Why the all-male High Court needs a woman's touch

Sydney Morning Herald
August 19 2005

By Richard Ackland

JUSTICE Michael McHugh sent out a call on Wednesday night for a woman to replace him on the High Court, when at midnight on October 31 he is constitutionally obliged to retire. He made a similar cry in a speech delivered on October 27 last year in Perth.

The Chief Justice, Murray Gleeson, has given the impression he's not so sure about that. On March 24 this year on the ABC's PM program he was asked, "Wouldn't you prefer to see some women sitting alongside you?"

His reply: "Instead of whom?"

It is understood that Gleeson has said, but not on a public occasion, that the important thing about new High Court appointments is that they should have standing and authority among the state appeal judges, because it is their handiwork they'll be reviewing.

That suggests that the Chief Justice sees other priorities for appointment than offsetting the 100 per cent white male complexion, and the 70 per cent Sydney blood line.

If past remarks about worthiness and quality of appointees are anything to go by, it is almost certain the Prime Minister and the Attorney-General agree with him. On that basis alone it makes the choice of someone from the Sydney or Melbourne bars or benches much more probable.

The fact that of the 44 appointments made to the High Court over the past 100 years only one has been a woman is a depressing realisation. By no means is that to suggest that many of those men on the court have not been strongly in touch with the female side of their natures - but that is not quite the same thing.

So far though, discussion of who should or might replace McHugh has been relatively subdued. The usual suspects are trotted out and there is a bit of sport to be had with the speculation. However, it would be a fair bet the majority of the population wouldn't have a clue who is on the High Court and wouldn't know the name of the Chief Justice.

In the United States, the Supreme Court is right up there as one of the great pillars of government. The discussion about the latest nominee, John Roberts, to fill the Sandra Day O'Connor vacancy is loud and long. Every crevice of Roberts's life has been poked into even before the Senate hearings into his nomination get under way next month.

The Washington Post even did over the clothes his wife and children wore to the White House announcement ceremony. Judge Roberts and his wife were accused of creating a "honied faultlessness and self-consciously crafted perfection and 1950s style tableau vivant".

Imagine the family of Ian Callinan or Kenneth Hayne or Bill Gummow being wheeled onto the Lodge lawn and a "strawberry-pink tweed suit and taupe pumps and pearls" being held up to scrutiny.

Certainly there are some things to be thankful for in our muted system. To start with, a nominee for High Court appointment is spared the indignity of having to tour and gladhand the movers and shakers in Parliament. One can only imagine what a sparkling time Dyson Heydon might have had for an hour or two with Ron Boswell, and how that might have advanced the legislature's understanding of the judge's position on the duty of care or promissory estoppel.

However, as Martin Kettle observed in The Guardian, while the US system is "vulgar", at least everything is out there and open and hands-on. The candidates are basically mauled, even to the extent of having their hirings from the video shop checked, but in the process it emerges whether the appointee is a drunk, a sleepy head, late with his tax, or doesn't put the garbage out on Thursdays.

In Australia we're never likely to know these things until it is too late.

In England the Government is trying a midway approach with an outfit called the Commission for Judicial Appointments composed of non-lawyers and serviced by a small staff at Westminster. It is meant to prod and poke and conduct due diligence on all but the most senior judges. The appointment is still made by the government of the day, but is subject to this arm's-length vetting.

At the same time the English judges are up in arms about a Government proposal to widen the judicial gene pool to include legal executives (who do some of the drudge work in solicitors' offices), and patent and trademark attorneys, women and ethnic minorities. The Times said that anyone with four basic high school passes could now become a judge.

The pressing question is, though, whether anyone really wants to be a judge. According to McHugh, the workload on the High Court "borders on the oppressive", which suggests that widening the judicial gene pool will in time be a necessity, not an option.

justinian@lawpress.com.au

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