New NSW Chief Justice Tom Bathurst as he is being sworn in at a ceremonial sitting of the NSW Supreme Court in Sydney.
New NSW Chief Justice Tom Bathurst as he is being sworn in at a ceremonial sitting of the NSW Supreme Court in Sydney.

Judges outdated guide teaches ’no does not mean yes’

JUDGES are still being taught that "no does not mean yes" and not all women like to shop, in a series of archaic instructions in their bench book that guides their behaviour in court.

The updated edition of the Equality Before The Law guidelines tells judges and magistrates to remember that not all women are gossips, it is not true that men cannot control their sexual urges and it is not a woman's job to look after the children.

"It's like a Women's Weekly manual for the modern housewife circa 1932," barrister Margaret Cunneen SC, who is best known for her prosecution of some of the state's worst sex trials, said on Monday.

Compiled by the Judicial Commission of NSW, of which the state's Chief Justice Tom Bathurst is president, the bench book also states: "Women do not ask to be assaulted or raped."

Margaret Cunneen SC.
Margaret Cunneen SC.


While Attorney-General Mark Speakman on Monday heralded the fact that almost half the magistrates in the state are now women, the bench book, which all judges and magistrates are encouraged to download, feels the need to tell them not even to joke that "a woman's career is not as important as a man's".

Australian Lawyers Alliance criminal law justice spokesman Greg Barnes said on Monday: "Why would anyone be need to be told that anymore?"

The rules are contained in the latest version of the bench book, "updated" in September. Judicial Commission executive officer Ernie Schmatt said that Section 7 ­titled "Women" was last updated in 2013 because "other sections were prioritised".

Barrister Mr Barns said the instructions were outdated even six years ago.

Judicial Commission executive officer Ernie Schmatt said that Section 7 ­titled “Women” was last updated in 2013 because “other sections were prioritised.
Judicial Commission executive officer Ernie Schmatt said that Section 7 ­titled “Women” was last updated in 2013 because “other sections were prioritised.

"The existence of these instructions in 2019 seem to be implying that there are still judicial officers who hold these views that were common in the 1950s and '60s but which have no place in modern Australia," Mr Barns said.

Bench books are designed to be used as guides by judges in providing a legal overview.

The bench book also states: "Do not state or imply, that, for example, women tend to exaggerate (implying that their evidence is less credible), all women are nurturing, women like to shop more than men, women are gossips, men cannot control their sexual urges, it is a woman's job to look after the children or home, a woman's career is not as important as a man's, the women jurors in particular might like to finish early in order that they can shop/prepare food for their family, the men jurors in particular might like to finish early so that they can watch a particular game, race or program."

A spokeswoman for Chief Justice Bathurst said he had nothing to add to the comments of Mr Schmatt.

"The Equality Before The Law Bench Book was designed to highlight the unequal footing of some sections of the community and to provide guidance to the judiciary," Mr Schmatt said. He said it was a "collaborative effort of specialists, under the guidance of various community representatives and overseen by the Judicial Commission of NSW."

Mr Speakman said the bench book was a "valuable advisory resource for judicial officers".

Chief Justice Tom Bathurst.
Chief Justice Tom Bathurst.


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