Walker, Sonia --- "Battle-Axes and Sticky-Beaks: Women and Jury Service in Western Australia 1898-1957" [2004] MurdochUeJlLaw 32; (2004) 11(4) Murdoch University Electronic Journal of Law

[The] Act set out that wherever a male person was indicated, the female person should be included. The Jury Act says that a male person may be placed on the jury list. Last session’s measure provided that the females should have the same right. It is questionable, however, whether women are eligible to be placed on the list.[10]

Although this issue was not raised in subsequent debates, it seems to have been a factor in encouraging Parliament to consider the issue of women’s eligibility. The increasing role of women in other areas of public life between 1898 and 1924 would also have been a factor in generating awareness about women’s potential role on juries.[11]

There were numerous Parliamentary debates on the issue of women jurors during the period between 1924, when the first Bill to include women jurors was introduced, and 1957 when women finally gained the right to sit on juries. Many of these debates focused on the criteria to be used to admit women jurors. There was, for example, debate about whether women should have to meet the same property and age qualification required of male jurors. Significant debate also occurred on the issue of whether women should have to make a formal request to be placed on the jury register, or whether they should be automatically included on the list with the option to request removal. Central to many of these debates were views about the role of women in society, and the tension between those who supported women’s increasing role in the public sphere and those who believed that women’s role was still very much in the realm of the private sphere of home and family.

Women’s Suitability for Jury Service

Although many Members of Parliament confined their views about women jurors to the question of criteria for eligibility, some Members believed that women were temperamentally unsuited to jury duty in any circumstances. These Members refused to support any Bills to amend the Jury Act. These views were particularly evident in the debates that occurred in 1924 and 1938, but were still raised in debates in the 1950’s. Opponents of women jurors argued that women were irrational and were therefore not capable of acting as jurors. In 1924 Mr Teesdale commented:

To my mind women are far too illogical to sit on a jury. They are apt to judge rather by intuition than by reasoning out the evidence placed before them. …I doubt whether they are quite competent to carefully reason out the pros and cons put before them…Numbers of women judge a man by his face.[12]

Mr Chesson, Member for Cue, suggested that ‘women are more emotional than men and so are prone to judge on appearances’.[13]

There was also concern that women would be influenced by the view of male jurors or their husbands. Mr Teesdale stated:

We know those little talks that would take place at the breakfast table just when the wife was leaving home for her onerous duties at the Supreme Court.[14]

As late as 1953 concern was raised about the kind of cases that woman jurors would hear and the potential impact that would have on jury deliberations. The Minister for Justice argued:

There are cases of sodomy and lesbiansim which are very embarrassing. A modest woman hearing such cases would be so embarrassed a true verdict would not be returned. Her observations and her judgment would be clouded, and her presence would probably be embarrassing to those with whom she was sitting on the jury and would make the situation extremely difficult, especially in the jury room. A full and frank discussion of such a case would be difficult. It would be extremely embarrassing when sexual cases were being heard.[15]

The Minister further observed that:

It would be very embarrassing for one to meet at some social function a woman with whom one had been associated as a juror when dealing with such a case. I would feel she had deteriorated to a great extent.[16]

Some parliamentarians argued that the effect of hearing details of particular crimes could be emotionally damaging for women. The Hon. A.F.Watts commented in 1955:

When one realises the difference in temperament, in sentiment and in many other ways, between the two sexes, one can readily appreciate that what would be an easy job for a man, occasioning him only normal concern, would be mentally devastating to a woman of certain characteristics.[17]

In an effort to address these concerns a number of politicians argued that women were more than capable of sitting on juries. Observations made by Mr Marshall in 1924 reflect of the views of many supporters of women jurors throughout the period 1924-1957. Mr Marshall commented:

Women can sit and reason quite as well as men can. As to the argument that women are apt to be very vindictive , cattish and lopsided in their views. I must say I have found them comparatively different from that.[18]

Interestingly, the debate about women’s innate suitability for jury duty prompted both opponents and proponents to use arguments about a woman’s temperament and her difference from men to bolster their position. Supporters of women jurors argued that women would bring special skills to the jury and a unique perspective. In using these arguments supporters chose to conform to, rather than challenge, existing understandings of the gender order. For example, in relation to the 1938 Bill to amend the 1898 Jury Act Mrs Cardell-Oliver, argued that:

Women who have reared families and have had the experience of bringing up their own children are rich in a knowledge of human nature. They have a sympathetic understanding of the shortcomings and failures of their fellow human beings. They have seen them for a generation in their own household and have had to deal with them. What better qualification could be brought to bear upon a jury.[19]

By the 1950s, supporters of women jurors were becoming increasingly frustrated with arguments about women’s innate suitability. The Hon R.F.Hutchison, in a lengthy speech, argued that women were equal to men when it came to emotional stability and common sense. She commented in her conclusion:

I always become angry when I hear men arguing that women are not capable – or sometimes admitting that they might be capable of, but declaring that they would not like to see them doing this or that. Men like telling women what they think women should do. Well, let women tell what they themselves want to do for a change! Men have always stressed the fact that women do not want to go on juries, but I stress the fact that those men do not want women to serve on juries.[20]

Although the issue of women’s temperamental suitability for jury service was raised in all six Bills, it does not appear to have been the main reason why any of the Bills failed. It is difficult to know whether the opponents of women jurors actually believed their own rhetoric, or whether they were merely providing additional arguments for a debate which seems to have been split along party lines.[21] What is evident from the Parliamentary debates is that up until the 1950’s, both sides of the debate used arguments that suggested women were emotionally very different to men and that it was these emotional differences which meant women were either suited or unsuited to jury duty. For example, opponents of women jurors argued that women were irrational. Supporters argued that, because they reared children, women would have a better understanding of young people and women accused of crime.[22]

By the 1950’s, some opponents continued to argue that women were unsuited to jury duty, however the supporters of women jurors had refocussed their argument. The supporters argued that women had a right to participate in jury service because it was a fundamental part of citizenship. Similar arguments had been raised in the earlier Bills. However, in the 1920’s and 1930’s, supporters had tried to demonstrate that a woman’s ‘so-called’ innate and different characteristics would add to jury deliberations. This argument was less evident in the 1950s with supporters instead preferring to focus on women’s equality and right to participate in the process.

Registering for Jury Duty: Opting In or Out

In all of the Parliamentary debates between 1924 and 1957 there was some overt opposition to women jurors by some Members of Parliament. However, most politicians managed to focus their arguments on the eligibility criteria for women jurors. It was this issue that caused the most debate throughout the 33 year period, and it was the lack of agreement on criteria for eligibility that prompted rejection of the Bills. In all six attempts to amend the Jury Act, the Legislative Assembly argued that women should be automatically placed on the jury list and could only be removed if they requested authorities to take their name off the list. This was unacceptable to the Legislative Council which required that women who wanted to serve on juries should notify the relevant authority if they wished to have their name placed on the jury list. In the debate on the 1924 Bill to amend the Jury Act, Mr Hughes argued:

To force a lady to apply for enrolment on the jury list is wrong. Either ladies as a class are entitled to sit on juries or they are not. It is an obnoxious way of bestowing citizen rights to provide that only those who demand them shall be entitled to them.[23]

Opponents of this position, including many who supported women’s right to serve on juries, argued that a woman’s first priority was to her home and family. It was felt that nothing should be done to disrupt the home. These politicians argued that it was more straightforward and made more sense administratively if women had to elect to be placed on the jury list.

In debating the 1938 Bill to amend the Jury Act, Mrs Cardell-Oliver argued that the Bill was based on the 1923 Queensland Act which provided that women notify their desire to serve on juries. She argued that this proviso was in recognition of the fact that

Essential household duties will necessarily prevent many women from serving on a jury. These duties are of paramount importance in our national life…The greatest national service (women) can give is in their homes …A woman may have children, young children and thus be in such a position that she cannot possibly serve . Yet there are many women outstanding in life who do not have those home duties and who would be willing to serve.[24]

The 1938 Bill was amended in the Legislative Assembly to require women to notify the relevant authority if they did not wish to serve. The Legislative Council rejected this amendment arguing that it would be administratively more onerous to require women to notify if they did not wish to serve on juries. The assumption was that few women actually wanted to serve and that the majority would request to be taken off the list. The Legislative Council used Acts in other states and New Zealand to justify the position that women should have to notify the relevant authority if they wished to be registered for jury service. In 1955, the Minister for Justice argued:

In New Zealand, women between the ages of 25 and 60 who notify the sheriff in writing that they desire to serve are qualified and liable to serve in the same manner as men…In Queensland, a female person between the ages of 21 and 60 notifies the principal electoral officer in writing…In New South Wales, a woman to serve…must notify the Chief Constable of the police district in which she resides.[25]

Ironically, the reduction in the potential pool of women jurors created by the optional method, made the opponents of female jury service even more concerned. They argued that if women had to notify the authorities of their desire to serve on juries that the wrong sort of women would apply. Mr Griffiths argued that ‘only a few women in search of notoriety and limelight will apply for enrolment’.[26] It was argued by some that the women who avail themselves of this provision will be what some people regard as ‘battle- axes’[27] and ‘sticky beaks’.[28] Mr Marshall commented:

If the clause stands and the right to exercise the privilege is voluntary, only one section of the women will be affected. That section will be those who are always desirous of pushing a certain part of their bodies into other people’s business… And they are the very people we do not desire to see on the jury. [29]

Women and the Property Qualification

The method for registering on the jury list was not resolved at any stage in the Parliamentary debates between 1898 and 1956. An additional point of contention was whether the property qualification that was required of male jurors should be applied to women.

In 1924, 1938 and 1953, it was proposed that the same property qualification that applied to male jurors should be applied to women. The Legislative Assembly amended the Bills so that women did not need to satisfy the property qualification, and the Legislative Council rejected these amendments.

In 1954 a member of the Legislative Council argued that equal treatment was necessary and that ‘equality is provided by the inclusion of the property qualification’.[30] Others recognised that whilst appearing equal the property qualification would actually debar many women from being placed on jury lists.

Single women with good salaries would have the necessary qualification but that would not apply to the wife or mother.[31]

The contention that the amendment will place women on an equality with men might appear to be correct, but on examination it proves to be entirely wrong. Women as a rule are not property owners. The amendment will restrict the privilege or option to a certain class.[32]

Limiting the pool of women jurors through the use of a property qualification prompted concern that they would not be a representative sample. The Hon. E.M.Heenan argued that to

insist on the property qualification would certainly restrict the choice to women of a certain class. I have nothing to say against such women , but we should not exclude a large section of women who would be qualified in all other respects’.[33]

Part of the difficulty that women had in obtaining the right to serve on juries was that arguments about their eligibility formed part of wider debates about the eligibility requirements for male jurors. This was very evident in the debate about the property qualification for female jurors. Many who argued that the property qualification was not fair for women also argued that it should not play any part in the qualification for male jurors. However, the requirement of the property qualification remained, and was in part why the 1923, 1938 and 1953 Bills failed.

Women and the Age Qualification

By 1954 there appears to have been general acceptance that the property qualification was not necessary for women and that it was sufficient if they were enrolled to vote for a member of the Legislative Assembly. The Legislative Council however became concerned about the disparity in numbers between male and female jurors because the property qualification still applied to men. One politician pointed out that:

The result will be that the authorities will have an enormous number of women’s names enrolled… It will quite easily mean there would be a majority of women jurors.[34]

By 1954 both the Legislative Assembly and Legislative Council were in agreement that the property qualification should not apply to women. However, the Legislative Council added an additional factor into the equation and required that women should be over 30 years of age. The requirement for male jurors was that they should be 21. This was to be one of the main reasons why the 1954 and 1956 attempts to amend the Jury Act failed. The Legislative Assembly would not agree to setting the age at 30 years for women and the Legislative Council refused to change its view.

In the debate about the age qualification both supporters and opponents of women jurors based their observations on women’s perceived role in society and their emotional stability. As discussed above, one major supporter of women’s right to serve on juries was the MP Mrs Cardell-Oliver. She supported the idea of the age being raised to 30 years for women partly because she felt that ‘at 21 we expect young women to marry and have children; and they are really too young to serve on juries’.[35]

Another politician stated that he had:

[S]ought the opinion of a number of men and women and they agreed that when a woman reaches 30 years she has arrived at the age of discretion, when she is fully alive to the facts of life. At that age she would be better qualified to accept the responsibility which sitting on a jury entails.[36]

There was also a return to the concerns expressed in 1924 and 1938 about the impact of some cases on women. The difference was that this time there was an acknowledgement that older women might be able to cope with the material but that younger women would not. The Hon. Henning suggested that ‘[t]o get a young woman about 21 or a little older- one who is not well versed in the ways of world- to sit on a criminal jury would be more or less criminal’.[37]

Supporters of equality between the sexes argued that men and women were equally capable of hearing evidence at the age of 21. At this stage, unlike the Bills presented prior to World War II there was recognition that women had already proved themselves as being as capable as men. The Hon. CW Barker pointed out that:

In objecting to women of 21 years of age serving on juries the mover of the amendment said he would not like them serve on such cases as some he has known. Many women of 21 years of age have a number of children and know the facts of life. During the war girls served on the AA guns in London, on active service and stood up to the Blitz as well as the men did. In all services in which they were eligible to serve their record was equally as good as men. Would any member here be game to tell a crowd of young women that they were not mentally the equal of men of the same age. I would not be.[38]

Despite these arguments, the Legislative Council insisted on amending the Bill, and the eligibility age for jury service was raised to 30 years. This was rejected by the Legislative Assembly in 1954, 1955 and 1956.

Conclusion

By 1956, six attempts had been made to amend the Jury Act. In all six attempts no agreement could be reached on the method that should be used to register women for jury duty. Concerns about the property qualification for women were resolved in 1954 but the Legislative Council then required that women should be 30 years of age before they were eligible to serve. The result was that not one of the Bills was successful.

It is perhaps too easy to see these failed attempts as examples of sexism and discrimination against women. Whilst there were clearly some politicians who would never support women’s right to serve on juries, there were others who made valiant efforts to argue that women had the right to serve and to be placed on jury lists on an equal footing with men. Part of the difficulty in obtaining an amendment to the Jury Act was that, in Western Australia, the majority of supporters for women’s right to serve would not accept anything less than an amendment that gave women equal rights with men. This meant that an amendment was required which ensured that women would be automatically placed on jury lists, did not have to meet property qualifications and met the same age requirements as men. This combination of requirements was not something that the Legislative Council was prepared to support until after a Select Committee reported on the Jury Act at the end of 1956.

In 1957, the Western Australian Jury Act was amended. The property qualification was abolished for all jurors and all men and women between the ages of 21 and 65 were eligible for jury service if they were eligible to vote for the Legislative Assembly.[39] In October 1957, Western Australia admitted women as jurors: the demands of the so-called ‘battle-axes’ and ‘sticky-beaks’, for women’s inclusion on juries, finally succeeded.

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Notes

[1] Jury Act 1898 (W.A.).

[2] Ibid s5. Section 5 provides:

Every man (except as hereinafter excepted) between the ages of twenty-one and sixty years residing within the said Colony, and who shall have within the Colony, either in his own name or in trust for him, real estate of the value of fifty pounds sterling, clear of all incumbrances, or a clear personal estate of the value of one hundred and fifty pounds sterling or upwards, shall be qualified and liable to serve as a common juror in all civil and criminal proceedings and on any inquisition in the said Colony within a radius of thirty-six miles from his residence.

[3] A number of these Bills also sought additional amendments the 1898 Jury Act. The 1924 Bill sought to abolish special juries, ensure secrecy in regard to the jurors elected for trials. Additional provisions included providing extra payment for jurors and exempting JPs. See Western Australia, Parliamentary Debates, Legislative Assembly, 26 August 1924, 493. The 1938 Bill only dealt with the inclusion of women on juries. See Western Australia, Parliamentary Debates, Legislative Assembly, 7 September 1938, 623. The 1953 Bill required that a panel of jurors be selected randomly rather than by alphabetical order and that a decision of 10 out of 12 jurors would be sufficient for a verdict. See Western Australia, Parliamentary Debates, Legislative Assembly, 23 September 1953, 724. The 1954 ,1955 and 1956 Bills only sought to include women as jurors. See Western Australia, Parliamentary Debates, Legislative Assembly, 28 July 1954, 745 and 25 August, 1955, 332 and 4 December 1956, 2845.

[4] A brief summary of women and jury duty in W.A. is provided in Dianne Davidson, Women on the Warpath: Feminists of the First Wave (1997) 172-173 and 255-258 but the focus is on the involvement of the Women’s Service Guilds in WA. Other texts dealing briefly with the issue include: K.J. McKimm, ‘Changes in the jury system: the Jury Act 1977 (N.S.W.).’ (1977) April Australian Current Law Digest DT89-DT92. Peter Duff et al, ‘The constitution of juries in New South Wales: a historical perspective’ in M.Findlay et al (eds) Jury Management in New South Wales (1994) 228.

[5] See for example Carol Weisbrod, ‘Images of the Woman Juror’ (1986) 9 Harvard Women’s Law Journal 59-82; Cristina M. Rodriguez, ‘Clearing the Smoke-Filled Room: Women Jurors and the Disruption of an Old Boys’ Network in Nineteenth-Century America’ (1998-1999) 108 Yale Law Journal 1805-1844; Barbara Allen Babcock, ‘A Place in the Palladium: Women’s Rights and Jury Service’ (1993) 61(4) U. Cincinnati Law Review 1139-1180; Joanna L. Grossman, ‘Women’s Jury Service: Right of Citizenship or Privilege of Difference? (1994) 46 Stanford Law Review 1115-1160; Susan A. Lentz, ‘Without Peers: A History of Women and Trial by Jury Part Two-The Law of Jury Service in the Twentieth Century’ 2000 11(4) Women and Criminal Justice 81-101; Gretchen Ritter, ‘Jury Service and Women’s Citizenship Before and After the Nineteenth Amendment’ 2002 (20) Law and History Review 479-515.

[6] Aboriginal men were technically eligible to sit on juries from 1898 providing they satisfied the property qualification. However, in practice, few, if any Aboriginal men would have been able to satisfy this qualification.

[7] See Constitution Acts Amendment Act 1899 (WA).

[8] Diana Davidson, Women on the Warpath: Feminists of the First Wave (1997) 172.

[9] Women’s Legal Status Act 1923 (W.A).

[10] Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1924, 634 (Hon. J.C. Wilcock, Minister for Justice and Railways).

[11] For example, women were eligible to sit in Parliament from 1920 and the Justice’s Act was amended in 1919 to enable women to be appointed as Justices of the Peace

[12] Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1924, 627 (Mr Teesdale, Member for Roeburne).

[13] Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1924, 626 (Mr Chesson, Member for Cue).

[14] Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1924, 626 (Mr Teesdale, Member for Roeburne).

[15] Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 1953, 1060 (Hon. E. Nulsen. Member for Eyre and The Minister for Justice).

[16] Ibid 1061.

[17] Western Australia, Parliamentary Debates, Legislative Assembly, 15 September 1955, 614 (Hon. A.F.Watts –Member for Stirling).

[18] Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1924, 633( Mr Marshall- Member for Murchison).

[19] Western Australia, Parliamentary Debates, Legislative Assembly, 7 September 1938, 814 (Mrs Cardell-Oliver – Member for Subiaco).

[20] Western Australia, Parliamentary Debates, Legislative Council, 4 October 1955, 941 (Hon R.F.Hutchison )

[21] All six Bills and the successful 1957 Bill were introduced into Parliament during times when the ALP was in government. However, throughout this period the Liberal based parties and Country Party collectively dominated the Legislative Council. This meant that it was impossible for legislation to be passed without the support of non ALP parties. For further information about the structure of the Western Australian Parliament see Harry Phillips et al, Representing the People: Parliamentary Government in Western Australia (1998).

[22] Many of the debates that occurred on the issue of women and jury duty demonstrate the use of binary oppositions to explain women and their role in society. Women are irrational whereas men are rational. Women rear children in the private sphere of the home whilst men act in the public sphere of the workplace. Many feminist scholars have demonstrated how the use of these oppositions can establish the basis on which relations between men and women are understood. Joan Scott for example, argues that the binary opposition (male/female) establishes meanings that are literally unrelated to the gender or the body. Frances Olsen argues that the binary system operates in a hierarchy such that the side accorded lesser value is associated with woman. It seems that it is this view of women as other and somehow less than men that permeates many of the debates on jury duty. For further discussion of this issue see Joan Scott, ‘Deconstructing Equality- Versus- Difference: Or the Uses of Poststructuralist Theory for Feminism’ (1988) 14 Feminist Studies 33 and Frances Olsen, ‘Feminism and Critical Legal Theory: An American Perspective’ (1990) 18 International Journal of the Sociology of Law 199.

[23] Western Australia, Parliamentary Debates, Legislative Assembly, 2 September 1924, 590 (Mr Hughes- Member for East Perth).

[24] Western Australia, Parliamentary Debates, Legislative Assembly, 7 September 1938, 626 (Mrs Cardell-Oliver – Member for Subiaco).

[25] Western Australia, Parliamentary Debates, Legislative Assembly,

[25] August 1955, 333 (Hon. E. Nulsen- Minister for Justice and Member for Eyre)

[26] Western Australia, Parliamentary Debates, Legislative Assembly, 2 September 1924, 591 (Mr Griffiths – Member for Avon).

[27] Western Australia, Parliamentary Debates, Legislative Council, 28 September 1955, 830 (Hon. C.W.D. Barker).

[28] Western Australia, Parliamentary Debates, Legislative Assembly, 11 September 1924, 741 (Mr Sampson- Member for Swan).

[29] Western Australia, Parliamentary Debates, Legislative Assembly, 11 September 1924, 741 (Mr Marshall- Member for Murchison).

[30] Western Australia, Parliamentary Debates, Legislative Council, 7 September 1954, 1432 (Hon E.M. Heenan).

[31] Western Australia, Parliamentary Debates, Legislative Council, 7 September 1954, 1430 (Hon R.F. Hutchinson).

[32] Western Australia, Parliamentary Debates, Legislative Council, 22 November 1938, 2272 (Hon G. Fraser).

[33] Western Australia, Parliamentary Debates, Legislative Council, 22 November 1938, 2272 (Hon. E.M.Heenan).

[34] Western Australia, Parliamentary Debates, Legislative Council, 7 September 1954, 1435 (Hon. E.M.Heenan).

[35] Western Australia, Parliamentary Debates, Legislative Assembly, 29 July 1954, 782 (Hon. Dame Florence Cardell-Oliver- Member for Subiaco).

[36] Western Australia, Parliamentary Debates, Legislative Council, 24 August 1954, 1196 (Hon. C.H.Simpson).

[37] Western Australia, Parliamentary Debates, Legislative Council, 11 August 1954, 986 ( Hon. C.H.Henning).

[38] Western Australia, Parliamentary Debates, Legislative Council, 24 August 1954, 1198 (Hon. C.W. Barker).

[39] See Juries Act 1957 (W.A.) This Act repealed the 1898 Jury Act. Under s5(1) A person was not qualified if he or she was not a natural born or naturalised subject of Her Majesty, has been convicted of a crime, was an undischarged bankrupt or could not read and write in the English language. Although women were eligible for jury service under the same criteria used for men, women were able to request that they were removed from the register. Section 5(2) provided that: A woman qualified and liable to serve as a juror may cancel, subject to the provisions of subsection(5) of this section, her liability to serve, by service of written notice to that effect on the jury officer for the jury district in which she lives.