When Justice Claire L'Heureux-Dubé retired in July 2002
from the Supreme Court of Canada, she was replaced by Justice Marie
Duchamp, who, like Justice L'Heureux Dube at the time of her appointment
in 1987, was a member of the Quebec Court of Appeal.
However, in 1983, when Justice Roma Mitchell, the first woman appointed
to the Supreme Court of any Australian State or Territory, retired
from her position on the Supreme Court of South Australia, there
were no other women on any of those courts. Some few years later,
Justice Mary Gaudron was appointed to the High Court of Australia,
the apex of this country's judicial system. Like Justice Mitchell
before her, she will leave that court in February 2003 as the only
woman ever to have served on it.
Over the past months, ever since Justice Gaudron announced her
intention to retire in February 2003, there has been considerable
attention focussed on whether the government would replace her with
a woman or with a man. But that question leaves aside the much bigger
issues that might have been discussed. Specifically, how are judges
appointed in Australia, and what do we mean by 'merit'?
One of the reasons that so few women have held high judicial office
in this country is that judges of superior courts in Australia are
almost invariably appointed from the ranks of practising senior
barristers. Barristers are those members of the legal profession
who do primarily court work and opinion work. They do not see clients
directly but take their instructions from solicitors, who act as
intermediaries. They are generally found around Queen's Square in
Sydney, and are easily recognisable by their tendency to wear those
quaint wigs and gowns. The most senior of them are elevated to the
status of Queen's Counsel or in some states, such as NSW, 'senior
counsel' - these are called 'silks'.
During the recent debate, we heard a lot about how appointments
should be made strictly on 'merit', rather than by reference to
some characteristic such as sex, or geographic representativeness.
Merit is one of those terms that is rarely analysed in any detail.
We don't tend to use the word unless there is some suggestion that
factors like sex, or race, or even geography are also considered
relevant, ie, it is used only when we talk of looking outside the
traditional white male paradigm. One commentator has described the
notion of 'merit' as a form of 'homosocial reproduction' or 'cloning'
given the tendency to see those who look most like ourselves, and
those whose lives most mirror our own, as meritorious. In a speech
earlier in 2002, Justice Mary Gaudron said that merit "slyly
conveys the message that men of silk are men of merit - a proposition
which, if true, would mean that there were many, many fewer than
300 men with silk in NSW, and many, many fewer than 700 Australia-wide".
Should this very small part of the legal profession be the only
pool from which we draw when we seek to find the very best legal
minds, the intellectual leaders of the judiciary whose role is to
adjudicate upon a range of competing legal principles? In countries
such as the United States, where the legal profession is not divided
into solicitors and barristers, the pool of those from whom appointments
are made is inevitably wider. In that country, as in Canada, many
of the finest judges have been appointed from the senior ranks of
the legal academy. The current Chief Justice of Canada, The Hon
Beverley McLachlin, one of three women currently serving on that
country's highest court, was a professor at the University of British
Columbia at the time she was appointed to the bench in that province
from where she was later promoted to the Supreme Court. Several
of the other nine current judges have academic backgrounds, others
have practice backgrounds, and some have both.
Rather than focus on the specifics of any individual appointment
to the Court, perhaps it is time to have a broader discussion about
the appointment of judges and about whether the judiciary is able
to respond adequately to the diversity of the community, and of
the legal issues that affect Australians in this new millennium.