The Great Hall.
High Court of Australia.
Canberra.
Monday, 31 January 2005.
The Hon Justice M.H. McHugh AC.
High Court of Australia.
Thank you Mr President.
Your Excellencies, Chief Justice, Mr Attorney, ladies and gentlemen, on behalf of the Justices of the High Court, I welcome you to this dinner, given by the Australian Bar Association, to mark the appointment of the Nation's new silks.
Being appointed silk means becoming part of a tradition dating back 400 years. Over the past decade, significant changes to this tradition have occurred. Various jurisdictions have replaced the title of Queen's Counsel with Senior Counsel, discontinued the issuing of a Queen's Commission and removed the powers of the Executive in the appointment process. The significance of the institution of silk, however, has not diminished, and the values it embodies remain just as important in the 21st century as at any time in its history.
The institution of silk formally dates back to 1604[1]. Initially, Kings Counsel were bound by oath not to accept briefs against the Crown. By the 18th century the institution had evolved to a class of counsel simply given precedence and a rank superior to that of ordinary counsel.
Today, the appointment of Senior Counsel provides a clear and public identification of those barristers whose skills, legal experience, and personal qualities mark them out as being the best within the legal profession. As the Chief Justice pointed out today, it is a recognition of professional eminence, with those achieving the rank being identified by their peers as leaders in the field of advocacy. For the public, it is a mark of excellence and of a continuing expectation that an individual will consistently perform to the highest standards. These expectations are not limited to the exercise of legal skills.
Furthermore an advocate, as an officer of the court, is central in assisting in the administration of justice according to law and in upholding the rule of law. As the Chief Justice also pointed out, there is a significant level of trust placed by judges in the advocates appearing before them, and it is vital to our justice system that judges are able, without question, to hold the utmost confidence in the integrity and character of each advocate appearing before the courts. As such, each advocate carries a significant burden. This burden is then magnified for those advocates achieving the rank of silk, who are expected to lead by example and to discharge these responsibilities to the fullest possible extent.
Being granted the status of silk is certainly a considerable personal achievement and cause for celebration. At the same time however it is more than just a personal accolade and reward. It brings with it responsibility for maintaining the distinguished tradition and expectation of both service and leadership that has been central to the institution for hundreds of years.
It is particularly encouraging to see increasing numbers of women now being appointed to the ranks of Senior Counsel. Nine of the 48 silks who took their bows today were women. Such appointments were simply unthinkable for a long period of time. It was not until 1949 - nearly 350 years after the institution was first established - that a woman was appointed as a King's Counsel at the English Bar[2]. It was not until 1962 that Dame Roma Mitchell was appointed as the first female Queen's Counsel in Australia. Two years then passed before Joan Rosanove was appointed Queen's Counsel in 1964, 46 years after she had signed the Roll of Counsel of the Victorian Bar and eleven years after her first application for silk.
The very idea of women practising at the Bar initially met great resistance. Fortunately, much progress has been achieved since the 1870s when the Wisconsin Supreme Court rejected Miss Lavinia Goodell's application for admission to the Bar, saying:
"Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things." [3]
Still, the appointment of women as Senior Counsel remains the exception not the rule. While over half the students graduating from Australian law schools and approximately half of those entering the legal profession each year are women[4], numerous studies and articles show that females continue to be under-represented in the senior echelons of the Australian legal profession[5]. For example, in my home State of New South Wales only 14.7% of barristers, and 3% of the senior Bar, are women[6]. Similarly, research conducted by the Law Society of New South Wales in 2002 found that approximately 13% of partners in law firms were women and that the salaries of female solicitors were, on average, 82% of the salaries earned by male solicitors[7].
This under-representation is clearly apparent when we look at counsel appearing before the High Court. No female advocate actually had a "speaking part" before the High Court until Joan Rosanove appeared in 1938 in the well-known case of Briginshaw[8]. Justice Kirby has noted that in his first eighteen months on the High Court bench he heard over two hundred barristers argue their cases, but heard only six women advocates[9]. While the number of women advocates appearing before the High Court is increasing, it is occurring at an extremely slow pace. For example, in the year 2002-2003 the percentage of women with "speaking parts" before the Full Court (including special leave applications) was less than 9% of all advocates with "speaking parts" over that period. A quick examination of the High Court Register of Practitioners demonstrates that this trend looks set to continue in the near future, with less than 7% of senior counsel on the Register being female.
The under-representation of women within senior legal ranks is also reflected within the judiciary. The most obvious example is the lack of any female representation on the High Court bench following the retirement of Justice Gaudron and the fact that since its establishment in 1903 she remains the only female appointed to the High Court. This contrasts with other jurisdictions such as the United States, Canada, New Zealand, India, Singapore, Ireland and England, all of whom currently have one or more women appointed to their final appeal courts.
Is this something that we should be concerned about? After all, it is commonly asserted that the best person for the job should be appointed without any regard being given to factors such as gender. The argument that appointments should be based purely upon merit becomes problematic however when systemic and structural discrimination places female lawyers competing on "merit" at a disadvantage[10].
In considering the question of judicial appointments it is important to keep in mind that the legitimacy of the judiciary rests upon the support and confidence of the Australian people. The continued failure to appoint a qualified female to our highest court runs the risk of slowly eroding that support. Over time a court that does not reflect the diversity of society at large, that is denied the potentially distinctive perspective that a female Justice may bring to the law and that is socially and culturally homogenous in its male membership may not retain public confidence[11].
This is one of the reasons why it is so important to encourage women to embark upon a career at the Bar and to apply for appointment as Senior Counsel. The Bar in general, and Senior Counsel in particular, have traditionally been the source of judicial appointments. Necessarily, as long as they remain the principal sources of judicial appointments, a limited number of female Senior Counsel is likely to mean a limited number of female judges and Justices. Female silks are also important role models for other women in the legal profession. This can be seen in the clear influence that women such as Dame Roma Mitchell and Joan Rosanove have had on the women who followed in their paths.
Mr President, as the then President of the Australian Bar Association, I presided over the first dinner given by the Association to mark the appointment of the nation's new silks. It therefore gives me especial pleasure, in attending this dinner for the last time as a Justice of the High Court, to propose the toast to this year's new silks.
Ladies and gentlemen, I propose the toast - the new silks.
Footnotes
[1] Merralls, "Some Marginal Notes about Queen's Counsel", (Winter 1994) 89 Victorian Bar News 51.
[2] Mrs Helen Normanton and Mrs Rose Heilbron were the first two women to be appointed King's Counsel at the English Bar. Both were appointed in 1949. See Derriman, Pageantry of the Law, (1955) at 59.
[3] In the Matter of the Motion to Admit Miss Lavinia Goodell to the Bar 39 Wis 232 (1875).
[4] Davis and Williams, "A century of appointments but only one woman", (2003) 28(2) Alternative Law Journal 54; Law Council of Australia, 2010: A Discussion Paper: Challenges for the Legal Profession, (2001) at 18, 132; Law Society of New South Wales, After Ada: A New Precedent for Women in Law, (2002) at 7.
[5] See, for example, Law Council of Australia, 2010: A Discussion Paper: Challenges for the Legal Profession, (2001); Law Society of New South Wales, After Ada: A New Precedent for Women in Law, (2002); Taylor and Winslow, "A statistical analysis of gender at the NSW Bar", (Winter 2004) Bar News 20 at 20; Victorian Bar Council, Equal Opportunity for Women at the Victorian Bar, (1998).
[6] Taylor and Winslow, "A statistical analysis of gender at the NSW Bar", (Winter 2004) Bar News at 20.
[7] Law Society of New South Wales, After Ada: A New Precedent for Women in Law, (2002) at 6, 35.
[8] Joan Rosanove appeared as junior counsel in Briginshaw v Briginshaw (1938) 60 CLR 336, and was recorded as having addressed the High Court, although only briefly. See Blackshield, Coper and Williams, The Oxford Companion to the High Court of Australia, (2001) at 722.
[9] Kirby, "Women Lawyers - Making a Difference", speech delivered to the Women Lawyers' Association of New South Wales, 18 June 1997.
[10] McHugh, "Women Justices for the High Court", speech delivered at the High Court Dinner hosted by the Western Australia Law Society, 27 October 2004.
[11] McHugh, "Women Justices for the High Court", speech delivered at the High Court Dinner hosted by the Western Australia Law Society, 27 October 2004.