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Preliminaries

Foreword to the Equal Justice Bench Book (2nd edition)

The Hon Wayne Martin AC - Chief Justice of Western Australia

The former Chief Justice of the High Court of Australia, the Hon Robert French AC, observed:

Justice is frequently depicted as a woman holding a sword and a set of scales and wearing a blindfold. The origins of that depiction have been traced back to the Egyptian Goddess Ma’at, the Greek Goddess Themis, and the Roman Goddess Justitia. It is taken today as a representation of the idea of equality before the law which, in its formal sense, is blind to difference including cultural attributes not expressly or impliedly accommodated by the law. FootnoteFrench R, “Equal Justice and Cultural Diversity - The General Meets the Particular” (Cultural Diversity and the Law Conference, 14 March 2015, Sydney) 1 (accessed 20 June 2015).

In this context, the purpose of bench books such as this one might be seen as something of a radical project: removing the “formal equality” blindfold and aiding a version of justice that sees and accommodates difference – so far as the law permits.

To again borrow from the former Chief Justice, the intent is to give effect to the notion that:

Equality before the law [in a formal sense], is not a guarantee of equal justice. A law of general application may have adverse discriminatory outcomes because of the different circumstances and attributes of those to whom it applies… the idea of “equal justice” may be seen as a more demanding standard than that of formal “equality before the law”. FootnoteFrench R, “Equal Justice and Cultural Diversity - The General Meets the Particular” (Cultural Diversity and the Law Conference, 14 March 2015, Sydney) 1, 6 (accessed 20 June 2015).

The new title for this edition, Equal Justice Bench Book, is intended to reflect its objective, which is to contribute towards the attainment of what the former Chief Justice described as “more than mere equality before the law”. FootnoteFrench R, “Equal Justice and Cultural Diversity - The General Meets the Particular” (Cultural Diversity and the Law Conference, 14 March 2015, Sydney) 14 (accessed 20 June 2015).

I noted in the foreword to the first edition of this Bench Book that the task of all judges and magistrates in Western Australia is to “do right to all manner of people, according to law, without fear or favour, affection or ill will”. Doing right to all manner of people according to law in a diverse society demands more than the uniform application of substantive laws. It directs attention to the procedural laws and practices which affect access to justice and effective engagement with the legal system, FootnoteFrench R, “Equal Justice and Cultural Diversity - The General Meets the Particular” (Cultural Diversity and the Law Conference, 14 March 2015, Sydney) 9 (accessed 20 June 2015). as well as to the broader demographic and cultural context of particular groups who might be disadvantaged in their interactions with that system. It is this demographic and cultural context and its interaction with procedural laws and practices that is the subject of this Bench Book.

I have observed before that the best way of addressing disadvantage in the legal system is often neither self-evident nor intuitive - it often needs to be informed by specialised knowledge and experience. The Hon Justice Peter McClellan AM, Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse, lamented the very significant failings of traditional legal reasoning in addressing sexual assault, and in particular the abuse of children, noting that:

The practice of judges relying on their own understandings of human behaviour to inform the content of legal rules is centuries old… As far as the law was concerned human behaviour was directly observable. Our common sense together with a judicial wisdom derived from legal experience was more than adequate. FootnoteMcClellan P, Address (Supreme Court of New South Wales Annual Conference 2015, Bowral, NSW, 4 September 2015). FootnoteLater published as McClellan P & Doyle A, “Legislative Facts And Section 144 - A Contemporary Problem?” (2016) The Judicial Review 12, 421, 432 (both accessed 20 July 2017).

Elsewhere McClellan J has emphasised that:

If confidence in the rule of law is to be maintained it is necessary for the legal rules to reflect the contemporary knowledge and expectations of the community. Those expectations are borne of generally accepted values. Some of those values are reflected in our trial processes which are informed by contemporary understandings of human behaviour. With time and greater knowledge our understandings are modified or redefined. And therein lies the challenge for those who make the rules be they legislators or judges. FootnoteMcClellan P, “Professional Knowledge and Judicial Understanding” (14th Australasian Conference on Child Abuse and Neglect, Auckland, New Zealand, 31 March 2015) (accessed 20 July 2017).

This Bench Book is one attempt to address the challenge identified by McClellan J. It is the product of consultation with individuals and groups within the community who have garnered specialized knowledge and experience as a result of their research, professional qualifications and practical experience. As such it is intended to reflect the contemporary knowledge and expectations of the community.

A large number of organisations and individuals have played a very significant role in the continuing development of this Bench Book and their invaluable and generous contributions have assisted greatly in the updating and revision of this resource. Lists of all those who have contributed to the original and to the revised editions can be found in the acknowledgements section which follows. I would like to thank each of them for their contribution. I also express my gratitude to the members of the Steering Committee and the many Departmental employees who contributed both in a formal capacity and informally to this project.

Regrettably, resourcing constraints have meant that this edition of the Bench Book is not being published as a complete second edition, and instead revised chapters will be published as and when these become available. The intention is that, over time, all of the chapters will be reviewed and revised as required. In addition to the updated content, two significant changes are proposed in relation to the second edition of the Bench Book. One is the splitting of the chapter on “Diverse sexuality, sex and gender” into two chapters – one on diverse sexuality and the second on sex and gender. Relevant stakeholder feedback strongly recommended the division of the chapter into two separate topics. Another significant change relates to the topic of Aboriginal people.

Unfortunately, the Aboriginal Benchbook for Western Australian Courts FootnoteFryer-Smith S, Aboriginal Benchbook for Western Australian Courts (Australasian Institute of Judicial Administration, 2nd ed, 2008). can no longer be relied upon as a primary resource in this area given that it has not been updated since 2008. As an interim arrangement a second edition of chapter 11 on Aboriginal people will be published following a limited review. In the longer term a committee of relevant stakeholders will be convened to oversee the development of much more detailed chapter on Aboriginal people, corresponding to other chapters in this Bench Book.

Readers will also note that second edition chapters are being published as a digital resource only. This format should expedite future updates and further revisions, as well as enhance readers’ capacity to navigate the Bench Book and to access supporting materials.  

I hope that this revised edition of the Bench Book will assist judicial officers throughout Western Australia, and also others, to ensure that our legal system delivers on that more demanding standard, of equal justice for all.

 

The Hon Wayne Martin AC
Chief Justice of Western Australia


Last updated: 1-Sep-2017

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