WOMEN JUSTICES FOR THE HIGH COURT[1]

 

Speech delivered at the High Court Dinner

 

hosted by the Western Australia Law Society

 

27 October 2004

 

It is a great pleasure to respond to the toast to the judiciary.

 

I retire one week after the High Court sits in Perth next year. So this is probably my last attendance, as a Justice, at this dinner unless the Constitution is quickly changed or Chief Justice Gleeson requires me to sit on special leave applications in Perth next year.

 

Many things have changed since I was sworn in as a Justice of the Court in February 1989. But one thing that has not changed in the High Court is the small percentage of cases argued in the Court by female advocates. Some of the finest arguments that I have heard in nearly 16 years on the Court have come from women advocates. Indeed, given the small number of appearances by female advocates, superior arguments by women advocates are disproportionately high. The argument of Christine Wheeler as junior counsel in the special leave application in Bropho v Western Australia and Carmel McClure's argument in Rosenberg v Percival[2] to mention two female advocates from this State rank with the very best arguments that I have heard while on the Court.

 

So why, to use Justice Kirby's words, do women have so few speaking parts in the High Court[3]? The inescapable conclusion is that it is the product of the discriminatory, systemic and structural practices in the legal profession that have been well-documented in recent years and which prevent female advocates from getting the same opportunities as male advocates. It can't be lack of ability or numbers. For many years now, women have constituted about 50% of the graduates from most Australian law schools and their academic results show, if anything, that they are superior to male graduates. A study of High Court Associates over the period 1993-2000 showed that 47% of them were female[4] and the percentage has probably increased in the last 4 years. I believe that I have always selected my Associates in the High Court and earlier on the New South Wales Court of Appeal solely on legal ability. When I retire next year, 24 of my 35 Associates - 68% - will have been women. All of them have been outstanding lawyers. At one stage, I thought that I might have to bring in an affirmative action program for male Associates. There are only four explanations - three logical and one psychological - for that 68% figure. The logical explanations are: (1) the figure is a statistical aberration or (2) the majority of the best law graduates are women or (3) I am a poor judge of legal ability. The psychological explanation is that I very much like women.

 

Regrettably, discrimination against female lawyers has been rife throughout the 43 years I have been a member of the legal profession. In my early days at the Bar, discrimination was mainly direct and overt. Today, I suspect it is mainly indirect. It is the product of practices that, in the language of discrimination law, are facially neutral but have a disproportionately adverse impact on women. I first struck discrimination against female lawyers at an early stage of my career when I moved to another floor of barristers and sold my Chambers to Mary Gaudron. She had won the University Medal for Law, had worked for a middle-sized firm of solicitors and was on her way to becoming the greatest female lawyer that the legal profession of this country has yet produced. Unbelievably, the Floor I was leaving, refused to accept her as a member. I had to sell the Chambers to a male barrister, selected by the Floor. No criticism could be made of his legal ability. But he was not in Mary Gaudron's class either as a barrister or as a judge, which he later became.

 

It is possible that by the next visit of the Court to Perth, my successor will have been appointed. Of one thing we can be sure: the appointment will attract much interest and speculation, particularly as to whether Australia will continue to have a final court of appeal without a female Justice.

 

In recent days, the Prime Minister has proudly and understandably pointed out that the federal government now has more female Ministers and Cabinet members than at any time in its history. Women now also hold many senior positions in the Public Service. What then is the explanation for the High Court of Australia - part of the third branch of government - not having even one female Justice? The obvious answer is that it is the product of the same systemic and structural discrimination against female lawyers that has prevented them from appearing regularly in the High Court. As a result they are at a disadvantage in competing on merit, as that term has been defined and understood in a male dominated profession. There is much force in Margaret Thornton's claim that assumptions concerning the relevant criteria for determining merit "ensure that a particular value system is encompassed in that construct, and allow biased decisions to be rationalised more easily"[5].

 

The High Court now stands alone amongst the final appeal courts of the United States, England, New Zealand, Canada, Ireland, India and Singapore in having no female members. Both Canada and New Zealand have women Chief Justices. Four of the nine Justices of the Canadian Supreme Court are women. At the recent swearings-in of Justices Rosalie Abella and Louise Charron, Chief Justice Beverly McLachlin proudly noted that "the composition of the Supreme Court now approaches an accurate reflection of the place of women within the judiciary, within the legal profession, and within Canadian society more generally"[6].

 

When Justice Gaudron retired, there was much discussion in the media concerning her successor and whether it would be a woman. The federal Attorney-General assured the media that the appointment would be on merit. He said he "consulted literally hundreds of judges and lawyers about judicial appointments" and claimed that, except in the case of an anarchist, political considerations did not play a part in appointments[7]. In case someone might think he was discriminating against anarchists, the Attorney made the point that in any event there were no anarchists of sufficient merit to warrant appointment.

 

When the appointment of Justice Heydon was announced, almost every newspaper noted that the High Court was now left without a woman in its ranks. The Age lamented that the Court would "move further away from reflecting the diversity of background that characterises the Australian population"[8]. Others were concerned about the Sydney domination of the Court. The President of the South Australian Law Society argued that "there ought to be more equal distribution". He plaintively suggested that "it would be good to have a High Court judge from South Australia or another small state like Tasmania - once every 100 years at least"[9].

 

So what, then, are the differences that women bring to the judicial enterprise? Justice Kirby has helpfully noted that "women are not just men who wear skirts"[10]. Perhaps a more fundamental question is what qualities are required for judicial appointment generally. In this regard, a sort of pro-forma job application has been promulgated by the Law Council of Australia. The Law Council Policy on Judicial Appointments, released in 2002, states that the "sole criterion for judicial appointment should be merit"[11]. The Policy specifically states that it does not apply to the High Court - whether that means merit is not an issue for a High Court appointment does not appear. The Law Council Policy sets out a list of qualities, or 'selection criteria' to use public service parlance, that a candidate for judicial office must possess. The selection criteria are stated in terms so abstract, however, that they appear to me to provide little, if any, concrete guidance to an Attorney-General when making a judicial appointment.

 

Translated into more concrete language, the criteria seem to mean that judicial appointees should be able to read and write, use a computer or at least be able to learn to use one, and be willing to do some on-the-job training. They must have a good track record, sort of know something about the court they are going to be appointed to, have worked in the area, be quick at their work and be prepared to put up with long hours. At face value, these are not particularly exacting qualities. However, the personal qualities section of the selection criteria is revealing. A judicial officer, the Policy declares, must have good character and reputation, be fair, independent and impartial, be mature and of sound temperament, courteous, humane, socially and culturally aware. Why these qualities were for so long regarded as belonging exclusively to men is a mystery.

 

Discussions of the sex of appointments to courts invariably focus on the idea that women bring different qualities to the task of adjudication and that such diversity is essential in a modern democracy. Beyond speaking in the rather amorphous terms of 'difference', there is often a lack of detail about what traits a woman might bring to the curial task that a man would not. Commentators often treat as axiomatic that the mere presence of a woman on the bench will somehow change the dynamic and thinking of a court. Able women judges do not accept this. Justice Claire L'Heureux-Dubé has cautioned that "[i]t is not enough to simply appoint more women and minorities to the bench. What we need", she said, "is a change in attitudes, not simply a change in chromosomes"[12]. The aspiration of the good judge is not merely to appreciate gender difference but, as her Honour put it, "what we must seek is to develop an increased sensitivity on the part of all judges to the diverse human experiences which are presented to courts on a daily basis"[13].

 

The first woman to be appointed to the Supreme Court of Canada, Madame Justice Bertha Wilson, has attempted to explain the often elusive differences between men and women in their approach to the judicial task. She said:

 

 

"Men see moral problems as arising from competing rights; the adversarial process comes easily to them. Women see moral problems as arising from competing obligations, the one to the other; the important thing is to preserve relationships, to develop an ethic of caring. The goal, according to women's ethical sense, is not seen in terms of winning or losing but, rather, in terms of achieving an optimum outcome for all individuals involved in the moral dilemma. It is not difficult to see how this contrast in thinking might form the basis of different perceptions of justice." [14]

 

 

Some academic writers have sought to explain the differences that a woman might bring to judicial office. Some have also referred to 'an ethic of care' informing adjudication[15] and the idea of a more consensual, less adversarial approach to the curial task. There is also a persistent notion that female judges will recognize and correct any gendered aspects of the substantive law. One argument in support of female judges is that women, having been on the receiving end of stereotypes and prejudice, are more likely to spot such biases.

 

But social scientists and lawyers who have researched whether female judges in particular US courts have brought a different approach to their task based on their gender have failed to verify the difference hypothesis. The results of their research have been inconclusive. By and large, they have failed to discern any substantial difference in approach between male and female judges that is attributable to their different genders[16].

 

Some women judges have also counselled against the tendency to treat men and women as distinct, homogenous entities and have expressed discomfort with the notion that the mere fact that one is a man or a woman necessarily means that one will ascribe to a particular world-view[17]. The difference of approach between Justice Ruth Bader Ginsburg and Justice Sandra Day O'Connor in the US Supreme Court on matters of gender bears this out[18]. Justice Jeanne Coyne, a Minnesota Supreme Court judge, has memorably declared that "a wise old man and a wise old woman will reach the same conclusion." [19] Justice Bertha Wilson points to a bigger question than whether women make a difference on the bench. The bigger question is whether judges can ever aspire to the notion that they are "somehow superhuman, neutral, above politics and unbiased, and are able to completely separate themselves from their personal opinions and predispositions when exercising their judicial function"[20].

 

Others have said that the judiciary should be seen to be representative because, if it does not reflect the diversity of society at large, it will lose the confidence of the public upon which its authority ultimately rests. I think this is true. This is not to say that appointees should be advocates for any particular 'interest' such as sex, race or religion. Rather, when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution.

 

Social scientists and lawyers have so far failed to prove that merely appointing more women to the Bench will miraculously transform the law and its application[21]. Perhaps they never will. If one clings to the quaint view that a judge is able to "shed the attributes of common humanity"[22], upon taking office, the appointment of more women to the bench will not alter the outcome of judicial deliberations. On that view, female judges will bring the same impartiality and neutrality in judging that their brethren do. However, if one concedes the possibility that the judicial mind is not always - perhaps never - a blank sheet of paper and that the law often reflects "gender-based myths, biases and stereotypes"[23], a different view emerges.

 

On her recent appointment to the House of Lords, Baroness Hale noted that, while her paramount duty was to be impartial, there was some margin for gender to play a role. She said: "all judges say we are judges first, and our gender, background and history come second to that. But it would be very surprising if, approaching some issues, we are not informed by our own experiences." [24] She went on to note that "being a woman doesn't necessarily make a difference when you're making judgments but we are different and it's that, more than anything else that will make a difference." [25]

 

Justice L'Heureux-Dubé has also said that "the idea that it is legitimate for judges to bring their life experiences with them to the bench is not some recent feminist concoction ... The key issue is what types of experience are accepted and what types are considered illegitimate"[26].

 

If there is a possibility that female judges may reach different decisions in some cases, it is then but a short step to wondering whether an all-male final appeal court can deliver justice in a truly impartial fashion in those cases. At all events, if that possibility exists, there are grounds for thinking that the decisions of such a court may be improved by the presence of female judges.

 

Mr President, I think that, unless we redress the present gender imbalance in judicial appointments, there is an ever-increasing risk in the society of today that the public support on which the legitimacy of the judiciary rests will erode. Research in the United Kingdom, in New Zealand and Australia has shown that female litigants and women generally do not have the same confidence in the fairness and impartiality of the justice system as men do[27]. And nothing breeds social unrest as quickly as a sense of injustice. The need to maintain public confidence in the legitimacy and impartiality of the justice system is to me an unanswerable argument for having a judiciary in which men and women are equally represented. What constitutes equal representation is no doubt open to debate. But that is a matter of detail, not principle.

 

In a little over four years, four of the present Justices of the High Court will have turned 70 and have retired. These retirements will present the federal government with a remarkable opportunity to ensure, to adapt the words of Chief Justice McLachlin, that the composition of the High Court approaches an accurate reflection of the place of women within the judiciary, within the legal profession, and within Australian society more generally[28]. Given the opportunity, there are many female lawyers and judges in this country who could capably fill any judicial office in Australia including the position of Justice of the High Court of Australia. They have the capacity. All they need is the opportunity.

 

On the day when Justice Heydon was sworn in as a Justice of the High Court, a lone protester stood before the High Court, with her daughter poignantly holding a placard that read: "Mum, can women be High Court judges?" [29]. Within a little over four years at the latest, the woman and her daughter will have an answer to that question.

 

Footnotes

 

[1] I am indebted to Ben Wickham, Research Officer in the High Court of Australia, for invaluable assistance in preparing this speech.

 

[2] The transcript is available online at:

 

http://www.austlii.edu.au/au/other/HCATrans/2000/P44/1.html

 

[3] M Kirby, "Women in the law - What next?" (2002) 16 Australian Feminist Law Journal 148.

 

[4] A Leigh, "Behind the Bench: Associates in the High Court of Australia", (2000) 25 Alternative Law Journal 295 at 297.

 

[5] M Thornton, "Affirmative Action, Merit and the Liberal State", (1985) 2 Australian Journal of Law and Society 28 at 30.

 

[6] 4 October 2004, reported in The Toronto Star, 5 October 2004.

 

[7] Transcript of AM, ABC Radio National, 11 December 2002.

 

[8] Editorial, "Serving interests of justice and diversity", The Age, 19 December 2002 at 12.

 

[9] M Owen-Brown, "Imbalance of justice", The Advertiser, 20 December 2002 at 19.

 

[10] M Kirby, "Women in the law - What next?" (2002) 16 Australian Feminist Law Journal 148 at 154.

 

[11] Par 2. The Policy is available on the Law Council website:

 

http://www.lawcouncil.asn.au/policy/1957352833

 

[12] C L'Heureux-Dubé, "Outsiders on the Bench: The Continuing Struggle for Equality" (2001) 16 Wisconsin Women's Law Journal 15 at 30.

 

[13] C L'Heureux-Dubé, "Making a Difference: The Pursuit of a Compassionate Justice", (1997) 31 University of British Columbia Law Review 1 at 9.

 

[14] B Wilson, "Will Women Judges Really Make a Difference?" (1990) 28 Osgoode Hall Law Journal 507 at 520.

 

[15] D O'Sullivan, "Gender and Judicial Appointment", (1997) 19 University of Queensland Law Journal 107 at 115.

 

[16] See S Sherry, "Civic Virtue and the Feminine Voice in Constitutional Adjudication", (1986) 72 Virginia Law Review 543; S Davis, "Do Women Judges Speak 'in a Different Voice?' Carol Gilligan, Feminist Legal Theory, and the Ninth Circuit", (1993) 8 Wisconsin Women's Law Journal 143; D Allen and D Wall, "Role orientations and women state supreme court justices", (1993) 77 Judicature 156.

 

[17] C L'Heureux-Dubé, "Making a Difference: The Pursuit of a Compassionate Justice", (1997) 31 University of British Columbia Law Review 1 at 8.

 

[18] See S Davis, "The Voice of Sandra Day O'Connor", (1993) 77 Judicature 134; E Martin, "Women on the bench: A different voice?", (1993) 77 Judicature 126; M Confusione, "Justice Ruth Bader Ginsburg and Justice Thurgood Marshall: A Misleading Comparison", (1995) 26 Rutgers Law Journal 887.

 

[19] Quoted by Justice Ruth Bader Ginsburg in remarks following her inauguration as an associate justice of the US Supreme Court, 10 August 1993, reproduced in E Martin, "Women on the Bench: A Different Voice", (1993) 77 Judicature 126 at 126.

 

[20] B Wilson, "Will Women Judges Really Make a Difference?", (1990) 28 Osgoode Hall Law Journal 507 at 509.

 

[21] Some empirical work does suggest women judges make a distinctive contribution to legal developments, especially on issues of gender equality. However on many issues, the different approaches of women are explicable on bases other than gender: S Davis, S Haire, D Songer, "Voting behaviour and gender on the US courts of appeals", (1993) 77 Judicature 129 at 131-133.

 

[22] Lord MacMillan, Law and Other Things (1939) in B Shientag, "The Virtue of Impartiality" in G Winters (ed), Handbook for Judges, (1971) 57 at 62.

 

[23] B Wilson, "Will Women Judges Really Make a Difference?", (1990) 28 Osgoode Hall Law Journal 507 at 512.

 

[24] C Pears, "The trouble with women and wigs" (interview with Baroness Hale by Women's Editor of The Northern Echo) at:

 

http://www.thisisthenortheast.co.uk/the_north_east/entertainment/lgb/news/080104.html

 

[25] C Pears, "The trouble with women and wigs" (interview with Baroness Hale by Women's Editor of The Northern Echo) at:

 

http://www.thisisthenortheast.co.uk/the_north_east/entertainment/lgb/news/080104.html

 

[26] C L'Heureux-Dubé, "Outsiders on the Bench: The Continuing Struggle for Equality", (2001) 16 Wisconsin Women's Law Journal 15 at 28.

 

[27] R Davis and G Williams, "Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia" (2003) 27 Melbourne University Law Review 819 at 846.

 

[28] Swearing-in ceremony of Justices Abella and Charron, 4 October 2004, reported in The Toronto Star, 5 October 2004.

 

[29] A Crabb, "Under horsehair, they lauded Heydon", The Age, 12 February 2003 at 8.