IN the wake of scandalizing comments by judges hearing rape cases, Australia is starting to examine some of the basic principles in its laws. Rising numbers of women say the law discriminates against them.
In a speech at the conference on Women and the Law in Melbourne on June 9, Justice Elizabeth Evatt, president of the Australian Law Reform Commission, said judges who displayed overt bias against women in the courtroom or made sexist comments against women lawyers should be prevented from hearing similar cases.
That is one option for removing gender bias in the courts that the Law Reform Commission is working on for an issues paper on equality for women in the law, which will be released in early July. Recommendations also include the establishment of judicial disciplinary bodies and enshrining guarantees of equality in the Australian Constitution.
The proposals come amid a reexamination of the Australian courts' relevance to society after a number of rape cases made the news:
* A Sydney District Court Judge said last month that a woman who had been raped by three men after asking them for a ride had not been traumatized because she continued to live with her boyfriend two years after the rape.
* A Court of Appeals in Victoria last month overturned a ruling of a Supreme Court judge who imposed a lesser sentence on a rapist. Because the victim was unconscious, the high court justice said, she might not have been traumatized.
* A County Court judge in Victoria said in a rape case last month that women who said no to sexual advances often meant yes.
* The South Australia Court of Appeals ruled last month that a Supreme Court justice had erred when he said in a case last year that he saw nothing wrong with a husband using "rougher than usual handling" to persuade his wife to have sex. A petition organized by the state Democratic Party to have him removed from the bench was signed by 8,500 people.
Each time a new comment comes out, the media is filled with outrage over Australia's "out of touch" judges. But legal experts say the problem has less to do with individual judges than with systematic discrimination in the courts.
"It's not a problem with individual judges," says Justice Deirdre O'Connor, justice of the federal court and president of the Administrative Appeals Tribunal. "It's not about being `thought police' or retraining people. We want to develop a set of materials to stimulate people into thinking about the issues. The end goal is to have a justice system that is not only fair but is seen to be fair by everybody. People have to have confidence in the system."
The judiciary still operates on the British model of appointing judges from a small, homogeneous group of barristers.
"Judges are not alone," says Tony Blackshield, a law professor at Macquarie University. "They come from that narrow social band, [and] they probably do reflect accurately one slice of community standards."
"What to do about that is more problematic," he says. "We don't simply want a judiciary representative of the community, we want one that expresses what is best in our community, a judiciary that can even sometimes provide moral leadership, the way the US Supreme Court has sometimes done."
But that means changing how judges are chosen, and there is no talk of that. While equal numbers of men and women are graduating from law school today, far fewer women are pursuing a career at the bar.
The focus on the judges' comments, however, obscures progress that has taken place in recent years. The Western Australian Supreme Court is educating judges about gender bias and has hired a consultant to make recommendations on a program. The Australian Institute of Judicial Administration is developing gender-bias programs to be used in courts throughout Australia.