Regina Graycar has highlighted the inherent danger in using the description ‘woman judge’ of reinforcing the underlying male norm: GraycarR., ‘The Gender of Judgments: Some Reflections on “Bias”’, (1998) 32University of British Columbia Law Review1, 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.
2.
EvansS., ‘Appointment of Justices’ in BlackshieldT.CoperM.WilliamsM. G. (eds), The Oxford Companion to the High Court of Australia, Oxford University Press, 2001 (hereafter The Oxford Companion), p.21.
GibbsHarrySir, ‘Law-Making Role: Further Reflections’ in The Oxford Companion, p.424.
5.
See, eg, MasonAnthonySir, ‘The Role of the Courts at the Turn of the Century’, (1994) 3Journal of Judicial Administration156; McHughM., ‘The Law-Making Function of the Judicial Process’, (1988) 62Australian Law Journal15 (Part I), and (1988) 62Australian Law Journal116 (Part II).
6.
MasonAnthonySir, ‘Law-Making Role: Reflections’ in The Oxford Companion, p.424.
7.
GraycarR.MorganJ., ‘Women’ in The Oxford Companion, p.721.
8.
GleesonM., ‘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.
9.
See Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary, 1994, p.96.
10.
KirbyM., quoted in above, ref 9, p.102.
11.
See, GibbsHarrySir, ‘The Appointment of Judges’, (1987) 61Australian Law Journal7; HaleDame Brenda, ‘Equality and the Judiciary: Why Should We Want More Women Judges?’, [2001] Public Law489; ShetreetS., ‘Who Will Judge: Reflections on the Process and Standards of Judicial Selection’, (1987) 61Australian Law Journal766.
High Court of Australia Act 1979 (Cth), s.11 and Schedule.
15.
See, eg, WilsonB., ‘Will Women Judges Really Make a Difference?’, (1990) 28Osgoode Hall Law Journal507.
16.
McColl, above, ref 13. See also KalowskiH., ‘Mary Genevieve Gaudron’ in The Oxford Companion, p.295.
17.
See, eg, L'Heureux-DubéC., ‘Making a Difference: The Pursuit of a Compassionate Justice’, (1997) 31University of British Columbia Law Review1.
18.
ThorntonM., ‘Feminism’ in The Oxford Companion, p.277. Compare the role of women as associates in the Court: LeighA., ‘Behind the Bench: Associates in the High Court of Australia’, (2000) 25(6) Alternative Law Journal295.
Law Council of Australia, 2010: A Discussion Paper. Challenges for the Legal Profession, 2001, p.132.
21.
Law Council of Australia, above ref 20, p.18; Law Society of New South Wales, After Ada: A New Precedent for Women in Law, 2002, p.7.
22.
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.
23.
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.18. 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.
24.
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 10.9% of law deans were women: ABA Commission on Women in the Profession, above, ref 23, p.2.
25.
Law Society of New South Wales, above, ref 21, p.7.
Law Society of New South Wales, above, ref 21, 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.
28.
Law Society of New South Wales, above, ref 21, p.6. See also Law Council of Australia, above, ref 20, p.133, which discusses similar findings across other states.
29.
Law Society of New South Wales, above, ref 21, p.14.
30.
Law Council of Australia, above, ref 20, p. 132; Kirby, above, ref 3, nn 4-7, 13-17.
31.
See McGlynnC., The Woman Lawyer—Making the Difference, 1998.
32.
See BrockmanJ., 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.
33.
See RhodeD., American Bar Association Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession, 2001, p.14.
34.
Law Council of Australia, above, ref 20, p.132 (emphasis added).
35.
Rhode, above, ref 33, p.14.
36.
Law Society of New South Wales, above, ref 21, p.19.
37.
Senate Standing Committee, above, ref 9, p.12.
38.
Senate Standing Committee, above, ref 9, p.xvii.
39.
As at 1999: See above, ref 23.
40.
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.
41.
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.
42.
Women comprised 22% of supreme court judges, 20.1% of circuit judges, and 19.2% of district judges as at July 2001: ABA Commission on Women in the Profession, above, ref 23, p.2.
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.
46.
See, eg, MallesonK.BandaF., 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.
47.
See McDonaldL., ‘The Myth of Legal Merit and Ability’, Canberra Times, 23 December 2002; GaudronM., Speech to the Women Lawyers' Association of New South Wales 50th Anniversary Gala Dinner, Sydney, 13 June 2002 <http://www.hcourt.gov.au/speeches/gaudronj/gaudronj_wlansw.html> at 3 April 2003.
48.
SimpsonT., ‘Appointments that Might Have Been’ in The Oxford Companion, 2001, p.23.
49.
SimpsonT., above, ref 48, p.27.
50.
GraycarR., ‘The Merit of a Bigger Pond’, Sydney Morning Herald, 19 December 2002, p.17 (emphasis added).
51.
Callinan J was a practising Queensland barrister when he was appointed to the Bench.
