Law Reform: Aren’t Things Bad Enough As They Are?

Judith Peirce, Speech Delivered to Magistrates’ Court training, 5 May 2005

  • Importance of magistrates’ role
  • Civil vs Criminal Law
  • Recognition of the problem and dealing with it, prevention is next

This speech could also be entitled reflections on a life of violence but that title may be misunderstood, although there was a time when I physically assaulted a male client in the precincts of the Family Court—but that’s another story and reflecting on that incident I decided a career change was in order.

I will start with my reflections of the past 30 years, because it was back in 1975 when things really started to change for people experiencing family violence.

However, we must always understand that change does not happen in isolation, change is built on from what has gone on before. To consider where we are now we have to go back to the beginning of the current era.

To do that I want to take you back in time to 1975. A few people in this room were not even born then but it is not ancient history. Ancient history is the early part of the 20thcentury when women were not permitted to be lawyers and doctors.

So back we go to 1975. The political and legal scene included the dismissal of the Whitlam Government by Sir John Kerr, the Watergate convictions in the USA, five Australian journalists murdered in Balibo, Timor, and the introduction of the Family Law Act.

Social security benefits for single mothers had only just been introduced, family violence was not on the public radar, not many women with children worked outside the home, and we got colour television.

Also, the fashion was appalling, no matter what attempts there have been recently to revive it and I see that some of you here today have made that courageous attempt.

So that sets something of the scene in terms of events and daily life. It is also necessary to point out the obvious—in 1975 we did not have specific legislation to address family violence, and indeed it was another 12 years before this was to happen. The legal remedies we had were the criminal law, the injunctive remedy under the Family Law Act and a breach-of-the-peace process.

This was a critically deficient approach to a very serious problem and one which reflected the historical prejudice against women and legal blindness to their problems.

We should not be surprised now of course about this prejudice against women, and I look at my own place in the law as an example.

In 1975, women lawyers in Victoria received just over half the income of men. The work they did was considered to be of lesser importance. They were largely relegated to the “wives and wills” areas.

There were around 800 barristers at the Victorian Bar and 9 were women. I know, because I was one of them. Male barristers would regularly take me aside and tell me where I had gone wrong in a case. 1975 was the year that a Supreme Court Judge handed a note to me while I was on my feet in court. The note read: “Madam, you are undressed”, because a strand of my then long hair had escaped from its wig.

It’s hardly surprising that there was widespread prejudice in the community when the professions could not even bring themselves to respect women. Why should the legal profession or the institutions of the law respect women when the general community did not?

It was 1985 before the first female magistrate was appointed. But this represented progress, because more than a century earlier, in 1875, the Wisconsin Supreme Court told Lavinia Goodell that she could not be admitted to the state bar, because:

“the character of a woman was not suited to the practice of law. To expose women to the brutal, repulsive and obscene events of courtroom life would shock man’s reverence for womanhood and relax the public’s sense of decency.”

Back in the 1970s the feminist movement had already started to expose these prejudices and we began to examine the supposed “neutrality” of the law and agitate for change. This legal review has had significant positive effects for women, for children, for people with disabilities, Indigenous people and those from different cultural backgrounds.

Importance of magistrates’ role

The work that all of you in this room do on a day-to-day basis is of the highest importance—death may be the result if we fail to listen, act, decide, be professional, or if we are inappropriately judgmental.

A defining moment as a lawyer for me was when I examined my professional expertise in a case where my female client was attacked with an axe, and another case where a male client then went on to murder his children. Could I have seen these events coming, acted differently, recognised signs? 

We know about the impact of violence on the lives of those who experience it. We know that women don’t call the police or expose themselves to the processes of the law without reason. Sometimes we forget this.

In common with those who work in family law or in the children’s court, we know the real importance of this work and the accumulation of skills needed to carry it out. It is important and rewarding to be able to intervene in such difficult circumstances and manage limited resources.

There are many components to the assistance available for a woman beginning the journey of release from a violent relationship. The police may be her first port of call, but they do not operate in isolation from support services and the legal system.

While crisis and support services, legal services, police and the courts provide vital assistance, many of those who use them have negative experiences.

In this room, however, we are all highly motivated and engaged in the determination to make them accessible, relevant and as good as they can be. We need to remember the good things that happen when all of the components of the system provide good outcomes. Listen to the words of women who have experienced violence:

“The other night we did our groceries at 9.00pm, got pizza, just hung out. It was really good. We couldn’t do that when I was with my husband.”

“I like my new life without dramatic scenes, no fear, very few inhibitions and the freedom to be whoever we want to be.

“I have really looked at my life and seen how far I have come. I feel really proud of myself as a person.”

“There was a time in my life where I was overflowing with happiness, high on life. I was a positive carefree and contented person. Slowly, I am returning to that.” (p.29)

When we wake every day it is our day. We don’t have to let anything bring us down. We can say what we feel and why we feel this way. We are entitled to express our opinions.”

Notice the number of times the women said “we”. As you know, children feel the full force of family violence, even if they are not copping the brunt of it.

There is another aspect of our role which we should reflect upon, and that is the importance of the way we implement policy. In the words of the NSW Law Reform Commission in its report on apprehended violence orders:

“…no matter how valid the policy or how well drafted the legislation, (the law) will only be truly effective if it is interpreted and implemented consistently and appropriately. While this is true of any law, it is particularly the case with AVOs, given the difficult and delicate nature of the subject matter.

While there are aspects of the legislation that require fine-tuning and some amendment, the main problems lie with its implementation and interpretation. Many of these implementation problems can be resolved to some extent by amendments.

….However, other issues, such as the attitudes and responsiveness of police and magistrates, transcend the legislation, and will continue to be problematic regardless of any legislative reform. Given the impact that implementation…has on the achievement of the policy objectives…it is important that problems are recognised and appropriate measures be taken to address them.”

Family violence is difficult to understand and challenging to respond to. There are many pitfalls in developing new systems and laws and even greater pitfalls in the effective carrying out of policy. All too often the best policy can be subverted by the individuals carrying it out.

Civil vs Criminal Law

Family violence is not a feminist or a woman’s  problem. It is a community problem which mainly affects women.

The feminist movement of the 1970s put family violence on the public agenda. Feminists argued that traditionally private issues, such as family violence, must become public issues. Placing the issue in the public arena then forced a response from Government, namely, the creation of or support for policies to provide a protective response to women.

The women’s movement responded to the impact of family violence by establishing refuges for women who were leaving violent relationships. As these refuges gained state and federal government funding, family violence became demarcated as a government responsibility.

During the 1980s, government-funded research into family violence was conducted in all Australian states and territories. In Victoria, research identified the problems caused by relying solely on criminal law to address family violence and proposed the development of a civil law intervention order system. This led to the Crimes (Family Violence) Act 1987 . The civil intervention ordersystem was introduced to complement the criminal law and, in theory, the criminal law was to be used whenever an occurrence of family violence contravened the law.

That this system is now seen by many people as ineffective, is no reflection on those who created it, or upon the validity of their policy directions at that stage. In 2035 how will our efforts be judged?

In practice, though, the civil law intervention order system took precedence over the criminallaw in responses to family violence. Although I can theorise about why this occurred we don’t really know. My personal view is that one of the reasons lay in the policy direction which “made it easy” for women to obtain an intervention order on their own. This led to support services, police and lawyers directly referring a woman to a court, placing a heavy burden upon the registrars, who were not adequately supported to be placed in this unique position. Another reason is the pervasive blaming attitudes towards women who experience and stay in situations of family violence.

Another factor appears to be that very few applicants have access to any form of legal advice or representation. Until the introduction of the Police Code of Practice, police more often than not suggested a woman seek the order herself rather than the police applying on her behalf. Overburdened police have been reluctant to charge men with criminal offences, presumably on the basis that protection could be obtained directly by the woman from the court.

As we stood at the cross-roads 30 years ago, today we again stand in that conceptual space. Why do I say that? In the past few years, there has been a renewed culture ofreform in relation to family violence in all the sectors which have special responsibility for it. Many of the serious problems have been taken off the shelf, dusted, consigned to the waste bin or solutions redesigned.

In Australia and overseas there has been a growing recognition that family violence raises distinct challenges for the legal system, and that current legal models may not provide an adequate response. There have been reforms in other jurisdictions that aim to ensure that legal responses to family violence are appropriately tailored to the nature, dynamics and experience of such offences.

The achievements of these reforms demonstrate that there are possibilities for improving our response to family violence.

The Commission’s review of the Crimes (Family Violence) Act is in the middle of writing its script,  but you are already waiting in the wings with your parts rehearsed but yet to be performed.

We are at the stage where we know a great deal about the operation of the civil intervention order system. Applying this learning to policy-making is a different task. This is the part where we need to be careful what we wish for because, as the South African author Andre Brink put it, ‘with the loss of simple answers the questions too have become infinitely more difficult’.

In Australia and overseas, various reform initiatives have been implemented to improve the legal response to family violence, and there are notable successes. As the Victorian justice system embarks on a process of change our aim should be to respond to family violence in a way that is tailored to the unique dynamics, nature and experience of this type of violence.

Recognition of the problem and dealing with it, prevention is next

Where we have come to since 1975 is to more clearly define and recognise the problem and to find more effective ways of dealing with it. I do not believe that we are yet able to prevent violence in the meaning of stopping it happening. That may well be the next phase of learning and reform and will be a quantum leap forward.

My work in law reform is part of the process of incremental change. In this room we are all involved in an evolutionary process which commenced at the time someone stood up and said, ‘this isn’t right or fair’.

Much has been done. Much remains to be done. We are not the first and we will not be the last. What will the scene be like in 2035? When I mused out loud about this at the Commission a young researcher very seriously advised me that I would indeed be able to think about this question in 2035 because treatments for Alzheimer’s are improving all the time.

Date published: 
05 May 2005

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