tag:theconversation.com,2011:/global/topics/australian-courts-49896/articlesAustralian courts – The Conversation2023-10-29T23:02:06Ztag:theconversation.com,2011:article/2157082023-10-29T23:02:06Z2023-10-29T23:02:06ZDoes Australia need dedicated sexual assault courts?<figure><img src="https://images.theconversation.com/files/555741/original/file-20231025-17-i775en.jpg?ixlib=rb-1.1.0&rect=0%2C11%2C985%2C654&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/witness-stand-184839455">Shutterstock</a></span></figcaption></figure><p>Victim/survivors of sexual assault have always faced an uphill battle in their pursuit of justice.</p>
<p>In being made to retell their assault story over and over, they can be <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">retraumatised</a> and made to <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">wait years</a> for their case to go to trial, delaying their opportunity to heal.</p>
<p>The public watched on as charges against Bruce Lehrmann for the alleged rape of Brittany Higgins (which he denies) were dropped because of concerns for Higgins’ <a href="https://www.theguardian.com/australia-news/2022/dec/02/bruce-lehrmann-retrial-wont-proceed-after-prosecutors-drop-charges-for-alleged-of-brittany-higgins">mental health</a> after a mistrial in 2022.</p>
<p>So is it the case that sexual assault trials simply shouldn’t be conducted in a general criminal court? Does Australia need dedicated facilities instead?</p>
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Read more:
<a href="https://theconversation.com/male-soldiers-cant-help-themselves-is-among-many-rape-myths-that-need-debunking-212568">'Male soldiers can't help themselves' is among many rape myths that need debunking</a>
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<h2>The harms of a combative court process</h2>
<p>Cross-examination is a vital part of a regular criminal trial. But in sexual assault cases, it can be complicated.</p>
<p>It is the job of defence lawyers to create doubt in the minds of the jury about the victim/survivor and the assault. </p>
<p>This is often done by drawing on popular <a href="https://fullstop.org.au/uploads/main/FSA-submission-to-taskforce-discussion-paper-3.pdf">rape myths</a>, such as: why didn’t you fight back? Was the attacker a stranger? Was a weapon used in the attack? Had you been drinking or taking drugs? What were you wearing?</p>
<p>Jurors can be influenced by this performance – a performance that reflects the attitudes of those in the community who doubt women’s reports of <a href="https://www.anrows.org.au/publication/attitudes-matter-the-2021-national-community-attitudes-towards-violence-against-women-survey-ncas-findings-for-australia/">violence</a>.</p>
<p>It can take a severe toll on victim/survivors.</p>
<p>In one Queensland case, it took <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">eight years</a> and two trials to resolve. </p>
<p>The first trial resulted in a hung jury, and the second in acquittal. The victim/survivor underwent cross-examination twice.</p>
<p>Such an extended court process can have a <a href="https://www.sccjr.ac.uk/wp-content/uploads/2020/08/Delays-in-Trials-SCCJR-Briefing-Paper_July-2020.pdf">massive impact</a> on a victim/survivor’s life. </p>
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<a href="https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A courtroom with a view of the scales of justice on a wooden panel." src="https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Victim/survivors of sexual assault have always faced an uphill battle in their pursuit of justice.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/balance-sign-court-room-1812892960">Shutterstock</a></span>
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<p>Many feel they must <a href="https://www.sccjr.ac.uk/wp-content/uploads/2020/08/Delays-in-Trials-SCCJR-Briefing-Paper_July-2020.pdf">delay</a> holiday, career or study plans while they await vital court dates.</p>
<p>It makes it more likely they will <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">withdraw</a> their complaint. </p>
<p>The layout of courthouses can also be an issue.</p>
<p>Victim/survivors can be forced to come face-to-face with their alleged attacker due to a lack of alternative entrances and waiting areas.</p>
<h2>Reforms have helped, but not enough</h2>
<p>Reforms over the past 50 years have achieved some improvements in the criminal justice process for victim/survivors. </p>
<p><a href="https://www.anrows.org.au/publication/attitudes-matter-the-2021-national-community-attitudes-towards-violence-against-women-survey-ncas-findings-for-australia/">Research</a> shows that, in some Australian jurisdictions, procedural reforms such as giving evidence via CCTV and closed courtrooms are working. </p>
<p>However, these reforms are inconsistent across jurisdictions. </p>
<p>Core re-traumatising features of trials, such as cross-examination without clear boundaries, remain part of the court experience where trauma-informed reforms have not been introduced. </p>
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Read more:
<a href="https://theconversation.com/jurors-who-believe-rape-myths-contribute-to-dismal-conviction-rates-but-judge-only-trials-wont-solve-the-problem-205066">Jurors who believe rape myths contribute to dismal conviction rates – but judge-only trials won't solve the problem</a>
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<h2>Are dedicated courts the answer?</h2>
<p>Some countries, such as South Africa, operate specialist sexual offences courts. Scotland is setting up a pilot specialist court.</p>
<p>The benefit of these courts is that all court personnel are <a href="https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6">trauma-informed</a> and can deal with complex social issues and laws.</p>
<p>One early <a href="https://pubmed.ncbi.nlm.nih.gov/15961155/">evaluation</a> in South Africa shows 94.9% of victim/survivors were satisfied with prosecutors, and 87.5% were satisfied with their preparation for trial. </p>
<p>Almost all felt totally or fairly safe at court. </p>
<p>Only 20% found the defence attorney intimidated them, and less than a third felt their personal dignity was insulted during cross-examination. </p>
<p>South Africa also implements “juryless” trials, heard by a judge and a two-person lay panel, which may be a factor in the favourable findings. </p>
<p>Specialists courts can also reduce <a href="https://aija.org.au/wp-content/uploads/2023/10/Specialist-Approaches-to-Managing-Sexual-Assault-Proceedings_An-Integrative-Review_05.pdf">delays</a>. </p>
<p>Yet there are risks to such a narrow approach.</p>
<p>It may lead to a gradual loss of more general legal skills and too narrow a focus, which may result in <a href="http://classic.austlii.edu.au/au/journals/UQLRS/2016/5.html">biased</a> decision-making.</p>
<p>In fact, it may not be necessary to create a separate standalone court to get better outcomes. </p>
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<p><a href="https://aija.org.au/publications/specialist-approaches-to-managing-sexual-assault-proceedings-an-integrative-review/">Research</a> has shown trauma-informed training is necessary for court personnel to understand and help prevent victim/survivor retraumatisation. </p>
<p>This can be achieved within the existing court system.</p>
<p>Regular courts can have a “specialist approach” - a different way of running proceedings for sexual assault cases that better meet the needs of victim/survivors. </p>
<p>This can be on specific days of the week around normal court operations.</p>
<p>Significantly, having a separate specialist approach within the general criminal court system to deal exclusively with sexual assault cases may introduce positive <a href="https://aija.org.au/publications/specialist-approaches-to-managing-sexual-assault-proceedings-an-integrative-review/">culture change</a>. </p>
<p><a href="https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6">Studies</a> indicate a comprehensive specialist approach may be the missing link in reforming the adversarial system.</p>
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Read more:
<a href="https://theconversation.com/rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark-188235">Rape is endemic in South Africa. Why the ANC government keeps missing the mark</a>
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<h2>More to do to improve court experiences</h2>
<p>Our <a href="https://aija.org.au/wp-content/uploads/2023/10/Specialist-Approaches-to-Managing-Sexual-Assault-Proceedings_An-Integrative-Review_05.pdf">review</a> of international practice identified a range of things Australia could do to significantly improve victim/survivors’ experiences in the criminal justice system. </p>
<p>These include:</p>
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<li><p>specialist trauma-informed training for all court personnel, including defence counsel</p></li>
<li><p>measures to better inform victim/survivors about their case, and improve communication</p></li>
<li><p>linking victim/survivors to support services and providing safe court facilities</p></li>
<li><p>specialists (called “intermediaries”) who can help victim/survivors understand court processes</p></li>
<li><p>specialist case management, including ground rules hearings to address inappropriate questioning in cross-examination</p></li>
<li><p>pre-recorded evidence. </p></li>
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<p>Standalone sexual assault courts would be one way of implementing these measures, but it’s not the only way.</p>
<p>Specialist approaches with trauma-informed legal staff would also put these actions into place without the need for a dedicated court. </p>
<p>Introducing these measures wouldn’t fix everything, but it’s certainly a starting point to help reduce the harm that’s too often compounded by court proceedings.</p><img src="https://counter.theconversation.com/content/215708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vicki Lowik and Amanda-Jane George received funding from the Australasian Institute of Judicial Administration and Commonwealth Attorney-General's Department for the report on which this article is based.</span></em></p><p class="fine-print"><em><span>Amanda-Jane George does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sexual assault trials can compound a victim/survivors trauma, drag on for years and bring them face to face with their attacker. Is having dedicated sexual assault courts the answer?Vicki Lowik, Research Officer, Queensland Centre for Domestic and Family Violence Research, CQUniversity AustraliaAmanda-Jane George, Postgraduate Research Coordinator, Senior Lecturer in Innovation & Intellectual Property Law, School of Business and Law, CQUniversity AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1855852022-06-22T23:28:23Z2022-06-22T23:28:23ZWhy was the Brittany Higgins trial delayed, and what is ‘contempt of court’? A legal expert’s view on the Lisa Wilkinson saga<p>The judge in the trial of Bruce Lehrmann, the staffer alleged to have raped Brittany Higgins, ruled on Tuesday, “regrettably and with gritted teeth”, that his trial will need to be delayed.</p>
<p>This was because of the media coverage and social media attention that followed Logie Award-winning journalist Lisa Wilkinson’s acceptance speech (she won a Logie for her coverage on The Project of the Brittany Higgins allegations).</p>
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<p>In <a href="https://www.youtube.com/watch?v=yvMkzu4xe8I">the speech</a>, Wilkinson thanked Higgins for trusting her and The Project team with the story, and for changing the national conversation around allegations of sexual abuse. </p>
<p>Lehrmann’s lawyers successfully argued the speech was a potential “contempt of court”.</p>
<p>Chief Justice Lucy McCallum said:</p>
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<p>“What concerns me most about this recent round is that the distinction between an allegation and a finding of guilt has been completely obliterated… The implicit premise of [the speech] is to celebrate the truthfulness of the story she exposed.”</p>
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<p>One might have thought the exceptional umbrage taken by the courts against the media’s reporting of <a href="https://theconversation.com/why-have-media-outlets-been-fined-more-than-1-million-for-their-pell-reporting-162173">the George Pell case</a> might have made the veteran journalist a little more cautious about referring to matters that are either currently or imminently before the courts.</p>
<p>According to <a href="https://www.skynews.com.au/australia-news/the-projects-lisa-wilkinson-warned-by-prosecutor-her-logies-speech-could-delay-brittany-higgins-court-trial/news-story/53e77bd436ae844343563a9bed0933fc">news reports</a>, Wilkinson had been warned by ACT Director of Public Prosecutions Shane Drumgold that her speech could delay the trial if it made reference to the case, but he reportedly didn’t want to listen when Wilkinson started to read it to him beforehand, offering that prosecutors “are not speech editors”.</p>
<p>Wilkinson reportedly <a href="https://www.news.com.au/entertainment/awards/logies/lisa-wilkinsons-logies-speech-lashed-in-court-as-brittany-higgins-trial-faces-potential-delay/news-story/d84b3775842395cf7c9a9a09c628f45e">told</a> him she was not expecting to win, so the speech would not likely be made.</p>
<p>There’s also the complication that the prosecution reportedly plans to call Wilkinson as a <a href="https://www.theguardian.com/australia-news/2022/jun/21/lawyers-for-brittany-higgins-accused-ask-to-delay-trial-after-lisa-wilkinsons-comments">witness</a> in the trial.</p>
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Read more:
<a href="https://theconversation.com/cleo-smith-interview-does-channel-nine-run-the-risk-of-being-in-contempt-of-court-176459">Cleo Smith interview: does Channel Nine run the risk of being in contempt of court?</a>
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<h2>What is ‘contempt of court’?</h2>
<p>So, what caused the judge to make her ruling to stop the case in its tracks, and list it for trial at a date yet to be determined? </p>
<p>It’s the law designed to ensure all criminal trials are fair and it’s guided by the principles of “contempt of court”.</p>
<p>Contempt of court can arise if any words or actions by the media (or indeed anyone who makes a public statement) are deemed to interfere with the administration of justice, or constitute a disregard for the authority of the court.</p>
<p>The principle of contempt law that pertains to this case is that a jury must decide the guilt or innocence of an accused on the basis of the evidence before them, and not to allow other considerations to taint their deliberations.</p>
<p>This could include commenting publicly on the credibility of a victim’s story, stoking the public’s disdain of an accused by a storm of social media, or calling for a social evil to be tackled. This is referred to as <em>sub judice</em> (“under a judge”) contempt.</p>
<p>Back in February this year, Channel 9 came <a href="https://theconversation.com/cleo-smith-interview-does-channel-nine-run-the-risk-of-being-in-contempt-of-court-176459">perilously close</a> to being in contempt of court after airing material that could have been deemed to have a tendency to prejudice the judge’s consideration of a sentence for the man convicted of kidnapping Western Australian four-year-old Cleo Smith.</p>
<p>There need only be evidence the content – whether it be a media article reporting a speech, a social media post, or some other public discussion – could have a tendency to affect the thinking of the jurors in their deliberations. Actual proof that it did, in fact, influence jurors isn’t required. If successfully argued, a trial can be shifted to another jurisdiction, or delayed, or, potentially, aborted permanently.</p>
<p>That’s what Lehrmann’s lawyers asked the court to consider. “This speech did not need to be made,” his barrister Steve Whybrow said. He added that his client had no interest in delaying the trial, but he wanted it to be a fair trial.</p>
<p>What’s clear is the speech had the potential to prejudice the imminent trial. Justice McCallum ruled the matter would be better dealt with when the dust has settled on Wilkinson’s acceptance speech, and the social media storm has died down. There would not have been a media lawyer in Australia who would have been surprised by the ruling. </p>
<p>The timing of the Logies was unfortunate. Wilkinson should have been counselled more wisely to generalise her remarks.</p>
<h2>Warnings should have been heeded</h2>
<p>Parliaments around Australia are facing growing calls to overhaul their contempt of court laws, with many advocates arguing the status quo does not meet public expectations.</p>
<p>But that’s a broader question about freedom of speech. In this instance, freedom of speech was not an issue. It was clear the case could be prejudiced, and the warnings should have been heeded.</p>
<p>No-one has made the allegation in Australia yet that Wilkinson’s remarks are in contempt of court, and only the judge can rule on that if she be so minded.</p>
<p>Whether there are legal ramifications for Wilkinson remains to be seen, but one could have some sympathy for her. Wilkinson had spoken with Drumgold on June 15 to discuss the evidence that she would give at the trial. Drumgold warned her against commenting publicly on Higgins’ case, but clearly not strongly enough. </p>
<p>Given the costly and annoying rescheduling that is now needed, Drumgold is probably regretting he didn’t simply give Wilkinson a firm “no”.</p><img src="https://counter.theconversation.com/content/185585/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is a member of the SA Council for Civil Liberties and the Australian Labor Party.</span></em></p>Complicating things is the fact the prosecution plans to call Wilkinson as a witness in the trial.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1772122022-02-17T04:15:43Z2022-02-17T04:15:43ZExplainer: how are chief justices appointed and how can the process be improved?<p>Next month we will see a significant shake-up in courts across Australia’s eastern seaboard. Three chief justices – <a href="https://dcj.nsw.gov.au/news-and-media/media-releases/2021/retirement-of-chief-justice-hon-t-f-bathurst-ac.html#:%7E:text=Chief%20Justice%20Tom%20Bathurst%20AC,role%20for%20almost%2011%20years.">Tom Bathurst</a>, of the Supreme Court of New South Wales, <a href="https://statements.qld.gov.au/statements/93553">Catherine Holmes</a>, of the Supreme Court of Queensland, and Helen Murrell of the Supreme Court of the Australian Capital Territory – are all due to retire. </p>
<p>To date, two replacements have been announced. Andrew Bell is to be sworn in as chief justice in NSW on March 5, followed by Lucy McCallum in the ACT on March 8. The announcement of the Queensland chief justice is imminent.</p>
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Read more:
<a href="https://theconversation.com/no-selection-criteria-no-transparency-australia-must-reform-the-way-it-appoints-judges-141446">No selection criteria, no transparency. Australia must reform the way it appoints judges</a>
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<h2>What is the role of a chief justice?</h2>
<p>The appointment of a chief justice is always an <a href="https://auspublaw.org/blog/2017/02/ceremony-matters/">important occasion</a>. A chief justice is sometimes called the “first among equals”, referring to the fact that they don’t hold authority over other judges in the court. </p>
<p>But this doesn’t capture fully the role of the chief justice. Increasingly, eras in judicial history and decision-making are discussed by reference to their judicial leader. An example is the <a href="http://classic.austlii.edu.au/au/journals/FedLawRw/2007/6.html">discussion</a> of “the Mason court” and its decisions on Indigenous and constitutional rights during the 1990s. </p>
<p>This is in part a reflection of the key role a chief justice can play as an intellectual leader and in the creation of court culture. It also reflects that it is often the chief justice who speaks publicly for the court, including to the media. They will often respond to controversies involving the court, such as <a href="https://www.afr.com/companies/professional-services/heydon-afr-left-federal-court-judges-angry-and-dispirited-20190210-h1b2gl">delay</a>, <a href="https://www.qlsproctor.com.au/2021/07/fcc-chief-judge-apologises-for-judge-who-resigned-over-inappropriate-conduct/">misconduct</a> or <a href="https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Fjudge-mentored-after-many-decisions-overturned-on-appeal%2Fnews-story%2F86b8a856eb54f56729ea60ded77bde48&memtype=anonymous&mode=premium&v21=dynamic-warm-test-score&V21spcbehaviour=append">other</a> shortcomings of judicial officers. </p>
<p>Chief justices also perform key administrative functions in the court. These include the allocation of cases, engaging with the government about court reform and budgets and, of course, consulting on judicial appointments.</p>
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<img alt="" src="https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/446874/original/file-20220216-20-1z12b8e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Chief justices will often act as a spokesperson for the court.</span>
<span class="attribution"><span class="source">Darren England/AAP</span></span>
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<h2>How do we appoint chief justices?</h2>
<p>Chief justices are appointed by the same process as other judges. </p>
<p>This means their appointment is at the discretion of the executive government. The cabinet acts on the advice of the attorney-general.</p>
<p>To appoint a judge to the High Court, the Commonwealth attorney-general must first <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/hcoaa1979233/s6.html">consult</a> with state attorneys-general. In the states and territories, there is no requirement for an attorney-general to consult before appointment. </p>
<p>In practice, though, the attorney-general would generally seek input from the head of jurisdiction (if appointing a new chief justice, that would be the outgoing chief justice), as well as professional bodies representing barristers and solicitors. </p>
<p>This remains the process at the Commonwealth level. It was also the approach adopted most recently in <a href="https://www.careers.justice.nsw.gov.au/appointments">New South Wales</a>.</p>
<p>Some jurisdictions have recently experimented with a more transparent appointment process. In Queensland, following the <a href="https://www.newsouthbooks.com.au/books/australias-greatest-judicial-crisis/">highly criticised</a> appointment of Tim Carmody as chief justice in 2014 on the basis he was unsuited to be appointed to the position, the government adopted a <a href="https://www.courts.qld.gov.au/__data/assets/pdf_file/0011/472439/ja-pub-protocol-for-judicial-appointments-in-queensland.pdf">Protocol for Judicial Appointments</a>. </p>
<p>This includes an expression-of-interest process and a judicial appointments advisory panel. The panel provides the attorney-general with a shortlist of candidates. The shortlist must be based on six criteria set out by the Australasian Institute of Judicial Administration (AIJA):</p>
<ol>
<li><p>intellectual capacity</p></li>
<li><p>personal qualities (including, for instance, integrity and independence of mind)</p></li>
<li><p>an ability to understand and deal fairly</p></li>
<li><p>authority and communication skills</p></li>
<li><p>efficiency</p></li>
<li><p>leadership and management skills, particularly in the court, but also relating to those external to the court such as the legal profession.</p></li>
</ol>
<p>The Queensland protocol also requires the panel to consider “opportunities for promoting diversity in the judiciary”. </p>
<p>However, these experiments with more open appointment processes have rarely been secured through legislative or constitutional reform. This leaves them vulnerable to being shelved by future governments. Indeed, when the Abbott government came to power in 2013 it quietly <a href="http://auspublaw.org/blog/2020/06/will-the-heydon-scandal-finally-produce-judicial-appointments-reform/">abandoned</a> a Labor-initiated federal reform of the late 2000s. </p>
<p>Whether a process for appointment is fluid and secret or transparent and consultative depends greatly on how governments understand the essential attributes of a “good” judge in a diverse democratic society.</p>
<h2>What should a government look for in a chief justice?</h2>
<p>Is there anything, then, that governments should be looking for specifically in a chief justice? We have <a href="https://www.cambridge.org/core/books/abs/judge-the-judiciary-and-the-court/chief-justice/D443E7E7A5D6BC6534141004FCC37366">written</a> elsewhere that the chief justice has distinctive relationships with the government, the legislature, the media and the public, the profession and the academy. This means they are uniquely placed, and obliged, to protect and promote judicial values in the court they lead.</p>
<p>When well-established principles such as judicial independence and impartiality come under threat, from the government or elsewhere, the chief justice must defend them. A prominent recent example was when Victorian Chief Justice Marilyn Warren issued a public <a href="https://www.theguardian.com/australia-news/2017/jun/22/three-federal-ministers-to-apologise-to-victorian-court-to-avert-possible-contempt-charges">defence</a> of the court in 2017 after federal government ministers attacked the impartiality of her court, particularly in criminal sentencing of terrorist offenders.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=493&fit=crop&dpr=1 754w, https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=493&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/446880/original/file-20220217-15-1rav5fp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=493&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In 2017, then-Victorian Chief Justice Marilyn Warren defended the court against accusations of impartiality.</span>
<span class="attribution"><a class="source" href="https://law.unimelb.edu.au/news/MLS/mls-judge-in-residence-the-hon-marilyn-warren-ac-qc">Melbourne Law School</a></span>
</figcaption>
</figure>
<p>Chief justices can also advance emerging values, such as a commitment to robust accountability for judges who misbehave, or to increase diversity and transparency on the bench.</p>
<h2>How can the process be improved?</h2>
<p>The AIJA’s criteria for appointing a judge require chief justices to display various “authority and communication” and “leadership and management” skills. But does a chief justice require something more?</p>
<p>We say yes. They must be individuals who can provide intellectual leadership and contribute constructively to the collegiality of the court. These characteristics are no doubt important, but they will largely be met through the existing criteria.</p>
<p>Chief justices must also bring to the role an institutional sensitivity and a reform mindset that allows them to respond to and anticipate contemporary challenges to the court. </p>
<p>Recently, this has included the need for courts <a href="https://www.auspublaw.org/2020/05/courts-and-covid-19-challenges-and-opportunities-in-australia/">to respond quickly</a> to the COVID-19 pandemic to maintain access to justice and uphold the open court principle. It has also included responding appropriately to public revelations, and administrative findings, of sexual harassment by judicial officers. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/appointing-australias-highest-judges-deserves-proper-scrutiny-35039">Appointing Australia’s highest judges deserves proper scrutiny</a>
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</em>
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<p>In this respect, High Court Chief Justice Susan Kiefel has been widely commended for the personalised understanding she showed to those women who brought complaints of sexual harassment against former High Court judge Dyson Heydon. In response, she implemented an administrative inquiry into the conduct and a subsequent review of the judicial workplace, focusing particularly on the vulnerable position of judicial associates.</p>
<p>If a government is truly committed to the traditional and modern values of the court system, it should be seeking an individual who can defend the institution from unwarranted attacks, as well as recognise and respond to genuine criticism and shortfalls of the institution. </p>
<p>These attributes should not be left to chance, but should be set out and candidates’ experience considered against them. It is only in this way the judiciary will retain the confidence of the public.</p><img src="https://counter.theconversation.com/content/177212/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Gabrielle Appleby was a member of the Advisory Committee of the Australian Law Reform Commission Inquiry into Judicial Impartiality (2020-2021).</span></em></p><p class="fine-print"><em><span>Associate Professor Heather Roberts receives funding from the Australian Research Council for a project titled 'The Ideal Judge', which examines changing expectations of judges and judging in Australia since federation. She was a member of the legal history committee that designed the legal history installation for the Supreme Court of the ACT. </span></em></p>A chief justice is more than just a court’s figurehead: they are responsible for defending and promoting the court’s institutional integrity, and this must be taken into account when appointing them.Gabrielle Appleby, Professor, UNSW Law School, UNSW SydneyHeather Roberts, Associate Professor, ANU College of Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/912292018-02-20T19:09:06Z2018-02-20T19:09:06ZWhere should the law draw the line between consent and culpability in sadomasochism?<figure><img src="https://images.theconversation.com/files/206478/original/file-20180215-124924-4awdky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We need more clarity around this difficult question: when are sexual acts so extreme that consent is irrelevant?</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The worldwide #MeToo movement has brought with it a new platform to discuss the intricacies of human relationships and sexual consent. Key to these discussions is an understanding of when and how the criminal law recognises formal consent to sexual acts.</p>
<p>However, a far more surprising legal distinction also exists: when are sexual acts so extreme that consent is irrelevant?</p>
<p>In 1987, the UK Metropolitan Police discovered what they thought was a snuff film, depicting acts of violence and abuse of a group of young men. Some years later, the House of Lords upheld the conviction of five men who inflicted the horrible injuries. Problem was, the “victims” in this case never filed a complaint – indeed they asked to be injured.</p>
<p>The men convicted were not thugs, but hedonists, entering into a consensual sado-sexual arrangement with a group of younger men, all of whom consented to the acts performed.</p>
<p>The resulting decision of <a href="https://www.princeton.edu/%7Eereading/ReginaVBrown.pdf">R v Brown</a> is an infamous piece of legal history, establishing the legal precedent that certain “extreme” consensual acts – like heavy sadomasochistic activity – can be criminalised even without a victim complaint. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/yes-means-yes-moving-to-a-different-model-of-consent-for-sexual-interactions-90630">Yes means yes: moving to a different model of consent for sexual interactions</a>
</strong>
</em>
</p>
<hr>
<p>In Australia, how the law might interpret consent in situations like this is far from clear. In the current climate around sexual relations, the Australian High Court needs to clarify this confusing legal situation.</p>
<h2>‘A culture of violence’ and the legacy of R v Brown</h2>
<p>Let’s be clear, the kinky acts at play here weren’t 50 Shades of Grey-style fluffy handcuffs and a light spanking. Among the plethora of acts depicted on video were genital torture, branding and bloodletting.</p>
<p>But all of these boundary-pushing acts were consensual. In fact, the slicing and dicing had been going on between the men for over ten years.</p>
<p>Prior to this case, consent by an injured party was seen as a relatively safe “defence” to charges of assault or injury under British law. Previous court decisions on assault and injury offences had found boxing, rough-housing, surgery and macho sporting activities were all justifiable if the person hurt had consented.</p>
<p>But the House of Lords felt that S&M was different implicitly because of its sexual motivation, not to mention that it involved sex between men. Essentially, in the eyes of the law, it’s all fun and games until someone pierces a urethra.</p>
<p>Despite this obvious prejudice, the Lords spend a lot of time in their judgment making it clear that sex was not the major problem – it was the public interest they were concerned with. In the words of Lord Templeman:</p>
<blockquote>
<p>Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.</p>
</blockquote>
<p>It is curious that Lord Templeman did not see a similar “culture of violence” surrounding boxing matches, long approved under law with consent. But his fellow Lords shared his concern regarding cultural effect.</p>
<p>Lord Lowry decried that it was “not in the public interest” that people cause bodily harm “for no good reason”. Pleasure from beating a man senseless was fine, as long as it occurred above the belt. </p>
<p>Over the past 20 years, R v Brown has been heavily critiqued for its misunderstanding of sadomasochism, its obvious homophobia (one of the Lords considered it a “comfort” that a “victim” involved had “settled into a normal heterosexual relationship”) and its reflection on early ’90s social mores.</p>
<p>But it also raises the question of whether consensual sexual acts that “push the boundaries” are at risk of criminalisation in Australia.</p>
<h2>The impact of Brown in Australia</h2>
<p>If you were to enter an Australian law firm with a whip in one hand and ask the nervous solicitor sitting behind her desk whether S&M was legal, she would probably stutter out something like “kind of”.</p>
<p>Clearly, the police are not overly concerned with what occurs between two consenting adults in their makeshift basement dungeon. Indeed we have seen very few charges laid for consensual S&M acts. But the law regarding such acts in Australia, particularly when actual injury is being inflicted, is quite unclear.</p>
<p>The only relevant Australian cases we have on the subject of consensual S&M involve situations where something has gone wrong and someone has died.</p>
<p>In the Victorian case of <a href="https://jade.io/j/?a=outline&id=72290">R v Stein</a> – a farcical manslaughter case involving a sex worker, a pimp and a consenting client with a taste for bondage – Stein, the “pimp”, had placed a handkerchief gag in the client’s mouth, resulting in his death from suffocation.</p>
<p>In assessing Stein’s appeal of his manslaughter conviction, the court cited R v Brown for the proposition that consent was not relevant to the case, as the victim had suffered “significant physical injury” (namely, death).</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/craig-mclachlan-defamation-and-getting-the-balance-right-when-sexual-harassment-goes-to-court-91223">Craig McLachlan, defamation and getting the balance right when sexual harassment goes to court</a>
</strong>
</em>
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<p>But how significant does an injury have to be before consent is irrelevant? Is it when a flog breaks the skin? Is it when a life is in danger? Unfortunately, the judiciary has given some mixed signals on the “public interest” line between consensual fun and criminal act.</p>
<p>In Q v Meiers, a man suffocated to death after being bound to a veranda pole with tape by his reluctant wife. In this case, the sentencing judge was highly dismissive of the consensual sadomasochistic activity undertaken, wishing to “make it clear to the community that the Court does denounce [such] conduct”.</p>
<p>This critical view can be contrasted to the judge’s words in <a href="https://jade.io/article/73081">R v McIntosh</a>. In this case, a man was asphyxiated by his lover who pulled too hard (and for too long) on a cord wrapped around his neck. Unlike the Meiers case, the sentencing judge in this case made it clear that the sentence delivered was “not based upon any moralistic response to the sexual predilections of those involved in bondage or sadomasochistic activities”.</p>
<p>So, which is it? Are the courts OK with a bit of kink, or concerned about spreading a “culture of violence” in Australia?</p>
<p>Things are made even more confusing as the criminal offences the men were charged with in R v Brown – unlawful wounding and assault occasioning actual bodily harm – are different (but similar to) the assault and injury offences found in Australia. Moreover, UK cases have a “persuasive” rather than “binding” effect on Australian courts. Does this mean that R v Brown is limited to a certain time and place, or does it have a continuing impact on Australian criminal law?</p>
<h2>The case for consent</h2>
<p>The decision in Brown to place a limit on what two consenting adults can get up to is steeped in outdated views on sadomasochism, sexuality and harm.
Given recent discussions about consent, it also highlights the importance of the law recognising the sanctity of consent to sex.</p>
<p>One can accept that amateur bloodletting and testicle clamps are probably not the safest of recreational activities, but a bit of squeamishness should not lead to the criminalisation of bodily autonomy.</p>
<p>Indeed, the best case against the status quo came from one of the two dissenting Lords in R v Brown. Lord Mustill noted the need to leave aside: </p>
<blockquote>
<p>repugnance and moral objection, both of which are entirely natural, but neither of which are in my opinion grounds upon which the court could properly create a new crime.</p>
</blockquote><img src="https://counter.theconversation.com/content/91229/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jarryd Bartle consults for the Eros Association, which represents adult retailers and wholesalers including sellers of S&M products.</span></em></p>How Australian courts might interpret consent in situations like this is far from clear, and needs to be sorted out.Jarryd Bartle, Sessional Lecturer in Criminal Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.