Launch of the Supreme Court Equal Treatment Benchbook
Banco Court, Supreme Court of Queensland.
15th February, 2006
Remarks of The Hon. John von Doussa QC
President, Human Rights and Equal Opportunity Commission
I acknowledge the traditional owners of the land on which we are meeting today.
It is an honour to have been asked to launch the Equal Treatment Benchbook prepared and published by the Supreme Court of Queensland.
When I first entered the law 'benchbooks' were closely guarded, leather bound books into which judges carefully entered notes as a case progressed - usually I thought adverse comments and exclamation marks about one's arguments or less than flattering remarks about one's principal witness. These books seemed to be some kind of secret code to the outcome of cases and never saw the light of day.
These days 'benchbooks' are usually public documents that describe a collection of materials intended to improve the efficiency and delivery of justice in a court system. In other words, a benchbook is now a best-practice manual.
The Equal Treatment Benchbook which is being launched today is the first in Australia that comprehensively tackles the host of considerations personal to a party or a witness that may render the playing field of a court uneven. The issues discussed in the benchbook spread across the whole spectrum of litigation - from civil cases to criminal trials, from magistrates' courts to courts of appeal.
It is an important document because equality before the law is a fundamental precept of the rule of law. This is also the case in international human rights law where the starting point must be Article 7 of the Universal Declaration of Human Rights which commences: "All are equal before the law and are entitled without discrimination to equal protection of the law". Equal treatment of litigants before a court is essential if this is to be achieved. The administration of the law in Australia is conducted mostly through the adversarial process. The justice process assumes an 'equality of arms' between the parties. Inequality arising from ignorance, language difficulty, misunderstanding, ill-health or from poor communication distorts a balanced outcome.
It is part of a judge's function to ensure, as far as possible, that there is equality between the parties to litigation. At times this requires careful and sympathetic assessment of the potential disadvantage suffered by a party, and intervention to achieve a fair balance. None of this is possible unless the judge in a particular case is made aware of, or recognises, factors that might produce inequality.
Recognising the potential indicators of inequality requires knowledge on the part of those involved in the court process - judges and magistrates, and lawyers and court staff as well.
One of the big mistakes in the past has been that judges and barristers have considered themselves well-versed in the affairs of man. I emphasise 'man' as male judges and the law itself have historically assumed that all litigants, regardless of their gender or cultural background, would and should conform to male - and I might also add Anglo-Saxon - expectations and standards.
Most judges and barristers these days acknowledge that they do not have this expertise and that they can benefit from the expertise of other disciplines.
In this vein, the Human Rights and Equal Opportunity Commission (HREOC) has found that in discrimination cases, and other cases where difficult human rights issues arise, there is a willingness on the part of courts to allow a HREOC Commissioner to appear as amicus curiae or for the Commission to intervene. HREOC's policy, which is available on our website, is not to become involved in disputed questions of fact - the facts are for the parties to the dispute to sort out. We seek to limit our interventions to offering assistance on the law and human rights jurisprudence, both from Australia and international courts and tribunals. Our interventions have tended to be in Courts of Appeal and the High Court. In part, this is because we do not know of the litigation until the first instance decision is published.
Sometimes, we are approached by one of the parties to consider intervening at first instance. In those cases, we wait until we know the arguments of the parties, and then seek to intervene only if we think that we can offer the court assistance beyond that which the parties will give.
We are also occasionally notified by a court that a particular case appears to raise important human rights issues on which we might think it appropriate to intervene. We encourage those notifications, but make clear that we will only seek to intervene once we understand the case of the parties, and are satisfied that our guidelines are met.
The fundamental principle of equality before the law is taken up in the equal opportunity and anti-discrimination legislation in Australia which deals specifically with less favourable treatment on the grounds of race, sex, disability, age and other disabling characteristics.
However, as is so frequently the case, the ideal and the reality do not coincide. While Australia prides itself as the land of the 'fair go', and formally embraces a policy of multiculturalism that promotes the virtues of inclusiveness and diversity, our past, and the process of colonisation, have not delivered equality to all.
There have been three main groups of people who have proved to be easy targets for discrimination: specifically, the Indigenous population, immigrants and women, which I will elaborate on shortly.
Let me first say that the benchbook addresses ongoing areas of possible inequality for each of these groups. It also discusses ethnic and religious diversity, and potential barriers which traditional court procedures can create for people from minority groups. It discusses at length the make-up of Indigenous communities in Queensland , Indigenous culture, family and kinship relationships, and communication difficulties which can arise for speakers of Indigenous languages.
The benchbook also identifies particular issues for people with disabilities, self-represented parties and children, and finally addresses contemporary issues about gender and sexuality. The benchbook then offers techniques and practical suggestions to achieve equal treatment in cases involving people from these groups.
Australia 's past treatment of the Indigenous owners of the land is well known and documented. While many government policies have been devised to address the inequities of the past, the tragic fact remains that by what ever indicator a judgment is made, the lot of the Aboriginal and Torres Strait Islander population falls far short of the rest of the community.
It is to Australia 's shame that the life-expectancy of Aboriginal Australians is still almost 20 years less than non-Indigenous Australians, and that the rate of imprisonment of Indigenous men and women is 16 and 19 times higher respectively than the rest of the population.
Poor education and communication difficulties frequently place members of the Indigenous community in an unequal position in court. The benchbook contains statistics, chapters and published articles which offer many helpful ways to redress these inequalities.
The Benchbook contains many statistics which document the daily inequalities faced by Indigenous people. I will, however, mention one set of statistics that is not in the benchbook. Hope has been placed in the prospect that improvements in educational opportunities for Indigenous children will help bridge the cultural divide. In recent times, their school attendance and retention rates, and their levels of achievement in primary and secondary schooling have improved. But the progression of Indigenous people beyond year 10 or those entering higher education remains alarmingly low and 2003 data reveals that very few progress to postgraduate or research work. Of the 40,882 postgraduate students in Australia undertaking masters courses by coursework, only 104 were Indigenous students. Of the 1593 undertaking masters courses by research, only 16 were Indigenous, and of the 4728 PhD students only 12 were Indigenous.
Evaluation and oversight of federal Government policies aimed at alleviating the systemic disadvantage suffered by Indigenous communities in Australia has become part of the core business of HREOC. The Social Justice Commissioner, Tom Calma , has been closely monitoring the whole-of-government initiatives for better delivery of services to Aboriginal and Torres Strait Islander communities through its policies of mutual obligation, shared responsibility agreements and regional participation agreements. It is still too early to tell what success these new arrangements will have. The Social Justice Commissioner has welcomed the commitment of governments to more closely involve communities in decision making about their service priorities and how they can best be met. However, there are already concerns that the promised participation of Indigenous people in the decision-making process is being downplayed, and bureaucrats are again taking it upon themselves to dictate what is best for the communities. Let us hope that paternalism does not once again scuttle delivery of well intentioned plans.
I turn to the two other groups where history has been unkind and where stereotyping has seriously infringed on people's basic human rights.
Australia's attitude to migrants has been marked by periods of gross disregard for basic human rights, and wildly inaccurate generalities about particular ethnic and racial groups. The now discarded 'White Australia policy' remains an international blight on Australia 's reputation.
At the outbreak of World War One, Australians whose forebears had come from Germany were seriously discriminated against simply by reason of their German heritage. Many were interned. Even the Attorney General of South Australia at the time, who was a descendent of German immigrants, had his parliamentary office raided by the military police in 1914 on the basis that he must have had sympathy for the enemy.
During the Second World War, Australians of Japanese background were treated harshly in much the same way. After the great wars, as Australia hosted large numbers of immigrants from the displaced peoples of Eastern Europe , many prejudices were at first voiced against them. While the passage of time and friendship has led people to recognise the baseless nature of these myths, it has been concerning to see this pattern of prejudice repeated with new groups of migrants. In the last three decades, we have seen the picture repeated with immigrants from Vietnam and Lebanon and with refugees who have arrived from Iran , Afghanistan and Iraq .
The mainstream community seems to have treated people within these groups harshly, based on ignorance of their culture, religion and other characteristics. A fear of the unknown, based on difference and misunderstanding, seems to have taken hold. Those who appear different and unfamiliar are assumed to pose some unspecified risk to the Australian way of life. The people who are the objects of this distrust suffer feelings of rejection and become marginalised from our society.
People in these situations face special problems in the justice system. They encounter language barriers, the system of law is quite foreign to them, and they may be unable to access or afford legal advice. Refugees may come from a situation where they had cause to distrust the authorities of the law and may be terrified by their predicament. Keeping a level playing field in these circumstances, especially if they are involved in litigation with the government, challenges the system.
Of course, community concerns that attend relationships with minority groups go far beyond just striving for equal treatment in the courts. At present the Australian community is struggling with its relationship with the Australian Arab and Australian Muslim communities. Once again there seems to be a fear of the unknown which produces wild, inaccurate assumptions. These include generalisations that if a person is a Muslim he or she will be a supporter of terrorism or that all Muslim women are oppressed. It is of the utmost importance that through political leadership, education and the provision of accurate information, that these myths are dispelled.
The counter terrorism measures approved by COAG, and implemented by the federal Government since 2001 have added another dimension to the lot of the Muslim community in Australia . In the time available, I just want to make two points about the legislation that has been introduced, and the way it passed through Parliament. In March 2002, legislation was passed in haste creating many terrorism offences. There has been ongoing debate amongst civil libertarians and human rights activists about the vagaries and shortcomings of the definition of a terrorist act. In October 2002, 3 days after the Bali Bombings, the Government introduced a bill for detention warrants and questioning warrants. In its original form the bill proposed many curtailments of well recognised fundamental human rights and freedoms. The proposals included: that children as young as 10 could be detained for questioning; indefinitely on rolling warrants if thought appropriate by the executive, and held incommunicado. This bill encountered stiff opposition in Parliament and it was not until it had been debated on three separate occasions that it was eventually passed in a modified form in 2003.
Following the London bombings, in September 2005 another raft of legislation was approved by COAG, including provisions for preventative detention orders, control orders, and special police powers to stop, search and question people. The federal Government announced that these measures were urgent and aimed to have them pass through Parliament within a couple of days of the bill being first exposed on its introduction into the Lower House. As it turned out, the bill was made public on the website of the Hon Jon Stanhope, against the wishes of the government. It immediately attracted widespread criticism including on human rights grounds.
One area of criticism of the proposed new measures, on which HREOC among others was particularly vocal, was the absence of adequate remedies for review of the new extraordinary powers the legislation was to give to the Executive. HREOC took the view that it was appropriate, indeed essential, to protect the human rights of the general public to life and security and for the government to propose wide powers sufficient in their scope to deal with the worst eventualities. There was no point in waiting until some horrific event occurred before enacting new measures. But to accompany these extraordinary powers, there needed to be effective remedies to ensure that if and when action was taken by the executive, that the action was really necessary and proportionate to the risk and circumstances prevailing at the time, and that the action was the least restrictive necessary to achieve its intended purpose. Necessity, proportionality, and the least restrictive measures are the requirements of international law that must be met to justify derogating from the many fundamental rights against arbitrary detention, detention without charge or trial, against restrictions on the right of assembly and freedom of speech, and the right to a fair trial.
As a result of the public discussion and media attention which the bills received, the government announced amendments which improved the scope of review mechanisms, and also allowed more time for debate in Parliament, and for a reference to the Senate Legal and Constitutional Legislation Committee . Following the Committee's report further amendments to the bill were made. The review mechanisms were extended to allow greater judicial involvement, including in the review of the merits of the most invasive measures proposed.
The two points I want to make are simply these. First, if the rule of law is to apply in Australia , it is of the utmost importance that all these new and invasive powers are subject to quick, effective and full review by the independent courts of the land. It is only in this way that minority groups, in this instance the Australian Muslim community whose members are being caught up in the new powers, will have any confidence in the government's pronouncements that the laws are not being unfairly targeted at them. If that confidence cannot be built, there is a real risk that the new powers will be counter productive. And it is only in this way that errors of fact, if and when made by the police, can be corrected.
Secondly, the events which transpired demonstrate the value of allowing public discussion on contentious and difficult legislation. The potential implications of legislation of this kind are not readily apparent and often only come to light through public discussion. In the end, the government legislation passed both in 2003 and in 2005 with the major powers it was seeking intact, but was much improved by amendments identified through the discussion which happened.
I now turn to the third group which has faced systemic difficulties in the legal profession - women.
In our early legal history, Australia adopted a common law presumption in statutory construction that Parliament did not intend the expression 'person' to include a woman. Amongst the many consequences of this approach was that women were deemed ineligible for admission to the legal profession. Fortunately things have changed a lot. No longer are women disqualified from voting, entering professions, and from pursuing employment in traditional blue-collar industries.
But their rate of remuneration is frequently not comparable with that paid to men, and the so-called 'glass ceiling' has barely risen at all. Gender inequality is still a serious issue in the workplace even though the Sex Discrimination Act has been in force in Australia for 21 years. The Equal Opportunity for Women in the Workplace census in 2004 showed that in the top 200 listed companies women held only 10.2 per cent of executive management positions. And in our superior courts in Australia , only 33 out of 202 judges are woman, even though for some three decades there has been no significant inequality in the number of women entering law schools.
I am sure many of us here today remember the jolt which the judiciary and the legal profession received from the public reaction in 1992 to the remarks that a judge made in charging a jury about consent in a rape in marriage case that "rougher than usual treatment" was acceptable. The remark prompted journalists to rake through court transcripts for other gender insensitive remarks made by male judges. Regrettably, they found a few. The resulting outcry led to numerous gender awareness programs for the judiciary and for lawyers in the 1990s. Have things changed in the meantime?
HREOC was recently asked by the National Judicial College of Australia whether there was still a need for gender and other awareness training in its programs. In February this year, we invited a small cross section of women engaged in the law to a round-table discussion to get their views on the gender issue. The group included a leading a barrister, two lawyers from community legal centres - one of whom was an Aboriginal person, two academics and three representatives of organisations for minority groups. I regret to report that their unanimous view was that in many respects, little has changed.
I mention four observations which were made by the participants.
The first was that the lawyers, not the judges, were often the ones to blame for stereotypical attitudes, including those which exhibit gender bias. Often it is a lawyer who seems to lack an understanding of the difficulties experienced by people from minority or disadvantaged backgrounds.
The second observation was that it is not just male members of the bench and bar who exhibit gender insensitivity. The participants commented that a few female members do it too, suggesting that the old ingrained culture is still present and being shared across the profession.
The third observation concerns security. Court security, they said, tends to be directed to the safety of judges and court officers. However, many women find attendance at court a fearful experience. It brings them into close proximity with those who have shown violence or abuse towards them. Instances were reported where women were simply too frightened to attend a hearing, or when they did attend were too stressed to acquit themselves adequately. There is a need to be mindful of the impact of the court environment on people who have reason to feel vulnerable.
The final comment was really a question - why don't judges do more to protect people who are disadvantaged by things such as poor education, communication difficulties, poverty or mental health issues. Remember, this was a question posed by people who had a good grasp of the legal process.
I think the question identifies a systemic shortcoming in the legal system which warrants attention. A judge's failure to intervene, or to intervene sooner, may often be because they have not been forewarned. Lawyers, it seems to me, must accept a responsibility for bringing to the attention of the court matters that might adversely affect how a party or a witness may experience the court process. Practice directions in some courts require lawyers to give advance notice to the court about special requirements a witness might have to take an oath, or about physical disabilities of a witness such as deafness, blindness or paraplegia. I offer the view that practice directions need to be more rigorous and wider in their requirements.
But even when a judge is alerted, or otherwise comes to suspect that a person is suffering some disadvantage, the system does not really allow them to explore the circumstances of the person, or to receive expert evidence about how the particular circumstances of the person may affect his or her presentation or credibility as a witness. Judges are impeded from doing so by the risk of creating an apprehension of bias and by the laws of evidence. There are issues of substantive law involved here that are both complex and difficult, but they are ones that I think need further consideration.
There is a fourth group of people whose discrimination has recently been brought into the limelight who are also likely to be seriously disadvantaged by the legal system. I refer to the one in five Australians who will suffer from some form of mental illness at some point in their lives.
The whole spectrum of mental health was brought into sharp focus last year by the Not For Service Report prepared by the Mental Health Council in association with HREOC which documented experiences of injustice and despair in mental health care in Australia .
A difficult issue, and an issue that I believe Courts are still struggling to deal with, is how to ensure people with mental health issues receive fair and equal treatment. Ensuring people with mental health issues are treated fairly by the courts is critical, especially in criminal proceedings where a prison sentence can have a devastating impact on a mentally ill person.
Problems facing women with mental health issues in prison were documented in the recent Women in Prison report by the Queensland Anti-Discrimination Commission. HREOC is currently considering the resource implications of the Report's recommendation that HREOC should conduct a review into how justice and prison systems across Australia are dealing with women with mental health issues.
HREOC is also awaiting, with interest, the judgment of the Full Bench of the Federal Court in a case where a Federal magistrate on his own motion stayed an application brought by a person on the ground that she lacked capacity to represent herself. The case raises important issues about how a Court goes about investigating the legal capacity of a litigant who claims to be of sound mind. Mental illness frequently will not preclude legal capacity and people who have difficulty in the witness box as a result of mental health issues may still be entirely credible witnesses. However, judges and magistrates do need to be alive to the possibility that people with mental health issues may require special accommodation.
In this speech I have emphasised the responsibility of lawyers. Lawyers, like judges and everyone else involved in the court system, need a reference source to alert and inform them of matters which might distort the fairness of the legal process. A great virtue of the Equal Treatment Benchbook is its ready availability to the public. It is not just a resource for judges and magistrates. Hopefully it will be frequently consulted by lawyers, and even by witnesses and parties themselves, so that all are better-informed. The fact that the publication is produced by the Supreme Court gives it authority. This will overcome barriers that counsel or a party might otherwise encounter in trying to alert a court to potential problems lurking in the personal circumstances of a person involved in a case.
In finishing, I thoroughly commend the Equal Treatment Benchbook. It is big work - big in its content, running already into 267 pages, and big in its importance. It comes with a user-friendly table of contents at the front and a detailed index at the end. For anyone who is concerned about a particular issue of equal treatment it is easy to find what one is looking for. My hope is that, when faced with these concerns, people will look.
I congratulate all those who have participated in its preparation. I have much pleasure in now formally launching the Equal Treatment Benchbook.