Women Judges on the High Court Bench

Posted 19 June 2017 9:33am

In what the Law Council of Australia described as a ‘landmark moment for Australia’s legal system and the nation’, the Honourable Justice Susan Kiefel was sworn in as the Chief Justice of the High Court in January of this year. Having served on the Bench for a decade, Her Honour is the 13th Chief Justice of the High Court, and the first woman appointed to the role in the Court’s 117 year history. At her swearing in, Her Honour chose not to dwell on why there had been ‘very few women members’ of the legal profession when she came to the Bar in 1975, but instead noted that ‘this has changed and so has the composition of this Court’. In his welcome speech, the Attorney-General Senator George Brandis said that Her Honour’s success has ‘has had nothing to do with your gender and everything to do with your intelligence, diligence and skill’.

Justice Kiefel’s swearing in as Chief Justice comes almost 30 years to the day since the swearing in of The Honourable Justice Mary Gaudron, the first female High Court Justice. Dr Heather Roberts, academic and researcher at the ANU, uses the speeches made at swearing-in ceremonies of the High Court’s female Justices to explore the representation of women judges in the Australian legal community. Of particular interest to Dr Roberts is ‘how welcome speakers have grappled with the novelty of the feminine in stories about the four [now five] female High Court judges’. Roberts argues that gender too often dominates the narratives relayed through welcome speeches at the swearing-in ceremonies of these Justices, ‘to a discriminatory and feminising effect’, though she notes that each appointment has appeared to mark progression.

Telling too are the speeches made by the Justices themselves at these ceremonies, which Roberts describes as ‘a statement of individual identity, values, and principles made from the “identity-less” judge of the common law tradition’. In how they tell their stories and place gender in their narrative, Roberts argues that these speeches reflect ‘a continuing pressure faced by women judges to distance themselves from the perception of “otherness” on the Bench’.

At Justice Gaudron’s swearing-in ceremony in 1987, Her Honour was not only the sole woman on the Bench, but also the sole woman whose presence was officially recorded on the transcript. The Attorney-General’s welcome speech contained not a single feminine pronoun, and listed none of Her Honour’s many “firsts” as a woman lawyer, seemingly as a ‘testament to the absence of sex discrimination in the Australian legal system’. Then President of the Law Council, Daryl Williams, said

“You are the first Justice of the High Court whose children have not addressed you as “Father”. You are … the first Justice of the High Court in its more than 80-year-long history who has not had a wife. In this respect, Your Honour has bravely paved the way for the regular appointment to the Court of bachelors.”

Justice Gaudron, though hoping ‘that I shall be able to contribute effectively to the status of women lawyers’, was hesitant to proclaim her differentness from the other Justices. ‘I hope’, Her Honour said, ‘to be, and to be perceived to be, simply one of the seven.’

When the next woman was appointed to the Bench 18 years later, The Honourable Justice Susan Crennan in November 2005, she was not the only woman in attendance, nor was she the only woman to speak at the ceremony. Then President of the Victorian Bar Association, Kate McMillian, delivered one of several welcome speeches. Disappointingly to many, Justice Crennan’s identity as a woman, and as a grandmother, was the ‘overt and overarching theme of her swearing-in ceremony’. More focus was placed on Her Honour’s personal character than on her many professional achievements. In Her Honour’s own remarks, she did not speak to the role of women in the legal profession.

When Justice Kiefel was sworn in as a puisne justice two years later, Roberts notes that ‘in none of the speeches was Kiefel’s gender more than of briefest comment’. Speaking to the media after the ceremony, Attorney-General Phillip Ruddock said that ‘any suggestion that [Kiefel’s] appointment was to secure two female appointments would be quite wrong … They are both people who were appointed on their merits’. Of note to Roberts was that the Attorney-General chose to say ‘both’ rather than ‘all’, confining his sentiments to the female judges on the Bench. There seemed to be a pressure to reinforce the ‘merit’ basis of these female Justices’ appointments, not shared at the appointment of male Justices to the Bench.

There have been two subsequent appointments of women to the Bench, The Honourable Justice Virgina Bell in February 2009, noted by the media as the first unmarried judge, and The Honourable Justice Michelle Gordon in June 2015, who, to the amusement of many, replaced her husband on the Bench.

How these Justices have chosen to position themselves as female Justices seems to be an act of balance, acknowledging the importance of the moment for women in the legal community, whilst also recognising the importance of female judges being treated as equals and acknowledging the impartial, independent role judges are expected to bring to the Bench. 

Quotes drawn from:  Heather Roberts ‘Women Judges, “Maiden Speeches,” and the High Court of Australia’, in Beverley Baines, Daphne Barak-Erez, Tsvi Kahana (eds), Feminist Constitutionalism: Global Perspectives Cambridge, U.K.: Cambridge University Press, 2012, pp. 113-131.

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