Situating Women Judges on the High Court of Australia: Not Just Men in Skirts?

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Situating Women Judges on the High Court of Australia: Not Just Men in Skirts? Situating Women Judges on the High Court of Australia: Not Just Men in Skirts? Kcasey McLoughlin BA (Hons) LLB (Hons) A thesis submitted for the degree of Doctor of Philosophy, the University of Newcastle January 2016 Statement of Originality This thesis contains no material which has been accepted for the award of any other degree or diploma in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. I give consent to the final version of my thesis being made available worldwide when deposited in the University's Digital Repository, subject to the provisions of the Copyright Act 1968. Kcasey McLoughlin ii Acknowledgments I am most grateful to my principal supervisor, Jim Jose, for his unswerving patience, willingness to share his expertise and for the care and respect he has shown for my ideas. His belief in challenging disciplinary boundaries, and seemingly limitless generosity in mentoring others to do so has sustained me and this thesis. I am honoured to have been in receipt of his friendship, and owe him an enormous debt of gratitude for his unstinting support, assistance and encouragement. I am also grateful to my co-supervisor, Katherine Lindsay, for generously sharing her expertise in Constitutional Law and for fostering my interest in the High Court of Australia and the judges who sit on it. Her enthusiasm, very helpful advice and intellectual guidance were instrumental motivators in completing the thesis. The Faculty of Business and Law at the University of Newcastle has provided a supportive, collaborative and intellectual space to share and debate my research. To Bronwyn McDonald and Stephen Owen, I value immensely the friendship we forged during our early postgraduate days. To my colleagues at Newcastle Law School, many of whom have become firm friends, I am grateful for your support, advice and ongoing encouragement. To all of my family and friends, thank you for your patience, interest and efforts to ensure I retained a sense of humour during the research and writing process. Special thanks are due to my parents, Caroline and Aug McLoughlin, for their love, encouragement and often-articulated pride in me. I am very fortunate to have such supportive and devoted parents and their belief in me has been instrumental in the path I have taken. And to Dave Forrest—your commitment to me and this thesis has made it possible for me to finish it. It is difficult to express how much this has meant to me, but I thank you unreservedly for providing emotional and intellectual sustenance and for your insistence not only that I was capable of finishing, but that the thesis was worth finishing. Together with our dog, Meko, you have provided me with more happiness, adventure and love than I could have ever imagined. iii Contents Introduction ............................................................................................................................ 1 Chapter 1: The Gendering of Law and its Institutions ........................................... 26 Chapter 2: Gender Diversity, the Politics of Merit, and Judicial Appointments to the High Court of Australia ........................................................................................ 46 Chapter 3: Sworn To Be: Gender, Difference and Judicial Swearing-in Speeches ................................................................................................................................ 71 Chapter 4: A Judgment of One’s Own? Staking a Claim to Judicial Authority . 98 Chapter 5: PGA v The Queen and the Judicial Imagination ................................. 119 Chapter 6: Transmitted Offence or Protected Speech? Gendered Harms in Monis v The Queen ............................................................................................................ 151 Chapter 7: The Art of Looking Back: The Farewell Ritual and the Construction of Judicial Legacies ........................................................................................................... 190 Conclusion: From None to One to Three of Seven—What Makes the Difference? ......................................................................................................................... 219 Bibliography ...................................................................................................................... 226 iv Publications relating to this Research McLoughlin. K. 2015. The Politics of Gender Diversity on the High Court of Australia. Alternative Law Journal 40 (3): 166-170. McLoughlin. K. 2015. A Particular Disappointment? Judging Women and the High Court of Australia? Feminist Legal Studies 23 (3): 273-294. McLoughlin K. 2015. Review of Australian Feminist Judgments: Righting and Rewriting Law. Alternative Law Journal 40 (2): 144. McLoughlin. K. 2016. Judicial Fictions and the Fictive Feminists: Re-imagination as Feminist Critique in PGA v The Queen. Griffith Law Review. DOI 10.1080/10383441.2015.1126398. v Abstract 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 vi 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, PGA v The Queen and Monis v The Queen, serve as vehicles to examine different manifestations of the Court’s gender dynamics. This examination is not just confined to the decisions themselves,
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