Situating women judges on the High Court of Australia: not just men in skirts?

Research Doctorate - Doctor of Philosophy (PhD)For most of its existence the High Court of Australia has been the preserve of men judges. In 1987 the first woman judge, Justice Mary Gaudron, took her place on the Court to become ‘one of seven’ for the duration of her term. Gaudron’s replacement with a man saw the Court returned to its traditional composition of seven men thus prompting questions about when a woman would again sit at the apex of the Australian judiciary. The subsequent appointment of three women to the High Court in relatively quick succession (Justice Susan Crennan in 2005, Justice Susan Kiefel in 2007 and Justice Virginia Bell in 2009) might readily be construed as a triumph for the politics of diversity and gender inclusion. For a brief period in 2015, following Justice Crennan’s retirement there were only two women serving, but since then the condition of a near-equal gender balance has returned. But what does the arrival of an ‘almost equal’ gender balance or the ‘three of seven’ mean for the masculinist gender regime that has long shaped the operations of the Court? In 2002 former High Court Justice Kirby expressed the view that women were needed on the High Court because they were not ‘just men who wear skirts.’ With the presence over the past decade of a number of women judges on the Court, the thesis asks how they were situated as legal knowers. Were they more than ‘just men in skirts?’ In so doing the thesis examines what difference the presence of women judges, specifically the first almost equal gender balance from 2009 to early 2015, has made to the operations of the Court in a context where they constituted a near majority of Justices. The politics of gender and judging has long occupied feminist legal scholars as they have pondered the dilemmas and contradictions of difference. While this thesis is likewise concerned (but only partially so) with the politics of difference as it might be applied to women judges, its principal focus is in trying to gain an insight into how their presence impacts on the gender relations of the High Court. Adopting an explicitly feminist analysis constructed from an interdisciplinary perspective drawing on both political science and law, the thesis examines how the Court’s gender regime operates once there is more than one woman on the Bench. It explores the following questions: How have the Court’s gender relations accommodated the presence women on the bench? How have the women themselves accommodated those pre-existing gender relations? How might the legal judgments and reasoning change as a result of changing gender dynamics on the bench? To develop answers to these (and other) questions the thesis pursues a methodology that conceptualises the High Court as an institution with a particular gender regime shaped historically by the dominant gender order of the wider society. It also conceptualises gender as a social process, and not simply the property of an individual. The intersection between the (gendered) individuals and the (gendered) institution in which they operate produces and reproduces that institution’s gender regime. Hence, the enquiry is not so much asking ‘have women judges made a difference?,’ but rather is asking how should we understand women judges’ relationship with the law, a relationship that is shaped as much by the individual judge as by the institutional context in which they operate. The thesis discussion follows the chronological trajectory of the development of the near-equal gender balance, from one to three of seven, and explores several ritualised practices that serve to contribute to the shaping of the identity of a High Court Justice. The first of these, though not strictly a ritual, is the appointment process itself and the discourses of merit and diversity that this produces. Following the announcement of the appointment is the swearing-in ritual which serves to fashion the identity of the new judge. The next ritual is the relatively recent practices around first judgments whereby the members of the Court mark the occasion by concurring with the newest judge’s reasons. Examining this ritual will help to shed light on how the women judges further establish their judicial identity and hence their potential to make their mark on the Court. Two key judgments, <i>PGA v The Queen and Monis v The Queen</i>, serve as vehicles to examine different manifestations of the Court’s gender dynamics. This examination is not just confined to the decisions themselves, but also includes the ways in which the decisions exposed how an ordinarily benign masculinism remained embedded in law (especially in terms of how the law conceives of the public and private spheres). Finally, the thesis looks at the ritual of farewelling a retiring Justice and what this might tell us about the judicial identity and legacy of being one of the three of seven. Thus the thesis examines the first near-equal gender balance on the High Court in terms of how the production and reproduction of the Court’s symbols, beliefs and patterns of behaviour inform its gender regime. In so doing the thesis establishes that this regime has a degree of resilience that is not easily dislodged. It concludes that while the near majority of women judges has had an impact, and that they were not necessarily ‘just men in skirts,’ it will take more than the arrival of women judges to dismantle the Court’s gender regime. At the very least it will require judges with a dedicated feminist understanding of the law (and society) to be appointed to the High Court