- Autumn 2023
- Bravery, Prescience and Humanity: The Honourable Elizabeth Evatt AC’s Contributions to Law Reform Delivered by Kathleen Heath 9 November 2022
Bravery, Prescience and Humanity: The Honourable Elizabeth Evatt AC’s Contributions to Law Reform Delivered by Kathleen Heath 9 November 2022
In June of this year, the US Supreme Court handed down its decision in Dobbs v Jackson Women’s Health Organisation (Dobbs).1 This decision overturned the nearly 50-year-old precedent of Roe v Wade,2 and in doing so eliminated the constitutional right to abortion in America.
A draft of the judgment had, scandalously, already been leaked – so by the time the decision was handed down, shock and disbelief had already fomented into anger.
The Supreme Court’s decision automatically triggered State laws rolling back access to abortion in nearly half of the US States. Abortion is now banned at all stages of pregnancy in thirteen of the States, and more are expected to follow.3
Irrespective of your school of constitutional interpretation, opinion polls would suggest that I am in the majority in feeling a sense of grief for the women in the US who no longer have a safe and lawful choice as to whether to bring a pregnancy to term.4
I had already begun my research on the contributions and legacy of Elizabeth Evatt when the decision was handed down. That research had taken me back to Australia’s own period of grappling with the ethics and realities of abortion. The decision in Dobbs (and the reaction to it) served as a timely reminder that the most difficult law reforms are those that touch upon the intimate aspects of human life and relationships. Such reforms require bravery, prescience, and humanity. Australia can be thankful that Elizabeth Evatt has those qualities in droves.
So I begin my tale of Elizabeth Evatt’s law reform legacy at a much more conservative time in Australia’s history: the beginning of the 1970s. A time when access to abortion across Australia was limited,5 family violence was considered a private affair, homosexual conduct was criminalised in all States, there was no recognition of the land or cultural rights of Aboriginal Australians, and ‘multiculturalism’ was not yet a word in our vocabulary, let alone part of our national identity. But, of course, it was also a time of rapid social change. 1972 saw the election of Gough Whitlam, swept to power on the optimism of ‘It’s Time’ and his promise to ‘recreate the nation.’6
Much has been written about the flurry of reform that was achieved in Whitlam’s first two weeks of office with an interim government of only two men holding 27 portfolios.7 Whitlam established relations with China, exempted all men from conscription, ended our involvement in the Vietnam War, and much more. But perhaps one of his finest achievements was a quieter one – bringing Elizabeth Evatt home to Australia.
The phone call was said to have come to Elizabeth Evatt’s home in London within a week of the election, in the early hours of the morning. It was Whitlam himself on the phone. Small talk was apparently kept to a minimum. He asked Elizabeth Evatt if she was willing to take up a position as Deputy President of the Arbitration Commission.8 Evatt, apparently unflustered by receiving a call from the newly elected Prime Minister of Australia, recalls responding, ‘Look, that’s very interesting, but could I have a little time to think about it.’9 She was given 24-hours, in which to have all manner of important discussions: with her work colleagues, her husband and two children, and even the family cat,10 who didn’t want to be left behind in rainy London.
I interrupt the narrative here to briefly capture Elizabeth Evatt’s life up until that phone call. Evatt had grown up on Sydney’s North Shore. She attended the Presbyterian Ladies’ College in Pymble,11 and from there she was accepted as the youngest law student ever to the University of Sydney.12 One source described her as a student with a fondness for practical jokes,13 but sadly I have not been able to uncover any fun details. Whatever hijinks she got up to evidently did not distract her too greatly from studies, as she graduated as the first female student to win the University’s Medal for Law.14 In 1955, at the tender age of only 21, she became the youngest barrister admitted in New South Wales. Sadly, our claim to her at the NSW Bar is marginal only – after only a few months of practice, she left us to take up a scholarship to complete her Master of Laws at Harvard University.15
After graduating from Harvard, Elizabeth Evatt took up pupillage at the Inns of Court in England, and practised there as a barrister for ten years, from 1958 to 1968. Then, she took up a position at the English Law Commission, headed by Lord Scarman, as a Senior Legal Officer working on significant reforms to family law – which is where she was when Whitlam’s call came through.16
Thankfully, the momentous decision was made to accept Whitlam’s offer. She returned to our fair shores and was sworn in as Deputy President of the Arbitration Commission. The Arbitration Commission was an independent body responsible for creating Awards for a whole raft of industries and resolving industrial disputes. It played an important social role in Whitlam’s Australia. In her new job, Commissioner Evatt travelled all around the country, visiting factories, meatworks, and building sites, encouraged to familiarise herself with working conditions across all different industries.17 The alchemy that Elizabeth Evatt was required to work was to appreciate and accommodate economic realities, but also protect the dignity and living standards of Australian workers. Her decisions could affect thousands of Australians at one time.
The Honourable Justice Michael Kirby recalls appearing before her in that Commission as a young barrister: ‘She was hard as nails,’ he describes, ‘but she was a wonderful, empathetic judge; fair, just, disciplined, serious.’18 She was in the middle of establishing a new National Award for the Building Industry when she received yet another short but life-changing phone call from Prime Minister Whitlam, this time about chairing the soon-to-be Royal Commission on Human Relationships.19 The Royal Commission was an extraordinarily expansive public inquiry into the private lives of Australian men and women. It was born from Australia’s own abortion debates – a public inquiry into the prevalence and causes of abortion was considered by some the ‘consolation prize’ after the defeat of a bill to legalise first trimester abortion in the ACT.20 But the Terms of Reference that were ultimately settled upon went far beyond abortion. The Royal Commission was tasked with examining the ‘family, social, educational, legal and sexual aspects of male and female relationships.’ Arguably, as one Labor MP commented, an inquiry into the whole human condition.21 The final report, released in 1977, spanned five volumes and contained over 500 recommendations, covering all manner of topics including contraception, unwanted pregnancies, abortion, childbirth, sexual knowledge and education, domestic violence, sexual assault, the changing roles of women, childcare, the needs of disabled children, child abuse, attitudes to sexuality, and the discrimination faced by gay and lesbian people.22
Perhaps equally remarkable to the breadth of its recommendations was the approach that the Commission took to its task under the leadership of Chair Elizabeth Evatt. Delivering the opening remarks of the Commission, Elizabeth Evatt suggested that the Commission had a ‘special responsibility towards those who have no voice but who are in need of help; to those upon whom pressures are great though unidentified and unexpressed.’23 She invited ‘every person who has an interest in our inquiries to put his or her point of view to us.’24
True to this sentiment, the Commission in unprecedented fashion ‘took steps to open channels of communication with all levels of the community.’25 Pamphlets asking people ‘What do you think?’ were translated into eight different languages and distributed everywhere. The Commissioners travelled all over the place, from the cities and suburbs to country towns and isolated places, using talkback radio to announce when they were coming to town.26 They set up stands in shopping centres and travelled to women’s refuges.27 They held both formal and informal hearings. All told, the Commission received 1264 written submissions, conducted thousands of short informal interviews, and heard evidence from 374 people in public hearings across Australia.28 The stories that were shared were often of deep personal traumas. Some submissions would begin, ‘Dear Elizabeth,’ a reflection of the intimacy of the conversation that Elizabeth Evatt was having with Australia.29
Historian Michelle Arrow has written on just how transformational this approach was to Australian politics:
[The Royal Commission] set out to capture ordinary people’s experiences of intimate and private life in order to support a case for legislative and social change. The Commission did this by adapting a key idea from women’s liberation: it took the notion of ‘The personal is political’ and performed it on a national stage. By giving people multiple platforms from which to tell personal stories, it conferred authority and status upon them and their experiences… It embodied a transformation in Australian politics in which new voices and new perspectives challenged the terms of the existing political system.30
One of the early rulings of Commissioner Evatt concerned the right of gay and lesbian people to give evidence to the Commission of their experiences and oppressions. The Catholic Church made a submission challenging that the terms of reference permitted enquiry into ‘homosexual conduct and behaviour’, arguing that the expression ‘male and female relationships’ did not include ‘male and male relationships’ or ‘female and female relationships.’31 The Commissioners, with Evatt as chair, considered that it was ‘not possible to exclude from the Inquiry the effect of homosexuality on the individuals’ ability to form family, social and sexual relationships.’ Excluding homosexuality would, in the words of the Commissioners, create ‘an unbalanced account of relationships.’32
The Commission received submissions on homosexuality and made recommendations that were well ahead of their time. The Final Report stated: ‘We see homosexuality not as a disease or disadvantage to be cured, nor as a lifestyle to be promoted, but as a human condition, entitled to recognition and acceptance.’33 They urged for an end to discrimination and for homosexual acts to be removed from the criminal statutes of each State. The Commission also raised that alarm that discrimination could lead to violence against gay people.34 Sadly, this warning was not adequately heeded, and the hate crimes experienced by the LGBTIQ community over the decades that followed is now the subject of its own Special Commission of Inquiry.
Another area in which the Royal Commission brought into the open previously unspoken experiences was in relation to domestic violence and child abuse. Like homosexuality, these topics were not named in the Terms of Reference, but the Commissioners were guided by the submissions they received that revealed that the family, rather than being a place of safety, was often a space of danger and violence.35 Even acknowledging that fact was radical at that time. Some of the Commission’s recommendations, particularly about the proper funding of women’s refuges, are worth re-reading even today.36
And of course, on the topic of abortion, which sparked the public inquiry in the first place, the Commission recommended that abortion should be decriminalised when carried out in the first 22 weeks of pregnancy and beyond that in certain circumstances.37 It took 42 years to formally achieve that, with NSW only joining other states in removing abortion from the Crimes Act 1900 in 2019.38
There is much more that could be said about the Royal Commission and its recommendations. It touched on so many aspects of Australian society and the human experience. It became a foundational document for law reform in the decades that followed. The policies and programs it recommended have together been described as ‘a feminist reform agenda.’39 Many if not most of the 500 recommendations have now come to pass, proving the prescience of the Commissioners. It was bold and reasoned – a masterclass in progressive law reform. The Royal Commission’s report did not receive the reception it deserved at the time of its publication. Whitlam’s dismissal meant a shift, not only of the federal government, but also of the national mood. As a low political trick, fragments of the report and its recommendations were leaked in isolation to the press in the pre-election period, rather than the media receiving the full and reasoned analysis provided by the Commissioners.
Prime Minister Fraser declared that there were things in the report that would ‘fill every family in Australia with horror’40 – despite not having read the report in full. The Commissioners fought back. In an interview many years later, Anne Deveson, one of Evatt’s co-Commissioners, admitted to loading the back of her car with full copies of the Report and distributing it to her contacts in the press. That act went someway to altering the tone of the media coverage.41 For her part, Evatt, never one to be cowered by politics, publicly denounced the ‘appalling manner’ in which the Report was dealt with by the Government and the press,42 and in particular the lack of formal response by the Fraser Government. In a speech in 1980 to the National Press Club, Evatt implored:
I would like to know why there has been such a long silence. Commissioners were asked in 1974 to take on a task that we thought was significant, so significant that we were willing to give it priority in our work for more than three years. I for one refuse to accept that the issues that we dealt with should be ignored and set aside without consideration. They were, and remain, important issues for our society. She then went on to say something that perhaps reveals the ethos that Evatt brought to law reform:
The cynical among you may think that it is pointless trying to change human nature, or that it is not the business of government to interfere in human relationships issues. [My reply] is that we all, governments and individuals, have a part to play in shaping the values of our society.43
The end of the Royal Commission did not mark the end of Evatt’s contribution to law reform in Australia. In 1988, Evatt was appointed as President of the Australian Law Reform Commission, which position she held until 1992. In 1996, Evatt conducted a review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, an Act that allows a federal Minister to intervene to protect a site or object that is sacred or significant to Aboriginal people.44 In a later interview, Evatt described the ‘unique and special experience’ of being taken to a sacred site by a group of Aboriginal women, and her efforts to convey the impact of that experience upon her in her Review.45 Law reform, to her, was not just the technical workings of a statute, but was infused with humanity. She considered the Act to be a ‘key element’ in the process of reconciliation – which she described as ‘enabling Aboriginal people to be full and equal partners in Australian society.’46
And Evatt’s legacy of law reform on the international stage cannot be done justice in this one article. Evatt was a member of the Committee on the Elimination of Discrimination Against Women (or CEDAW) from 1984 to 1992, and for two of those years served as chair. She then was an elected member of the Human Rights Committee from 1993 to 2000. She was the first Australian to serve on each of those Committees. Evatt was a constant public voice in calling out Australia’s lacklustre approach to fulfilling our obligations under the international human rights instruments that we have chosen to ratify,47 particularly where there is a ‘gap between rhetoric and reality’.48 She has compellingly argued for a national Bill of Rights, a vision shared by the NSW Bar Association.49
In an interview, Evatt said this about what makes a great reforming judge:
[T]he greatest reforming judges are those who can see the direction of travel, or the better direction of travel, and who can, through their knowledge and understanding of the law and their knowledge of society, […] draw from The Honourable Elizabeth Evatt AC what’s there already, and show […] the connection between that and what is new, how it’s all connected together. They can weave it together and move forward.50
I’m at pains to point out that Evatt was not applying that description to herself – she possesses a deep humility that would not permit that. But how perfectly her words capture what she was able to achieve in her career.
Evatt saw a better direction of travel for Australia and moved us forward to it. While Evatt, more than most, recognised that law reform movements are led not only by lawyers,51 she worked tirelessly at the interface between social movements and practical law reform. She listened to the visions of activists, to the wisdom of experts in all manner of fields. And, most importantly, she heard the voices of ordinary Australians from all walks of life – she did not fear learning the truth about the intimate aspects of our lives and relationships. She weaved that together with her knowledge of the law, then brought all of those insights to the highest level of Australian government, packaged and accompanied with practical solutions.
We are now living in the future that Elizabeth Evatt played a role in creating, and we are very lucky for that. BN
1 597 US ___ (2022) (Dobbs).
2 (1973) 410 US 113.
3 ‘Tracking the States Where Abortion is Now Banned’, The New York Times (online, 8 November 2022), <https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html>.
4 ‘Majority of Australians report unwavering support for abortion access’, Ipsos (Web Page, 20 September 2021) <https://www.ipsos.com/en-au/majority-australians-report-unwavering-support-abortion-access>.
5 Although, as in America, being expanded by our courts: see R v Davidson  VR 667 (‘the Menhennit ruling’) in Victoria; R v Wald (1971) 3 NSW DCR 25 (the ‘Levine ruling’) in New South Wales; and R v Bayliss & Cullen (1986) 9 QLR 8.
6 Gough Whitlam, ‘It's Time’ (Speech, Blacktown, NSW, 13 November 1971) <https://www.whitlam.org/collection>.
7 ‘Whitlam Government Ministers’, Whitlam Institute (Web Page)<https://www.whitlam.org/whitlam-legacy-whitlam-ministers>.
8 Interview with Elizabeth Andreas Evatt (Amy McGrath, National Library Oral History Program, 13 June 1979) [National Library of Australia, ORAL TRC 658] (Interview with Amy McGrath).
9 Interview with Elizabeth Andreas Evatt (Jenny Hocking, Gough Whitlam Biography Project, 10 May 2011) [National Library of Australia, ORAL TRC 6304] (Interview with Jenny Hocking).
10 Interview with Amy McGrath (n 8).
11 Interview with Amy McGrath (n 8).
12 Larissa Halonkin, ‘Evatt, Elizabeth Andreas (1933 - ), The Encyclopedia of Women and Leadership in Twentieth-Century Australia (Web Page <http://www.womenaustralia.info/leaders/biogs/WLE0356b.htm>.
13 Halonkin (n 12).
15 Interview with Amy McGrath (n 8).
16 Halonkin (n 12).
17 Interview with Jenny Hocking (n 9).
18 Stephanie Quine and Justin Whealing, ‘A true trailblazer’, Lawyers Weekly (Online, 30 July 2012) <https://www.lawyersweekly.com.au/sme-law/10499-a-true-trailblazer>.
19 Interview with Amy McGrath (n 8).
20 Michelle Arrow, The Seventies: The personal, the political and the making of modern Australia (NewSouth, 2019) 148.
21 Arrow (n 20) 142, quoting Labor MP Race Mathews.
22 See Evatt et al, Royal Commission on Human Relationships (Final Report, November 1977) (Final Report).
23 Evatt et al, Royal Commission on Human Relationships (Interim Report, September 1976) 37 (Interim Report).
24 Interim Report (n 23) 37.
25 Final Report (n 22) 17.
26 Final Report (n 22) 17.
27 Arrow (n 20) 143.
28 Arrow (n 20) 143.
29 Arrow (n 20) 153.
30 Arrow (n 20) 141-144.
31 Interim Report (n 23) 8 [2.27].
32 Evatt, ‘Statement relating to the scope of the Terms of Reference’(Sydney, 19 December 1975), published in Interim Report (n 23) Annexure K.
33 Final Report (n 22) vol 5, 111.
34 Final Report (n 22) vol 5, 99.
35 Arrow (n 20) 162.
36 Final Report (n 22) vol 1, 73.
37 Final Report (n 22) vol 1, 55.
38 Abortion Law Reform Act 2019 (NSW).
39 Elizabeth Evatt AC, ‘Whitlam: the Legal Legacy’ (Speech, Revisiting the Revolution: Whitlam and Women Conference, 25 November 2019) 8 <https://www.whitlam.org/publications/womensrevolution>.
40 David Broadbent, Stephen Nisbet and John Teerds, ‘Sex report shocks PM’, The Age (1 December 1977); quoted in Arrow (n 20) 188.
41 ‘Public Intimacies: The Royal Commission on Human Relationships’, Radio National (ABC, 28 April 2013) <https://www.abc.net.au/radionational/programs/archived/hindsight/public-intimacies3a-theroyal-commission-on-human-relationships/4646926.>
42 Elizabeth Evatt AC, ‘Address at the National Press Club’ (Speech, National Press Club luncheon address, 24 September 1980) [National Library of Australia, ORAL TRC 812/B].
44 Elizabeth Evatt AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Final Report, 22 August 1996).
45 Interview with Elizabeth Andreas Evatt (Daniel Connell, Law in Australian Society Oral History Project, 13 September 1996) [National Library of Australia, ORAL TRC 3501] (Interview with Daniel Connell).
46 Interview with Daniel Connell (n 46). See further Russell Goldflam, ‘Noble Salvage: Aboriginal Heritage Protection and the Evatt Review’(1997) 3(8) Aboriginal Law Bulletin 4.
47 See Elizabeth Evatt, ‘Meeting Universal Human Rights Standards: The Australian Experience’ (Papers on Parliament No 33, May1999) <https://www.aph.gov.au/AboutParliament/Senate/Powerspracticenprocedures/pops/pop33/evatt>; Elizabeth Evatt, ‘Australia’s Performance in Human Rights’ (2001) 26(1) Alternative Law Journal
11; Elizabeth Evatt, ‘Women and Human Rights’ (2002) 28(1) Monash University Law Review 1.
48 Elizabeth Evatt, ‘Women and Human Rights’ (2002) 28(1) Monash University Law Review 1.
49 NSW Bar Association, ‘Submission to the National Human Rights Consultation’ (Submission, June 2009) <https://nswbar.asn.au/circulars/2009/june09/rights.pdf>.
50 Interview with Daniel Connell (n 46).
51 Interview with Daniel Connell (n 46).