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Women and jury service

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"Please Mister, Let Us Sit on Your Jury"

Tasmanian women were barred from jury service until 1939. And it was not until the 1990s that their participation in the jury system was brought into line with men's.

Tasmania's Jury Act of 1899 had excluded all Tasmanian women from sitting on juries, and also those men who did not meet its property requirement. As the 20th century wore on, however, the Tasmanian jury system came under pressure for its unrepresentative character.

In 1957 the Tasmanian Parliament debated changes to the Act, including the merits of adopting an 'opting in' or an 'opting out' rule for women. In either case women would become eligible for jury service, but the opting in system proposed that they must apply in writing to the Sheriff of the Supreme Court if wanting to be considered. Men, on the other hand, were automatically placed on the jury list. The opting out system proposed automatic placement on the jury list for women also, unless they claimed exemption. Its adoption in other States had produced a higher proportion of women on juries.

The Juries Bill put contemporary attitudes to women in the spotlight in the almost exclusively male Parliament. On 20 November 1957 Joseph Dixon MLC said that all qualified women should sit on juries as a duty. This was not synonymous with having confidence in women's fitness for jury service, however; Dixon feared that if women were required to opt in the 'normal' woman would not apply to sit. In this he echoed the views of Mr Breheny MHA, who on 14 November had told the House that women who volunteered for jury service would do so either because they were sadists and wanted to see a man convicted (a point hotly disputed by Phyllis Benjamin), or because they were sympathetic and wanted to see him get off. Breheny also claimed that the majority of women were emotionally unfit for jury service. William Hodgman then weighed in: women applicants were not sadistic; rather, they acted out of a sense of duty. Nevertheless he would not like to see them sit on juries in cases where an accused man's life was at stake.

The opting in system prevailed. 1957's amendment to the Jury Act saw all men enrolled to vote and between the ages of 25 and 65 automatically placed on the jury list (unless exempt), and all women meeting the same qualifications also permitted to serve, but only if they applied in writing. Two years later Lynda Heaven, a future Labor parliamentarian, became Tasmania's first female juror. She was empanelled on 2 December 1959 for a case involving housebreaking and stealing.

By the early 1970s the opting in system had produced only a handful of women jurors in Tasmania. This was of concern to those advocating equal representation of the sexes. One among their number was Robyn Hagen - member of the Labor Party, community activist, granddaughter of Lynda Heaven and herself a one-time juror. On 10 March 1973 she and her grandmother were featured in the Saturday Evening Mercury urging the automatic inclusion of females on the jury list. Attitudes informing the parliamentary debate over the 1957 amendment clearly persisted. The article's subheading, paraphrasing women advocates for change, read: "We promise to... be clear thinking, rational, logical, calm, and unemotional. We also promise not to let men off the hook just because they have nice eyes, look sad, dress well and wink at us in Court."

Later that year the House of Assembly passed a bill compelling Tasmanian women to undertake jury duty, but the Legislative Council rejected it. Michael Hodgman MLC, who opposed the bill, claimed that the Government was trying to save on its annual $80,000 jury bill by using cheap slave labour. Since jurors were paid for loss of wages, he later said outside the House, it would be hard to assess how a housewife could be paid. He also said that Tasmanian women had shown that they did not really want to serve on juries as only 12 had so far taken advantage of the legislation to enroll.

Women's groups supporting the bill rallied. In March 1974 Phyllis Benjamin MLC, who had introduced the bill in the Legislative Council, addressed a meeting of about 30 representatives of Tasmanian women's groups, pointing out that Tasmania was the only State not to have compulsory jury service for women. The women went on to formulate a counterattack to one male Legislative Councillor's contention that women were not constitutionally strong enough to withstand the strain of jury service. They also decided that the Women's Electoral Lobby in Hobart would use the results of the meeting to prepare a submission to the Legislative Council.

The bill was recommitted in the Legislative Council later that month. In the ensuing debate some male members proved keen to make a distinction between the views of women's groups and the average Tasmanian housewife. William Hodgman accepted Phyllis Benjamin's view that women's organisations were strongly in favour of jury service for women, but also asserted that the 5000 or so members of such organisations could not really speak for the 120,000 eligible Tasmanian women who were generally against jury service. The Council agreed to the automatic inclusion of women on the jury list, but returned the bill to the House of Assembly with an amendment giving women the right to opt out (simply by writing, without elaboration, to the Court) if called up.

The House of Assembly accepted the amendment, provoking a strong rebuke from the Opposition spokesman on law, Mr Baker: "The Government brought in the bill to make jury service compulsory for women, as with men, on the basis that jury service is a responsibility, like compulsory voting. . .Women today are just as well qualified to serve as men. By accepting this amendment the Government either does not understand that it is blowing skyhigh the underlying principle of equality of jury service, or it was insincere when it introduced the bill in the first place." The North-West Branch of the Women's Electoral Lobby, which held a meeting in Penguin on 22 April, was similarly disappointed, arguing that women should share men's responsibilities as well as their rights. Nevertheless, the bill became law in 1975.

The debate failed to go away, however, and on 25 March 1986 The Mercury interviewed a number of prominent Tasmanian women on the subject. These included Labor MHA Fran Bladel, President of the Housewives Association Kath Venn and former Liberal MHA Carmel Holmes. They described the law as "a clear case of discrimination against men" and "an insult to women". Bladel said she believed the law derived from outdated, paternalistic attitudes: "It's like saying that jury service would be to onerous for women. Women are raped and assaulted and are not excused the penalties of ill intent and should not be excused of jury duty."

Four years later, in May 1990, the Government agreed to implement changes to the jury system recommended in a report by the Law Reform Commissioner. These included removal of the right of women to gain exemption from jury duty on grounds of their sex. The Jury Amendment 1990 received Royal Assent in July 1991.

References

Hobart Criminal Minute Book, 12 May 1959 to 7 October 1960, pp. 296-300

Report of Parliamentary Proceedings, Mercury, 15 November, 21 November 1957, 11 April 1974

Advocate
11 April 1974, p.2
23 April 1974, p.2

Examiner
4 October 1973, p.1
16 November 1973, p.2
7 March 1974, p.16

Mercury
3 December 1959, p.2
4 October 1973, p.2
6 October 1973, p.5
27 March 1974, p.2
29 March 1974, p.3
18 April 1974, p.2
19 April 1974, p.6
25 March 1986, p.65
17 May 1990, p.3

Saturday Evening Mercury, 10 March 1973, p.16

Sawer, Geoffrey, The Australian and the Law, Harmondsworth, Penguin, revised edition 1972

Walch's Tasmanian Almanac for 1958, J Walch and Sons, Hobart, p. 157

This entry was researched and written by Michelle Laffer, B.A. (Hons)


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