Australian Biography

Dame Roma Mitchell - full interview transcript

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Did you have any other hesitation about going onto the bench apart from the fact that you knew that you would lose some of the excitement of life as a QC?

Well, it was a change in a lot of ways for me. I had been, for 18 months to two years, a member of the Law Council of Australia which is the central body of the legal profession and that was remarkable because they'd never had a woman put up as the legal profession in South Australia had put me up to be its representative and I was enjoying that. I was going to be its incoming president so of course I couldn't do that. I was going to be incoming president of our own law society and I couldn't do that. So there were things like that that I had to give up. I thought perhaps it would alter my social life more than in fact it did. I really didn't find much alteration in my social life.

What had your social life been like?

Well, I've always been fairly gregarious and I had a lot of friends and went out, you know, dined out a lot. That sort of thing. I remember one friend of mine who was and still is a bachelor who, when he heard the news said, "Oh, this'll be dreadful. There'll be so many things you won't be able to do," and I said, "Oh I don't know. I've only thought of one I don't think I'll be able to go to," and I named a restaurant — I can't even think of its name, perhaps just as well, and that's why I made you take me there last week. Because it was in the Hindley Street area and, although they had good food, it was frequented by some of the lower life in Adelaide, not that there's a great deal of lower life in Adelaide. And I didn't go back there. You know, that sort of thing was, just a few things like that.

But that was all?

Yes, only a few things like that.

And so, as a judge, what did you notice was the major thing that happened to your professional life?

It's of course quite a different professional life. Some people think that it's more difficult, more stressful as far as health's concerned. I don't. I think it's less because as a judge you can do only one thing at a time. You can only sit on one case. As a barrister you're trying to juggle one case against another and so I didn't think that was so. And given good counsel of course it's not so very difficult. Given poor counsel you've got to do more work for yourself, of making sure that the legal angle is right. But I think where some people find it difficult is that they find it difficult to make up the mind after the case. I've always been critical of the delays in the law — all my time in practice as well as on the bench I have preached against delays, and I really have tried to practice that. Haven't really found it difficult to do so, so I didn't amass large numbers of reserved judgements for myself. That I think could make it very difficult. The problem is that you lose impressions if you go back to write a judgement and I've seen examples when I've sat on the Court of Appeal of judges who've clearly lost touch with the case when they've gone to write their judgement. And that can make it stressful.

How did you overcome that problem? Why wasn't it a problem for you?

Because I think that is just one of my characteristics. That I am punctual, I don't like putting things off. I like doing them and it's rare that a lawyer doesn't like putting things off. I think that's unusual.

I think most of the public would agree with you about that. So as a judge, as soon as the case was over, come hell or high water you wrote up your judgement?

Well, you couldn't always because you'd go straight on to something else. But you could always find some time that you can get back onto it without waiting too long.

Do you think you were a good judge?

I don't think that's a thing one can really decide for oneself. I hope so. But I think primarily it's the legal profession that would say that because, I suppose, they're biased in some respects. But the client is certainly biased and is likely to be affected by the result, although I think mainly people have an innate fairness, and if they can see that they've been given what in modern parlance would be called 'a fair go',they usually are pretty satisfied. They may not be satisfied with the result but they're satisfied with the treatment.

And did you pay a lot of attention to giving the right fair kind of treatment?

I think that's very important. I think it's a very important role for a judge. Important to be fair and impartial and courteous to witnesses, as well as to Counsel. Sometimes Counsel can take a little less courtesy because they're accustomed to it but by and large I think it is important.

What other characteristics did you try to espouse when you were working on the bench?

Openmindedness, I think, is one that's very essential. We all have our prejudices. And we don't always recognise them. And I think it's a good idea to take out your prejudices and air them to yourself every now and again, so that you don't let them weigh with you in making a judgement.

Did you become conscious at any stage during your period on the bench that there might have been something that you had to watch out for, that was a prejudice in you?

I think you notice it in the Criminal Court, mainly, that there are some crimes that appear to be particularly offensive, blackmail for instance. I can only remember having one case of blackmail but I think it's a horrible crime because it really has only — gain is its only motive and so you have to remind yourself that you really don't like that particular crime. Not that you like any of them I suppose but some you have a particular aversion to.

And to think, maybe what I'm thinking of sentencing here is a bit over-stiff because of my emotional reaction to it?

Yes, that's so, exactly. You have to think it over and make sure that your emotional reaction hasn't affected your sentencing.

Sitting there listening to the sorts of things that we all know go on in court, particularly now it's so well publicised, did you feel that it was important for you to keep you emotions under rein? Did you feel emotional?

Oh yes, absolutely important not to get emotional about a case. Sometimes of course that's very difficult because, well, one is not supposed to be made of stone and some things do affect the emotions, I think, of anybody. But it's certainly necessary to keep them under control. You can't do service to the case if you're going to let your emotion fool you.

In recent times there's been a great deal of discussion about the fact that because the bench is biased very much in favour of males of a particular background and class, that the prejudices that are brought to the bench are fairly consistently the same and that maybe some other sorts of people should be mixed up with them. Do you think that's the answer to prejudice from the bench or do you think there are other solutions that might be found to certain tendencies in the judiciary, to make certain kinds of judgements based on ...

... I think the first solution is for the members of each bench to realise that they have got prejudices. And to realise that there are other points of view than theirs. And that of course is sometimes difficult. I agree, people are brought up in a certain way and they do mainly come from fairly similar backgrounds and do have fairly similar ideas, but these days, really, there shouldn't be so much difference and most judges have got children who may be grown up by the time they go on the bench but who've really taken them through a fairly traumatic era usually. I think it does depend on the personality. I know there's a lot of talk of, you know, teaching judges, of having them attend lectures, but what I'd have them taught is what I've said already, I think, recognise your own prejudices and don't let them rule you.

From your personal knowledge of your fellow judges, that you got to know, do you think that many of them are of the cast of mind to be ready to go in for self-examination in that way?

Some certainly would be. Whether all would be I don't know. I can think of judges I have known in the past, before I went on to the bench, who would have regarded it as utter rot because they were convinced that they were right in their outlook on life. I think there have been big changes and people have been made to look at themselves more. It would have been revolutionary to suggest to some of the judges before whom I appeared that they should really contemplate changing their outlook on life. That was it and it was correct. But people weren't so critical then. I think the media's played a very big part in this of course. Sometimes too big a part but it certainly has emphasised faults where they occur. You see, going back to my earlier days, no television, the reporters — if there was a sensational case, perhaps more particularly in the Criminal Court, and I'm talking really mainly before I went onto the bench — but they'd be up there with their little typewriters typing away and the afternoon newspaper which was *The News%, hoping that the verdict would come out in time for them to get it and *The Advertiser%, the morning newspaper, hoping that it'd be too late for *The News%. It was just really the newspapers. Now you didn't get as much, you got some sensational stuff across, but you didn't get as much repetitive criticism as can be given with the varied media when you think of the different stations and the different media. I'm not saying that's a bad thing. In many ways it's a good thing. Sometimes it over-emphasises things though.

So, was self-scrutiny something you really went in for a lot? Did you think a lot about what you were doing and why you were doing it?

I think I did. I think one should.

And were you sometimes quite critical of yourself when you turned your formidable critical faculties onto yourself?

Oh yes. I think anybody is really. And that is really where I think ... when judges were encouraged in the old days to be people apart, nobody was criticising them and I doubt if they were criticising themselves.

Did you feel ever that you were a little bit remote from the people that you were having to sit in judgement of?

No, I didn't think I was remote from them, really, because quite apart from my work as a judge, sitting on the bench, I'd had my years of practice, but I also did a number of other things while I was on the bench. For example in my early days in the late '60s or beginning '70s, I sat as a member of the Karmel Committee of Education in South Australia, which examined the whole education system. Now that certainly brought me into contact with a number of the schools' people. And that probably wasn't a very broadening experience but then I had in the '70s, the Committee of Inquiry into the Criminal Law with a professor, another academic, a criminologist, and that meant that we visited all the prisons, all the police lockups, so that that certainly was a leavening experience. Then later I chaired the Parole Board. So as far as that's concerned, no, I had a fair experience. I don't say that socially I mixed with all the people who appeared in court but that wouldn't happen with anybody. I think judges are all going to have some differing experiences although maybe one of the criticisms is that socially they're too alike. I'm not sure whether it'd be an advantage or not if you altered that.

You said that you'd always had a very active social life yourself?

Yes.

Has that been mainly with members of the legal profession?

Oh no, no. I've had a lot of friends in other walks of life. But I would admit that [they] mostly would be either university graduates or people on the land or that sort of thing so probably not with all the people that one would deal with. Not a great deal of experience with business people, I don't think, although I have had some friends in the business world.

But mostly professional?

Mostly professional, yes.

So, you said that one of the things that went missing when you changed from being a barrister to being a judge was excitement. What kind of excitement went?

I only really meant the excitement as far as the court work was concerned.

You mean winning and losing?

Yes, winning and losing. Yes, see, there's no winning and losing, and you just listen and it doesn't affect the judge how the case — well it affects that judgement, but the judge doesn't have the excitement of presenting a case well or ill. It's presented to the judge and so I think it's a more level emotional state as a judge.

So you used to sometimes sit up there and think, 'I wish I were you defending this person'?

Sometimes you tend to think, you know, now that question could have been put differently and it would have had a different effect, that sort of thing.

But what were the compensations of being a judge?

Well, there was a lot of interest to it. Lot of interesting cases.

You were never bored?

No, I was never bored. I thought I might have been but I was never bored.

You weren't one of those judges that fall asleep after lunch?

No, no. Some of the judges have ... some people who go on the bench do find it boring after a few years and you'll notice some of them have gone off again after a few years. And they are the ones who get bored. No, I wasn't bored.

Did you also find that being able to make the decision about what was right and wrong in a situation, as opposed to having to represent a client, whatever you actually personally thought, was liberating? Did you feel that ...

Well, I don't really think a judge does make a decision as to what is right or wrong. The judge makes the decision as to first, what are the facts, and where do those facts lead in law. They're not really moral decisions.

So when you became very, very well-known right across Australia, because of your work on the Human Rights Commission, did you feel in that capacity that you got closer to that original motivation way back there in school, where you were saying what's right and what are people's rights and what's fair here? Did you feel closer to that than you did when you were sitting on the bench?

Oh, yes, I think it is closer because it is then interpreting mainly the United Nations Covenants towards what is morally right. So, and not to some extent; you're constrained by the law but not to quite such a large extent.

Now, could you tell us about how you came to serve in the role and the background to it?

Yes, well, I was still on the bench and the Human Rights Commission was set up in 1981, I think, by the Fraser Government. And I was invited to chair it on a part-time basis, which meant that I had, to some extent, slight extent, get relief from my court duties, but it was very slight extent. I used to travel to and from Canberra and the other places we went and otherwise worked from the court. Then I retired in October '83 and I had another three years chairing the Human Rights Commission. Still only part-time but I was able to devote a lot more time to it. And also I was freer for comment than I had been when I was on the bench.

Not only freer for comment but to some extent it was demanded of you, wasn't it?

Oh it was, yes, it was certainly demanded of me. We were supposed to have a high profile and I think it probably was important in those days, although I don't think it made for popularity, but at least it made people understand what human rights were.

Did you feel uncomfortable with that role? Did you feel uncomfortable about coming out and taking stands on issues rather than more technical points of law?

No, I didn't feel at all uncomfortable once I'd retired from the bench. But I felt certain constraints until I had retired from the bench.

What were they?

Well, only that a judge should get, you know, too much publicity. That's a problem. Well, that's what I was always brought up to believe. Some of them do get a lot of publicity now.

And you don't really approve of that?

Not entirely. I think, you know, it's said in the law if [you] descend into the arena, you must expect to gather some of the dust. I certainly don't believe in judges commenting upon their decisions. I think that's unwise. A decision is made and it has to stand on its own feet. If the judge is then willing to comment in answer to criticism there'll be more criticism and it'll enter into a debate and I think that's very undesirable.

Do you think judges' decisions ought to sound and be couched in terms that are fairly impersonal?

As far as possible, yes I do. I think, well, whether it's a civil case or a criminal case, people feel badly enough if they lose it and it certainly doesn't do any good by casting aspersions on their character which are not necessary. Sometimes aspersions have to be cast on their character in order to explain the reasons for the judgement but in criminal matters, for instance, whereas it's perfectly permissible to talk about a crime being horrible, I don't think it's permissible to talk about a person being horrible. It's a difference.

That's not something that in practice some of your ex-fellow judges would agree with?

Well, certainly some of them haven't carried it out whether they agree with it or not. But I don't think it's desirable. I think, especially in the Criminal Courts where a person is going to be imprisoned, you send somebody to jail and the jail authorities have a difficult enough task without dealing with somebody[who] has a sense of injustice because he thinks he isn't a horrible fellow. Doesn't mind people saying it's a horrible thing he did, he knows it's a horrible thing he did. It's quite a different aspect.

What do you think yourself in any case? Do you think that when somebody does something horrible that that doesn't mean that they are horribl? I mean is that a moral position that you would take?

I don't think it means that they are wholly horrible. There are often various reasons and of course I suppose most of them are the background of the person himself or herself. I don't think I ever had a criminal matter involving violence in which it wasn't established or put to me afterwards that the person had been violently abused as a child. That's almost inevitable. And there it is one reason why I'm very opposed to violence. Children as well as to adults. I think violence does beget violence.

Certainly the Christian position would be that you regard a person's behaviour as not necessarily being part of their personality?

Well, the Christian position is of course always that you hate the crime but love the sinner. It's probably a little more difficult to love the sinner but still in the way in which it's used I think it's possible. But I think that is the attitude.

Well, so here you were, somebody who had even -- during a period where you'd been this famous first in everything and that had attracted a lot of publicity -- never really felt very comfortable with publicity yourself?

Well no, I think you're right about that. I'm not enthusiastic about publicity and never have felt enthusiastic about it, but I think also the training in the law in my day was that you got no personal publicity. See, it is altering because in South Australia solicitors may advertise, for instance, now. Well that was unheard of and unthinkable. So if you spend years in which you mustn't get any personal publicity it's rather hard to change.

When did you first encounter your first round of extreme media interest in you?

Well, there was a lot when I become a Queen's Counsel. But it was worse when I became a judge. The publicity was quite horrifying to me. And I said I hoped I'd live long enough to see the event not regarded with any particular show of interest. It has changed tremendously because there was, as I say, an enormous amount of publicity when I became the first Queen's Counsel in Australia ...

The first woman Queen's Counsel.

Ah yes, woman Queen's Counsel, and the press was full of it and a few months ago there were three new Queen's Counsels in South Australia, two of whom were women. And I said at the Executive Council meeting when the appointments were made, "this is an historic day." The first woman Queen's Counsel was appointed 30 years ago and there's only been one other in this state since, Frances Nelson. And today we have two and, well, it took about three days before the papers even published the fact that these people had been appointed Queen's Counsels. So it has changed a great deal. And I don't think appointments to the bench would attract nearly so much publicity. So there has been progress.

Do you think there was something about you personally that made you also, perhaps, less enthusiastic about some of the more positive and flattering aspects of the publicity, than another woman might have felt in your shoes?

Oh I think so, yes. I know some women who, in my own profession, would have certainly, and I'm not talking about South Australia, who would have certainly enjoyed the publicity tremendously, yes.

And why do you think that was? What was it in your background that made you really want to hide from the limelight?

Um, I don't that 'hiding' is a correct phrase. I don't think I'm unduly reticent. I just think I didn't enjoy it. And also, I was always hopeful that we would, by a gradual effluxion of time, that women would be accepted into the professions as being ordinary members of them. I think that was the attitude of the people who studied law with me.

We knew there was discrimination against women in our own profession as well as elsewhere and our attitude was: if we ignored it, it would go away. And I think that attitude persisted in me a bit. You know, if you take no notice of things, you don't pretend that, don't say this is anything extraordinary, then it'll go away. It will just be an ordinary everyday event. I don't think I was entirely right in that, incidentally. I am quite in favour of some affirmative action. I think it depends upon what affirmative action is appropriate. But I certainly don't take the attitude, "I got there, you can get there too." I think there's a lot of good fortune in that. I think there's a lot in being in the right place at the right time. As well as being the right person. But I think people do, women still do, need some help to get to the higher positions.

Well, you did say you felt you owed it to women to accept the position as judge and yet how could ...obviously their knowing about it was a fairly important part of that?

Oh, yes, I knew there'd have to be publicity but I didn't think that there'd be as blatant publicity as there was.

Blatant? What was it about it that you particularly didn't like?

It was just the volume. It wasn't the content, it was the volume.

You didn't find it too personal?

Oh no, no. Oh no. Everybody behaved very nicely.

So, you were this person who really had never been enthusiastic about publicity, who perhaps had an inner confidence that meant that you didn't need it to boost you or ...

Oh, that's probably true, yes.

... Because some people actually do get gratification because of insecurity.

I think so, yes.

You always felt quite secure about your achievements?

Yes, I think I did.

So, when this person who didn't like or need publicity was suddenly in a position where actually a certain amount of pressure was put on you, to seek it for the Human Rights Commission, how did you handle that?

I think with equanimity. It was there. Had to be handled. Yes. I didn't find any stress from it.

You put your mind to it as a task?

Yes, that's right, mm. And of course I had other commissioners with whom to share the burdens and jokes about it so that's always a help.

What were the objectives of that publicity that you wanted to generate then?

Oh, to make people understand what human rights meant, what Australia had bound itself to, because there was very little known in the early days of what was meant by becoming a signatory to the various covenants. What obligations we had. And how those obligations could be carried out. What was discrimination I don't think was even recognised. I don't know that it even is today completely.

Where do you think we are lacking still in our understanding of the real meaning of discrimination?

Well, I think it's probably because people continue as they were moulded. We were talking a while back about judges and attitudes of judges and I am sure that any judge, on the bench, probably nowadays is being informed but would have been shocked at being told that he had attitudes that were discriminatory. And yet, I know some of them I've encountered in the past were very discriminatory [but] I think even those would have been very shocked to be told they were discriminatory. So, it is a gradual education process of what is and what isn't discrimination and although some of the feminists have been rather strident, I always remind myself of the suffragettes in England. They were strident but they never would have got the vote if they weren't strident. And having got the vote, they certainly used it pretty quickly. Much more quickly than in South Australia where it was really pretty easily gained and women got the vote and could have entered parliament in 1894 and we didn't get any women in parliament until 1957, I think. So, where people have to fight for something, they sometimes get further quickly.

Do you call yourself a feminist?

I call myself a feminist but I don't think a lot of the feminists would call me a feminist. I don't like feminist language, for instance. I don't see any reason to change the language but that's probably with a Latin background I see the difference between 'homo' and 'vir '. But, there are some things, but I certainly call myself feminist, yes.

And you certainly would want to be called a Governor and not a Governess?

Well, that has got different connotations.

[end of tape]

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