legal system | The Australian Dispute Resolution Research Network

On the 6th of June 2024, I attended a panellist event held at the Sydney Jewish Museum where the topic of concern was ‘Nazis in Australia: When History and the Law Collide’. Discussion surrounded the prosecutions brought against four suspected Nazi war criminals for crimes allegedly committed during World War II.

The panel consisted of Hon Greg James AM KC, Graham Blewitt AM, and historian Professor Konrad Kwiet. However, at the time of the prosecutions (during the late 80’s until the early 90’s) their involvement was as Chief Prosecutor, Head of the Special Investigations Unit, and expert historian called to the stand during proceedings.

Of the four cases launched against those suspected war criminals, none were successful.

During questioning, a guest in the crowd asked the panel about whether they saw their efforts as a failure–since no conviction was found. Messrs James and Blewitt emphasised that although, to some, this outcome might be regarded as a failure, the purpose of their efforts and involvement were not merely to obtain a conviction, but also to investigate those, and other, suspected war criminals living in Australia.

Mr Blewitt further explained that the Special Investigations Unit within the Attorney-General’s Department saw to investigate over 800 separate cases, with some suspects being renounced by virtue of those investigations.

It seemed as though few were dissatisfied with this response as I heard murmuring within the crowd. I imagine this kind of reaction arose from certain societal expectations of the criminal justice system not being met; and perhaps, it follows that the level of confidence in that system diminishes.

An established public confidence in a system or institution, whether it be the criminal justice system or otherwise, underpins its effective functioning–an idea that academics, such as Mack et al, continually raise. Notwithstanding its importance, a recent survey by the NSW Bureau of Crime Statistics and Research reported that the public were not overly confident (55%) that the criminal justice system brought people to justice.

Perhaps it is as former Chief Justice Gleeson put it: “Much of what we call public confidence consists of taking things for granted”. And perhaps, this is especially true for public confidence in the criminal justice system, where it is, taking that panellist event as an example, the overwhelming complexity of the legal system is what has been ‘taken for granted’.

To understand and navigate the legal system is complex to say the least. Even with the study and training required to become a lawyer and the further experience gained from one’s practise, it remains a life-long journey for a lawyer to continually add and update their knowledge as well as consider the deeper components which underpin the effective functioning of that legal system.

If this may be the case for us lawyers, how might non-experts struggle to comprehend and navigate the legal system, not to mention, that deeper level of understanding?

It appears that society is more generally outcome focused. I suggest this because, as per the Bureau of Crime Statistics and Research 2020 report, the majority (66%) expressed that criminal sentences were ‘too lenient’ and (56%) that the criminal justice system did not meet the needs of victims. That report acknowledges that levels of confidence in the criminal justice system have not improved over the decade, and by comparison with earlier snapshot reports published by the NSW Sentencing Council, this indeed appears to be the case.

In an effort for us lawyers to ensure we are doing the most we can to uphold public confidence in the legal system, moreover the criminal justice system, we must do what we can to positively transform societal expectations.

Taking us now back to the beginning when that guest asked their question, the response provided by Messrs James and Blewitt was, in my mind, a perfect one. Notwithstanding the apparent dissatisfaction by some guests in that crowd, it was a response equipped with information to evoke a positive transformation of one’s expectations of the criminal justice system. As lawyers, we should aim to do the same in our communication with others, that is, to respond in a way which evokes positive transformation by the listener. By doing so, we work towards bettering societal expectations of the legal system–one person at a time.

This article was originally published in The Conversationon 6 March 2019.

The #MeToo movement has reminded us that sexual harassment has not gone away. The legal tools we’re using are not working and may even be hiding the true extent of the problem.

Most sexual harassment complaints are resolved confidentially at the Australian Human Rights Commission (AHRC) or its local equivalents. Few go to court. This system has three fundamental problems.

kate jenkins

Sex Discrimination Commissioner Kate Jenkins, speaking at the CSW63 Side Event – Consigning sexual harassment to the dustbin of history – what it would take to achieve cultural change, March 2019. Photo Credit UN Women (CC BY-NC-ND 2.0)

Confidential processes and settlements

Confidentiality is essential to get people to the negotiating table. Who can forget the media scrutiny actors Geoffrey Rush and Eryn Jean Norvill were subjected to?

Even for people who are not famous, the potential media interest in a sexual harassment claim is a strong reason to settle, as it is for employers who fear reputational damage. But it means the community isn’t aware that sexual harassment is still occurring or how it’s being addressed.

Employers usually insist on a confidentiality clause when they settle a claim. I recently interviewed 23 lawyers in Melbourne, asking them how common confidentiality clauses are in discrimination settlements.

A solicitor told me settlement agreements “almost always” include confidentiality. Another described the confidentiality clause as “not negotiable”. A barrister said: “No one I know has ever settled on non-confidential terms.”

The lawyers said employers use confidentiality clauses to avoid opening the “floodgates” to other victims. Employees seek confidentiality if they have left the workplace and worry about what their former employer might say about them.

At their most extreme, confidentiality clauses have a chilling effect on victims, who fear the repercussions of discussing any aspect of their claim. At the same time, they protect the perpetrator at their current workplace and anywhere they work in the future.

A complex, costly legal system

Making a legal claim is complex and costly. A woman who has been sexually harassed could use her local anti-discrimination law or the federal system. The federal system is costly because if she loses at court not only will she have to pay her own legal costs, she risks having to pay the other side’s costs too.

If she’s been discriminated against, unfairly dismissed or has a worker’s compensation claim, three more legal avenues are open to her. These vary in terms of costs, procedures, time restrictions and levels of formality, so they’re difficult to navigate without legal assistance.

It’s not surprising, then, that most people don’t use the formal legal system and those that do tend to settle.

Individual burden

There is no equivalent of the Australian Securities and Investments Commission (ASIC) or the Australian Competition and Consumer Commission (ACCC) that can prosecute employers or represent victims, so the person who has been sexually harassed bears a heavy burden. As one of the lawyers I interviewed put it, the victim has to do “all the heavy lifting”.

Respect@Work

This week, the AHRC released Respect@Work, a lengthy report on sexual harassment. It made 55 recommendations, many of which are designed to improve the legal framework. Will they resolve these weaknesses?

In terms of shedding light on the prevalence of sexual harassment, the recommendations include that the AHRC and its local equivalents should collect de-identified data about sexual harassment claims and settlement outcomes, share this data and prepare coordinated annual reports. This is significant because at the moment they only release numerical annual complaint data. They don’t publish anything about the nature of claims or settlements. Acknowledging that some parties want confidentiality, the AHRC will develop “best practice” principles, which might include preparing a model confidentiality clause and making some disclosures permissible.

Lawyers told me they negotiate damages payments in excess of what courts are likely to order. Because settlements are confidential, they have no impact on the courts’ understanding of the harm of sexual harassment, and victims and their lawyers don’t have a realistic starting point for negotiations. It is pleasing that the AHRC has recommended the government conduct research on damages awards and that this should inform judicial training.

Lawyers repeatedly told me the risk of costs is the main reason victims don’t use the federal system. The AHRC recommended a losing party should only have to pay the other side’s legal costs if their claim is vexatious, which is how the Fair Work system operates. The government should act to remove this barrier right away.

The recommendations to increase funding for community legal centres and bring consistency to federal and local sexual harassment legislation (including adding sexual harassment to the Fair Work Act) will reduce the cost and complexity of the system.

But a problem remains – the burden still rests on the victim. The AHRC has proposed establishing a Workplace Sexual Harassment Council comprised of federal and local equality and workplace safety agencies. But this is a leadership and advisory body, not an enforcement agency.

The AHRC president is conducting an inquiry into reforming discrimination law. Changing the enforcement model and alleviating the burden on the victim must be considered as part of this broader project.

Dominique Allen, Senior Lecturer in Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.