Despite many changes in recent years, McHugh said "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."
Noting that he was facing imminent compulsory retirement at age 70, and that 4 Justices would retire over the next 4 years, McHugh said: "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."
Justice McHugh is the last of the judges appointed by the Hawke Government in 1989.
This is the transcript of Justice Michael McHugh's address to the High Court Dinner hosted by the Western Australian Law Society.
WOMEN JUSTICES FOR THE HIGH COURT[1]
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/hca/transcripts/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.
