The Scarlet Letter | Season 2 | Episode 3 | Marcia Neave

First published 2017.

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Transcript | The Scarlet Letter | Episode 13 | Marcia Neave

Becky Batagol: [00:00:00] Good morning. I'm Becky Batagol. Welcome to a new episode of The Scarlet Letter, the podcast of the Feminist Legal Studies Group at the Faculty of Law at Monash University. Today I'm joined by Professor Marcia Neave. The Honourable Marcia Neave AO was a judge of the Court of Appeal until her appointment as the chair of the Royal Commission to Family Violence in February 2015.

Commissioner Neave has been professor at three Australian universities and has always had an interest in the way the law responds to the needs of women. She taught family law and property law at Monash University. She was the foundation chair of the Victorian Law Reform Commission, which worked on projects including defences to homicide, sexual offences and reproductive technology.

In the early 1980s, she was a research [00:01:00] director and part time commissioner at the New South Wales Law Reform Commission. She's a fellow of the Academy of Social Sciences in Australia and a life member of the Australian Institute of Judicial Administration, of which she's been a member for more than 10 years.

Coincidentally, too, Marcia was a supervisor for my own PhD here at Monash University. Welcome Marcia. Thank you, Becky. Marcia, how were you introduced to feminism?

Marcia Neave: I think it was reading, really. So I read the canonical books, I think, at that time, in the 1970s. Germaine Greer's book, The Female Eunuch, and Kate Millett's book called Sexual Politics and a number of other things. But I also think that I was, it was a fertile ground because there were some of the things that I experienced in law school which made me question the notion of law as a completely objective way of dealing with political and social [00:02:00] issues.

Becky Batagol: And why do you think feminist studies resonated with you?

Marcia Neave: Possibly partly because I was, I think from the time I was a child I was always concerned with issues of injustice and inequality, partly because I had a physical disability. And I think that made me conscious. other forms of injustice.

And also my mother was very concerned about issues like racial injustice and racial discrimination, as she saw it at that time. So probably that again created a fertile ground for me to think about the position of women.

Becky Batagol: One of the things we've noticed on these podcasts was, is how in speaking to various people about their work as feminists, how there is often something around race and gender and disability that has sparked an interest in the other and that translates very easily into gender.

Marcia Neave: I think that's very interesting and I also find it interesting when people don't make that translation. And [00:03:00] one of the things that I observed earlier in my career that a number of men who were very concerned about indigenous issues and race issues, didn't make the leap. They didn't make the connection with the position of women.

Because, of course middle class women were pretty advantaged compared to, for example, Aboriginal men, obviously. So they didn't tend to see the issues that are raised for women. And of course what we now What we have become more and more conscious of is of course that feminism interacts with a whole series of other issues that disadvantage people and cause social injustice.

Becky Batagol: Absolutely. So was there a point where you started identifying yourself as a feminist explicitly?

Marcia Neave: I think I probably I don't know whether I started to use the word until the 1970s, but I remember when I was a law student and I was thrown out of a pub because women were not allowed to go into the bar, I was pretty angry.[00:04:00]

And whether I used the language of feminists, I'm not sure at that time, but certainly by the 70s I was using it.

Becky Batagol: And when you were studying law, you studied in Adelaide, was it? No, Melbourne. In Melbourne. Yes. Were there many women studying at that time?

Marcia Neave: I was one of quite a big cohort of women, I think at that time, for the first time ever.

And it was the year, interestingly, the year they introduced a quota. So I think there were about 15 20 percent of women in first year, but a lot of them dropped out. So it was probably another thing that made me reflect on why women were not doing law for example, and how law classes were conducted and all of those sorts of things.

So I thought that, that sort of sharpened my consciousness.

Becky Batagol: As a young woman sitting in those law classes with that growing consciousness about gender, what was it like listening to the law lectures at that time?

Marcia Neave: I don't think I had any theory at that time. That was my problem. So [00:05:00] I felt angry and as if there was injustice in some situations.

I particularly remember the criminal law classes on rape. It didn't arise for me so much in other areas. And trying to what was being said, but not really having the language to do it. Not really being able to formulate. And I remember on one occasion people in the class laughed at me, because I was trying to formulate notions about imbalance of power which at that time were not really articulated, I think, in the law.

And so how has feminism influenced your work over the years? I think I've probably In just about all of the areas of law that I've taught, and I've actually taught, a number of different subjects. Property law is where I started, but then I've taught equity and trust. I think in probably in most of those areas, I've asked the woman a question.

That is, I've said how does this principle work? [00:06:00] Affect women. And there were two areas that I think about. One related to compensation of women who were injured in accidents. Because while I was at the Law Reform Commission in New South Wales, we were proposing an accident compensation scheme.

And when you looked at income replacement, of course income replacement, men got a lot more than women. And when you looked at women who were working at home, weren't in the paid workforce, the compensation that people were proposing for them was much lower. So I, along with a number of other people who worked there, started to challenge that.

So that was one example. And the other example, I think, was in the area of property law. And the crossover with family law all of the rules that determined whether an interest got woman in property in her husband's name, which at that time were very gender biased. But they were in a state of flux and there was a possibility of using equity.

So I wrote a number of pieces about de facto relationships [00:07:00] and equity as a means of giving women property. More recognition for the work they'd done.

Becky Batagol: In 1985, you chaired a board of inquiry into prostitution in Victoria, which recommended the legalization of prostitution under defined conditions and also recommended the removal of most sanctions against women who are prostitutes, as well as planning controls to control the locations of brothels.

Most of the recommendations were accepted by the Kane Labor Government and became law in 1986. Why did you undertake this research and what was it like doing that work?

Marcia Neave: I was asked by the government one of my, a former student was an advisor to the then attorney general and he was looking around for somebody to undertake the inquiry and I was asked.

So it was serendipity really. I thought it was a really interesting topic and prostitution was obviously an area where. At that time the clients of sex workers, there were no penalties except perhaps in, I was in a, in the street but men who went to [00:08:00] women in brothels actually gave evidence against them because the police would say we can get a conviction.

I thought that was terribly unfair and it was an interesting, although very challenging topic, because I knew absolutely nothing about it at the time, but again, I think I had an instinct that there was injustice in that area. So I went and I interviewed lots of sex workers. We actually had a questionnaire and we, I think we did about 200 interviews from memory.

Went to a number of brothels spoke to people with expertise. So for instance in the area of health, a whole range of issues. And it was a really interesting project.

Becky Batagol: And in 2006 you became the first and only academic to be appointed to the Supreme Court of Victoria. Conservative commentator at that time, Andrew Bolt, publicly criticised your appointment as an academic and a woman, saying that the Attorney General in appointing judges was drawing from a limited gene pool, stifling the diversity of approaches [00:09:00] and political views that leads to a healthy debate.

Now that you're off the bench, how do you respond to this criticism?

Marcia Neave: I don't remember that quite, because one of the other things he was, as you said, he was very critical of the fact that I was an academic, and so I wouldn't, how could I possibly be a judge? I think it was wrong, clearly, and we still need to have more women on the bench, women with experience of what it is like to live life as a woman in the world and I think that's very helpful.

Of course I've been trained as a lawyer so that probably means that my training as a lawyer to some extent trumps my experience as a woman. But I think diversity is a really important thing and I think I was to some extent, an exemplar of diversity. I came from quite a different career background.

I hadn't been a barrister and I'd been an academic and I'd done a lot of research in a wide range of areas. One thing I think one, one area where I think academics, [00:10:00] it's useful for academics to be appointed, particularly to appellate courts is that academics have good, experience in writing and I think that's something that judges need, particularly at appellate level.

But the other thing was it was a very misinformed comment because academic, for example, there was a male academic who was appointed to the Supreme Court of Canada, I think back in the 50s, Bora Laskin, who was widely regarded as probably one of the best appointments at that time. Because he had he asked different sorts of questions, I think.

Becky Batagol: And how did you personally address that jump from academia to the bench?

Marcia Neave: I was very nervous about it I just worked terribly hard but one of the things I was very worried about was that I didn't know much about procedure at that time. It was fortunate that I was on the Court of Appeal because I sat with colleagues who did have that experience, and I have to say they were very supportive and helpful.

But in fact it didn't matter a [00:11:00] damn, I mean you learned that pretty quickly. So in some ways what I was doing was writing, listening and writing, and that was something that I'd done for years as an academic. So after about four years I stopped being quite as nervous, but there were lots of things I had to learn.

One of the things I had to learn was asking when you enter into a dialogue with a barrister, it's a different process from entering into a dialogue with a student. Because when you talk to students you often ask questions to promote thought and to get them to move in one way or another and to open up a whole series of issues.

And I started by opening barristers open ended questions, which they didn't terribly like. I think they wanted much more specific questions. So I'm sure I modified that over time.

Becky Batagol: And before your elevation to the bench you wrote about the gender of judging. Have your views changed after being a judge?

And I guess I'm also interested in your views about diversity not just around gender but around [00:12:00] various experiences of life. What does diversity in the bench do for our legal system?

Marcia Neave: I think that it helps enormously. Because very, and I'm talking really about appellate level now because that's where my experience is.

Lies. And of course in the end, you're bound by the law and you have to apply the legal principles. But when you're applying the law to the facts, there are ways and ways of seeing things of course the facts come to you as an appellate judge at many of them will be facts as found in the trial.

So you'll have a conviction or whatever it might be, but there's always room for the interpretation effect. I actually now think that probably one of the most valuable things that having diversity can do is broaden the discussion. So when you hear a case, you discuss it with your colleagues. And I think if you inject a diversity of [00:13:00] perspectives into the discussion, then people start to see things slightly differently.

And there are experiences that I haven't had, and I can't think of a particular example, but certainly there would be situations in which people would have had some experience which made you see something slightly differently. from that with male colleagues, but I think they benefited from those conversations with me.

And I think diversity not just about gender, but about, as I said, race different cultural experiences are very important. And, One comes across this all the time and one comes across this when you discuss friends you have from different cultures or different races, they see something, you can describe a set of circumstances to them and they will see things you don't see and vice versa.

So having people with different racial backgrounds and a different range of experiences generally I think is [00:14:00] really important. We haven't got very far. Although we have, we are, we now have people from different European backgrounds, I think, on the bench, and have for some time, and that's good. But I would like to see that broadened out.

Becky Batagol: Professor Rosemary Hunter from Queen Mary University in London has interviewed you as a feminist judge. Yes. And Professor Hunter's identified a number of traits of what she says is a feminist judge. judge method. Do you think that there is such a thing as a feminist judge or a feminist methodology as a judge?

Marcia Neave: I think more in terms of the questions you can ask and the way you might see things and just having your perspectives broadened to issues that might not be as broad obvious to somebody who isn't a feminist. I mean you it's tricky because of [00:15:00] course you're bound to apply the law. There'll be situations where the law is grey and you have a choice and I think in those situations you can see it in one way or another and being a feminist may mean that you see it in a particular way, whereas being somebody who doesn't have those perspectives will see it in another way.

But you can't change the law. One of the things she did say, I think, in one of the pieces she wrote, was that just reading judgements doesn't help very much to identify the characteristics of a feminist judge. It's really, it's thing, it's much more subtle than that. And I started off, you asked me previously about how my views had changed about the gender of judging.

And I think what I now believe is that you can't line up people in terms of outcomes, which is what some people have argued, that you can predict the way a judge will make a decision by whether they're a man or a woman, whether [00:16:00] they're a feminist or not a feminist. I don't think it's nearly as clear cut as that.

I think it's much more subtle and complex. And I'm in one of, probably one of my role models as a feminist judge is. Brenda Hale, who's now the, I'm not, I may not have the right terminology, the Chief Justice of the Supreme Court in the United Kingdom. And she certainly brings her perspectives as a feminist to her judgments, but that doesn't mean that she will reach a different conclusion from her male colleagues very often.

I remember a judgment she wrote about the issue of. consent to underage sex. So how do you take that into account for the purpose of sentencing? So you have a situation where with a girl where a young girl had sex with an older man. And the man had committed a criminal offence, we've all said that, but how do you take her consent into account?

And that's quite a tricky issue and it's an [00:17:00] issue about which you're not, you might get disagreeing. Clearly if it was rape, that's different, but let's assume there's very clear consent on the part of the girl, much older man, what do you do? Now, we have, the Victorian Court of Appeal had a case like that and, I read what she had to say and she was, it was her analysis, it was the way she posed the question, it was the identification of the issues which broadened out the way of thinking about it which I think was really helpful.

Becky Batagol: Yeah. Now from 2000, late 2014 to 2016 you were Chair of the Royal Commission to family violence in Victoria. What do you think and the report was handed down in April 2016? What do you think are the most critical recommendations to come out of that Royal Commission's work?

Marcia Neave: There were 227 So it's hard to select a couple but I can pull out a few themes.

I think one theme is That in this community we have a problem with violence and we have a particular [00:18:00] problem with family violence and we need as a community all to be addressing that problem. We need to call it when we see it and I'm not just talking about physical violence, I'm talking about abusive behaviour all kinds of psychological abuse and financial abuse that women face.

particularly, and children are subjected to, and we need to be able to identify it. We need to be able to help people to change and we need to prevent it before it escalates. And we know there are points at which, points of danger when people get in, families get into trouble and a lot of women who are subjected to violence want to stay in the relationship, but they want the violence to stop.

So we need to know. How to do prevention better, how to do early intervention better, how to do behaviour change better. So that would be one thing. Another theme was that there's very poor understanding of family violence and its dynamics and we need everybody who is likely [00:19:00] to come into contact, ranging from lawyers, judges, doctors, nurses, pharmacists religious people, everyone we can think of know how to recognise the dynamics and how to help.

That's the second important thing. I think the next important thing is we need to put more emphasis than we have on how family violence affects children, even if they are not the direct victims of violence. And we had a lot of submissions from adults who talked about their experience as a child and how it would shape their whole lives, even though they were not directly affected.

And my fourth theme, and one more, no I've got two more. My fourth theme is that we have dealt with it very badly in the past. Lots of efforts have been made, governments have tried, and one of the big problems are the silos in the government system. So that people go to one place to get advice about housing and another place to get advice about [00:20:00] psychological support and another place to get advice about safety.

So we made recommendations to try and address that. Pull those things together. I'm not sure how we are going, but I hope that will be better. And the last thing I think is we need to address, probably related to the prevention point. We need to address the whole issue of children and young people, both as victims and perpetrators of family violence.

So that the cycle doesn't continue.

Becky Batagol: It's not a small amount of work and I can see why it was 227 recommendations behind those ideas. So as a feminist, looking back at your work, what is it that you've done? And it might not just be your work, what is it that you've done that you're proudest of?

Marcia Neave: I think one really important thing is to foster and mentor younger women.

And I think I've done that in the work areas that I've been in. I think I've really tried hard to encourage and build [00:21:00] confidence in younger women. And I hope, to me that is the absolute essence of being a feminist. And then apart from that, I suppose all of the big projects that I've been involved in, like the Royal Commission, Where I had a wonderful team.

So this is not something I can be proud of personally, but I'm proud of having a team We could all work together and do that and similarly with some of the law reform work Building a team getting an outcome which you think is a good outcome and The trouble with change, and I'm very keen on reform in this area, in a whole range of areas that affect women, is it's not a one off process.

You've got to keep going, and looking at some things, you see the one step forward, two steps back. You think, we don't have to have that battle again, and then you again see the same issues arising again, which [00:22:00] is very unfortunate.

Becky Batagol: The cycle was, as someone who has been benefited your mentoring.

I think you have done that very successfully. In theory you're retired now, but I, having a desk near your office, see that you're very busy all the time. What now?

Marcia Neave: At the moment I'm doing really three different things. One is that I'm doing a lot of speaking about family violence and this is part of my commitment to getting people to think about prevention, think about how people can be helped more effectively and how people can be warned so they, so that they can recognise the signs of family violence.

So that's one, lots, I've probably, I can't remember how many speeches I've done this year but a large number. So that's one thing I'm doing. I'm working in a variety of capacities to try and help all courts, but particularly the Magistrate's Court, to respond more effectively to family violence, to treat people in [00:23:00] the way that they should be treated when they come before the court, to ensure they're not silenced and to ensure they have the opportunity to tell their story and get a remedy.

The other thing one of the other things I'm doing is that I chair a body called Court Network. And Court Network is a body of volunteers which provides support to people going to court. And that organisation it's goals are very consistent with my notion that court should be a place where it's frightening for people to go to court, even when they're not going to court. to be punished or sentenced. It's very frightening. It's terrible for families whose children have done bad things and we need to recognise that and we need to provide as much support as we can to people through that experience. And that is becoming more and more important as more and more people are self represented in lower courts because we don't have enough legal aid for people and that deprives people of justice.

It's a terrible injustice, men and [00:24:00] women. People don't get justice, or may not get justice because they're not, able to speak for themselves effectively.

Becky Batagol: Thank you for joining us Marcia Neave today. Marcia has just finished a few months of distinguished professional and residence at the Faculty of Law at Monash University.

She's also agreed to be the patron of our Feminist Legal Studies group for which we're very grateful. Thank you for listening today to The Scarlet Letter.