1. Equality Before the Law

Equality before the law Contents

1. Equality before the law ...... 1.0.3

1.1 Equality before the law and discrimination...... 1.1.1

1.2 Avoiding bias and stereotyping...... 1.2.1

1.3 Providing for community and individual difference...... 1.3.1

1.4 About this Bench Book ...... 1.4.1

1.4.1 the contents of this bench book...... 1.4.1

1.4.2 Community consultation ...... 1.4.2

1.4.3 how to use this bench book ...... 1.4.2

1.4.4 your comments and feedback ...... 1.4.3

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Equality before the law is a fundamental concept of our legal system. All judicial officers take an oath to administer the law without fear, favour, affection or ill will. Judicial officers must treat all parties fairly regardless of gender, ethnicity, disability, sexuality, age, religious affiliation, socio-economic background, size or nature of family, literacy level or any other such characteristic. Respect and courtesy should be the hallmarks of judicial conduct. Paternalistic or patronising attitudes have no place in the courtroom. Equality before the law is sometimes misunderstood. It does not necessarily mean “same treatment”. In his Foreword to the New South Wales Judicial Commission’s Equality before the Law Bench Book, the model and source for much of the material in this Bench Book, the Honourable JJ Spigelman AC, Chief Justice of the Supreme Court of New South Wales, noted Anatole France’s reference to the “majestic equality” of the law which forbade the rich, as well as the poor, to sleep under bridges, to beg in the streets and to steal bread. Chief Justice Spigelman continued: Over recent decades, legal systems throughout the world have come to recognise that both access to, and the delivery of, justice requires understanding of and sensitivity to the special requirements and disabilities of particular sections of the community.1

1 Judicial Commission of new south wales, Equality before the Law Bench Book (2006) iii, available at: www.judcom.nsw.gov.au/publications/benchbks/equality (accessed 14 July 2009). n o v E m b E r 2 0 0 9 - f ir s t E d i t i o n E q u a l i t y b E fo r E t h E l a w 1 . 0 . 3 1 . 0 . 4 E q u a l i t y b E for E t h E l a w n o v E m b E r 2 0 0 9 - f i rs t E d i t i o n 1.1 Equality before the law and discrimination As Justice McHugh explained in perhaps the most succinct encapsulation of discrimination: …discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.2 Australia is a signatory to a number of UN Conventions relating to human rights, discrimination and the need to treat people fairly. These have been specifically enshrined in the following statutes: the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth), Australian Human Rights Commission Act 1986 (Cth) and the Equal Opportunity Act 1984 (WA). Each of these statutes defines discrimination in terms similar to Justice McHugh’s definition (although at greater length). Discrimination is defined as including both direct and indirect indiscrimination. In general, the definition of direct discrimination coincides with the latter part of Justice McHugh’s comment, whereas the definition of indirect discrimination generally coincides with the former part of his comment. Although these statutes do not apply to judicial officers in court, the professional expectation is that judicial officers will act without discrimination.

Everyone who comes into contact with the court system (whether represented or self-represented) must not only be treated fairly and without discrimination, but also believe they are being treated fairly and without any form of discrimination — otherwise, public confidence in the judicial system will be compromised.

2 Waters v Public Transport Corporation [1991] hCa 49 at [10]; (1991) 173 Clr 349 at 402. n o v E m b E r 2 0 0 9 - f ir s t E d i t i o n E q u a l i t y b E fo r E t h E l a w 1 . 1 . 1 1 . 1 . 2 E q u a l i t y b E for E t h E l a w n o v E m b E r 2 0 0 9 - f i rs t E d i t i o n 1.2 Avoiding bias and stereotyping To ensure equality before the law for all, judicial officers need to be conscious of any possible personal biases or prejudices about people from different backgrounds, and actively seek to neutralise these. Judicial officers need to ensure that they do not treat anyone as a stereotype and/or make false assumptions about a particular individual, based on what they believe most people from that individual’s group value, or based on how they believe most people from that individual’s group behave. Judicial officers need a reasonable understanding of the range of values, cultures, lifestyles and life experiences of people from different backgrounds, together with an understanding of the potential difficulties, barriers or inequities people from different backgrounds may face in relation to court proceedings. There is little doubt that Aboriginal people, people of diverse sexuality, sex or gender, people with a disability, women, people who are culturally or linguistically diverse, people living in regional or remote locations, the elderly and the young experience higher rates of social inequity, discrimination and disadvantage — for which see the relevant sections in this Bench Book. In addition, people from socially and economically disadvantaged backgrounds (no matter what other group they happen to belong to) have the greatest likelihood of being victims of personal crime, or of being involved in crime. While it is important to understand which groups are most likely to experience inequity, discrimination and/or disadvantage, every individual is the product of many different influences. Characteristics such as ethnicity, gender, religious affiliation, disability, sexuality and socio-economic background may or may not have a determining influence on any particular individual’s values, life experience or behaviour. However, it is usual for such characteristics to have a compounding effect. For example:

• Young people are disproportionately affected by homelessness, which significantly increases their risk of exploitation or being a victim of violence.3 • Women with disabilities are less likely than their male counterparts to receive a senior secondary and/or tertiary education; earn less than their male counterparts; are less likely to be in paid work than other women, men with disabilities or the population as a whole; and are substantially over-represented in public housing.4 • There are more hospitalisations for injury due to “assault” of Indigenous women than Indigenous men, and the rate is six times higher for Indigenous males and 33 times higher for Indigenous females compared with non-Indigenous males and non-Indigenous females respectively.5

3 australian human rights Commission, Homelessness is a Human Rights Issue (2008), available at: ww w .humanrights.go v .au/human%5 frights/housing/homelessness_2008.html#5_3 (accessed 14 July 2009). 4 salthouse s and frohmader C, “‘double the odds’ — domestic violence and women with disabilities’, paper presented to the “home truths” Conference, melbourne 15-17 september 2004, available at: ww w .wwda.org.au/odds.htm (accessed 14 July 2009). 5 australian bureau of statistics (abs) and australian institute of health and welfare, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2008 Cat no 4704.0 (2008), available at: ww w .abs.go v .au/ausstats/[email protected]/detailsPage/4704.02008? (accessed 14 July 2009). n o v E m b E r 2 0 0 9 - f ir s t E d i t i o n E q u a l i t y b E fo r E t h E l a w 1 . 2 . 1 1 . 2 . 2 E q u a l i t y b E for E t h E l a w n o v E m b E r 2 0 0 9 - f i rs t E d i t i o n 1.3 Providing for community and individual difference All of the above means that judicial officers cannot treat everyone the same way if they wish to ensure equality before the law, as to do so could lead to a perception of unfairness and in some cases a legally wrong outcome. Rather, judicial officers may need to adapt the conduct of court proceedings to ensure that individuals can give their evidence as effectively as possible, receive a fair hearing and obtain an appropriate outcome, bearing in mind the particular individual’s background and circumstances. This principle has been referred to as the principle of “substantive equality”6 — as, for example, cited by Gummow, Hayne and Heydon JJ in Purvis v New South Wales (Department of Education and Training): “ Substantive equality” directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that “in order to treat some persons equally, we must treat them differently”.7 The types of different approaches that might be required range from the more obvious to the less obvious. The more obvious approaches include: • Employing a different method and/or style of communication for those who need it — for example, for children and young people, people with no or little English, people with a communication disability, or some people who are representing themselves. • Using a different form of oath for some people who practise a non-Christian religion.8 • Allowing someone to present evidence from a stretcher or hospital bed. Less obvious approaches include:

• Knowing and using appropriate terminology that will cause neither offence nor the perception of discrimination. • Not making false assumptions about the lifestyle of, for example, a lesbian or a gay man. • Being able to understand and, where appropriate, take account of the differing circumstances and needs of people with different religious affiliations, people with child care responsibilities, children and young people, or people who have a particular type or form of disability, in relation to such matters as the timing and length of court appearances. • Being able to understand and take appropriate account of the impact of having a low income or a “high cost” disability. • Being able to understand and take appropriate account of a culturally-specific practice that might have influenced a particular person’s behaviour in relation to the specific matter(s) before the court — for example, the importance of the concept of kinship in defining or shaping the attitudes, values and behaviour of many Aboriginal people.

6 see also the discussion in Graycar r and morgan J, The Hidden Gender of Law (2nd ed) (2002) 28–55; and australian law reform Commission, Equality before the law: Justice for women (report no 69) (1994) Part i and ii, available at: ww w .austlii.edu.au/au/other/al r c/publications/ r eports/69/ vol1/ alr C69.html and ww w .austlii.edu.au/au/other/al r c/publications/ r eports/69/vol2/ alr C69.html (accessed 14 July 2009). 7 [2003] hCa 62 at [202]; (2003) 217 Clr 92 at 154. 8 see Oaths, Affidavits and Statutory Declarations Act 2005 (wa) s 4. n o v E m b E r 2 0 0 9 - f ir s t E d i t i o n E q u a l i t y b E fo r E t h E l a w 1 . 3 . 1 1 . 3 . 2 E q u a l i t y b E for E t h E l a w n o v E m b E r 2 0 0 9 - f i rs t E d i t i o n 1.4 About this Bench Book

1.4.1 The contents of this Bench Book The information in this Bench Book covers the entire WA court system — criminal and civil — and all levels of courts. It will also have application for tribunals. In order to avoid clumsy repetition, the word “court” is used to mean all WA law courts and the State Administrative Tribunal, and the phrase “judicial officer” is used to mean all WA judges, magistrates and tribunal members. This Bench Book provides WA judicial officers with: • Statistics and information about different groups of people in relation to: – values; – cultures; – lifestyles; – socioeconomic disadvantage; and – potential barriers in relation to full and equitable participation in court proceedings.

• Guidance about how judicial officers might need to take account of this information in court — from the start to the conclusion of court proceedings.

This Bench Book provides guidance only and is not meant to be in any way prescriptive.

Chapter 1 explains why this information has been provided. Chapters 2–13 of this Bench Book provide information about community and individual differences, and offer practical examples of how to take appropriate account of these differences. Chapters 2–13 cover the following: • Chapter 2 — A profile of Western Australia (focusing on disadvantage and poverty) • Chapter 3 — Religious affiliations • Chapter 4 — People with disabilities • Chapter 5 — Children and young people • Chapter 6 — Older people • Chapter 7 — Culturally and linguistically diverse people • Chapter 8 — Self-represented people • Chapter 9 — Regional and remote WA • Chapter 10 — Women • Chapter 11 — Aboriginal people • Chapter 12 — Diverse sexuality, sex and gender • Chapter 13 — Family and domestic violence. n o v E m b E r 2 0 0 9 - f ir s t E d i t i o n E q u a l i t y b E fo r E t h E l a w 1 . 4 . 1 1.4.2 Community consultation The Steering Committee overseeing the production of the Equality before the Law Bench Book considered it imperative that peak groups had the opportunity to have input into the development of the Bench Book. An extensive consultation process was undertaken and submissions were received from a wide range of local community-based non-government organisations and individuals, and a number of government agencies. The Steering Committee would like to thank and acknowledge all those who provided submissions or feedback — some on more than one occasion during the various stages of developing the Bench Book. These contributions have been invaluable in ensuring that this resource is of contemporary relevance to Western Australia. In addition to the list of all of those who made submissions or otherwise contributed to the development of this Bench Book included in the introductory “Acknowledgments” section, individual chapters also list submissions and feedback which were of particular relevance to those chapters.

1.4.3 How to use this Bench Book The Equality before the Law Bench Book, or any section of it, can be read in its entirety or dipped into as necessary. It is designed as a companion to the Aboriginal Benchbook for Western Australian Courts.9 Each chapter and section has been written to stand alone. This means that there is a reasonable amount of repetition between the chapters and within sections in each chapter. To increase the useability of this Bench Book, there is a detailed contents list at the front of each chapter, and liberal use has been made of bullet points and subheadings throughout. Cross-references have also been provided where appropriate. Chapters generally start with statistical and/or cultural information about the particular group and then provide additional information and guidance about how to treat members of that group during court proceedings. The additional information and guidance part of each chapter is entitled “Practical considerations”. The “Practical considerations” part of each chapter follows, as closely as possible, the order in which you might need the information in court. To further enhance accessibility to the “Practical considerations”, they have been placed in shaded boxes. As indicated at various points throughout the text, you may need to read or dip into more than one chapter if you happen to be dealing with a person who comes from more than one group — for example, a young person with a disability. Note too that some of the statistical data cited in various sections of this Bench Book may appear outdated or inconsistent. While every effort has been made to access the most up- to-date information, in some instances no contemporary or even recent data was available. Also, because data may have been collated at different times or may use different variables (for example, actual census counts rather than estimated population) it may not always be comparable.

9 fryer-smith s, Aboriginal Benchbook for Western Australian Courts (2nd ed) (2008), available at: www.aija.org.au/index.php?option=com_content&task=view&id=436&itemid=165 (accessed 7 July 2009).

1 . 4 . 2 E q u a l i t y b E for E t h E l a w n o v E m b E r 2 0 0 9 - f i rs t E d i t i o n More generally, statistical data is often superseded by newer counts and improved data collection. Please be aware that while the data included in this Bench Book was believed to be correct as at the date of publication, it may quickly become out of date. It is hoped that the extensive footnote references, often including website details, will provide judicial officers with a sufficient guide to access more current information as it becomes available.

1.4.4 Your comments and feedback Your comments and feedback on how the Equality before the Law Bench Book can be improved are welcomed. In particular, feedback or comments regarding relevant practice examples, including any relevant model directions, would be of particular interest. Additionally, you may discover an error, or wish to advise further references to legislation, case law, specific sections of other bench books, discussion or research material. Chapter 14 provides information about how to send us your feedback.

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