Alternative Law Journal
Rachel Davis and George Williams[*]
Over the last century, there have been 44 appointments to the High Court of Australia. Only one has been a woman, with the appointment of Justice Mary Gaudron in 1987. Her retirement in February 2003 means that there is no longer a woman judge on the Court. We believe that the presence -or rather the striking absence -of women on the Court is an issue that deserves urgent attention. It is one aspect of a broader problem relating to diversity among members of the Court, and among the Australian judiciary at large.
The Australian Constitution says nothing about who should be appointed to the High Court. It makes no mention of qualifications or background; it does not even require that an appointee be qualified as a lawyer. Section 72 merely states that appointments to the Court are made by the Governor-General in Council. In practice, this means that the Governor-General makes the appointment acting on the advice of the government of the day.
The High Court of Australia Act 1979 (Cth) is slightly more prescriptive. Section 7 requires that an appointee be a judge of a federal or state court, or have been enrolled as a legal practitioner in Australia for not less than five years. Section 6 also states that, before making an appointment, the 'Attorney-General shall ... consult with the Attorneys-General of the States'. However, the extent and form of consultation is not specified. The lack of real guidance on who should be appointed, or on any process of public consultation, means that appointments to the High Court have been accurately described as being 'the gift of the executive government of the Commonwealth'.
In this article we contextualise the absence of women from the High Court by examining the statistical or quantitative under-representation of women in the senior ranks of the Australian legal profession, and especially in the senior judiciary. In particular, we highlight Australia's poor record of appointing women to its highest court when compared with that of other common law jurisdictions.
However, the presence of women as judges of the High Court is not just a matter of numbers. The lack of women is also a qualitative problem. We therefore begin by briefly highlighting some of the most persuasive arguments for an increased number of women on the Bench, and conclude with a consideration of the powerful, but misleading, use of the rhetoric of 'merit' in debates about the need for a balanced judiciary. Our argument is not that any particular appointment to the Bench has been inappropriate or undeserved, but rather that there is a systemic problem with the criteria typically regarded as relevant to appointment to Australia's highest court.
In a speech entitled 'Women Lawyers-Making a Difference', Kirby 1 argued: 'The law is not just another business. The courts are not just another workplace. We are participants in a branch of government. The courts are just as much part of the government of our country as the parliaments and the offices of the Executive'.
The declaratory theory of law (that is, the notion that judges merely declare what the law has always been rather than actually creating it) is now widely recognised as, in Sir Harry Gibbs' words, 'a fairy tale'. Today, the law-making role of courts is generally acknowledged. As the ultimate arbiter of the Australian Constitution, and the highest appellate court in the country, the High Court plays a vital, and often contested, role in making and shaping Australian law.
Cases such as Mabo v Queensland (No 2) (1992) 175 CLR 1 demonstrate the potential political, social and economic significance of the Court's decisions for the Australian community at large. The cases that come before it can require the Court to determine the law on behalf of the nation on questions traversing a full spectrum of issues ranging from gender to race, religion, disability and sexuality. Obviously then, the Court's judgments can impact particularly on women. For example, in R v L  HCA 48; (1991) 174 CLR 379 the Court overruled the common law marital rape immunity in holding ('contrary to what had long been thought') that a husband could be found guilty of the rape of his wife. Thus, what Regina Graycar and Jenny Morgan call '[t]he Court's ability to create its own truth about women' is of immediate and direct significance for women in Australia today.
To adjudicate in these and other important areas, it is vital that the Court possess the confidence of the Australian people. As Gleeson CJ has explained: 'The general acceptance of judicial decisions, by citizens and by governments, which is essential for the peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence'. Where a section of society feels that its perspectives and needs are not being taken adequately into consideration by the judiciary -due in part to the fact that the judiciary does not reflect their presence within society-then this can result in a lessening in reg rd for, and confidence in, judicial decision-making. In other words, 'a monochrome judiciary is vulnerable to the appearance of isolation and to attack'.
For reasons such as these, the judiciary should reflect the make-up of the society from which its members are drawn. This is especially so given the increasing recognition that every judge brings their own, embedded fundamental values, experiences and assumptions to bear in their role as decision-maker. It is also arguable that the judiciary should reflect the make-up of the Australian legal profession. Ruth McColl SC, now a judge of the Supreme Court of NSW, has emphasised the important function of a woman on our most senior court as a role model for other women working in the law.
This argument should be distinguished from the idea that the judges of the High Court should be 'representative', in the sense that they should 'represent' or specifically advocate the interests of the groups they are seen as belonging to (whether based on gender or other grounds). Courts, unlike parliaments, are not representative bodies. A central feature of the judiciary is that it is independent of and unresponsive to political pressures. Clearly, the role of a judge of the High Court, as spelt out in the judicial oath, is to 'do right to all manner of people according to law without fear or favour, affection or ill-will'. In any case, a seven person body such as the High Court is ill suited to any system of quotas based on the idea that particular judges should represent 'constituencies'.
In addition to the need for a 'reflective' judiciary, it has been argued that the highest court (like other superior courts) should include women because of their potentially distinctive perspectives on legal issues. For example, at the time of Gaudron J's retirement, McColl expressed the view that Gaudron J had 'as a female lawyer' brought 'a particular intelligence and an insight into women's issues' to her time on the High Court, especially through her application of the principle of non-discrimination. Understandably, the extent to which female judges bring a 'different voice' to the Bench remains controversial.
Nonetheless, more women in the senior judiciary will result in a more diverse body of decision-makers, as would more judges from racial, religious, and other backgrounds which differ from those of the current majority of judges. Greater diversity among judges would help overcome continuing and pervasive stereotypes both within the profession and within the substantive law, and would generally perform a critical educative role. This might lead to a judiciary more responsive to the different needs and circumstances of those who come before it and who are affected by its decisions.
Any discussion of women as judges of the High Court must (unfortunately) begin by reflecting on their absence. The dearth of women among the general 'dramatis personae' of the Court, not only on the Bench but particularly in 'speaking parts', is indicative of a broader problem- the severe under-representation of women in all senior ranks of the Australian legal profession, ranging from private firms, to the Bar, academia, and the judiciary.
The percentage of new entrants who are women 'has now been significant for over a decade'. For several years, women have formed half, if not the majority, of students graduating from Australian law schools, and now form half of those entering the profession each year. Despite this, and while comprehensive national statistics about the legal profession are elusive, the available data on the position of women in the senior echelons of the legal profession (relied on by the Law Council of Australia in its 2001 report on the challenges facing the profession) paints a troubling picture. Nationally, in 1999, women constituted approximately 27% of the practising legal profession, but only 11% of barristers. This under-representation is also reflected in academia: in 1998, women constituted around 21% of full law professors and 30% of associate professors in Australian law schools.
Studies in individual jurisdictions echo these findings. For example, in NSW, by 2002 women comprised 37% of all practising solicitors in that state. Yet as at February 2003, only 13.5% of all barristers holding NSW practising certificates were women, and approximately only 3% (or 9 out of 295) of the senior bar were female.
Women were also found to constitute approximately 13% of all partners in law firms, and to earn on average 82% of the salaries earned by male solicitors. Disturbingly, the level of discrimination and harassment experienced by women in the course of legal practice was found not to have improved over time.
These NSW statistics are reflected in numerous surveys and reports conducted in other states and territories over the past decade, as well as in comparative jurisdictions such as England, Canada, and the US. As the Law Council concluded from its analysis, these studies reveal three principal results:
• women are over-represented in the lower echelons of the legal profession and under-represented in the upper;
• women leave the profession in 'disproportionate numbers' for various reasons, which 'cannot be attributed solely or predominantly to family responsibilities'; and
• the assumption that 'given time, the number of women entering at the bottom of the profession would be reflected in senior ranks has not materialised' .
In a landmark report in 200I, the American Bar Association Commission on Women in the Profession concluded: 'Time alone, and women's relatively recent admission to the profession cannot explain the extent of sex-based disparities in pay or promotion'. The patterns seen in the Australian studies suggest that, as has been reported in the US, the legal community is failing to recognise that there are flaws in the structure of (and in the assumptions underlying) the profession which militate against women securing senior positions; moreover, they suggest 'that it is incumbent on the profession to identify and fix the flaws or risk losing a significant segment of [its ranks]'.
As early as I994, the Gender Bias Report by the Senate Standing Committee on Legal and Constitutional Affairs found that: 'Membership of the judiciary in Australia is generally homogenous. Judges are overwhelmingly male, former leaders of the Bar, appointed in their early fifties, and products of the non-government education system’, The Committee concluded that this was not 'of itself a reflection on those currently occupying judicial office. However, it does suggest that there are competent candidates who possess the requisite qualities for judicial office who are being overlooked'.
The bar chart below sets out the gender composition of the judiciary in Australia almost a decade on from the Committee's Report, using the available data on the percentages of men and women practising as lawyers nationally as a comparison. It then sets out the proportions of men and women among the entire judiciary, the senior judiciary alone (ie judges of superior federal and state and territory courts), and the members of the High Court.
Gender composition of the Australian judiciary
The data suggests that the argument that women’s progression to senior levels of the judiciary is only a matter of time (and sufficiently meritorious candidates) is not sustainable. Instead, it suggests systemic problems within the legal profession, like those identified by the Law Council, which act against the appointment of women to senior positions.
In failing to appoint women in significant numbers to the senior judiciary, Australia is out of step with comparative jurisdictions such as the US and Canada. The current position of women in the senior Australian judiciary (14.6% of the total) compares unfavourably with the US, where approximately 20% of the judiciary at the superior federal level are women, and approximately 26% at the appellate state level are women (including 20 out of 52 state Chief Justices). Australia is similarly lagging behind Canada, where approximately 25% of all judges in the superior federal and provincial and territory courts are women.
The general pattern of a failure to appoint women to the senior ranks of the legal profession is repeated in the case of the High Court. In the table on the following page, we compare the High Court to the current composition of the highest courts in six other common law jurisdictions. The table illustrates that Australia, with no women on the High Court, has clearly fallen behind its common law colleagues. Moreover, Australia is unique in returning to an all-male Bench after having appointed a woman to its highest court.
The jurisdictions range (left to right) from Australia, with no women on the most senior court, to India with 1 (out of 24), and up to Canada with 3 (out of 9). The first woman was appointed to the US Supreme Court in 198I (O'Connor J) and to the Canadian Supreme Court in I982 (Wilson J), and while Australia can reasonably compare at least on this measure with the appointment of Gaudron J in I987, since then other female judges have joined their colleagues on the Canadian and US Benches. The Supreme Court of Canada now includes three women, as does the Supreme Court of Singapore. Moreover, the Chief Justice of Canada is now a woman (McLachlin CJ), as is the Chief Justice of New Zealand (Elias CJ).
While the highest court in the UK, the House of Lords, has yet to have a female judge appointed to it, the UK is exceptional in this respect, and the subject has been a matter of significant public discussion and debate with several inquiries into, and reports on, its judicial appointments process.
Debates over appointments to the High Court are typically obfuscated by the rhetoric of 'merit'.
It is often said that only the most qualified or 'best person for the job' is appointed to the Court, based on an assessment of legal ability. In fact, 'merit' in this context means more than which person has the 'best' legal skills, even if such a thing could ever be objectively judged. Governments choose one person from a range of talented (or 'meritorious') candidates, and the choice is influenced by considerations as diverse as their 'politics, state of origin, friendships, and the views of sitting justices'. These factors demonstrate why every appointment to the High Court is considered 'political', and why considerations of 'merit' cannot be confined to perceptions of a person's legal ability.
For example, in part as a reaction to the perceived 'activism' of the High Court in the early to mid I990s, the then Deputy Prime Minister, Tim Fischer, publicly called for the appointment of 'capital-C conservatives' immediately prior to the federal government's appointment of Justice Ian Callinan to the Bench in February 1998. The government's consideration of the political and legal views of potential appointees is, in itself, not surprising or unusual -except that, on this occasion, it was made explicit.
Women on the highest court: a comparative summary
As the question of 'merit' necessarily includes such political considerations, it should therefore include other factors directly relevant to public confidence in the Court and the Court's capacity to best fulfill its constitutional function as a lawmaker for the nation and the community as a whole. These factors must include the gender of potential appointees, especially where the Court would otherwise be composed entirely of members of one gender.
Much was made of considerations of gender at the time of the retirement of Gaudron J from the Court and the appointment of Justice Dyson Heydon (a respected judge of the NSW Court of Appeal). However, such a narrow focus is misleading. Since the appointment of Gaudron J in 1987, there have been seven appointments to the Bench: Chief Justice Murray Gleeson and Justices Michael McHugh, William Gummow, Michael Kirby, Kenneth Hayne, Ian Callinan and Dyson Heydon. These seven appointments to the Court, amounting to a full complement of its judges, have been made by successive Labor and Liberal governments. Not one has been a woman (or indeed a man of non Anglo-Celtic background). We are not suggesting that any individual appointment is problematic. Rather, the cumulative effect of these decisions indicates systemic problems relating to the method of appointment, to the criteria seen. as relevant, and, more fundamentally, to the perceived role of the High Court and the judiciary generally in the Australian legal system. It suggests that the concept of 'merit' has been applied in a way that excludes women from appropriate consideration. Indeed it has been argued that the rhetoric of 'merit' is only relied on when 'there is some suggestion that factors like sex, or race, or even geography are also considered relevant, ie it is used only when we talk of looking outside the traditional white male paradigm'.
The failure to appoint a woman to the High Court since 1987 is inconsistent with the number of suitably qualified female judges in this country (despite their overall under representation in senior ranks of the judiciary). Moreover, the government has been willing to turn from the ranks of senior judges to the ranks of barristers when considering suitable candidates, thereby increasing the potential pool of women candidates. The government should also look beyond such traditional sections of the profession to other areas in which women have excelled. Academics have frequently been appointed to the Supreme Courts of Canada and the US, and have been regarded as some of the leading judges on those Courts. So long as they have been enrolled as a legal practitioner in Australia for not less than five years, academics and other members of the legal profession are qualified for appointment under s.7 of the High Court of Australia Act.
We do not believe that there is, or should be, a 'women's seat' on the High Court, or that some form of quota system is needed. Rather, the seven judges of the Court should be drawn from the range of suitably qualified men and women in the senior ranks of the legal profession (considered broadly). Appointees should indeed be chosen on merit, but this should include consideration of the fact that a High Court without women will be diminished in its decision-making functions and in its capacity to be reflective of the Australian community and legal profession. We would not argue that the High Court should be composed of seven women. Equally, it should not be composed, once again, of seven men.
[*] Rachel Davis and George Williams teach law at the University of New South Wales. George Williams is also Director of the Gilbert+Tobin Centre of Public Law and practises as a barrister.
This article is part of a larger study of the appointment of women to the High Court of Australia and to the final courts of other common law countries.
© 2003 Rachel Davis and George Williams (text)
© 2003 Stuart Roth (cartoon)
 Regina Graycar has highlighted the inherent danger in using the description 'woman judge' of reinforcing the underlying male norm: Graycar, R., 'The Gender of Judgments: Some Reflections on "Bias"', (1998) 32 University of British Columbia Law Review 1, pp.2-4.
However, for the purposes of this (primarily quantitative) article, it is necessary to distinguish between 'female' and 'male' judges, as our principal task is to compare the proportions of each.
 Evans, S., 'Appointment of Justices' in T. Blackshield, M. Coper, M. and G. Williams (eds), The Oxford Companion to the High Court of Australia, Oxford University Press, 200 I (hereafter The Oxford Companion), p.21.
 Kirby, M., 'Women Lawyers - Making a Difference', Speech to the Women Lawyers' Association of New South Wales, Sydney, 18 June 1997, <http://www.hcourt.gov.au/spccches/kirbyj/kirbyj _ womenlaw.htm> at 3 April 2003.
 Gibbs, Sir Harry, 'Law-Making Role: Further Reflections' in The Oxford Companion, p.424.
 See, eg, Mason, Sir Anthony, 'The Role of the Courts at the Tum of the Century', (1994) 3 Journal of Judicial Administration 156; McHugh, M., 'The Law-Making Function of the Judicial Process', (1988) 62AustralianLawJournal15 (Part I), and (1988) 62Australian Law Journal 116 (Part II).
 Mason, Sir Anthony, 'Law-Making Role: Reflections' in The Oxford Companion, p.424.
 Graycar, R. and Morgan, J., 'Women' in The Oxford Companion, p.721.
 Gleeson, M., 'Public Confidence in the Judiciary', Speech to the Judicial Conference of Australia, Launceston, 27 April 2002, <http://www.hcourt.gov.au/speeches/cj/cj_jca.htm> at 3 April 2003.
 Sec Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary, 1994, p.96.
 Kirby, M., quoted in above, ref 9, p.l02.
 See, Gibbs, Sir Harry, 'The Appointment of Judges', (1987) 61 Australian Law Journal 7; Hale, Dame Brenda, 'Equality and the Judiciary: Why Should We Want More Women Judges?',  Public Law 489; Shetreet, S., 'Who Will Judge: Reflections on the Process and Standards of Judicial Selection', (1987) 61 Australian Law Journal 766.
 See, eg, Graycar, above, ref 1.
 McColl, R., 'Changing of the Guard at the High Court', Interview Transcript, The Law Report, Radio National, 4 February 2003, <http://www.abc.net.au/m/talks/8.30/lawrpt/stories/s774889.htm> at 3 April2003.
 High Court of Australia Act 1979 (Cth), s.ll and Schedule.
 See, eg, Wilson, B., 'Will Women Judges Really Make a Difference?', (1990) 28 Osgoode Hall Law Journal 507.
 McColl, above, ref 13. See also Kalowski, H., 'Mary Genevieve Gaudron' in The Oxford Companion, p.295.
 Sec, eg, L'Heureux-Dubé, C., 'Making a Difference: The Pursuit of a Compassionate Justice', (1997) 31 University of British Columbia Law Review 1.
 Thornton, M., 'Feminism' in The Oxford Companion, p.277. Compare the role of women as associates in the Court: Leigh, A., 'Behind the Bench: Associates in the High Court of Australia', (2000) 25(6) Alternative Law Journal295.
 Kirby, M., above, ref3; Kirby, M., 'Women in the Law-What Next?', Lesbia Harford Oration 200 l, Victorian Women Lawyers' Association, Melbourne, 20 August 200 l, <http://www.hcourt. gov.au/spceches/kirbyj/kirbyj_vicwomcn.htm> at 3 April 2003.
 Law Council of Australia, 2010: A Discussion Paper. Challenges for the Legal Profession, 200 l, p.l32.
 Law Council of Australia, above ref 20, p.l8; Law Society of New South Wales, After Ada: A New Precedent for Women in Law, 2002, p.7.
 Law Council of Australia, above, ref 20, p.vii. Only two of the professional regulatory bodies in the various states and territories conduct annual surveys of members, and the Australian Bureau of Statistics only reports on the national state of the profession every three years (which is limited by the Bureau's definition of those whose core business is the provision of legal services). The Council highlighted the lack of comprehensive data as a critical step in addressing national challenges confronting the legal profession.
 According to the Australian Bureau of Statistics figures from 2000 (which encompass solicitors, barristers, and legal aid, government and community legal centre lawyers): Law Council of Australia, above, ref 20, p.l8. In the US in 2000, women made up approximately 30% of the profession: American Bar Association Commission on Women in the Profession, A Current Glance at Women in the Law, 2001, p.1. In England and Wales, 37% of practising solicitors in 2001 were women: Law Society of England and Wales, Gazette, 30 August 2002, p.3.
 Law Council of Australia, above, ref 20, p.133. In the US in 2000, approximately 22% of full professors were women (though they comprised at least 45% of associate and assistant professors), and I 0.9% of law deans were women: ABA Commission on Women in the Profession, above, ref 23, p.2.
 Law Society of New South Wales, above, ref 21, p.7.
 New South Wales Bar Association, Statistics Update, 24 February 2003, <http:/ /www.nswbar.asn.au/Public/ About%20us/stats_240203.pdf> at 3 April 2003.
 Law Society of New South Wales, above, ref21, p.35 (as at 2001). By contrast, in the US, women constituted 15.6% of partners in private firms: ABA Commission on Women in the Profession, above, ref 23, p.2.
 Law Society of New South Wales, above, ref 21, p.6. Sec also Law Council of Australia, above, ref 20, p.l33, which discusses similar findings across other states.
 Law Society of New South Wales, above, ref 21, p.l4.
 Law Council of Australia, above, ref20, p. 132; Kirby, above, ref 3, nn 4-7, 13-17.
 See McGlynn, C., The Woman Lawyer – Making the Difference, 1998.
 See Brockman, J., Gender in the Legal Profession: Fitting or Breaking the Mould, 2001; Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability. Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession, August 1993.
 See Rhode, D., American Bar Association Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession, 200 1, p.l4.
 Law Council of Australia, above, ref 20, p.l32 (emphasis added).
 Rhode, above, ref 33, p.l4.
 Law Society of New South Wales, above, ref 21, p.l9.
 Senate Standing Committee, above, ref 9, p.l2.
 Senate Standing Committee, above, ref 9, p.xvii.
 As at 1999: see above, ref 23
 Women accounted for 20.9% of the judiciary overall as at 30 May 2002: Australian Institute of Judicial Administration, Women Judges, <http://www.aija.org.au/WMNjdgs.htm> at 27 March 2003.
 Women accounted for 14.6% of all superior federal (ie High Court, Federal and Family Court) and superior state and territory court (ie Supreme Court and Court of Appeal) judges as at 27 March 2003.
 Women comprised 22% of supreme court judges, 20.1% of circuit judges, and 19.2% of district judges as at July 200 I: ABA Commission on Women in the Profession, above, rcf23, p.2.
 As at 1999: see above, ref 42.
 Chavez, 8., 'Women Breaking Courts' Glass Ceilings - Slowly', Women’s eNews, 9 February 2003, <http://www.womensenews. org/article.cfm/dyn/aid/1216/context/cover/> at 16 March 2003.
 As at 1 February 2002: Office of the Commissioner for Federal Judicial Affairs, Women Judges in Canada: Provinces and Territories, 2002, <http://www.fja.gc.ca/map_inter/index_e.html> at 28 March 2003. 25% of judges in the Supreme Court and the Trial and Appellate Divisions of the Federal Court are women, while 23.8% of judges in the superior state and provincial courts are women.
 See, eg, Malleson, K. and Banda, F., Factors Affecting the Decision to Apply for Silk and Judicial Office, Lord Chancellor's Department Research Series No 2/00, 2000; Lord Chancellor's Department, Judicial Appointments in England and Wales - The Appointment of Lawyers to the Professional Judiciary: Equality of Opportunity and Promoting Diversity, 2001.
 See McDonald, L., 'The Myth of Legal Merit and Ability'; Canberra Times, 23 December 2002; Gaudron, M., Speech to the Women Lawyers' Association of New South Wales 50th Anniversary Gala Dinner, Sydney, 13 June 2002 <http://www .hcourt.gov.au/speechcs/gaudronj/gaudronj_wlansw.html> at 3 April 2003.
 Simpson, T., ‘Appointments that Might Have Been’ in The Oxford Companion, 2001, p. 23.
 Simpson, T., above, ref 48, p.27.
 Graycar, R., 'The Merit of a Bigger Pond', Sydney Morning Herald, 19 December 2002, p.l7 (emphasis added).
 Callinan J was a practising Queensland barrister when he was appointed to the Bench.