kmclouglinBY KCASEY MCLOUGHLIN

Australian women waited over eighty years for the first woman to sit on the bench of the High Court of Australia. Now, three decades later a particularly resilient glass ceiling has been shattered with the announcement that a woman will preside as Chief Justice. The Prime Minister and Attorney General announced that the vacancy created by Chief Justice French’s retirement will be filled by Justice Susan Kiefel. The vacancy created by her Honour’s elevation will be filled by Federal Court Justice James Edelman. When Susan Kiefel takes her seat as Australia’s 13th Chief Justice of the High Court of Australia in January she will preside over a Court comprised of 4 men and 3 women—a state of affairs that Justice Mary Gaudron could have hardly conceived of on her appointment in 1987 and one that would have been entirely unimaginable in 1903 when the High Court was formally established as an institution.

Nothing in the Australian constitutional framework calls for diversity in judicial appointments, but it is clear that political expediency has meant that there is some political currency in adopting more inclusive appointment practices. But does this state of affairs disrupt the long ingrained notion that judging is the preserve of men? Certainly, the level of speculation about her Honour’s elevation suggests that the idea of a woman sitting at the peak of Australia’s judiciary was no longer as inconceivable as it once might have been.

Her Honour’s appointment, in addition to marking a significant personal career milestone and achievement, certainly makes an important symbolic statement about women’s access to legal authority. It should also prompt us to take stock of how far we have come in terms of judicial diversity and to think about the path ahead. What difference might a woman Chief Justice make and what does this appointment mean for the politics of gender inclusion and judicial diversity?

The politics of judicial appointment and gender diversity

Women judges have been appointed to the High Court in more recent years with what could almost be described as a degree of regularity. Yet their appointments have largely been framed as happy coincidences rather than as part of any commitment to securing a more diverse judiciary.  This most recent appointment follows that trend. Despite representing an important milestone in Australia’s constitutional history (and a triumph for the politics of diversity and gender equality), it serves as a reminder that so long as our appointment processes lack transparency and fail to formally enshrine the importance of diversity, such gains will remain precarious.

The High Court of Australia has always been politically and constitutionally significant, and so too have the judges appointed to it. High Court appointments are said to be the gift of the government of the day because, in legal terms the government is largely unfettered in making these historic appointments. There are no special provisions regarding the appointment of the Chief Justice and the Australian Constitution provides little direction regarding appointment processes beyond specifying that Justices of the High Court ‘shall be appointed by the Governor General in Council.’

Slightly more guidance about the consultation process and qualification of justices is found in the High Court of Australia Act 1979 (Cth), which provides that an appointee must be a judge or enrolled as a legal practitioner for more than five years and that the Attorney-General shall consult with state Attorneys-General. In practice, the Commonwealth Attorney-General generally directs the process, and in most cases presents a nominee to Cabinet. Should Cabinet accept the nominee, the person is then formally recommended for appointment to the Governor-General.

Curiously, given the breadth of power afforded to the Government of the day in making judicial appointments, High Court appointments have remained relatively uncontroversial for the most part. The absence of obvious partisan battles in Australian High Court appointments stands in contrast to, for example the fraught confirmation processes Supreme Court nominees are subjected to in the United States. These distinctions notwithstanding, judicial appointments cannot be anything other than political; they are made by those in possession of the highest levels of political power and they clearly have political consequences.

Appointments may be said to be explicitly political, or at least more overtly political when the government of the day appointing those they regard (or whom others regard) as sympathetic to their broad political outlook. Appointments from the executive are not unheard of and the controversies surrounding the appointments of Justice Murphy and Chief Justice Barwick, to cite just two examples, have been well documented. There was (albeit tongue-firmly-in-cheek) speculation about Attorney-General Brandis appointing himself— but in more contemporary times there is probably very little taste for overtly political appointments that reinforce the less than absolute separation of powers.

But the lack of transparency around High Court appointments means that we know little about what informs the decision-making process. We do know certain considerations have emerged as legitimate considerations in making appointments whereas others have been seen as less legitimate. These considerations are imbued with certain values and assumptions about what matters in selecting our judges. For example, an appointee’s state of origin is sometimes raised as a valid consideration, whereas gender (or indeed other matters such as race, sexuality or ethnicity, or even age) are seen as illegitimate considerations.

The point is well illustrated by the political rhetoric that attended Justice Kiefel’s initial appointment to the High Court in 2007. As the appointment followed the appointment of Justice Susan Crennan two years earlier, a journalist noted that this was ‘an historic occasion’ because this was the first time two women would be sitting on the bench and asked the Attorney-General, ‘was her gender taken into consideration?’ Attorney-General Ruddock denied that gender was a relevant consideration in the appointment, stating that ‘any suggestion that this appointment was to secure two female appointments would be quite wrong.’ Her Honour’s eminence and the fact that ‘she is a woman of extraordinary attainment’, Ruddock reassured the journalists that this appointment, like the appointment of Justice Crennan before her, was made on the basis of merit alone:

It is a factual matter that there are five male Judges and now there’ll be two female Judges. But they are both people who were appointed on their merits, worthy of the appointment and a great credit to the profession.

However, in response to another question relating to ‘her being a Queenslander replacing another Queenslander?’ Ruddock did concede that he did ‘look at these matters’, but was quick to play down the relevance of her state of origin by again pointing to the fact that the decision ‘was a merits based decision.’

Ruddock’s appeal to the terminology of merit suggests that this was the Government’s strategy in signalling to their supporters that although they were appointing a woman, there was no tokenism or ‘progressive’ or ‘gender’ politics at play and that they could be relied upon to appoint suitable candidates. Perhaps more tellingly it serves as a reminder not only about the breadth of the Attorney-General’s discretion—we do not know what matters he or she has considered in determining who the best person for the job is. It is of course assumed that certain matters might be taken into account (state of origin, legal expertise and judicial approach) in settling on a nominee.   But nothing compels the decision-making to take into certain matters or to communicate any details about the decision-making process.

Calls to reform High Court appointment practices, on the basis of improving not only diversity, but also transparency and accountability, are certainly not new. I have elsewhere argued that reforms to the judicial appointment process—especially those designed to enhance judicial diversity by explicitly including it as a matter to be considered among others in the appointment process—will only be plausible if the relationship between merit and diversity is recast.  Alluding to the subjective nature of merit, Hobbs argued that the ambit of discretionary powers afforded to Australian Attorneys-General ‘is becoming increasingly difficult to maintain’ explaining that measures implemented by the then Attorney-General McClelland to improve transparency in Federal Court appointments now appear to have been abandoned.  Although McClelland’s reforms did not extend to the High Court in any case, their abandonment underscores the need to formalize reforms rather than rely on the political whims of the day.

For a brief period in 2015, following Justice Crennan’s retirement  (and replacement with Justice Nettle) there were only two women serving, but since then the condition of a near-equal gender balance has returned. At the time Professor Rubenstein  suggested that at any given time, the High Court should be comprised of at least 40 per cent of either gender. Emphasising the importance of a judiciary that reflects the society it serves, she made the important argument that gender should be ‘one of the meritorious matters that must be considered in the appointment process’.

Of course, quotas are not the only formal means of achieving diversity. As Professor Lynch has argued a more representative judiciary might also be achieved by adopting process of judicial appointment that express diversity as “an aspiration underpinning those processes.” For example developments in other jurisdictions such as the United Kingdom, Canada and New Zealand have made explicit that certain matters (e.g., gender, race, ethnicity, linguistic background and so on) might be considered as part of the appointment process.

Attorney-General Brandis’ announcement that Justice Kiefel will be elevated to Chief Justice follows a familiar pattern in emphasising that this was a merit based appointment and therefore to assuage any concerns that this might have been a ‘gender based appointment’. The Attorney-General was keen to point out that every step that had been taken in Justice Kiefel’s career was a “a step that she took on merit”.  Curiously, in announcing her replacement, Justice James Edelman, there was no retreat to the specific terminology of merit. Of course, his Honour’s achievements were canvassed- with some emphasis on the particularly precocious nature of them, given his Honour’s age at 42 years.

The appointment is a politically astute one for the Government. Given Justice Kiefel’s status as the second most senior puisne judge and her contributions to the Court to date, this is not a radical appointment. In addition to having already appointed more women justices to the High Court than the Labor Party, the Liberal-National Coalition now boasts having appointed the first woman Chief Justice of the High Court.

It is perhaps important here to acknowledge, and give context to, the broad ideological differences between the Liberal-National Coalition and the Labor Party regarding the appropriateness of measures to advance women’s political participation. Although the gender politics (in terms of their policies concerning women and the prospects for women parliamentarians) of both major parties have oftentimes been problematic, it is noteworthy that the Labor Party formally supports affirmative action in pre-selection for women, whereas the Liberal Party does not. Of course, there are important differences between political and judicial power and I do not suggest that any appointments to the High Court have been the result of such a policy. But the politics around the legitimacy of such measures in the legislative branch is significant in that it illuminates the precarious and contested value of gender diversity.

In the current political space, notwithstanding the different views about the appropriateness of explicit measures to secure women’s advancement in the legislative branch, when it comes to judicial appointments at the peak of Australia’s judiciary, there seems to be little space for a discussion about the importance or desirability of diversity in judicial appointments. While we are frequently reminded that merit must be the guiding principle in making all judicial appointments, discussions (and sometimes, doubts) about an appointee’s merit are more likely to come to the fore when that appointee is a woman. This is arguably reflective of what appears to be national aversion to ‘tokenism’ or affirmative action even when no such policy has been invoked. Those that demand that appointments must be made on merit without any other consideration discount the subjective nature of merit itself. What counts as meritorious is determined by those already in positions of power and privilege and as Professor Thornton argued,  ‘[i]ts claim to produce an objective “best person” is a rhetorical claim designed to maintain the judiciary as a gendered regime’.

Granted criticism about current High Court appointment practices (and the disinclination of successive Governments to consider reforms to appointment processes) needs to be tempered with the reality of what have been clear gains for women. Space quite literally had to be made for women on the highest judicial benches simply because getting women into positions of judicial authority was a departure from the overtly gendered regimes of the past. It might be countered that if this strategy is working (e.g. the current composition of the Court certainly points to marked progress), then there is no need to formalise any measures to secure a more diverse judiciary.

But we only need look at the experience in legislative and executive branches to know that hard won gains in improving the representativeness of our public institutions is by no means guaranteed—it might stagnate or even go backwards. The OECD recently acknowledged Australia’s gender balance in its Senate (38.2% women) as one of the best in the world while the number of women in the Lower House remained relatively stagnant (26.7% women). Conversely, the number of Commonwealth women ministers (17.2%) revealed a lack of progress in gender diversity and that Australia was lagging behind other OECD countries on this indicator. These figures were complied when Tony Abbott was Prime Minister so the figures will have improved as a result of Prime Minister Turnbull’s appointment of a number of women to his front bench. But these figures nonetheless underscore the precarious nature of gains in gender diversity—particularly when those gains rely on the actions of political actors.

Why does diversity (still) matter ?

Two broad streams of argument have been used to justify the appointment of women to judicial roles—difference and equality. Arguments on the basis of ‘difference’ contend that the quality of justice available will be improved because women offer something different, perhaps by ‘speaking in a different voice’ or by bringing an ‘ethic of care’ to the judicial role. Whereas arguments premised on equality, contend that the ‘principle of equity requires that women have an equal opportunity to participate in public decision-making institutions and that their absence undermines the democratic legitimacy of those bodies’.

Arguments based on principles of equality are often eager to distinguish between the need for a diverse judiciary and the need for a representative judiciary, contending that while diversity is desirable, the notion that any judicial officer should represent the interests of their gender (or class or race) is objectionable because it misconstrues the very nature and function of the judiciary as an institution which is unresponsive to political pressure.

The stakes wagered on women’s access to legal authority have been particularly high. It was hypothesised, at least by some feminist legal theorists, that women judges be the panacea to law’s gender-blindness. But arguments about the capacity for women judges to make a difference (in terms of their judicial approach), while appealing, have also been difficult to sustain in practice. This is because women judges have not always been as different, or different in the ways that were originally hypothesised by some feminist legal theorists.

As women began to be appointed to the judiciary in larger numbers throughout the late 1980s and early 1990s the scope to assess the women judges was expanded not only by reference to the empirical studies but also by assessing the publicly expressed views of women judges themselves. Some women judges in other jurisdictions have been disinclined to embrace the notion that they speak in a different voice although others have embraced a version of difference or even feminist judging.

With the exception of Justice Gaudron, women judges appointed to the High Court have mostly eschewed an identity as ‘women judges’ or at least avoided talking about the possible relationship between gender and judging. If history is any indication, it is likely that our new Chief Justice will follow this now well-worn path.

It remains to be seen what kind of contribution Chief Justice Kiefel will make to the High Court. Her extra curial comments indicate that the Kiefel Court, like the French Court before it, might be a Court marked by consensus. Whether she evidences (like the now retired Justice Crennan[i] before her) a growing willingness to reflect on the changing role of women and the law, and the frustrations associated with the gendered ways in which her legacy might be received, will also remain to be seen.

In agitating for more women on the bench, feminists are on safer ground premising their arguments on a need for diversity so that the judiciary is comprised of individuals who are more representative of society as a whole. That is not to say that feminists have abandoned the interrogation of the gendered nature of the law. Rather, in recognition of the restraints of legal formalism, we have seen a retreat from the idea that the appointment of women judges will disrupt the masculinist nature of legal reasoning, to the shift that feminist judges might be best equipped to bring such perspectives to bear.

This is not to say that the gender or lived experienced of a judge might inform their decision-making in ways that reinforce the importance of diversity (why would we insist upon multi-member appellate Courts if we didn’t accept the idea that law is human endeavor?), but rather, to avoid essentialising women and conflating ‘woman’ and ‘feminist’. Justifications for women judges are therefore now far more commonly couched in terms of equity or representation rather than difference because, as Professor Malleson has explained ‘their persuasiveness or validity is not determined by what women do on the bench.’

Where to from here?

The gender dynamics on the High Court have thus far been carefully crafted. No woman has ever replaced another woman—lest anyone get the idea that there are seats reserved for women. Nevertheless, at least for now, the presence of women as members of the Court seems secure. Assuming Chief Justice Kiefel stays on the bench until she is 70 years old— a woman will serve as Chief Justice until 2024. If Justice Michelle Gordon stays on the Bench until her mandatory constitutionally required retirement, we are guaranteed at least one woman until 2034. United States Supreme Court Justice Ruth Bader Ginsburg’s response to queries about when there will be ‘enough’ women judges is salutary:

So now the perception is, yes, women are here to stay. And when I’m sometimes asked when will there be enough [women on the supreme court]? And I say when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.

The point is a powerful one because it reveals how normalised an all-man bench is, especially when juxtaposed against the seemingly fantastical idea of an all woman bench. The visibility of women on the bench, literally and figuratively, cast by the almost equal gender balance and our new Chief Justice, makes an important symbolic statement about women’s admission to legal authority in Australia. But this appointment does not negate the need for continuing conversations around the importance of diversity or for amendments that would properly enshrine the value of diversity into the formal appointment process.

We are very fortunate that the Australia judiciary has fulfilled its role mostly with distinction and without controversy. But this good fortune should not deter us from bringing appointment practices into the 21st century. Appointments which undermine the homogeneity of the Court are steps in the right direction in disrupting the notion that judging is the preserve of men. But with no formal recognition of the importance of diversity in appointments, these steps remain at the whim of the government of the day. Diversity and merit are not mutually exclusive. Diversity can and should have a legitimate and meaningful role in appointment practices. However, if the utterances of the politically powerful are to be taken at face value, diversity does not inform their decision-making processes. In fact, the lack of transparency around the process and the absence of criteria upon which these appointments are made leaves us in the dark about what matters are taken into account.

Once we accept that a more diverse judiciary is a better judiciary, we are able to have important conversations about the scope and content of reforms which might then secure a truly diverse judiciary. And then, for feminists, there might even be space to think about strategies for securing the appointment of judges who are not only aware of the importance of equality and the gendered nature of law, but also, willing and able to articulate that awareness.

[i] In a forthcoming article, I examine the legacy Justice Crennan and others sought to craft about her upon her retirement from the Court. In the article I argue that Justice Crennan’s remarks in the year of her retirement represent a marked shift in her impression of (or even willingness to speak publically about) the interaction between gender and judicial identity. See K McLoughlin. 2016 (forthcoming). “Collegiality is not Compromise”: Farewell Justice Crennan, the Consensus Woman. Australian Feminist Law Journal.

Dr Kcasey McLoughlin is a Lecturer in Law at Newcastle Law School (Australia) and is currently a Visiting Scholar at Queen Mary, University of London.

Suggested citation:  Kcasey McLoughlin  ‘Chief Justice Susan Kiefel and the politics of judicial diversity‘ on AUSPUBLAW (29 November 2016) <https://auspublaw.org/2016/11/chief-justice-susan-kiefel-and-the-politics-of-judicial-diversity>