Beazley, Margaret --- "Women on the Bench" [2003] ALRCRefJl 17; (2003) 83 Australian Law Reform Commission Reform Journal 20

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Reform Issue 83 Spring 2003

This article appeared on pages 20 – 22 of the original journal.

Women on the Bench

By The Hon Justice Margaret Beazley*

Judging is an exacting business. It requires high levels of concentration. It demands an analytical mind. It calls for clear writing skills. It occupies enormous hours. And in my experience it is becoming more serious.

The last of these observations is, I believe, due to a variety of factors, including case management practices, alternative dispute resolution, and other restrictions placed on litigation. Alternative dispute resolution has become institutionalised and is increasingly becoming part of a mandatory process before access to the traditional court system is permitted. The Farm Debt Mediation Act 1994 (NSW) is one example. Increasingly, many disputes in, for example, the District Court are being referred to arbitration before access to a hearing is granted. The Supreme Court may compulsorily order mediation.¹ The rights of appeal to the New South Wales Court of Appeal have been restricted, so that, subject to certain exceptions, an appeal may not be brought without leave of the Court if the amount involved is less than $100,000.

There are many consequences that flow from these various requirements, practices and restrictions. From the judicial perspective, it means that it is the disputes that cannot settle or those involving more serious issues that are the daily fare of the Court. This is probably as it should be. But it does mean that the settlement rate, at least in the Court of Appeal, is very low and the legal issues usually more complex. As I said, the business of judging has become more serious.

The view I have just expressed is, I believe, one that would be expressed by any sitting judge, male or female.

For my part, I undertake the judicial task from the perspective that there should be no difference in judicial style or, more importantly, outcome depending upon whether one is male or female. That is as it should be because there are as many issues in litigation that directly affect males as there are issues that affect females. The rights of both, as individuals, have to be recognised by the system. There undoubtedly are differences in both judicial style and outcome depending upon the individual judge, but that is a different thing altogether.

I was appointed at a time when there was a raised consciousness of gender issues. This was apparent in the use of language in particular, although many judges groaned behind closed doors as to how to make a sentence flow using ‘him or her’ and complained of the need to do so. It was not obvious to many that a simple rearrangement of the sentence structure worked wonders. And it appeared to occur to none to structure the sentence so that ‘him’ followed ‘her’ as it naturally does in an alphabetical sense. Notwithstanding these semantic squabbles, there has been a major and systemic change in judicial language.

My reference to judicial language may appear a small matter but it demonstrates, in my opinion, two things. Firstly, we have come a long way in recognising the existence of women in the commerce of everyday life in all its facets. That was missing for most of my time as a barrister. Secondly, it also demonstrates that it has not been an easy transition and success is not complete. Again, this may be demonstrated by a simple example. In New South Wales, an allowance is made in an award of damages for future economic loss for vicissitudes. The allowance for vicissitudes contains within it a number of assumptions that a person’s life may be affected by other circumstances that will impact upon future earning capacity. The ‘usual’ allowance is 15 per cent and this has been recognised by the High Court as being permissible without the need for express findings or reasons.

I find, however, that in the Court of Appeal an unsuccessful defendant will often complain that a discount of greater than 15 per cent should have been allowed in the case of a woman who may marry or is married, or who has or may intend to have children. In Sullivan v Gordon in a judgment agreed in by the Chief Justice, the President of the Court of Appeal, Powell and Stein JJA, I said:

To the extent that child bearing and rearing might affect a person’s earning ability, it should, in my opinion be reflected in the usual contingencies, unless in a particular case there is evidence to support an increase in the percentage deduction for contingencies.²

The lesson is only slowly being learnt.

There are other instances in the Court’s judgments that indicate that there are those who refuse to be tamed. In a judgment that received some media attention, the inhabitants of a housing block were described in these terms: ‘The inhabitants of these flats were a motley crew. Many of them had psychiatric disorders. Some of them had been patients at institutions. Some were addicted to drugs or alcohol, or both. Many of them were foreigners, and many of them were female.’

For those who work daily with the author of these comments, they are seen to reflect an individual’s shaft at political correctness rather than an underlying bias. That would never be apparent to the litigant or other casual reader, and a judgment ought not be the place to play out such sentiments.

There are also lifestyle issues that I venture to suggest affect the female judge far more than their male counterparts, especially those who have children. This is being addressed in the Magistrates Courts with part-time positions being available. It has been highly successful. It is difficult to know whether and how this could translate to judicial positions in other courts where trials are longer and more complex. However, flexible sitting practices might be an option that calls for consideration. I experimented with these when sitting as a judge of the Federal Court. I commenced and finished my sitting day earlier so as to have an uninterrupted period in the afternoon for judgment writing. The practice had its own difficulties and I do not know whether it would have been a successful long-term strategy. I was soon after appointed to the Court of Appeal where such a practice is not feasible. However, it is encouraging that the Federal Court and its Chief Justice were amenable to the concept of flexibility.

Another issue that I consider to be of significance is the extent to which judges in a Court support male-only institutions and clubs. Unless the judiciary is prepared to lead in this respect and by its actions inform the entrenched interests in such bodies that the exclusion of a class of persons, in this case on the ground of gender, is inappropriate, I suspect that the status and interests of women in society generally will remain secondary.

I have not attempted in this short overview to provide an academic analysis of the influence women do have in their role as judicial officers. The raw data to do so is not available, nor is this the occasion for it. One has a myriad of experiences as a judge, some of which bespeak of an apparent inability to accept that the female judge has the same standing as her male counterparts, and many, many others where this is not considered an issue. An example of the former is when, sitting in the Court of Appeal with two other male judges, I was consistently referred to with the title appropriate to a judicial officer in an inferior Court. My male colleagues did not ‘hear’ the mode of address until I raised the matter with the presiding judge. Another example, and one experienced by many, is to call the female judge by the first female judge’s name that comes to mind. Justice Ruth Ginsberg told me she has the same experience. On more than just the isolated occasion, she has been referred to as Justice O’Connor by male advocates in the US Supreme Court.

Although my experience is thus variable, I suspect that the influence of women at the judicial level is significant. The influence is occasionally overt, but more usually subtle. As one of my male colleagues frequently responds to any disagreement I might have on a particular approach in a case involving a female litigant: ‘That’s what you’re here for Margaret—to keep us honest.’ I had thought my role went far beyond that, but at least the point is usually made in the case at hand. After all, the essence of our legal system is to provide individualised justice.

* The Honourable Justice Margaret Beazley is a Judge of the Court of Appeal, Supreme Court of New South Wales.

Endnotes

1. Supreme Court Act 1970 (NSW), s 110K.

2. [1999] NSWCA 338; (1999) 47 NSWLR 319.