Burning Words

I’ve noticed in the years I’ve been out that incidents of transphobic violence seem to be relatively less common in Australia compared to North America. I can think of a few cases that I’ve heard about, none of them fatal. Given this, though, I’ve always been curious as to how our courts would react to the trans panic defence. Tonight, a Victorian Court of Appeal case from May, R v McRae, popped up on one of my lists, and it makes for interesting reading. On the plus side, the court rejected the trans panic defence out of hand - but on the negative, it is plainly obvious from the judgement that none of the learned judges could tell their arse from their elbow when it comes to trans issues, resulting in a two-year cut to the perpetrator’s sentence on other grounds.

I’m comforting by the central focus of the ruling, which did hold that the trans panic defence is indeed bullshit. The judgement contains a number of comments to the extent of “okay, so you might be a bit shocked, but no, you don’t get to beat the crap of her.” It was made very clear that his “shock” would be not be considered a mitigating circumstance whatsoever - and to that extent, I’m pretty relieved. It sends the firm message - from my home state’s highest court, no less - that violence against us will not be excused based on the ignorance of those who would attack us. And the perpetrator in this case, he walked away with a five-year prison term -not bad, considering how often our courts will simply let people walk free with assault and bodily harm convictions, no matter how severe the circumstances.

Unfortunately, this case also reveals two things that should be of serious concern: that the three justices presiding over this case didn’t have the faintest clue about trans issues, resulting in the perpetrator’s prison sentence being lowered from seven years, and that Australian jurisdictions desperately need hate crime laws, something which we currently lack in every state and territory.

There are a few issues here that suggest that the judiciary needs to gain an education in trans issues. The judgement repeatedly and uncritically uses the word “deception” to describe the victim daring to go home with this bastard. Of most concern, though, is the unbelievable ignorance displayed when hearing the details of some of his more tangential appeals (paragraph 22 and 23); the court actually held that the perpetrator’s referring to the victim as “it” was not an expression of contempt, and of stripping the victim of her humanity, but rather that he - and I quote - “simply did not to know how to refer to someone who was male or female.” Which is, uh, what the fuck?!? The panel then goes on to find, as a result, that the trial judge’s emphasis on this led him to place a too-severe sentence. When we’ve got judges ruling on cases concerning trans victims who, while noticeably not being based in their own prejudice, clearly remain very ignorant about fundamental things, this suggests to me that we’ve still got a lot of work to do.

The court also says - and I again quote here:

It must be remembered however that the appellant fell to be sentenced for his offending and not for his lack of understanding or the possession of a reprehensible attitude or bias against a person with the characteristics of the victim. After careful consideration of the transcript of the plea proceeding and the judge’s remarks I have formed the impression that this distinction may not have been properly made, that it probably contributed to the handing down of a sentence that, on any view of the matter, was very heavy indeed when comparison is made with the range of sentences and trends disclosed in the relevant ‘Sentencing Snapshot.

In other words, according to Justices Vincent, Ashley and Dodds-Streeton, that a crime was motivated by bias and hatred is an irrelevant consideration. This is a worrying sign, and it signals that we need to get our act together and start pushing for legislative action.  If the courts won’t do it on their own, we need to make it a consideration. I’ve always thought it a bit peculiar that Australia, which is light years ahead of most of the US on LGBT issues (outside of relationship recognition) never got hate crime laws; I suspect because we’ve (thankfully) never had a case like the murders of Mathew Shepard and Brandon Teena on our soil to make this hit home. This doesn’t mean that it’s not our problem, though - and in the wake of the failure of the civil unions legislation in my adopted home in the ACT, perhaps it’s about time we tried to set another legislative precedent.

And on a different note, while I’m on the subject of things legal, I discovered in the detail of the HREOC Report into sex and gender diversity issues (something which deserves a seperate post, but I’m sick and cranky) that there’s another trans lawyer doing the rounds apart from Rachael Wallbanks. As a hopefully future lawyer and as a trans person, it’s comforting to know that there’s actually even a couple people who’ve come before you; we lack so many of the prominent professional role models of those in the States.

Tags: law, trans, trans panic defence

I was celebrating the news earlier this week that the Rudd government had decided to end the racist policy of mandatorily detaining asylum seekers, often for years on end and without proper access to legal representation. In one fell swoop, Rudd quietly signaled an end to one of the worst eras in our recent history, and fifteen years of government-sanctioned harassment-cum-torture of refugees.

Less than 48 hours later, he went out and appointed Justice Robert French of the Federal Court, the member of the judiciary who did more than anyone to uphold that policy, and deserves much of the blame for its continued existence, as the new Chief Justice of the High Court. In 2001, French wrote the majority opinion in the full Federal Court’s decision in Ruddock v Vadarlis (otherwise known as the Tampa case), which overturned a just lower court ruling, and declared that in fact, sending the SAS to occupy a ship full of refugees to stop them landing in Australia and claiming refugee status, was not detention. It was a racist decision, it was a political decision and it was an irrational decision legally. In the short-term, it doomed the hundreds of refugees aboard the Tampa to years of being political pawns, but in the long-term, it paved the way for a string of policies that deprived refugees of their rights as long as the government could stop them reaching the Australian shore.

I detest French more than just about anyone else in the Australian judiciary, and I’m absolutely gobsmacked that a Labor government would even contemplate appointing him to anything, let alone as Chief Justice of the High Court. It sends a very worrying message about who the Rudd government intends appointing in the future, as well. I consider French worse than his Howard-appointed predecessor (Chief Justice Gleeson), worse than the last two Howard appointees (Justice Crennan and Justice Kiefel), and on a par with Howard’s worst, Justice Heydon. And that it would happen in a week that we’re supposed to be celebrating the end to such an evil era of our history, I’m just gobsmacked.

Tags: immigration, law, robert french

Earlier this week, the ACT finally had its first female Senior Counsel appointed, in Canberra barrister Louise Donohue. It’s an appointment that is drastically overdue. I’m not exactly celebrating, however. We’ve got a very long way to go, and a disgraceful miscarriage of justice of a rape case that went down this week illustrates that picture all too well.

Last April, a student at my university was raped by a taxi driver who had been taking her home from a drunken night out. It was a fairly high-profile case here when it happened, and a lot of us were a lot more wary about taking a taxi alone after it happened. More than a year later, it has finally come up for trial - only to have it suddenly postponed for several months and the jury discharged because the accused decided to sack his lawyers. I’d link to the Canberra Times article, but it’s unfortunately not online.

The victim has already had to give evidence at the committal hearing late last year, and will now have to wait several more months before having to testify again due to this being dragged out. She’s unsurprisingly reported to be very upset, according to the Times. The accused chose to sack his lawyers. Where is the regard for her rights? I wish I was surprised that the decision came from Justice Hilary Penfold, who just as I predicted months ago, is living up to her reputation as the worst and most conservative judge the territory has ever had.

What I also found out from that article - although I really should have known already - is that ACT law requires rape victims to give evidence at every stage of the proceedings. Why the hell are we so far behind in reforming the law in this area? The ACT is so far ahead of the curve on hot-button issues (civil unions, abortion), but on so many issues affecting women, the territory deserves a great big fail.

Which brings me to the second event of this week.

In spite of Canberra’s reputation as a Liberal city, we have the most male-dominated legal profession in the entire country. We have a number of female barristers that lies in the single figures, with women barristers outnumbered by a figure of more than ten to one last I read. The few women barristers that do exist have long been complaining about getting far less than their share of briefs from the government and other major clients. This week, the ACT, very belatedly, and far behind the rest of the country, gained its first female Senior Counsel. It’s where the real money and standing is in the legal profession, and until this week, we had never had a women in that role in this jurisdiction. It’s a problem that further led to the fiasco of Hilary Penfold’s appointment earlier in the year, as the government appeared to bizarrely decide of deciding that an incompentent and viciously conservative woman from interstate who John Howard had brought in to head a government department was better than no woman at all.

In becoming our first Senior Counsel, Louise Donohue deserves serious congratulations for breaking this particular glass ceiling, but what does it say about the legal profession here that it took until 2008 for the ACT to do something most states did ten, twenty, thirty years ago? Why, in a jurisdiction where more than half the law graduates are female, and have been for some years now, do we still have a legal profession where there is such a desperately low glass ceiling, and where those that do are still basically overtly discriminated against? The government and the Bar Association urgently need to clean up their act, for as it is, our law profession is the disgrace of the nation.

Tags: canberra, glass ceilings, hilary penfold, law, sexual assault

It’s been a bad week for LGBT stuff, but I’ve just gotten an email that suggests that the Rudd government might be starting to move on trans issues.

A transwoman who’d stayed married to her former partner but had had SAS has just been notified by Centrelink that the guidelines have changed and they are now considered a same-sex couple. They don’t mind, for it means that they receive more money - and it means that the government is starting to actually recognise the proper sex of transpeople. This is a refreshing argument from the last government, which was insistent on considering us in accordance with our assigned sexes in most cases, except where restrained from doing so by the courts, as in Re Kevin.

This is a positive sign in light of the coming battle to do away with the discriminatory passport regulations once and for all.

Tags: good news, law, trans

I’m becoming increasingly convinced that our means of appointing judges -whereby the say-so of a state Attorney-General is enough to put someone on a Supreme Court - is just not good enough. In the last day, I’ve come across two cases of men being appointed to high judicial office who shouldn’t be getting anywhere near it - and in one case, should be staring down the barrel of disbarment.

I was reading through the book about the history of the Ernie Awards, 1000 Terrible Things Australian Men Have Said About Women, and I came across a notorious cross-examination in a rape case which I remember from back in 2004. In trying to make out that a woman hadn’t been affected by being sexually assaulted, a male barrister said “to sit on a bar stool … with a skirt as short as that takes a lot of confidence”. He asked, “You weren’t embarrassed by the attention it might attract?” It caused a rightful press storm at the time, and was one of a number of incidents that sparked the serious round of reform of laws concerning sexual assault trials in NSW that we’ve seen in the last year. And then I looked at the name - one Ian Harrison SC - and realised that he was appointed to the New South Wales Supreme Court by then-NSW Attorney General Bob Debus in February of the last year. It wasn’t the first time he’d had issues with misogyny, either - he’d previously been nominated for an Ernie Award for some not-so-enthusiastic comments he’d made about women in the legal profession when he was president of the NSW Bar.

This really raises the question - how in the fuck did Bob Debus - a generally progressive figure in NSW politics, and now a federal MP - wind up appointing this guy to the Supreme Court? Under the new rules introduced this year, he’d have been risking disbarment for his cross-examination efforts back in 2004 - and yet he’s now sitting on the state’s highest court. We need our Attorney-Generals to start taking responsibility for who they put in positions of judicial power. This should be a serious stain on Debus’ record - but the fact that judges are admitted to office without so much as public hearings first means that this dirt tends to stay settled, and the public has no chance to cry foul before it’s too late.

And then I found a far more recent example. The Aurukun case should be well known to most people by now. A ten year girl in a remote Aboriginal community was gangraped by several adult men, and the white judge held that she really wanted it and acquitted the men, in utter defiance of statutory rape laws. The judge concerned, Sarah Bradley, faced a international firestorm of criticism, which may still result in a nearly unprecedented explusion by the Queensland parliament. It also sparked a rare intervention by state Attorney-General Kerry Shine, who personally saw the decision appealed. Bradley then did it again a couple of months later, when she granted special leave to a pedophile who was trying to find an anthropologist who could say that he’d repeatedly raped a young boy because of cultural reasons. Her biggest defender in the legal community throughout this scandal was the head of the Queensland Bar Association, Hugh Fraser, who repeatedly savaged the press and feminist activists for daring to call out a judge for one of the most disgusting legal decisions in this country in recent memory.

So you might imagine my surprise when I discovered to my surprise last night that Kerry Shine - that same Attorney-General who is currently appealing the Aurukun case - appointed Hugh Fraser to the Queensland Court of Appeal in late January. Would you want a man who vehemently argued in favour of a judge who flagrantly violated statutory rape laws to acquit a group of gangrapists in spite of there being no legal basis on which to do so hearing your case if you were a victim? I have zero confidence in this man’s ability to adjudicate criminal trials - and after his efforts in the Aurukun case, neither should Shine have. The same question arises as in the Harrison case - what the fuck was Shine thinking?

Our state Labor Attorney-Generals need to have a long, hard look at the means by which they’re selecting the judges for our highest courts. The fact that it was those governments who appointed the likes of Harrison and Fraser, and not the wingnut usual suspects - absolutely boggles the mind. And when it’s the likes of Bob Debus and Kerry Shine appointing these people, it really starts to feel like we urgently need that appointment reform that’s starting to be called for in the ACT and elsewhere. There’s a lot that’s screwed about the American judicial system, but the public scrutiny of their judges by elected representatives and the possibility of a free vote to approve or deny said appointment would be a massive improvement on what we have now.

Tags: law, politics, sexual assault

I wrote a couple of months ago about the bizarre and controversial appointment of Hilary Penfold, a right-wing idealogue with no judicial experience, to the ACT Supreme Court over the strong protests of the Bar Assocation and much of the legal community.

The ACT government, for reasons evident to no one but themselves, went ahead and appointed her anyway, and she took her seat on the court a couple of weeks ago. She’s taken no time to stir up further controversy, delivering an outrageous rape sentence yesterday that looks set to be appealed by the Director of Public Prosecutions.

The defendant in this case was a convicted rapist who broke into a woman’s house and raped her in her bed. Penfold held that, since he had “merely” raped her, and not say, beaten her up some, the offence was “on the lower end of the scale”, and sentenced him such that he will be released on parole in eight months with time served. This is disgusting. I’m relieved the DPP is stepping and appealing the decision, which will hopefully be overturned by the rather more sensible full court, but it makes me furious to see Penfold making exactly the sort of rulings that people warned would happen after all of a week on the bench.

Justice Penfold is a disgrace to the legal profession. Her appointment will go down as one of the most bizarre moments in the territory’s legal history, as to this day no one knows why Australia’s most progressive Attorney-General went to such lengths to appoint such a breathtakingly rotten candidate, and one he’s ideologically opposed to.

Tags: canberra, law, sexual assault

Yesterday was the 35th anniversary of the United States Supreme Court’s decision in Roe v. Wade - and as such, Blog for Choice Day. This year’s theme is “why it’s important to vote pro-choice, but rather than join in on the many excellent posts about the worsening situation in the States, I’m going to write about the situation here.

It’s been heartbreaking to watch the slow degradation of the Roe precedent under repeated conservative attacks over the last couple of years. Yet, as Australians passionate about reproductive rights, we’re at a different stage of the battle to our sisters across the other side of the Pacific. In contrast to Roe, our local version, the Menhennitt ruling (and the near-identical rulings that applied it in other states), has held up near-completely over the years. Attempts to push its boundaries have been roundly crushed either by the legislature (as in Western Australia) or by the judiciary (as in New South Wales), and the one attempt to introduce fascist anti-choice legislation (in the ACT) lasted about three years before Labor got elected and decided to decriminalise abortion altogether.

So these days, the worst reproductive justice challenge on our watch is getting the vile Harradine regulations banning all use of Australian aid for family planning purposes repealed. It is an utter disgrace that because of the beliefs of one independent senator who’s already been out of parliament for three years, Australian government policies have directly contributed to the worsening of the already miserable state of access to family planning facilities across the Pacific islands. This has not got the attention it deserves, and I have real doubts that many MPs would stand behind it today if public attention was drawn to its continued existence. There is hope on this front at least, as Lauredhel wrote several weeks ago that both new Liberal leader Brendan Nelson and noisy pro-choice Liberal backbencher Mal Washer have come out in support of getting rid of the Harradine regulations. Unfortunately, I haven’t seen a response from the Labor Party as of yet, but if Liberal support is ongoing, I suspect we’ll see Labor falling in line to stop their left faction hitting the roof about it. Fingers crossed, these evil regulations might well be consigned to the history books by this time next year.

At the same time, I think there’s a need to ramp up the pressure on our state MPs to make clear that there are votes to be had in following the ACT’s lead and getting abortion out of the criminal statute books altogether. The religious right has been on the back foot on abortion here for years - they’ve failed dismally in their attempts to get US-style laws here, and lost in federal parliament on the RU486 bill last year. Yet so far, they’ve proven effective in spooking both major parties out of following the ACT’s lead. Nowhere was this more clear than the Victorian state election in November, when state Liberal leader Ted Baillieu publicly came out in support of full decriminalisation, only to quietly back away from that position a few weeks later when the fundies ramped up the pressure. The groundwork is there for further victories on this front, with backbenchers in a couple of states keen to press Private Member’s Bills and the Victorian Labor government currently pondering a half-arsed attempt at decriminalisation themselves. We need to be making clear to Labor governments in each state and territory that there are more votes to be had in reproductive rights than in listening to the noisy wingnuts on the fringe. The precedent of the ACT provides the perfect evidence of this, as for all the braying of the religious right, the Stanhope government subsequently went on to win the biggest victory in territory history two years after passing their landmark bill. It would be a pretty impressive feat if this generation could be the last to have to see laws on the statute books making abortion a crime - and for once, I think that might be a possibility.

Tags: law, reproductive rights

From today’s Age comes the latest example of male members of the judiciary who can simply not be trusted to hear sexual assault cases:

Victorian County Court Judge Michael Kelly was accused of making insensitive comments during a case against Dean Woodbridge, whom he sentenced last December to two years and nine months’ jail, wholly suspended for three years.

Judge Kelly reportedly described the victim’s impact statement as “a waste of time” and said the victim would not have coped well in a British public school in the 1930s.

Woodbridge was convicted of the rape of a boy nine years his junior.

It’s a disgrace to the legal profession that we still have judges here who just don’t get the message on sexual assault. Judge Kelly has been publicly called out on his comments by Director of Public Prosecutions Jeremy Rapke and Premier John Brumby, but it isn’t good enough that the matter ends there, with Brumby’s response being to mumble something about educating the judiciary.

Quite simply, Judge Kelly should be removed from office, or at an absolute minimum be prevented for hearing any sexual assault cases. This would send a clear precedent to the judiciary both here and interstate (I called out the late Justice Terry Connolly of the ACT Supreme Court for similarly repulsive comments last year) that this nonsense would not be tolerated. Allowing judges to go on their merry way with mumblings about educating them when they’ve shown no sign that they understand or can fairly adjudicate sexual assault proceedings is nothing short of disgraceful.

Tags: assholes, law, sexual assault

The fallout is still ongoing from the Stanhope Labor government’s bizarre decision last month to appoint Hilary Penfold, Q.C. to the ACT Supreme Court. Penfold is currently the Secretary of the federal Department of Parliamentary Services, and a Howard government appointee whose reign there has been very controversial to say the least, where she was accused of politicising the services given to members.

I thought that it was an odd appointment when it was announced. While the ACT Supreme Court is (to my knowledge) the last court in the country never to have had a woman on its benches, which is an absolute disgrace, the ACT has the further problem of a massive glass ceiling in the law which means we have all of three female barristers, raising the issue of who the government could actually appoint to end that drought. Nevertheless, the appointment of a controversial right-wing bureaucrat seemed like a particularly bizarre choice, especially from a Labor government.

Over the last few days, the story has deepened a bit. The Bar Association and the Chief Justice have both complained that they were not consulted about the Penfold appointment. Attorney-General Corbell has been fobbing off questions from the press about why this was the case. The Bar Association, in particular, is claiming that Penfold has no relevant criminal or civil trial experience. So why on earth is a progressive Labor government fighting tooth and nail to appoint a right-wing bureaucrat who appears to be unqualified to the territory’s highest court? It simply doesn’t add up.

Penfold was and is a terrible choice for the Supreme Court. If the government is serious about appointing the court’s first female judge, they should be approaching someone of the ilk of high-profile city barrister Pamela Coward. Failing that, they should settle for finding another competent appointee, as they’ve done with the other current vacancy, set to be filled by respected Director of Public Prosecutions Richard Refshauge. On the other hand, stonewalling and pushing ahead with the Penfold appointment is making the territory government look ridiculous in an election year. They’ve got another month before Penfold actually takes her seat on the court - perhaps now would be a good time to do a mea culpa and start looking for a qualified replacement.

Tags: canberra, law