s been a long and winding road to achieving equality of opportunity for women at the bar and on the bench. The destination may be in sight, but the journey is far from over. Now, more than ever, we need to pursue strategies to achieve equality of opportunity so that our legal profession, the bar, and the judiciary will reflect the diverse make up of our community.
End Notes 1 President of the State Administrative Tribunal. The views expressed in this paper are my own. 2 Law Council of Australia, Equitable Briefing Policy (June 2016). 3 Ibid 4.
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humanrightsinfocus 2021 Sir Ronald Wilson Lecture The Perils of Independence: The Australian Human Rights Commission’s role in protecting human rights in Australia Abstract The Bringing Them Home inquiry and report, which investigated the forced removal of Aboriginal children from their families and communities, was Sir Ronald Wilson’s ‘blowtorch moment’. It led to conclusions that the removal of children could be considered ‘genocide’ and made recommendations for an apology and for reparations. The report is of continuing influence, although the reaction of government at the time was very negative. However, over time, the Bringing Them Home inquiry and its report demonstrate the power of independence and the ability of the Australian Human Rights Commission to contribute to change over a long horizon. It illustrates Sir Ronald Wilson’s role as President of the Commission and also the Commission’s role in protecting human rights in Australia, which, to this day, remains the only country in the Commonwealth of Nations not to have a Charter or Human Rights Act.
On 7 February 1990, Sir Ronald Wilson was appointed President of the Human Rights and Equal Opportunity Commission (HREOC) - now the Australian Human Rights Commission - under the Labor Government led by the Hon Robert Hawke MP. He was 67 years of age, charismatic, ‘universally liked and admired’ with a distinguished career in the judiciary behind him. His appointment was suggested by some as ‘calculated to save the Commission from abolition if the Coalition did gain power’.1 At the beginning of his time as HREOC President, Wilson was described as ‘circumspect’, and not wanting to embroil the Commission in political controversy. But, in the ensuing years, he was to become more forthright in expressing his views. In September 1991, he gave voice to some of his thoughts about human rights in a lecture, the title of which was framed as a question: ‘Human Dignity for All: A Pie in the Sky?’
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Presented by Emeritus Professor Rosalind Croucher AM President, Australian Human Rights Commission Wednesday, 4 August 2021
Presented in Exclusive Partnership with Wilson referred to the ‘respectable body of “law”’ represented by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights— which together form the ‘International Bill of Human Rights’—and noted that a Declaration on the Rights of Indigenous Peoples was in the process of preparation at the time. All of this, he said, was ‘designed to encourage members of the UN to fulfil the hopes of 1945’,2 when the founding document of the UN, the UN Charter, was signed. However, 45 years on from the signing of the Charter, little had been done to enact the rights and freedoms protected by those instruments into Australian law. To Wilson, it was unacceptable for Australia to ratify international human rights instruments and then only partially enforce them. He considered that it was his obligation in his role as President of HREOC to advocate for human rights, particularly for the marginalised and disadvantaged sections of the community.3 On 11 May 1995, the then AttorneyGeneral, the Hon Michael Lavarch MP, under the Labor Government of the Hon Paul Keating MP, referred to the Commission an inquiry into the forcible removal of Aboriginal and Torres Strait Islander children from their families. It was two and half years after Prime Minister Paul Keating had said in an address at Redfern, to launch the UN International Year of the World’s Indigenous Peoples, that ‘We took the children from their mothers’. The inquiry was led by Wilson and Mick Dodson, the Aboriginal and Torres Strait
Islander Social Justice Commissioner. It led to the report, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997). The title for the report came from the evidence of Aboriginal poet, James Miller, at the inquiry hearings in Sydney, who said, ‘We need to bring them home’.4 The inquiry was to be Wilson’s ‘blowtorch moment’.
Blowtorch moment In my first formal speech in my role as President of the Australian Human Rights Commission, I coined this phrase. I said: Having a ‘Devil’s Advocate’ for human rights is a healthy, indeed necessary, thing in the context of the promotion and protection of those rights. Even if it means we should expect criticism—for calling out Government against the commitments made to the international community in signing up to the international treaties that set the benchmark for human rights. Even if it means that Government see us more of the Devil’s Blowtorch than the Devil’s Advocate.5 The Bringing Them Home inquiry hearings were a life-changing experience for Wilson. In the biography, Sir Ronald Wilson: A matter of conscience, Antonio Buti says: He had heard story after story of sorrow and pain that had convinced him a major injustice had been done that needed to be understood by all Australians and measures taken to rectify the historical injustices. He, along with the other HREOC commissioners, believed that they
reBriefed this article originally appeared in our December 2021 edition
had been trusted with the stories, and had to honour that trust. This meant ensuring that the report presented the story and the case for justice, no matter how uncomfortable it would be for White Australia.6 Among the recommendations of the Report were that an apology should be given for separation, to be participated in by Parliaments and churches, as well as restitution, rehabilitation and monetary compensation.7 Another recommendation was for a national ‘Sorry Day’. The Report also concluded that The Australian practice of indigenous child removal involved both systematic racial discrimination and genocide as defined by international law. Yet it continued to be practised as official policy long after being clearly prohibited by treaties to which Australia had voluntarily subscribed.8 The definition of genocide includes the forcible transfer of children from a racial, ethnic or national group to another group with the intention of destroying that group.9 Within the Commission, the question of whether to use the ‘genocide’ label, generated a ‘significant debate’.10 Mick Dodson was not so sure about the wisdom of using this label.11 As Buti explained: Dodson worried about the political ramifications of such a finding. His concerns were prophetic. However, after listening to Wilson’s arguments he was persuaded to agree to the genocide finding, as were the other commissioners.12 The ‘crux of the argument’ was that the removal policy’s intention was ‘to destroy the Aboriginal race by assimilating the next generation of Aborigines into mainstream European society and culture. The policies intended to assimilate Aboriginal children into White society, so that they would lose their “Aboriginality”.’13 The recommendation was a symbolic one: that the Commonwealth should legislate to implement fully in domestic law the Convention on the Protection and Punishment of the Crime of Genocide (Genocide Convention), which Australia had ratified in July 1949.14 In his Sir Ronald Wilson Lecture, Robert Nicholson said that, ‘These and other recommendations entered the political realm and became the subject of intense debate and, by some, intense anger’.15
Shooting the messenger Where Terms of Reference are provided by an Attorney-General, as distinct from an inquiry at the initiative of the
Commission itself, it may well be that governments change in the middle, so that the Attorney, and Government, that commissioned the inquiry, are not the ones to receive the result. This was the case for the Bringing Them Home report. On 5 April 1997 the report was delivered to then Attorney-General, the Hon Daryl Williams AM QC MP, of the Coalition Government of John Howard. The political environment could hardly have been more different than in 1992, when Paul Keating made his Redfern speech. There were other elements in the environment: Pauline Hanson was elected in 1996; the Wik case was decided on 23 December 1996,16 the High Court holding that native title could coexist on pastoral leases, and the Government’s ‘Ten Point Plan’ was announced late in April 1997, watering down native title rights, in response.17 This was not an environment to be receptive of the Bringing Them Home report, let alone a finding of ‘genocide’. As Buti observed: It was a report the government did not want, about an inquiry it did not call, at a time that could hardly have been less welcome.18
interview he said that he and those involved in the inquiry
On 20 May, the Sydney Morning Herald ran a front-page story referring to ‘unnamed government sources’ condemning the report, even though it had not yet been tabled. Margo Kingston also wrote about the attempt to discredit Wilson, in an article entitled, ‘Report that Won’t Stay under the Carpet’. Kingston referred to the advice of ‘Yes Minister’s’ Sir Humphrey Appleby to his MP, Jim Hacker, about how to suppress an inconvenient official report: ‘Discredit the man who produced the report.’19 In terms of Sir Humphrey’s strategy of ‘discrediting the man’, however, Kingston commented that the Government had a problem:
would continue to ‘fight’ for justice for the ‘stolen generations’, irrespective of the Commonwealth’s response. He also fervently defended the claim of genocide. He maintained that the removal process came within the definition of genocide in the UN Genocide Convention. He reiterated his determination to fight for the recognition of the plight of the ‘stolen generations’, saying: ‘Governments come and go’, and ‘[we] are on a long haul perhaps but we are heading for reconciliation’.22
[He] is a former Liberal-appointed High Court judge, widely respected and a man near retirement. Sir Humphrey’s lines of attack—that the inquirer harboured a grudge against the government, was a publicity seeker or was trying to get a knighthood—were not available.20 A Government press statement was made on 21 May, referring to aspects of the as-yet-untabled report. The statement attacked the report’s genocide finding and dismissed any suggestion of awarding compensation.21 This is a classic case of ‘shooting the messenger’. On 26 May, the opening day of the Reconciliation Conference in Melbourne, the report was tabled and Wilson could now speak about it. In an ABC radio
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In the absence of a Human Rights Act, the Commission has once again become the Devil’s Blowtorch.
What Wilson was doing was using international law principles in the domestic context—his brief under his statutory mandate. But the messenger was still shot. The Commission’s Annual Report for 1997–1998 shows that budget cuts, taken over a three year forward period, represented a reduction of 40% of the budget of the Commission.23 Having strong, independent, national human rights institutions is an expression of the robustness of the commitments of governments across the globe in ratifying international conventions and treaties.24 Australia was a founding supporter of the UDHR and the Charter of the United Nations itself. If you look at the seven major treaties25 Australia has committed to and their ratification, it is an equal split of
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humanrightsinfocus Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project. The commitment to respecting, protecting and fulfilling human rights, should therefore be above politics.
consider are those ‘by or behalf of the Commonwealth or an authority of the Commonwealth’, which at many times places us in an oppositional position to government.
The language of ‘human rights’ and international law
Moreover, the acts or practices may well be lawful under domestic law, but contrary to international human rights obligations. So the Commonwealth has a clear answer to the complaints in domestic law. But in international law, that is no defence.
While the act of ratifying treaties is a government commitment to give effect to human rights in Australian law, policy and practice, 73 years on from the Declaration (and some 30 years after Wilson’s speech of 1991), little has still been done to make the rights and freedoms enshrined in these international human rights instruments directly enforceable in Australia. When the Commission was put on a permanent footing in 1986, as HREOC, it was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not pass the Senate. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago.26 The past President of the Law Council of Australia, Pauline Wright, in her Press Club address in 2020, also called for an Australian Bill of Rights. While every other country in the Commonwealth of Nations has moved forward by introducing a Charter of Rights or a Human Rights Act—Australia stands alone for not having introduced such protection, at least at the federal level. From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. We are like a doughnut—with a hole in the middle.
International not domestic framing Even without a formal enactment of a ‘Human Rights Act’, people can bring a complaint to the Commission on the basis of the ICCPR and other rights in the instruments scheduled to our Act.27 But it is not judiciable, nor can there be enforceable remedies. The Commission has a growing set of complaints invoking the right to return to the country and for children to enter or leave Australia for the purpose of family reunification during COVID-19.28 These complaints do not sit under the category of ‘unlawful discrimination’ in Australia’s four anti-discrimination laws, but in what we describe as our ‘human rights’ jurisdiction that links to the treaties. For complaints that reference the international treaties, an additional challenge is that the respondent is principally the Commonwealth, because the ‘acts or practices’ that we can
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When it comes to our function to consider human rights complaints, domestic law and international expectations are at loggerheads. In the absence of a Human Rights Act, the Commission has once again become the Devil’s Blowtorch.
for making it the title of the report is credited to Meredith Wilkie. 5 ‘National Human Rights Commissions — What’s the point?’, International Bar Association Section on Public and Professional Interests, IBA Conference, Sydney (12 October 2017), 9. 6 Buti, A Matter of Conscience, 324. 7 Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), 284–94, 302–13, 415–21. 8 Bringing Them Home, 266. 9 Article II. Australia ratified the Genocide Convention on 8 July l1949. 10 Buti, A Matter of Conscience, 321. Dr Sarah Pritchard and Meredith Wilkie, staff working independently on the research and writing, both concluded that genocide was relevant to the findings and conclusions of the inquiry. 11 Buti, A Matter of Conscience, 324. 12 Buti, A Matter of Conscience, 325.
The beauty of a Human Rights Act, and other measures that front-load rightsmindedness, is that they are expressed in the positive: affirming rights and freedoms—not just implying them—and giving a clear anchor for decision making. It front-loads human rights thinking.
13 Buti, A Matter of Conscience, 325.
Advancing the case for a Human Rights Act and other complementary reforms is the focus of the current project that I am leading, Free and Equal: the national conversation on human rights.29
17 Buti, A Matter of Conscience, 330–331.
No ordinary report—no ordinary man Twenty-four years after the Bringing Them Home report was tabled, apologies have now been delivered by every Australian Parliament. Compensation schemes have been established in most Australian jurisdictions, either directly for members of the stolen generation, for the stolen wages of Aboriginal domestic workers, or for victims of institutional child sexual abuse.30 There is also now an accepted understanding, demonstrated in the language of the National Agreement on Closing the Gap,31 that the actions of the past affect the health and other outcomes of the present. The truth of what was reported in Bringing them Home is now accepted and taught in schools nationally. As Buti remarked, ‘The furore that followed the handing down of the report would forever change [Ron’s] place in Australian history’.32 Human rights, and the Australian Human Rights Commission, needs such champions. Wilson was, as Fr Frank Brennan remarked, ‘Western Australia’s gift to the nation’.33
14 Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), 292–5. 15 Nicholson, ‘Sir Ronald Wilson’, 514. 16 The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40. 18 Buti, A Matter of Conscience, 330–331. 19 Buti, A Matter of Conscience, 332. 20 Buti, A Matter of Conscience, 333. Sydney Morning Herald, 20 May 1997. 21 Buti, A Matter of Conscience, 334. 22 Buti, A Matter of Conscience, 337. 23 Human Rights and Equal Opportunity Commission, Annual Report 1997–1998, 12–13. 24 There is a process of accreditation for NHRIs, reflecting the centrality of the idea of independence, and principles concerning appointment and tenure of Commissioners and adequate funding to be able to operate independently of government, and not be subject to financial control: Paris Principles: https:// humanrights.gov.au/our-work/commission-general/ principles-relating-status-national-institutions-parisprinciples-human/ 25 The International Covenant on Civil and Political Rights- external site (ICCPR); the International Covenant on Economic, Social and Cultural Rights - external site (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination - external site (CERD); the Convention on the Elimination of All Forms of Discrimination against Women - external site (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child external site (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD). 26 National Human Rights Consultation (Report, September 2009). 27 Most notably, however, these instruments do not include the ICESCR. 28 For individuals alone – Art 12 ICCPR; for family groups – Art 12,17 and 23 of ICCPR; and family groups with children, all of the above plus Arts 3, 8, and 10 of the CRC. 29 In opening Law Week in Perth in 2019 I spoke about my Damascene journey of acceptance of the need for an Australian Human Rights Act, which was extracted and published in this Journal: ‘Law, Lawyers and Human Rights’ (2019) 46(5) Brief 22.
1 Chris Connolly and Paul Vout, ‘A New Era for the Human Rights Commission?’ 1990 (1) Polemic 20.
30 On 5 August 2021, the day after delivering this Lecture, the Prime Minister announced the new Closing the Gap implementation plan would include a $378 million new redress scheme for Stolen Generations survivors. PM to unveil $1 billion Closing the Gap Implementation plan (news.com.au)
2 Ronald Wilson, ‘Human Dignity for All: A Pie in the Sky?’, The Mitchell Oration 1991, 3.
31 https://www.closingthegap.gov.au/nationalagreement
3 Buti, A Matter of Conscience, 293.
32 Buti, A Matter of Conscience, 330.
4 Buti, A Matter of Conscience, 325. The suggestion
33 Brennan, ‘The Law and Politics of Human Rights’, 33.
End notes
reBriefed
Human Rights Obligations to Family and Domestic Violence
this article originally appeared in our February 2022 edition
By Corina Martin CEO, Aboriginal Family Legal Services
Family and domestic violence is one of the most pervasive and contemptible human rights violations in Australia and globally. There were 145 victims of family and domestic violence related homicide recorded in Australia in 2020, an increase of 12% from the previous year.1 Nationally, almost two in five homicide and related offences recorded by state and territory police were family and domestic violence related. In Western Australia, crime statistics for the 2020-21 financial year recorded: 23,909 Assaults (Family) 3,519 Threatening Behaviour (Family) 12,134 Breaches of Violence Restraining Orders.2 Particularly concerning is the disproportionate prevalence and severity of violence experienced by Aboriginal women in Australia. Nationally, Aboriginal women are: 32 times more likely to be hospitalised due to family violence than nonAboriginal women3 10 times more likely to die due to assault than non-Aboriginal women4 45 times more likely to be victims of violence than non-Aboriginal women.5 An understanding of violence in Aboriginal communities cannot be separated from an understanding of the historical experiences of Aboriginal people, families, and communities, whose basic human rights were violated from the onset of colonisation. The National Aboriginal and Torres Strait Islander Women’s Alliance (2014) stated that:
The nature, history and context of family violence in Aboriginal and Torres Strait Islander communities is different to domestic violence experienced in mainstream communities and populations. Aboriginal and Torres Strait Islander people continue to suffer the intergenerational effects of past welfare practices including the forced removal of their children and dislocation from their communities, country, and culture, as well as experiencing higher levels of poverty and social disadvantage compared to other Australians. The combined effects of past practices and current disadvantages present extreme challenges to families.6 In Australia and the world, consistent violation of the United Nations Declaration on the Rights of Indigenous People, including the fundamental rights to self-determination, governance, and sovereignty, demonstrate how discrimination against Aboriginal people remains entrenched in contemporary, mainstream societies. The contravention of these rights, which encompass the rights to safety, well-being, justice, health, and for Aboriginal people to make their own decisions on how, why, where, and the way in which they choose to live, are significant contributing factors towards violence. Combined with other factors related to colonization, including dispossession, dislocation, forced removal and racism, which continues to be a daily experience for most, if not all, Aboriginal people, these factors make understanding violence within Aboriginal communities far more complex.7
We must now ask - is violence a symptom of long-standing human rights violations? If we look at the status of human rights for Aboriginal people in Australia today,
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nothing much has changed. Widespread homelessness, the over representation of Aboriginal people in the criminal justice and child protection systems, lower levels of education and reduced employment opportunities, cultural practices frowned upon, family structures broken by removal of children, poverty, dislocation from culture, and violence; these human rights related issues continue to pervade Aboriginal communities across the entire continent of Australia. There is no excuse for violence against Aboriginal women and children in their communities, but there is also no excuse for the continued violation of Aboriginal people’s human rights. Family and domestic violence has now become a normal practice in some households and communities, and many of the Aboriginal people you may know or see have likely been directly affected by violence at some point in their life. I personally had to see my mother beaten by her partner. As children, many Aboriginal people grew up having to take on responsibilities to look after our siblings and care for our mothers, who at times were so beaten they couldn’t get out of bed. Where is the right to live free from violence? The cycle of disadvantage, vulnerability and violation of rights is then perpetuated, with child protection authorities removing children from their homes and putting them into State care. I personally watched as my mother was held back by a policeman while I was taken by a white man with long socks and put into a car, all the while screaming, crying and scared. Where was my mother’s right to be free from torture and from cruel, inhumane, or degrading treatment or punishment? Because watching your child get taken from you can only be one of the cruellest, inhumane, degrading, and painful punishments a mother can endure.
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...only Queensland and the Australian Capital Territory have dedicated Human Rights Acts. Other States have Acts that purport to cover human rights, such as the Equal Opportunity and Racial Discrimination Acts in Western Australia.
In the United States, a 2011 decision by the Inter-American Commission on Human Rights found that the failure of the responsible authorities to protect a woman and her three daughters from her estranged husband, who had violated a restraining order and kidnapped the children, was a human rights violation. The Commission decided that the United States was responsible for violating the women and her daughters’ human rights, specifically: American Declaration on the Rights and Duties of Man Article 1: Right to life, liberty and security of person Article 2: Right to equal protection under the law without discrimination
Where was my right to grow up with my family and in my culture? And who speaks for children and families, like me and mine, and advocates for our rights after they have been removed? The forced removal of children breaches not only human and Indigenous rights, but also the United Nation’s Convention on the rights of a child. Where is the assistance for our mothers, like those who we still see today, having their infants removed from them at birth in our maternity hospitals, to prevent that situation? These are the realities of life for too many Aboriginal people: reactive measures from our Governments, rather than proactive and preventative support.
International human rights laws do require governments to take effective measures to prevent, investigate, punish, and remedy domestic violence. Under international human rights law, gender-based violence such as domestic and family violence is recognized as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.8 The Australian Government has an obligation to respect, protect and fulfil human rights, having signed a range of treaties and therefore committing to fully implementing the principles stated in these international agreements. This includes: Universal Declaration of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child
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Convention on the Elimination of All Forms of Discrimination against Women
Article 7: Right to special protection for mothers and children
Convention on the Elimination of All Forms of Racial Discrimination
Article 18: Right to judicial protection
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Declaration on the Elimination of Violence Against Women. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) offers the most comprehensive coverage of women’s rights; whilst it does not contain an explicit reference to violence against women, the CEDAW Committee has issued a recommendation stating that violence against a woman, because she is a woman, or violence that affects women disproportionately, is recognized and addressed as discrimination under CEDAW.9 Despite these obligations on the Australian Government to protect women against family and domestic violence, only Queensland and the Australian Capital Territory have dedicated Human Rights Acts. Other States have Acts that purport to cover human rights, such as the Equal Opportunity and Racial Discrimination Acts in Western Australia. The Australian Human Rights Commission is calling for changes to several Federal legislations to incorporate domestic and family violence as grounds for discrimination within those Federal Acts, including the Sex Discrimination Act 1984 (Cth), Disability Act 1992 (Cth) and Fairwork Act 2009 (Cth).10 I firmly believe that all States and Territories must have their own Human Rights Acts, which entrench protections against family and domestic violence.
According to the Commission, member states had an obligation to act with due diligence and take necessary measures to protect victims from private actors.11 Until Australia has similar legislative processes in place and entrenches the Government and the community’s obligations to protect human rights, Australian society will continue to be impacted by family and domestic violence, and families may not be supported to prevent the issues that contribute to violence. Until then, we will be unable to openly and fully challenge the violations that Aboriginal people have suffered.
Endnotes 1 https://www.abs.gov.au/statistics/people/crime-andjustice/recorded-crime-victims/latest-release#westernaustralia 2 https://www.police.wa.gov.au/crime/crimestatistics#/ 3 Australian Human Rights Commission (2020), Wiyi Yani U Thangani (Women’s Voices): Securing Our Rights, Securing Our Future Report, AHRC, Sydney. 4 Al-Yaman, F, Van Doeland, M, and Wallis, M, Family violence among Aboriginal and Torres Strait Islander peoples, AIHW, Canberra, 2006, cat. no. IHW 17. 5 Goulding D, The Role of Socio-Economic and Familial Factors in the Pursuit of Final Violence Restraining Orders For Women Subjected to Family and Domestic Violence, Centre for Social and Community Research, Murdoch University, Perth, 2007, p. v. 6 National Aboriginal and Torres Strait Islander Women’s Alliance, Submission to the Finance and Public Administration Committee Inquiry Into Domestic Violence in Australia, National Aboriginal and Torres Strait Islander Women’s Alliance, New South Wales, 31 July 2014, p. 4 7 Gripps. K. (2006) Understanding Indigenous Family Violence in the context of human rights agenda – Article at Austlii.edu.au p1. 8 Australian Human Rights Commission - Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue – P4, Para 4 9 The Women’s Centre (2019), ‘My Rights, Your Rights, Our Rights, Women’s Rights’, The Women’s Centre, Queensland, P6. 10 Australian Human Rights Commission - Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue – P4, Para 4 11 Jessica Lenahan (Gonzales) v U.S.A., Case No. 12.626, Inter-Am. C.H.R., 80/11 (2011)
The Importance of the Right to an Effective Remedy in Human Rights Legislation
reBriefed this article originally appeared in our February 2022 edition
Dr Jackie Mapulanga-Hulston Lecturer, Curtin Law School
Introduction It is a well-known fact that Australia does not have a national charter of human rights. States have, as a result, passed legislative bills of rights in order to provide human rights protections where there has been an obvious gap in rights’ protection. The significance of this move is seemingly an acknowledgement by states that the existing laws, at both state and Commonwealth levels, are insufficient to effectively and comprehensively protect the human rights of Australians. While these enactments have been a huge step in an attempt to respect and protect people’s rights, this paper emphasises the importance of ensuring the right to an effective remedy for human rights violations in any human rights legislation. This is because this right is a crucial part of the process of rights’ protection. Most human rights instruments include some form of remedy, the substantive nature of such a remedy is what makes it relevant to the realisation of rights. This also embodies the principle of equal protection before the law.
Brief Overview of the Human Rights Legislation in Australia Australia’s first legislative bill of rights was passed in 2004 by the Australian Capital Territory (ACT), namely, the Human Rights Act 2004 (ACT). A notable inclusion in this Act was the provision for the consideration of international law and the judgments of foreign and international courts and tribunals in the interpretation of human rights. A couple of years later, the Victorian Parliament passed the Charter of Human Rights and Responsibilities 2006 (Vic). The most recent state human rights legislation, the
Human Rights Act 2019 (Qld) has been applauded for its ability to extend beyond the ACT and Victorian Acts as it is more broad reaching and accessible. Notably, the Human Rights Act 2019 (Qld) protects economic, social and cultural rights to education and healthcare and also establishes a human rights complaints process to the Queensland Human Rights Commission.
Understanding the Content of the Right to an Effective Remedy for Human Rights Violations The right to an effective remedy is embodied in the International Convention on Civil and Political Rights (ICCPR) to which Australia is a State Party. Article 2(3) provides for all State Parties to the Covenant to…. …ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity1 Apart from the ICCPR, there are other core international human rights instruments which also provide for the right to an effective remedy. In 2006 the United Nations (UN) gave recognition, through a General Assembly resolution, to the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law (the Basic Principles and Guidelines).2 This Resolution had a number of objectives, including affirming the importance of addressing the question of remedies and reparation for victims of human rights violations ‘in a systematic and thorough way at the national and international levels.’ This would allow victims of human
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rights and humanitarian violations to not only have the right to legal recourse, but to a process which recognises the rights of victims to appropriate remedies and also acknowledges their right to benefit from those remedies. The extent to which people understand the content of the right to an effective remedy in human rights law is critical for the process of rights protection. Notably, victims of rights violations must be provided equal and effective access to justice,3 adequate, effective and prompt reparation for harms suffered,4 and access to relevant information concerning violations and reparation mechanisms.5 The effectiveness of a remedy therefore ‘manifests itself in the sense of preventing the alleged violation of law or its continuation, or in providing adequate redress for any violation that had already occurred.’6 In order to provide an effective remedy, this right consists of two aspects, namely, the substantive aspect and the procedural aspect.
The Procedural and Substantive Aspects of the Right to an Effective Remedy International and domestic human rights instruments usually tend to provide a remedy for human rights violations. As stated, in order to be effective, there is a dual application to the right, namely, substantive and procedural. In instances where the substantive and procedural aspects do not correlate or are ineffectively implemented, this could possibly lead to not just a denial of the victims’ right to an effective remedy but could also lead to a miscarriage of justice. The substantive rights aspect of the right to an effective remedy requires an understanding of the content of rights and
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humanrightsinfocus rights violations. A good understanding or knowledge of human rights including the basic principles associated with human rights, is important. The universality, interdependency and inalienability of rights are core to the human rights ideal as are the principles of human dignity, equality and non-discrimination. So basically, there is a right to the substance of being human such as life or liberty. While there are various definitions or descriptions of human rights, most of them tend to embody these core principles. Henkin’s definition human rights tends to combine both aspects of the right: Human rights are rights of individuals of society…Every human being has legitimate, valid, justified claims upon his or her society to various ‘goods’ and benefits…They are defined particular claims listed in international instruments deemed essential for individual wellbeing, dignity, and fulfilment, that reflect a common sense of justice, fairness, and decency.7 The procedural aspect of the right to an effective remedy protects individuals suffering harm, injury or loss from the unlawful conduct by the state and others. This procedural aspect deals mainly with the formal process of litigating human rights violations while abiding by the relevant rules and procedures of the process. As such, the procedural aspect of the right to an effective remedy is concerned with the enforcement of the law rather than how the various contents of the law are defined, as is the case with the substantive aspect of the right. The right to pursue an effective remedy for human rights violations is significant because, similar to rights provided in the ICCPR and other instruments, this right is also a substantive right which means it has corresponding duties and obligations. State Parties are required to adopt and implement legislative, judicial and other measures to give effect to the substantive right. The obligations to respect, promote, protect and fulfil human rights are placed on the states and this means the state must not interfere directly with people realising their rights. The state must protect people’s rights from being interfered with or violated by others. It can do so by building the required legislation, institutions and norms to realise the right. In the performance of its duty in relation to the right to effective remedy, the state must take practical and meaningful steps
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and show its commitment to ensuring the substance of this right is not being violated. This would mean the state is not to discriminate in meeting its obligations and must be able to show that the rate at which progress is occurring shows a strong commitment on its part. Victims of human rights violations should be able to have their matters heard by an impartial and independent court, tribunal or forum because the right to seek redress or obtain an effective remedy is key to the protection and enjoyment of all human rights. This right therefore has a huge bearing on other substantive human rights as it recognizes the legal right of every person to an effective remedy. The allowance of this statutory independence should guarantee impartiality and objectivity in adjudicating matters. The right to an effective remedy also entails both enforceability and justiciability. In order to provide an effective human rights system, human rights legislation must be enforceable. This means the legislators must create an identity with relevant entitlements and duties which must be maintained and be capable of execution. The concept of justiciability presupposes the existence of a review mechanism and is therefore essential to the process of rights protection as it can deal with issues of non-compliance with obligations. It is not easy to provide a definite guide as to what ‘effectiveness’ means in relation to the right to effective remedy. In a European Court of Justice case, the answer to what effectiveness means was that the remedy should not be illusory. States are responsible for protecting basic rights while ensuring compliance, and providing procedural guarantees.8 The effectiveness of a remedy should therefore be seen in tangible results and the prevention of alleged violations or the continuation of violations. An effective remedy or outcome to human rights violations will take various forms depending on the harm suffered and can include compensation, restitution, and/or guarantees of non-repetition.
Concluding Remarks Understanding the concept of effectiveness in a legal system is important, in both procedural law as well as in the system of legal remedies. The right to an effective remedy for violations of human rights through human rights litigation in Australian states and territories is a progressive move to the realisation of rights which would
otherwise have not been dealt with by the existing laws. While the ACT and Victoria were the first to legislate in this area, some aspects of the right to an effective remedy were ‘improved’ upon by the Queensland legislation. The challenge for the remaining states, including Western Australia, is to draft a bill which takes this important right into account. This will undoubtedly require the willingness by the legislators to be bound by the corresponding human rights obligations contained in the bill. States must realise their duty to respect, protect and fulfil rights requires taking measure to ensure that all individuals are able to exercise the full measure of rights as set forth in international human rights instruments. They should then work to find ways to make the right to effective remedy a practical reality.
Endnotes 1 United Nations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, 171. 2 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law : resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147. 3 Principle VIII, Basic Principles and Guidelines. 4 Principle IX, Basic Principles and Guidelines. 5 Principle X, Basic Principles and Guidelines. 6 Wojciech Piatek, ‘The Right to an Effective Remedy in European Law: Significance, Content and Interaction’ (2019) 6 China-EU Law Journal 163–174, 163. 7 Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990) 2. 8 European Court of Justice, dec. of 8 November 2016, app. no C 243/15, Lesoochranárske zoskupenie VLK v. Obvodný úrad Trencín, para. 65.
reBriefed this article originally appeared in our June 2021 edition
Magistrate Wendy Hughes’s Challenge, Have You Considered What Actually Makes a Good Leader? Magistrate Wendy Hughes delivered a powerful speech at the Asian Australian Lawyers Association Lunar New Year 2021 Dinner, which was held at The Melbourne Hotel in Perth on Friday, 12 March 2021. Her Honour has kindly given permission to Brief to publish it. I would like to begin by acknowledging the Whadjuk people of the Noongar nation on whose land we meet tonight, and pay deep respect to elders past, present and emerging. I will take you back to August 2019. I decided to apply to be a Magistrate in the Children’s Court. I was 37 at the time. There hadn’t been an appointment in the Children’s Court for 13 years. I was confident I could do the job. I work hard and most importantly I genuinely like kids and teenagers in particular. But would they want me? Am I too young? Am I too different? There are not a lot of people who look like me. Fast forward to the interview three months later. I was in the middle of prosecuting one of the worst sex trials I had ever prepared. I was distracted. I had to close to the jury the same morning as my interview. Before the interview I had anticipated the worry in the room would be if we appoint you now, how will you be in 5, 10, 30 years? That’s a lot of busy lists, trials and self-represented litigants. And, as I anticipated the question came
to me during my interview. Truth time. Do I share who I am as person? Or do I take the safe route and list my rigorous self-care routine. This is the law after all. We don’t share personal things about ourselves. It’s all business. There are people I know who proudly worked through the death of a family member without anyone in the office knowing. In that split second I decided to share. At least if I didn’t get the job I would know why. So I said “because I am adopted it means I am always grateful and expect nothing. It’s just not in my nature to become unhappy”. I then went on to explain that in all my time prosecuting and defending, having come across many big dogs in trials, I have never once come close to losing my temper. It’s just not who I am as a person. The panel seemed to accept my answer. You see I am adopted. I was adopted from South Korea as an 8 month old baby. My birth mother was 37 when she gave me up for adoption and my birth father is unknown. I have never searched for my birth mother because I don’t want to shame or embarrass her. Because my mother was 37 when she gave me up, I feel like there may be a story there. I may be the product of rape, abuse or an affair. South Korea remains a deeply conservative country and there may be many reasons why she may not want me to turn up on her doorstep. JUSTICE
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Fortunately for me my life in Australia has been ace. I grew up in white middle class Australia. I have a sister who is my parents’ biological daughter and is 10 months younger than me and has blonde hair and blue eyes. Notwithstanding always feeling different, feeling different in my own family, amongst my friends and at school I had an idyllic childhood. Being a child of the 90’s life was great. We never had to drink plain water and were always allowed green cordial whenever we wanted. And the snacks were awesome. But as I reflect on my childhood as an adult I realise there were a series of small micro experiences that have shaped me. Like when my sister and I were toddlers and my Mum had us both in the shopping trolley and a man commented, “I’d like to know how that happened”. Or the first day of year 1 when the teacher remarked I was “very confident” because she thought I had attended the first day of school without a parent. Mum was actually in the back of the classroom with the other parents. Doctors always asking me for my family medical history. A university lecturer accusing me of cheating because my surname is Hughes and not an Asian surname. Then in the 1990’s during the Pauline Hansen era, which I appreciate was an unsettling time for many Asian Australians, I had people reassuring me that Ms Hansen was not referring to Asian people like me. There were even times when my adoption was a joke for some people. I had an insensitive Uncle who came to visit when I was 8 who kept calling me my sister’s name and vice versa. When my sister and I challenged him he said
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So what is the answer? Do we encourage Asian people to be more like the stereotypical leader? Confident, charismatic, has swagger, commands others, stands out. Which is a very male model. It is a very seductive model. Just look at some of the world leaders we currently have or have had.9 “I am sorry, it’s just you are both so alike I can’t tell you apart”. So as an adult today the effect of all that is I am actually a pretty resilient person. I don’t take myself too seriously. I have a pretty good sense of humour. I am not an angry person. I always try to give people the benefit of the doubt. Because as a child, I couldn’t get angry every time someone said something that was wrong or insensitive. Put me in a leadership position and I am naturally calm, empathetic and fair. Even at times of high stress I have never shouted at anyone or thrown a video record of interview at anyone’s head. All good attributes that make an effective leader in my view. My adoption has humbled me. You see what my life story is an example of is how you can’t make a judgement about what kind of a leader a person will be without getting to know them first and understand their strengths and weaknesses. Organisations all over the world are starting to see that there is a whole body of research that tells us if we want to get the best out of people who work for us we need to understand what connects us and motivates us. For example Eric Mosley who wrote the book Making Work Human1 argues the importance of bringing humanity and connection to the workplace in order to increase performance. My hope is, gone are the days when you experience the loss of a parent or family member and you simply power through without anyone in the office knowing or acknowledging your grief. I now wish to consider the ‘bamboo ceiling’.2 52 | BRIEF LAW WEEK | MAY 2022
Asian people make up 12 percent of our total population but hold only around 3 percent of senior leadership positions in our public institutions and ASX 200 companies.3 The law is no different. The Race Discrimination Commissioner Chin Tan, the first Chinese Australian Barrister to be admitted to the NSW bar, said at an Asian Australian Lawyers event in Sydney in June 2019 there is a gross under representation of Asian Australians in the legal system. “Asian Australians account for 9.6 percent of the Australian population, but only 3.1 percent of partners in law firms, 1.6 percent of barristers and 0.8 percent of the judiciary.4 And this is despite Asian students dominating high school and university results. It is important for us to explore the reasons preventing Asian people from entering into leadership positions. Some argue it can be attributed to outright racism. Such examples include the reported anxiety about having too many Asian students being accepted into academically selective schools,5 or the suggestion that medical schools changed their admission process to accepting post graduate students, seeking “more rounded applicants” rather than high scoring Asian students straight from high school.6 I personally have not formed a firm view on this argument either way. However, I believe a more likely scenario may be a general stereotyping of Asian people. Stereotypes such as Asian people being viewed as model migrants who are reluctant to challenge authority, desirous of harmonious relationships, being well suited for hard labour but not decision making.7 In other words, introverted, meek, not assertive, nerdy, no gravitas. So what is the answer? Do we encourage Asian people to be more like the stereotypical leader? Confident, charismatic, has swagger, commands others, stands out. Which is a very male model. It is a very seductive model. Just look at some of the world leaders we currently have or have had. Or do we start to challenge ourselves on what actually makes a good leader. And the interesting thing is we already know what makes a good leader. If you think about it from your own perspective, there are people in our professional careers, both men and women, who were or are incredible leaders. What qualities did that person have that made it a joy to work with them? Professor
Tomas Chamorro-Premuzic who wrote the book Why do so many incompetent men become leaders (and how to fix it)8 argues what makes a good leader are people who are competent, rational, curious – i.e. they know what they don’t know, humble, empathetic, altruistic, ethical and honest. I pause to note that Professor Chamorro-Premuzic is clear in his book that his argument equally applies to both women and men who don’t fit a stereotypical male model of a leader. It follows, if we know what makes a good leader why is it that we as a society continue to seek the same type of leaders? Because same is safe and different is dangerous. So if we want to see innovation and get the best from our teams, then we must challenge ourselves to look for diversity in our leaders. To find those leaders who are competent, humble and consider the needs of others. So in conclusion, I firstly encourage everyone not to make any assumptions about a person and to get to know them first. To try to understand what motivates them and what connects them to their work. Secondly, I challenge everyone to consider what actually makes a good leader. To look for those new and emerging leaders who are competent, rational, curious, humble, empathetic, altruistic, ethical and honest. And finally, encourage all the Asian lawyers in the room to see their Asian culture and experience of being from a migrant family as an incredible strength that provides a great foundation to be a successful leader in the law, now and in the future. Endnotes 1
2
3
4
5
6 7 8 9
Mosley E, 2020, Making Work Human-How HumanCentred Companies are Changing the Future of Work and the World, published by McGraw-Hill Education, United States of America. “The “bamboo ceiling” refers to a multitude of cultural factors impeding the rise of Asian Australians to the upper levels of the professional world”. Xiao, B and Handley E, 2019, How AsianAustralians are struggling to break through the ‘bamboo ceiling’, ABC, 2 November 2019, available at https://www.abc.net.au/news/2019-11-02/ asian-australians-struggling-to-break-bambooceiling/11665288. Evans G, 2019, Opinion-the ‘bamboo ceiling’ in Australia is real, Sydney Morning Herald, 12 September 2019, available at https://www.smh. com.au/national/the-bamboo-ceiling-in-australia-isreal-20190912-p52qp8.html. Asian Australian Lawyers Association Cultural Diversity Report 2014, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015, available at http://www.aala.org.au/culturaldiversity-report-2015. Ahmed T, 2019, Opinion - The bamboo ceiling and the meaning of meritocracy, Financial Review, 24 September 2019, available at https://www.afr. com/politics/federal/the-bamboo-ceiling-and-themeaning-of-meritocracy-20190923-p52u04. Ibid. Ibid. Chamorro-Premuzic, T, 1 March 2019, Why do so many incompetent men become leaders (and how to fix it), published by Harvard Business Review Press. Ibid.
reBriefed this article originally appeared in our June 2021 edition
Indigenous Incarceration, Addressing an Upward Trend By Greg McIntyre SC
Why are Aboriginal peoples still being imprisoned at disproportionate rates?
compared to a 28% increase for nonAboriginal Australians. In 1992 one in seven prisoners was Aboriginal. By 2020 that ratio had risen to one in four.2
This year is the 30th anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody. The disproportionate rate at which Aboriginal people are imprisoned has risen in that period rather than decreased. It has borne a significant relationship to the number of Aboriginal deaths in custody.
Royal Commission into Aboriginal Deaths in Custody (RCIADIC)
The Royal Commission noted that Indigenous prisoners comprised 14% of the prison population in 1999. The rate of Aboriginal imprisonment has since doubled and made up 28 percent of the Australian prisoner population in 2019 and accounted for 18 percent of all deaths in prison custody, while in the most recent census, Aboriginal and Torres Strait Islander people accounted for no more than 3 percent of the Australian population.1
It found the causes of death were “extremely varied” but that “their Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody”. The Royal Commission found that more Aboriginal people than others died in custody because they were “grossly over-represented in custody”. A “significant” factor contributing to this over-representation was found to be social, economic and cultural inequality.
Since 2004, the number of Aboriginal people in custody has increased by 88%
The Royal Commission made 339 recommendations for state and federal
The RCIADIC was established in 1987. It examined the cases of 88 men and 11 women who died in custody between January 1980 and May 1989. The youngest was aged 14.
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authorities, including 35 relating to the investigation and notification of deaths, 13 recommending diversion from police custody, 30 on imprisonment as a last resort, and 36 on custodial health and safety. A Deloitte review in 2018, found that 64 percent of the recommendations have been implemented in full, while 36 percent have been implemented partially or not at all. Senator Patrick Dodson, who was a Commissioner in the Royal Commission, said the past 30 years have not addressed the underlying issues that give rise to this “awful blight”. “For too long, nice words, good intentions but the lack of action and commitment have not seen a reduction to the custodies or the deaths in custody,” he said. “It diminishes us as a nation, because we are incapable of dealing with it.” Since the royal commission at least 455 Indigenous people have lost their lives in custody, according to the latest available statistics from the National Deaths in Custody Program.3
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Unsentenced prisoners
Aboriginal youth in gaol
In recent years, there has been a shift in relation to the purpose and use of bail, from an emphasis on the presumption of innocence to a focus on risk and community safety, and bail increasingly being used as a crime prevention tool.4
Forty eight percent of the 10 to 17 year olds in gaols are Aboriginal.15 Aboriginal children constitute seven percent of the general Western Australian population yet over 70 percent of the prison population, making Aboriginal children in Western Australia the most imprisoned group of people on earth.16
There were 4107 unsentenced Indigenous prisoners in the June 2018 quarter, accounting for 34% of Indigenous prisoners, 29% of all unsentenced prisoners and nearly 10% of all prisoners in Australia.5 Aboriginal people are more likely to be refused bail or arrested for breach of bail than non-Indigenous defendants.6
Western Australia Western Australia imprisons Indigenous people at a much higher rate than any other jurisdiction in Australia, and uses community-based corrections less than most jurisdictions, as demonstrated by the charts below. Imprisonment rates have nearly doubled between 1990 and 2010.7
Aboriginal women in gaol Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO has highlighted the high rate of Aboriginal women in prison.8 The AHRC reported in 20089: Incarceration rates for women generally have increased more rapidly than for men and the increase in imprisonment of Indigenous women has been much greater over the period compared with 10 non-Indigenous women. The Indigenous female imprisonment rate has increased by 34 % between 2002 and 2006 while the imprisonment rate for Indigenous men has increased by 22%. 11 Indigenous women are also 23 times more likely to be imprisoned than non-Indigenous women while Indigenous men are 16 times more likely to be imprisoned than nonIndigenous men.12 A large proportion of Aboriginal women are in custody because they have been unable to obtain bail. Another huge group of them have been there in default of paying fines which they were never going to be able to afford.13 A study of incarcerated women revealed that 67% of all Aboriginal women in prison had been incarcerated previously, while almost half this number of non-Aboriginal women had a history of incarceration. The lack of housing and support women receive upon release contributes to the high levels of re-offending.14
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Research indicates that time in a juvenile justice centre is the most significant factor in increasing the odds of recidivism.17
Mandatory sentencing In 1992, the WA Government passed the first mandatory sentencing legislation imposing imprisonment for car theft, followed by the “three strikes” laws in 1996 imposing mandatory imprisonment for home burglaries. Since then, it has also passed the Criminal Organisations Control Act 2012, and mandatory sentences for people who assault custodial officers. Mandatory sentencing laws have particularly failed WA’s Indigenous community, members of which have been incarcerated in even greater numbers as a result of these laws. The laws have impacted disproportionately on young Indigenous offenders. Indigenous children in WA are now 52 times more likely than non-Indigenous young people to be in detention – twice the national rate of over-representation. Over 81% of the 119 individual juveniles sentenced under the legislation were Aboriginal. Moreover, 61% were from non-metropolitan areas and of these 93% were Aboriginal.18 The laws have had no impact on rates of home burglary and run counter to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.19 The Law Council of Australia20 and Law Society of Western Australia21 have consistently opposed the use of mandatory sentencing regimes. The Law Society wrote to members of parliament expressing its serious concern with the proposed new mandatory sentencing under the Criminal Law Amendment (Home Burglary and other Offences) Bill 2014 (WA) and urged that the Bill be opposed.22 Notwithstanding the Society’s opposition, the Criminal Law Amendment (Home Burglary and other Offences) Act 2015 (WA) was passed. This Act imposes mandatory sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary, which include a minimum sentence of 75% of the statutory maximum term of imprisonment for adults and, where the maximum is life imprisonment, a minimum of 15 years applies and a minimum sentence of three years’ imprisonment for juvenile offenders. Western Australia is the only jurisdiction
that still uses mandatory sentencing laws against children. The Northern Territory previously had similar three-strike laws but repealed them in 2001 after the suicide of a 15 year old boy who was mistakenly mandatorily detained.23 Mandatory minimum sentences upon conviction for criminal offences are opposed because they impose unacceptable restrictions on the exercise of judicial discretion and independence, which are essential to the application of the rule of law. They are inconsistent with Australia’s voluntarily assumed international human rights obligations, because of their arbitrariness and limitation on the right to a fair trial, preventing penalties based on the unique circumstances of each offence and offender. Mandatory sentencing regimes are also costly and ineffective in deterring crime.24
Minimum age of criminal responsibility In Australia, the age of criminal responsibility is just ten years old. This is seriously out of step with international standards. In 2019, the United Nations Committee on the Rights of the Child recommended 14 years as the minimum age of criminal responsibility. While the United Kingdom also has a minimum age of ten, most European nations have a minimum age of 14 years or higher. According to the Australian Institute of Health and Welfare, in 2018-19, 773 children under 14 were placed on court orders requiring supervision in the community by youth justice officers. More than 570 were placed in juvenile detention. Some 65% of these two groups were Aboriginal and Torres Strait Islander children. There are many well-founded and compelling reasons for increasing the minimum age of criminal responsibility in Australia to 14.25 These include: The dramatic and devastating impact on Aboriginal and Torres Strait Islander children, given the high numbers of Indigenous children aged ten to 13 in the youth justice system. Child development evidence showing children under 14 lack impulse control and have a poorly developed capacity to plan and foresee consequences. The disproportionate number of children coming from the child protection system into youth justice. According to a 2017
Australian Institute of Health and Welfare report, three in five children aged ten at the time of their first youth justice supervision were also in child protection. The high numbers of children in the youth justice system with mental health issues and cognitive impairment. A 2018 study found nine out of ten young people in Western Australian youth detention were severely impaired in at least one area of brain function. This obviously affects whether they can understand rules and instructions. The evidence also showing the earlier a child enters the justice system, the greater the likelihood of lifelong interaction with the justice system. The fact that young children in the justice system have high rates of preexisting trauma and are “physically and neuro-developmentally vulnerable”. Unsurprisingly, criminalisation and imprisonment have a further negative impact on a child’s development. As the Royal Australasian College of Physicians notes: Young children with problematic behaviour, and their families, need appropriate healthcare and protection. Involvement in the youth justice system is not an appropriate response to problematic behaviour. Social Justice Reinvestment WA has released a report26 saying that raising the age of criminal responsibility from the current level of 10 years to 14 years is needed if the state is to avoid high levels of juvenile imprisonment, including 143 children aged 10 to 13 years in unsentenced detention in 2018-19. It would prevent the arrest and detention of children on minor offences, such as an 11-year-old Aboriginal boy who was caught stealing a $5 pen and $4 pencil, according to the report and in another case, a 10-year-old Aboriginal boy was charged with criminal damage after he and another case of a child who broke a window to gain entry to an abandoned house. The report says that in 2020, the Aboriginal Legal Service received 4753 notifications for Aboriginal children apprehended and detained in a police facility. SRWA co-chairs Glenda Kickett and Daniel Morrison said the majority of children were taken into police custody because of alleged offending behaviour. “Children who are detained by police are usually kept in a police cell until they are released or can be transported to court or to Banksia Hill Detention Centre; they are held in the same concrete cells used to detain adults.”
In regional areas, an offending child detained by police may spend days in a police cell before the child can be transported to Banksia Hill, the state’s juvenile detention facility in Perth.
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The SRWA report points out that raising the age of criminal responsibility to 14 would help meet a commitment in the new national agreement on Closing the Gap to reduce the number of Indigenous juveniles in detention by 30 percent by 2039.
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A draft report commissioned by a meeting mid-last year of Attorneys-General and led by WA Attorney-General John Quigley recommended that all governments raise the age of criminal responsibility from 10 to 14 years. The report offered an alternative in raising the age to 14 with exceptions for serious crimes. It also included an alternative that the age threshold be raised to 12 with the minimum age of detention fixed at 14.
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The Change the Record coalition (a national led justice coalition of Aboriginal peak bodies and non-indigenous allies, including the Law Council of Australia) and patrons of the Justice Reform Initiative, who include senior members of Australia’s and WA’s legal, medical and Indigenous affairs communities all support raising the age of criminal responsibility to 14 years. The Australian has reported that the Western Australian government is preferring to begin with 12 as the new limit to give the states time to establish the right alternatives to detention for the youngest offenders.27
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Conclusion Unless and until a fully comprehensive Justice Reinvestment model is applied in the State’s Justice and corrections systems, consistent with the recommendations of the RCIADIC, and decision makers at all levels move away from the populist approach of the first response being to fall back on incarceration as a panacea for avoiding any risk of community harm, then imprisonment rates of Indigenous people in this State will continue to spiral upwards and cost the community more and more, both socially and economically.
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law/aboriginal-prison-rates Imprisonment rates of Indigenous women a national shame (humanrights.gov.au) A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia: Social Justice Report 2008 | Australian Human Rights Commission M Cameron, ‘Women Prisoners and Correctional Programs’, AIC Trends and Issues in Crime and Criminal Justice, no 194, Australian Institute of Criminology (2001) p 1. Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity Commission (2007) p 128. Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity Commission (2007) p 129. https://www.smh.com.au/lifestyle/life-andrelationships/in-wa-unpaid-fines-are-keepingindigenous-mothers-in-jail-20190111-p50qta.html https://www.creativespirits.info/aboriginalculture/ law/aboriginal-prison-rates https://www.creativespirits.info/aboriginalculture/ law/aboriginal-prison-rates https://www.als.org.au/supreme-court-findsmandatory-sentencing-laws-should-not-haveapplied-to-12-year-old-aboriginal-boy/ 8 March 2019. Father Chris Riley, founder of Youth off the Streets, https://www.creativespirits.info/aboriginalculture/ law/aboriginal-prison-rates Department of Justice, Review of Section 401 of the Criminal Code, November 2001, 24-25 Morgan, Blagg & Williams, Mandatory Sentencing in Western Australia & the Impact on Aboriginal Youth: Aboriginal Justice Council 2001. Policy position, Law Council of Australia, (May 2014). Law Society President, Matthew Keogh in 2015 said, “The government has no statistics or evidence to support that mandatory sentencing works to deter criminal behaviour, and no specific evidence to show WA’s three-strike laws have been working up until now.” (Media release: 30/02/2015). Letters 9 April 2014 and 16 February 2015. https://www.als.org.au/supreme-court-findsmandatory-sentencing-laws-should-not-haveapplied-to-12-year-old-aboriginal-boy/ 8 March 2019 Human Rights and Equal Opportunity Commission, Social Justice Commissioner, 19 October 2001. “Commissioner Welcomes Repeal of Northern Territory Mandatory Sentencing Laws”; Media Positioning Statement; Law Society submission to the Attorney General of WA, February 2013. Chris Cuneen https://theconversation.com/ ten-year-olds-do-not-belong-in-detentionwhy-australia-must-raise-the-age-of-criminalresponsibility-142483 23.07.2020 ‘A Pathway to a Brighter Future for Western Australia’s most at risk children’ ‘It’s absolutely scandalous’: calls for WA to raise the age of criminal responsibility | NITV (sbs.com.au/nitv/) Taylor & McKenna, “Major justice reform: push to lift age bar on crime”, The Australian 15 April 2021.
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https://www.smh.com.au/national/what-wasthe-royal-commission-into-aboriginal-deaths-incustody-20210407-p57h5q.html https://www.creativespirits.info/aboriginalculture/ law/aboriginal-prison-rates The Guardian’s Deaths in Custody Tracking Project; https://www.hrw.org/news/2021/04/14/australiaact-indigenous-deaths-custody#:~:text=The%20 Guardian’s%20Deaths%20in%20Custody,a%20 lack%20of%20prison%20support 14 April 2021 Bartels, Linda, https://www.indigenousjustice.gov. au/wp-content/uploads/mp/files/publications/files/ the-growth-in-remand-13-08-2.pdf Australian Bureau of Statistics (2018). Weatherburn D and Ramsay S 2016. What’s causing the growth in Indigenous imprisonment in NSW? Bureau Brief 118. BOCSAR. https://www.creativespirits.info/aboriginalculture/
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