Kenny, Justice Susan --- "Outsiders on the inside: different guys, new voices and the making of the Australian judiciary" (FCA) [2001] FedJSchol 3

‘Outsiders on the inside: different guys, new voices and the making of the Australian judiciary'
2001 Marjorie Smart lecture, St Hilda’s College, University of Melbourne
April 2001

The Hon Justice Susan Kenny[•]

THE ENTRY OF WOMEN INTO THE LEGAL PROFESSION
The first woman in Australia admitted to practice law was Grata Flos Matilda Greig, or Flos Greig, as she was known.[1] Born on 7 November 1880, she enrolled at the University of Melbourne in arts and law in 1897. In so doing, she became the first woman to enter the law faculty of the University of Melbourne and to graduate from it with a Bachelor of Laws degree. She overcame significant opposition to her entry to the law faculty and her subsequent admission to the legal profession. Concerning the entry of women to the Melbourne law school, Campbell observed:

Certainly many male Law Students seemed discouraging. “We are old-fashioned enough”, declared one of them, in 1892, “to prefer to sport with some winsome but unlearned Amaryllis in the shade. We remember – years ago – a blue-eyed, fair-haired little thing who used to entertain us vastly with her innocent prattle, while we whispered sweet nothings in her little pink ear. Yet she hadn’t an idea of the rule in Shelley’s Case and knew no more of signing final judgments under Order XIV than the babe unborn.” As for women in practice, the idea was unthinkable.[2]
Notwithstanding the prejudice and want of imagination that confronted her, Greig was admitted to practice on 1 August 1905, after the enactment of the Women’s Disability Removal Act 1903 (Vic), sometimes referred to as the “Flos Greig Enabling Act”. Prior to her retirement, she was an employee solicitor in Wangaratta in country Victoria.
The first woman to graduate in law was Ada Evans. She graduated in 1902 from the University of Sydney.[3] She was not, however, admitted to practice until 1921, following the enactment of the Women’s Legal Status Act 1918 (NSW). This Act removed the barrier to entry that the Supreme Court considered her sex created. Although the history of the admission of women to the legal profession in other Australian states reflected local differences, all early women entrants apparently faced significant opposition - of one kind or another - on account of their sex.
The history of women’s participation in the legal profession in Australia is paralleled elsewhere in the common law world. For example, after repeatedly being denied entry to the legal profession, Clara Brett Martin was admitted as a barrister in Ontario, Canada, in 1897. Women in the United States of America followed a no less difficult path to gain admission.[4]
Professor Enid Campbell and Justice Mitchell may be considered unusual, as women and as lawyers. Only a small percentage of Australian lawyers were women in the mid to late 1960s. Even in the decade after their appointments as Professor and Judge respectively, there were few other women lawyers at any senior level of the profession, in practice or in academia.

THE BEGINNINGS OF ‘FEMINISATION’ OF THE LEGAL PROFESSION
The absence of many women from the senior levels of the legal profession in the 1960s is partly explained by the relatively few women who, prior to 1970, undertook legal training. When Professor Campbell joined the University of Sydney in 1960, only about 3.9% of law professionals in Australia were women.[5] Until the early 1970s, the numbers of women in Australian law schools were slight relative to men. In the early 1970s, women began to enter the law schools in significant numbers, with the result that, by the middle of the decade, they represented 20 per cent of those graduating from law schools in Australia.[6] A decade later, this percentage had risen to around 35 per cent. By 1998, around 56 per cent of undergraduate law students in Australia were female.[7]
The movement of women into the law schools in Australia in the 1970s followed the movement of women into law schools in the United Kingdom and the United States in the 1960s. In the United Kingdom in 1967, women accounted for 17 per cent of law students, a figure that rose to 39 per cent by 1978 and to 45 per cent by 1983-4.[8] In 1997 in the United Kingdom, almost two thirds of law students were women.[9] According to Abel, in the United States, “[w]omen entered the profession in high absolute numbers and even higher proportions during World War II, but thereafter their representation dropped back to about 5 percent and began to increase only in 1968”.[10] By the end of the 1980s, 34 per cent of new admissions to law schools in the United States were women.[11] In the United States in 2000, women law students constituted about 50 per cent of the law student population.[12]
As the female law student body increased, so too did the proportion of women on the law academic staff. The histories of the appointment of women to tenured positions in law schools in Australia and other common law countries are similar to one other, although, in the United States, such appointments were possibly earlier and more numerous than in Australia.[13] In 1994, 11.9 per cent of the 84 law professors in Australia were women and, in the same year, women made up 39 per cent of the Australian academic law staff. In 1999, women made up 39.9 per cent of the academic law staff and 15.5 per cent of the 129 law professors.[14]
Since the 1970s, there have, on any view, been considerable changes not only in the composition of the law faculties but also in the practising profession, although the significance of the changes is unclear. Until recently, the proportion of women compared with men in legal practice was appreciably lower than the proportion of women compared with men graduating from law schools. By 1976, only 7.5 per cent of 12,909 law professionals were women. By 1981, only 11.4 per cent of 17, 516 law professionals were women. A decade later, in 1991, 25.1 per cent of 32, 625 lawyers in full-time work were women and 54.4 per cent of 14,501 lawyers in part-time work were women.[15] By 1998-1999, there were 7,293 female lawyers in Australia, constituting 29 per cent of the practising profession in the country.[16] The proportion of women practitioners in the profession is higher in the more populous states than elsewhere. In Victoria, in 1999, 34.7 per cent of respondent lawyers in practice were women.[17] In New South Wales, 37 per cent of the profession were women by 1 August 2002.[18]
Until recently, some disparity between the proportion of recent women graduates and the proportion of women in practice, as compared with men, was virtually inevitable, having regard to the relatively late entry of women into legal training. Plainly enough, as the number of lawyers in practice has increased, so too the proportion of women in the profession has grown. A survey of the law profession in Victoria in 1999 showed that 44 per cent of the profession in the 30 to 39 years age group were women, as compared with 12.8 per cent in the group aged 50 years and older.[19] The results of a survey by the Law Institute of Victoria were reported as showing that, in 2001, “[w]omen have ... become the majority for the first time in the 30-39 years age group of practitioners and have increased their numbers in the 40-49 years age group by 25 per cent”.[20] In January 2003, the Law Institute of Victoria reported that a further survey showed:

[W]omen make up 62% of practitioners under 30 years of age but are the minority in practitioners aged over 40. Men make up 60 per cent of the practising profession aged 40-49 and 87 per cent of those over 50 years of age.

There are some signs that this imbalance could eventually change. Women dominate with practitioners aged under 30 (62 per cent) and break even in the 30-39 age group. Overall, men are still in the majority (61 per cent) ... .[21]
The intensity and the irrationality of the opposition encountered by Ada Evans, Flos Grieg and other women of their generation who sought to qualify as lawyers is seemingly far removed from the experience of women who seek admission to the legal profession in the early twenty-first century. Prejudice against women as lawyers did not, however, die easily. Looking back to the 1970s, when the women first entered Australian law schools in numbers, it does not seem to me that my female contemporaries and I were much welcomed as future colleagues by most of our male classmates. If we were put at ease at all, it was most often by those who taught us, one or two of whom were women. As Thornton said:

The entry of women into the law schools in substantial numbers in the 1970s precipitated a dilemma. There was a demand for legal services, rendering women useful to corporate capital, but the residual suspicion of the feminine remained. The sexed body of the woman law student continued to get in the way of the idea of her becoming a rational legal knower, creating permanent confusion.[22]

In the 1970s, however, the prejudice against women as lawyers was generally more intense outside the law schools than in them. The statistics indicate that, over the past thirty years, the barriers to women’s admission to the profession have disappeared. There have not, however, been very many women lawyers who have attained any level of seniority comparable to that of Professor Campbell and Justice Mitchell, even taking account of the relatively recent entry of women into law and the fact that there have been a greater proportion of less experienced female practitioners than men. There has, it seems, been a marked tendency to lose talent from the ranks of women trained in the law or fail to recognise and promote it.

WOMEN LAWYERS IN 2003: AT THE BOTTOM OF THE PILE
Whilst recognising that statistics of any kind must be treated with caution, they are indicative of some systemic condition. The statistics show that today women are very largely found in the lower ranks of the profession and in more poorly paid and less influential positions than their male counterparts. Promotion and advancement in the profession continue to elude women.
A 1993 study found that, in Victoria, 89 per cent of men lawyers acquired partnership status within the first five years of practice compared with only 11 per cent of women lawyers.[23] The Australian Law Reform Commission reported in October 1994 that:

[S]tatistical evidence indicates that equal numbers of women in law schools and greater numbers entering the junior ranks of the profession will not automatically lead to women reaching senior levels of the profession. Women have made up half the law graduates in Western Australia for the last ten years, but only make up 26% of lawyers holding practising certificates and 6% of all partners in law firms. The percentage of partners in New South Wales who are women remained static between 1990 and 1993, despite the steadily increasing rate of graduates who are women. Similarly in Victoria, the proportion of partners in law firms who are women remained constant between 1980 and 1989 while the proportion of women who are solicitors increased from 12% to 20%.[24]

A report of research into the legal profession in New South Wales, which was published in March 1995, reiterated that women lawyers “attained partnership at a considerably lower rate than that of their male counterparts”.[25] Little has altered in this regard since 1995. On 1 August 2002, only 7 per cent of the 6,143 female solicitors holding practising certificates in New South Wales were partners, notwithstanding that 66 per cent were in private practice.[26] In Victoria, the position is not materially different. In January 2003, the Law Institute of Victoria reported:
32 per cent of male practitioners are partners compared to 10 per cent of women, with 75 per cent of female practitioners and 36 per cent of males deemed employee solicitors.[27]
There is apparently a similar disparity between the proportion of men and women reaching the senior ranks of the practising profession in other common law countries.[28]

The firms do not provide the only workplace for lawyers in private practice in this country. Women at the state bars apparently fare no better than those in firms. In Victoria, in 1997, women constituted only 15.8 per cent of barristers and a mere 6 per cent of senior counsel.[29] By June 2003, in Victoria, there was only a marginal increase in the proportion of women members of the bar. There were 1,457 barristers, of whom 18 per cent were female. There were 185 Senior Counsel (or silks), including 14 women.[30]
Because universities have seemed more congenial environments for women than the practising profession, it may surprise some in the practising profession to learn that, generally speaking, female law academics remain at the most junior, poorly paid and insecure positions. Between 1994 and 1999, although the proportion of women on the academic staff of law schools in Australia remained relatively constant, there has been only a marginal increase in the female proportion of professors, associate professors and senior lecturers.[31] The position of women academics in law schools in other common law countries has led to similar expressions of concern.[32]
Women have, however, progressed most slowly in relation to judicial appointments. Partly, this is a consequence of their slow progress through the ranks of the bar, from which judges have most commonly been selected. A decade or so ago, over 90 per cent of federal judicial office holders in Australia were men.[33] According to Campbell and Lee,[34] there were around 240 judges of the superior courts in Australia in December 1996. Twenty-two of them were women and half of them were judges of the Family Court of Australia. At that time, there were four female judges of the Federal Court of Australia and two in the Supreme Court of New South Wales. There was one female judge on the High Court of Australia and the Supreme Courts of the Northern Territory, Queensland, South Australia and Victoria. By December 1999, Campbell and Lee[35] reported that there were around 260 judges of the superior courts, of whom 33 were women. Of these 33, about 45 per cent were judges of the Family Court. There were five judges of the Federal Court and four female judges in each of the Supreme Courts of New South Wales and Queensland, and two female judges in the Supreme Court of Victoria. There remained one female judge on the High Court and the Supreme Courts of the Northern Territory, South Australia and Western Australia.
By June 2003,[36] there was no woman judge of the High Court or the Supreme Courts of the Australian Capital Territory and Tasmania. There was one woman on each of the Supreme Courts of the Northern Territory and South Australia. There were four female judges of the Supreme Courts of Victoria and New South Wales. There were five female judges on the Federal Court. There were 14 female judges of the Family Court. There were seven women judges of the Supreme Court of Queensland. Overall, there were 12.3 per cent of the judges of the Supreme Courts were women. This may be compared with 11.6 per cent of the Federal Court and 27 per cent of the Family Court.[37] Arguably, over the past decade or so, the composition of the superior courts has not greatly altered. Expressed as a percentage, the current composition of these courts is around 83 per cent men. If the Family Court were put to one side, the percentage increases to around 88 per cent men. This is only marginally less than it was a decade ago.[38]
In the United Kingdom, the United States and Canada, the proportion of women lawyers compared with men lawyers who are appointed to the higher courts is also low.[39] Australia does, however, stand in a different position from these other countries in relation to its highest court. As Davis and Williams observed:

Australia is unusual among its common law counterparts in having an all male bench on its highest court. Both the Supreme Court of Canada and the Supreme Court of Singapore include three women (out of nine and 13 judges respectively), with Ireland, the United States and New Zealand each claiming two (out of nine, nine and eight members of their highest courts respectively). Both the Chief Justice of Canada and the Chief Justice of New Zealand are female (McLachlin CJ and Elias CJ respectively). While the highest court in the UK, the House of Lords, had up until this year never had a female judge appointed to it, the UK was exceptional in this respect, and the subject had been a matter of significant public debate. The historic appointment in October this year of Dame Brenda Hale to the House of Lords, effective January 2004, further highlights Australia’s unique position.[40]
The conclusion seems inescapable that, in Australia, at the beginning of the twenty-first century, “women are clustered in the lower ranks of the professional hierarchy, in lower status practice areas (particularly family law), and at the lower levels of various sections of the profession, including the courts, law firms, and academia”.[41] They are less likely than similarly qualified men to attain partnerships, professorial status or senior judicial office. The Australian Law Reform Commission reached the same conclusion in October 1994.[42] Other researchers agreed.[43]
The position of women in the practising profession and in universities is apparently no better in the United Kingdom, the United States or Canada.[44] After reviewing the position of women as judges, barristers, legal academics and solicitors in the United Kingdom, McGlynn observed:

It is difficult to generalise about the status of ‘women lawyers’, as the term comprises an extremely diverse community of lawyers in many different working environments. Furthermore, suggesting an analysis of women lawyers in the UK implies a coherence and similarity across the whole of the UK which does not exist. Nonetheless, with those caveats in mind, it is possible to say that what is clear from the above analysis is that women working and studying in the law tend to be under-represented, underpaid and marginalised. More worrying is evidence of a retrenchment in some quarters, with the progress that women have been making stagnating and in some cases reversing.[45]

Referring to the position in the United States of America, Rhode commented:

Women now account for about 45 per cent of law students and almost 25 per cent of the bar, but only about 20 per cent of general counsels and tenured law school faculty, 13 per cent of large law firm partners, 10 to 12 per cent of judges, and 10 per cent of law school deans. Such under-representation cannot be explained simply by disparities in the pool of eligible candidates. Virtually all gender bias studies have found substantial disparities in promotion and pay among male and female lawyers with comparable positions, experience and qualifications. In general, they suggest that women are about half as likely as men to achieve partnership status, and reveal pay gaps ranging from 10 to 35 per cent.[46]

WHY WE SHOULD EXPLORE THE REASONS FOR THE SLOW ADVANCEMENT OF WOMEN
Twenty years ago, many people believed that the disparity between men and women at the senior levels of the legal profession would fade away as women joined the profession in greater numbers than before and, so it was thought, moved up the legal ranks. The statistics show that this has not happened, or at least not at a rate commensurate with women’s admission.[47] The promotion of women is apparently unlikely to occur at the same rate as men in the near future if all that occurs is that more women enter the profession over time. This fact is apparently not widely appreciated. A common belief is that, since women have entered the profession in considerable numbers, then women lawyers are just about to enter a level playing field.[48] This misconception creates further difficulties for women lawyers. Writing of lawyers in the United States, Rhode commented:

Paradoxically enough, women’s increasing representation and influence in the profession has created the ‘woman problem’ in different form. The central contemporary problem is the denial that there is in fact a serious problem. The prevailing assumption is that barriers have come down, women have moved up, and full equality is just around the corner.[49]
It is, however, plain enough that women continue to be promoted into the senior ranks of the profession much more slowly than men.
There is nothing to indicate that women are, by reason of their sex, less suited to the study and practice of the law than men. Nonetheless, lawyer women choose to leave the profession more frequently than lawyer men.[50] Is it also possible that women do not seek out and take up advancement opportunities as actively as lawyer men? There is some evidence that this may be the case. In its 2002 report, After Ada: a new precedent for women in law, the Law Society of New South Wales stated:

In all age groups (except those over 50 years of age), men are more likely than women to aspire to be partners. Reasons cited by women likely to prevent them achieving their aspirations to become partners include: commitment to family responsibilities, lack of appropriate female role models, lack of mentoring and gender.[51]
These results cannot be dismissed as a mere aberration, since they were similar to the results of a similar survey in the United Kingdom.[52]
One might to ask why more women than men make these decisions, not just out of sociological interest, but also because of the roles that lawyers and legal institutions play in maintaining an open, just and free society, to use Justice Gaudron’s expression.[53] Lawyers maintain the law by promoting its proper application and observance. The principle of procedural equality has long been part of the law. Today, a principle of substantive equality operates in many contexts[54] and, ordinarily (although apparently not always), the law requires the like treatment of like persons in like circumstances, as well as the appropriate recognition of relevant difference.[55] In order to discharge their responsibilities, lawyers must fully appreciate and integrate these principles within their practice of the law. If the structure and organisation of the profession is, directly or indirectly, discriminating against women (or some other social group), then lawyers themselves compromise this principle of equality.
The law schools play a critical role in equipping law students (and therefore the future generations of lawyers) with the intellectual tools that they will require to be lawyers. These tools include an understanding and respect for the principles that the law maintains. As Wells said:

Universities exercise significant powers of selection, licensing and gatekeeping, and ‘they greatly influence and control definitions of knowledge and much, though not all, of the ideological machinery of the state and society’.[56]
If law schools are also discriminating against women, whether directly or indirectly, then they too compromise their ability to inculcate the principles inherent in the discipline they study and teach.
Finally, as Justice Gaudron observed, the maintenance of an open, free and just society depends on the manner in which the courts discharge their task of adjudicating the disputes that come before them, whether between citizens, entities in the federal polity or otherwise.[57] In exercising judicial power, the superior courts, being courts exercising federal jurisdiction, are required to determine contests about legal rights, duties and consequences in accordance with Chapter III of the Commonwealth Constitution. This at least requires an exercise of judicial power - in accordance with judicial process – that is fair and impartial. If discrimination against women (or some other part of the community) is a condition in which the appointment of the judges takes place, this condition has the capacity, directly or indirectly, to compromise the quality of justice that the courts administer. I return to this theme below.
REASONS FOR THE SLOW ADVANCEMENT OF WOMEN
A common assumption is that some women find the combination of family and professional responsibilities too onerous and, for this reason, decide to leave private practice or not to aim high in it. There are two principal considerations that support this assumption. In Australia (as in the United States, Canada and the United Kingdom) women tend to carry heavier responsibilities than men for the care of children and other family members. As the Australian Law Reform Commission said in 1994:

Women in Australia have always been and remain primarily responsible for domestic work (such as cleaning, child-care, cooking, shopping), despite their increasing rate of participation in the paid work force. Indeed, where women live with men and both adults are engaged in paid work outside the home, women are overwhelmingly responsible for the domestic work.[58]
Even in professional circles, it is not uncommon to find that women bear the burden of routine domestic responsibilities. Studies of lawyer women in practice indicate that the domestic burdens of the private sphere continue to fall more heavily on women than men.[59] In their study of Canadian lawyers in Ontario, Hagan and Kay reported:

[W]e found that women lawyers in large firms were especially likely to delay parenting, and that women with children worked the equivalent of another full-time job in child care, averaging forty-eight hours per week with their children, compared to twenty-one hours for men.[60]
Writing of the situation in the United States, Rhode reported:

Employed women spend twice as much time on domestic chores as do employed men, and not always by choice. ... . To avoid a culture of complaints about family obligations, professional women often pick up the pieces that their partners do not even realise have been dropped ...The problem is not only that many men are reluctant to make career sacrifices, but also that those who attempt to do so encounter too much resistance. Colleagues who are reluctant to accommodate mothers often have even less tolerance for fathers.[61]
Bearing these matters in mind, decisions by female practitioners to leave the private profession, or not to seek advancement in it, are comprehensible when a further consideration is borne in mind, namely, that professional practice generally rewards best an unwavering commitment to work and certain blindness to other needs that typically accompany the human condition, including family responsibilities.[62]
Law firms have become notorious for the excessively long hours that they regularly demand of their staff. [63] A 1998 study in New South Wales found that the female respondent solicitors worked an average of 49 hours a week and male respondent solicitors worked an average of 52 hours per week.[64] According to a 2002 survey of the Victorian profession, male lawyers were working an average of 50.4 hours per week, whilst female lawyers were working an average of 44.6 hours per week.[65] As at January 2003, 49 per cent of solicitors in Victoria in the 40-49 age bracket were working more than 50 hours a week.[66] These hours are, plainly enough, incompatible with the responsibilities of a person undertaking primary, ‘hands on’ care of the young, the sick or the infirm. In order to work hours of this length, a person with responsibilities of this kind must rely on another to do the work for them. One submission to the Australian Law Reform Commission described the conditions of employment in law firms in the following terms:

Employers often expect that staff lawyers will work from 8.00am to late 6 days a week. This model assumes someone is at home preparing meals, looking after the kids, shopping, doing housework and minding the children. If women still shoulder these responsibilities they are seen as ‘unprofessional’ because they have to leave at 5.00pm to collect their children from childcare and are not available to work at weekends. [67]

Absent alternative arrangements in the workplace or at home, it takes little imagination to understand why conditions of this kind lead women lawyers with family responsibilities to leave the profession or not to seek advancement within it. The problem of long hours is, moreover, exacerbated by the rigidity of the work arrangements accepted by the profession.[68] The inflexibility of the profession’s workplaces has also had a disproportionately adverse effect on women lawyers with family responsibilities.[69]
Similar constraints affect women who join the independent bars around Australia. Barristers and those who brief them generally assume that to practice successfully in this environment a barrister must be prepared to work long hours and be entirely committed to the work. Keys Young reported one female barrister as saying:

To be good at the Bar, it has to be your number one priority. I work 8 to 8 and some weekends. If you knock back work you are not regarded as a serious barrister. It is interesting that you can knock back work if you are on a long case (eg. A Royal Commission), but not for family responsibilities. You would not be taken seriously.[70]

Of course, the burdens of long hours and inflexible work arrangements fall upon men too. So far as many women are concerned, however, the burdens may fall much more heavily on them simply because of the conventional allocation of domestic responsibilities. Equally, however, burdening men in this way tends to confirm traditional family organisation, by discouraging men and women who share domestic and family responsibilities from departing from the traditional model. Lawyer women in this situation may choose to leave private practice or to work part time in order to accommodate their professional and family responsibilities. Whilst the choice that these women lawyers make is a rational one, in the absence of alternative workplace arrangements, it is difficult to ascribe to it a truly voluntary character. Further, as others have noted, lawyers, typically women, who take part-time work, are seen as insufficiently committed to their work.[71] In contemporary language, the fact of long hours of work gives rise to the “mummy track”.[72]
The evidence is that inflexible work practices and long hours deter women in private practice from seeking advancement. These practices are not, however, the usual attributes of university employment and yet women law academics have not advanced as far and fast as one might have expected in the absence of the long hours and inflexible structures of private practice.[73] Are the factors retarding women academics’ progress different from those affecting private practitioners, or they are essentially the same? Does the talk about long hours and inflexible work practices really mask some more fundamental cause for women’s slow promotion?
Bearing in mind the flexibility of the academic workplace, Wells considered “the academic career has been complicit in fudging issues affecting women such as child care responsibilities”.[74] She added:

The ghost of the seven day a week ivory tower intellectual survived only to haunt women academics. When men had rounded lives, were involved in sport or other leisure activities, or even took parenthood seriously, their professionalism was not doubted.[75]
How did the ghost manifest itself? Wells observed:

The ‘assessment’ of an academic CV for promotions and appointments is a subjective and inexact science ... . While women think it gives them flexibility to undertake childcare, their assessors may assume that as a result they have less commitment, whatever that means.[76]
According to Wells, in the laws schools, “[a]scription decisions take place at all career stages”.[77] Women assumed, or believed they assumed, more pastoral work than men in universities.[78] They were called on to ‘represent’ women on committees and the like, without having this contribution taken into account. By this means, women were deprived, or believed they were deprived, of time for more highly regarded activities, such as research. There was, moreover, some evidence that male academics did not value the work of women as highly as that of other men.[79] Wells has concluded:

Women’s under-representation in senior positions is a complex product of many factors, including lack of mentoring and patronage, as well as vague promotion criteria, often subjectively applied. In universities and most of our social and political institutions power is held by men, and it is not surprising that the normative structures and rules within those institutions generally reflect and further the interests of those holding power in that system ... It is within these broader cultural foundations that localised cultures and politics are played out and ‘choices’ are made. The very qualities of competence, compliance and social immobility which are taken to be natural in women may also make them ideal candidates for filling out the base of the pyramid, providing the teaching commitment that the expanding base of higher education demands ... Seemingly trivial instances acquire significance when located in a wider analysis of power relations. First of all women are made to feel slightly odd and out of the order of things if they are clever and assertive. Secondly, the combined effects of being patronised and dealt with differently, all the while being told that this is their imagination, lead to complex problems of lack of self-confidence and self-esteem ... Being in a minority also leads to whole sets of double thinking, especially once equal opportunities appear on the political agenda. Has merit or political correctness led to your success?[80]
There is evidence that the same kind of factors operate in the practising profession. In a New South Wales survey in 2001, female solicitors specifically cited the lack of role models and mentors as an obstacle to them in defining and achieving their goals in the profession.[81] An earlier survey also referred to these factors.[82] Findings from a 1998 study of the Victorian Bar reflected a similar experience. This was that:

Women generally find it more difficult to gain entry to, and support from the ‘mainstream’ of the Bar, which may have significant effects for individuals in terms of peer recognition, work satisfaction, and ‘success’ as a barrister.[83]
Promotional criteria are also vague, and the appointment process for senior counsel and judges are kept confidential by convention and design.[84] Indeed, in 1994, the Australian Law Reform Commission reported that:

Submissions say that legal firms often have only tokenistic regard to anti-discrimination laws in recruitment and promotion. They report that women are asked inappropriate questions at interviews, overlooked for promotion, and not remunerated on an equal basis.[85]
The qualities that may make women ideal candidates for “filling out the base of the pyramid” in university law schools may also suit them for junior roles in firms and at the Bar. It may help to explain why women have had so few ‘speaking parts’ in the High Court of Australia[86] (although regularly briefed as juniors) and why in Victoria women barristers receive disproportionately fewer briefs than men to appear in the intermediate and higher courts.[87] There is also evidence that lawyer women believe themselves to be more ‘visible’ than their male counterparts (because considered out of the ordinary) and likely to be the subject of more frequent comment than men.[88] It is not unreasonable to infer that women practitioners suffer the same forms of self-doubt as women in academia.
The comparison of women in practice with women in academic life indicates that women in practice will not necessarily advance as fast as men even if the organisation of their workplace is made more congenial for them. This is not to say that every effort should not be made to introduce more flexible working arrangements and less onerous hours than prevail today. Success in this regard would benefit not only women but also men; and, indeed, may prove economically advantageous too.[89] The comparison does, however, caution against too ready acceptance that the principal barriers to women relate to their inability to combine professional and family responsibilities, or to reconcile their private and public lives. The comparison indicates that, even when these structural barriers are removed, lawyer women face many diverse, complex factors that tend to stand in the way of their advancement to senior and more influential positions. In the end, real equality of opportunity for women lawyers cannot be achieved until most lawyers regard certain stereotypical views of women and their commitment to their profession as just as silly as they now regard the opinion of the undergraduate of 1892, which was quoted by Campbell (and set out at the commencement of this discussion).
Perhaps the practising profession will cling to these stereotypes longer than the law schools. Certainly, the incidence of overt discrimination remains higher in the profession than in academia. According to the Australian Law Reform Commission, in October 1994, women in private practice, as barristers and solicitors, were at a greater risk of experiencing discrimination in their workplaces on account of their sex than those working in the universities.[90] Female lawyers continue to be plagued by harassment, discrimination and bullying. The Law Society of New South Wales reported:

Female solicitors responding to the 2000/2001 Practising Certificate Survey reported that almost one quarter of them (37%) had experienced harassment or discrimination due to their gender, in the course of practice as a legal practitioner. This compares with the response rate from male solicitors of 3%.[91]
At a base level in the practising profession, the incidence of breach of the anti-discrimination principles is alarmingly high.

DOES THE LACK OF ADVANCEMENT REALLY MATTER?
The evidence strongly indicates that women are being excluded from the senior levels of the profession, by the operation of various disparate and complex factors, none of which genuinely relate to their knowledge and ability as lawyers. As a consequence, it is more likely than not that the profession and the law schools are failing to take full advantage of these lawyers’ talents.
Because talented lawyers, who happen to be female, fail to make the senior ranks of the profession, their talents are lost to the courts. This impoverishes institutions that are fundamental to the maintenance of an open, free and just society and to the democratic processes that support it.
Building largely on Gilligan’s book, In A Different Voice: Psychological Theory and Women’s Development,[92] some scholars have contended that women’s participation as lawyers and judges may effect significant improvement in the legal system, including the quality of justice that the courts deliver. Like Ginsburg, I doubt that one can make reliable generalisations about the contributions that are or may be made by women in contrast to men, and I would not do so.[93] Certainly, there is as yet no evidence that gives unequivocal support to this hypothesis. Neave concluded that:

The research projects reviewed [by her] do not prove or disprove the hypothesis that the differing experiences of men and women judges affect the decisions they make or that men and women judges speak “in a different voice”. There is some evidence that the different experiences of men and women shape their responses in some types of cases, but in areas such as criminal law, gender appears to have little effect on decision-making.[94]
Any impoverishment of the community’s resources is, however, significant. The point is that the community’s resources are being depleted because, to the community’s cost, on account of their sex, talented lawyers are not being given a real opportunity to use their lawyerly talents.
There is another reason why the failure to recognise and promote the talents of lawyers who happen to be women is harmful to Australian society. Discrimination, whether direct or indirect, against lawyers on account of their sex (or race, or religion or any other extraneous consideration) undermines the quality of justice that lawyers, especially in the courts, can deliver. In the legal system, this discrimination tends to confirm the misconceived stereotypes about women (or some other social group). One consequence is, for example, that judicial adherence to assumptions about gender, race, religion or some other extraneous matter impedes or prevents the courts from ascertaining the facts as they are. This is one of their essential functions.[95]
Between 1992 and 1993, the media directed the community’s attention to the fact that some judges apparently continued to rely on these kinds of stereotypical views about women. As a result, the Senate of the Commonwealth Parliament made an inquiry into gender bias and the judiciary. The Committee’s 1994 report would have done little to allay public concern about the issue. The Committee said:

[A] significant number of the cases examined demonstrate the resilience in some jurisdictions of certain unconscious beliefs and stereotypes in cases of alleged sexual assault. The belief that women, for various reasons, concoct incidents of sexual assault, still seems to be common among some judges. By adhering to these traditional statements, the rationale for which other judges have questioned, judges are potentially influencing the outcome of cases.[96]

The Committee concluded:

To the extent that an impression has been created that the publicised comments are in some way typical of overt prejudice on the part of the judiciary as a whole, it is a false impression, and the publicity that the comments themselves have attracted has been exaggerated. However, the evidence has led the Committee to conclude that a problem exists that is wider than a handful of isolated instances.[97]
Australian judges must not make, or appear to make, their decisions out of animus towards a person or cause. Judges cannot act in cases where there is a reasonable apprehension of bias on their part.[98] Gendered assumptions have, nonetheless, the potential to affect judicial decision-making in complex and disguised ways. Particularly in finding the facts, trial judges who sit without a jury (as in the Federal Court of Australia) must draw on their own experience. Judges inevitably measure the credibility of a witness against their own experience of what is probable or improbable in human affairs. At this point, perhaps without the judges being aware of it, and unseen by anyone else, misconceived stereotypes, whether about women or some other group, have an opportunity to enter the decision-making process. The law and its practice, as well as the discipline of a judge, can constrain (but cannot exclude) the manner and degree these misplaced assumptions affect decisions. The ideal of impartiality to which judges aspire is difficult to obtain, especially if the judges do not appreciate the differing perceptions and understandings of the participants in a dispute before the court. By disadvantaging women lawyers and thereby confirming stereotypical assumptions, systemic biases are reinforced and reduce the potential for this appreciation of difference.
Scholars have shown how gendered assumptions have also had an effect on the development of the law, including the law’s failure to recognise the economic value of domestic labour in dividing property on the dissolution of marriage or in compensating women for loss of capacity to work in the home.[99] As Wilson observed, however, “there are probably whole areas of the law on which there is no uniquely feminine perspective”.[100] Nonetheless, the law and the courts are likely to deliver justice more truly if the judges, and lawyers generally, understand the effect of gendered assumptions and like misconceptions on the way they state the law.
At perhaps a more mundane, though no less important, level than this, misconceptions about the relevance of gender in the courtroom can affect courtroom behaviour. Numerous studies have documented that women lawyers have suffered from a greater incidence of bullying and harassment on account of their sex than men.[101] Female litigants and witnesses have complained that, because they were women, they were humiliated, patronised or disbelieved.[102] Since courtrooms are the public manifestation of ‘doing justice’, conduct of this kind has the capacity to work considerable harm to the public perception of how justice is done.
As the Report of the Standing Committee on Legal and Constitutional Affairs on Gender Bias and the Judiciary graphically illustrated, the perpetuation of misplaced gendered assumptions and stereotypical views about women and other social groups in the courts has the very real potential to undermine public confidence in them. The courts must fail if they lose the confidence of the community. As the majority said in Gallagher v Durack, “[t]the authority of the law rests on public confidence”.[103] If the courts fail to accord like treatment to like people in like circumstances and act, instead, on extraneous differences, then they will not maintain public confidence in them.[104]
The profession’s tolerance of disproportionately few women at its senior levels, having regard to the position of similarly qualified men, compromises the manner in which the law is practised. If, moreover, disproportionately few women are appointed to the courts, having regard to the numbers of comparable men, then some members of the community might infer that talented women lawyers are not selected simply because they are women. The injustice is palpable. These same members of the community might be driven to question whether Australian judges are always appointed from amongst the most able lawyers of the day. Doubts of this kind are dangerous for the maintenance of public confidence in the legal system. Perhaps this is the true rationale of Professor Shetreet’s “fair reflection” principle,[105] which required that, so far as practicable, the composition of the judiciary should reflect the composition of the community.

IS THERE A REMEDY?
How can appropriately qualified women be introduced in greater numbers into the profession’s senior ranks? The problem is difficult, but not intractable. The situation for talented women is much improved since 1967 when Professor Enid Campbell was appointed the Sir Isaac Isaacs Professor of Law. Plainly enough, however, female lawyers are not progressing in the profession as far and as fast as men. The factors that impede them are complex and diverse. Many factors, probably the most profound, operate powerfully as much in the universities as in the practising profession. Merely making organisational changes in the practising profession may not be enough to achieve parity for women. Moreover, the factors that now operate to constrain women are not confined to the Australian profession. They are apparently within the cultural fabric of the common law profession.
Women’s move to parity with men requires deep and clear analysis of the dynamic of the profession, openness, and imagination. Before appointments are made, whether to courts, universities, or partnerships, there must be an analysis of the objective qualifications required for appointment.[106] They must be made public. There is also a need for an imaginative appreciation of the different ways in which a potential appointee can manifest these qualifications in order that, as far as possible, all persons of appropriate talent are recognised. Whilst confidentiality may be appropriate in connection with some matters (for example, whether a person is available for appointment), the process of appointment ought be made public as far as reasonably practicable, especially where, as in the case of the courts,[107] the institutions serve the community.

A little over a decade before Enid Campbell entered the University of Tasmania as an undergraduate law student, Hobhouse described female students at Oxford as being too earnest and as trying too hard. He said:

The assiduity of the women undergraduates is stupefying. After a long morning’s round of lectures they swarm to the Bodleian [library] ... After dark, in their own college libraries or in their comfortless little college rooms, they huddle for hours on end, stooping and peering over standard text-books. They are tremendous sticklers for tradition and routine. Every rule and regulation of college or university is literally observed; the prescribed books are read from cover to cover; the stereotyped opinions are faithfully noted and dutifully believed ... Many of the women suffer actual nervous breakdowns; others become stupid and mechanical. The great majority end up as school-teachers.[108]
When Professor Campbell began the study of the law, there were any manner of difficulties to be met and overcome before she could make her full contribution as a lawyer. Times have improved, although women’s parity with men in the legal profession is still to be won. Until parity is won, however, the community will continue to lose the benefit of the considerable talents of many able lawyers, just because they are women.

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[•]BA (Hons); LLB (Hons) (Melb); D Phil (Oxon). The author is a judge of the Federal Court of Australia.
[1] The following account of Flos Greig derives from Campbell R, A History of the Melbourne Law School 1857 to 1973 (University of Melbourne, Melbourne, 1977) 25-29 and Thornton M, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press, Melbourne, 1996) 47, 50-51.
[2] Campbell R, A History of the Melbourne Law School 1857 to 1973, 25
[3] For an account of Ada Evans and other early women entrants to the profession, see Thornton M, Dissonance and Distrust: Women in the Legal Profession, ch. 2.
[4] Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives (Oxford University Press, New York, 1995) 6-12; Kay F and Brockman J, “Barriers to Gender Equality in the Canadian Legal Establishment” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 49 51-53; Menkel-Meadow C, “The Comparative Sociology of Women Lawyers: The ‘Feminization’ of the Legal Profession” in (1987) III Women at Work: The Conference Papers, May 1987 (Institute for Social Science Research, University of California, Los Angeles); Menkel-Meadow C, “‘Feminization’ of the Legal Profession: The Comparative Sociology of Women Lawyers” in Abel RL and Lewis PSC, Lawyers in Society: An Overview (University of California Press, Berkeley, 1995); Mossman MJ, “Women lawyers in twentieth century Canada: rethinking the image of ‘Portia’” in Graycar R (ed), Dissenting Opinions: Feminist Explorations in Law and Society (Allen & Unwin, Sydney, 1990) 80-88; Grant I and Smith L, “Gender Representation in the Canadian Judiciary” in Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (1991) 61-63; McGlynn C, “The Status of Women Lawyers in the United Kingdom” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 139 144; and Mossman MJ, “‘Invisible’ Constraints on Lawyering and Leadership: The Case of Women Lawyers” (1988) 20:3 Ottawa Law Review 567.
[5] Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994) par 5.55, setting out the statistics compiled by Sharyn L Roach Anleu. See also Anleu SR, “Women in the Legal Profession” (1992) 66 Law Institute Journal 162-165.
[6] Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 87 100.
[7] Ibid.
[8] McGlynn C, “The Status of Women Lawyers in the United Kingdom” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 144.
[9] Ibid 145.
[10] Abel RL, “Comparative Sociology of Legal Professions” in Abel RL and Lewis PSC (eds), Lawyers in Society: Comparative Theories (University of California Press, California, 1989) vol 3, 117.
[11] Ibid. See also “Women as Judges, lawyers, Administrators, and Jurors” in Crites LL and Hepperle (eds), Women, the Courts, and Equality (Sage Yearbooks in Women’s Policy Studies, Sage Publications, California, 1987) 141, stating that women constituted 9 per cent of law students in 1970 and 39 per cent by the end of the 1980s; and Menkel-Meadow C, “‘Feminization’ of the Legal Profession: The Comparative Sociology of Women Lawyers” in Abel RL and Lewis PSC, Lawyers in Society: An Overview, 230-233.
[12] Schultz U, “Introduction: Women in the World’s Legal Professions: Overview and Synthesis” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, xl.
[13] Hill Kay H, “Symposium: Celebration of the Tenth Anniversary of Justice Ruth Bader Ginsburg’s Appointment to the Supreme Court of the United States: Ruth Bader Ginsburg, Professor of Law” (2004) 104 Columbia Law Review 1.
[14] Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 99.
[15] These figures were compiled by Anleu, as set out by the Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994) Parliament of Australia par 5.55, setting out the statistics compiled by Sharyn L Roach Anleu.
[16] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 7.
[17] Law Institute of Victoria, “Annual Survey of Legal Practitioners”, Law Institute Journal, March 1999, 52.
[18] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 7.
[19] Law Institute of Victoria, “Annual Survey of Legal Practitioners”, Law Institute Journal, March 1999, 52.
[20] Silverii J, “Women bridging the gap: survey” Law Institute Journal, February 2002, 17.
[21] Law Institute of Victoria, “Men Still Dominate Higher Ranks of Legal Profession”, Media Release, 27 January 2003: www:http://www.liv.asn.au/news/media/.
[22] Thornton M, Dissonance and Distrust: Women in the Legal Profession, 83-84.
[23] Bartlett C, “Women and the Law – Facts and Figures” Paper “Women in the legal profession” Seminar 26 November 1993, Melbourne, cited in Australian Law Reform Commission, Report No 69: Part I, Equality Before the Law: Justice for Women (Commonwealth of Australia, 1994) par 2.24, n 70. Compare Law Society of New South Wales, Getting Through the Door is not Enough: An Examination of the Equal Employment Opportunity Response of the Legal Profession in the 1990s (Law Society of New South Wales, Sydney, 1993) 4-6 and Australian Law Reform Commission, Report No 69: Part I, Equality Before the Law: Justice for Women (Commonwealth of Australia, 1994) par 2.24.
[24] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.9.
[25] Keys Young, Research on Gender Bias and Women Working in the Legal System: Report prepared for Department for Women (New South Wales, Sydney, 6 March 1995) i.
[26] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 7; Kaufman S, and Frost G, “Flexible Partnership – making it work in law firms” (Victorian Women Lawyers, Melbourne, June 2002).
[27] Law Institute of Victoria, “Men Still Dominate Higher Ranks of Legal Profession”, Media Release, 27 January 2003: www:http://www.liv.asn.au/news/media/.
[28] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 7.
[29] I use the term “senior counsel” to cover counsel who are entitled to be called “Queens Counsel”. See Hunter R and McKelvie H, Equality of Opportunity for Women at the Victorian Bar: A Report commissioned and published by the Victorian Bar Council (The Victorian Bar Inc, 1998) 2.
[30] Statistics supplied by the Chambers of the Chief Justice, Federal Court of Australia. Readers may also wish to refer to the Bar roll maintained by the Victorian Bar. See also, for New South Wales, Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 93-94.
[31] See Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 99; Wells C, “Ladies in Waiting: The Women Law Professors’ Story” [2001] SydLawRw 7; (2001) 23 The Sydney Law Review 167, 172-173; Thornton M, “Discord in the Legal Academy: The Case of the Feminist Scholar” (1994) 3 The Australian Feminist Law Journal 53-71. Outside the law schools, the position of women academics is apparently no better and may be worse. See De La Harpe M, “Smashing the glass ceiling” Campus Review, July 23-29 2003; Wyn J, “Senior Women Academics in Education: Working Through Restructuring in Australian Universities” (1997) 38 Melbourne Studies in Education 106-109; Everett JE, “Sex, Rank and Qualifications at Australian Universities”(1994) 19 Australian Journal of Management 159-176; Castleman T, Allen M, Bastalich W and Wright P, Limited Access: Women’s Disadvantage in Higher Education Employment (National Tertiary Education Union, Melbourne, 1995); Sullivan M, “The Status of Women in Australian Universities: Myths and Realities” (1999) 14 Australian Feminist Studies 427-433; Burton C, Gender Equity in Australian University Staffing (Department of Employment, Education, Training and Youth Affairs) Canberra, 1997.
[32] Wells C, “Ladies in Waiting: The Women Law Professors’ Story” [2001] SydLawRw 7; (2001) 23 The Sydney Law Review 167-184; University of Buffalo, Report of the President’s Task Force on Women at UB http://www.provost.buffalo.edu/facdev. Compare also United Nations Educational, Scientific and Cultural Organization, Women and management in higher education: A good practice handbook (Paris, 2002) 25.
[33] See, e.g., Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.39.
[34] Campbell E and Lee HP, The Australian Judiciary 25.
[35] Ibid. See also Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 91-92.
[36] On 25 November 2003, one of these judges, the Hon Justice Marilyn Warren, was appointed Chief Justice of the Supreme Court of Victoria.
[37] Statistics supplied by the Chambers of the Chief Justice, Federal Court of Australia. Readers may also wish to refer to the authorised reports of each court, where the identities of the judges that comprise the court are set out. In addition, there were 6 female judges of the Federal Magistrates Court (31.6 per cent of 19). Around 21.5 per cent of judges of state District or County Courts (43 out of 200) were female.
[38] See also Davis R and Williams G, “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” [2003] MelbULawRw 32; (2003) 27 Melbourne University Law Review 819, 827-828, stating that women comprise around 20 per cent of the Australian judiciary, although only 14 per cent of the senior judiciary.
[39] Cook BB, “Women Judges in the Opportunity Structure” in Crites LL and Hepperle (eds), Women, the Courts, and Equality (Sage Yearbooks in Women’s Policy Studies, Sage Publications, California, 1987) 143, 145-149; Grant I and Smith L, “Gender Representation in the Canadian Judiciary”, 60-63; Malleson K, “Prospects for Parity: the Position of Women in the Judiciary in England and Wales” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 175, 177-180; Wahl RE, “Some Reflections on Women and the Judiciary” (1986) IV Law and Inequality 153-169.
[40] Davis R and Williams G, “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” (2003) 27 Melbourne University Law Review 827.
[41] Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 100.
[42] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.1.
[43] Keys Young, Research on Gender Bias and Women Working in the Legal System: Report prepared for Department for Women (New South Wales, Sydney, 6 March 1995) i.
[44] Mossman MJ, “‘Invisible’ Constraints on Lawyering and Leadership: The Case of Women Lawyers”, 584-588; Menkel-Meadow C, “The ‘Feminization’ of the Legal Profession: The Comparative Sociology of Women Lawyers”, 223; Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives, 6-12, 183; Kay F and Brockman J, “Barriers to Gender Equality in the Canadian Legal Establishment” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 54-59; Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 3 10.
[45] McGlynn C, “The Status of Women Lawyers in the United Kingdom” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 155-156 and Wells C, “Ladies in Waiting: The Women Law Professors’ Story” [2001] SydLawRw 7; (2001) 23 The Sydney Law Review 167-184. See also Malleson, K, “Prospects for Parity: the Position of Women in the Judiciary in England and Wales” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 175. Outside the law schools, women academics in the United Kingdom fare no better. See Mavin S and Bryans P, “Academic Women in the UK: mainstreaming our experiences and networking for action” (2002) 14 Gender and Education 235-250.
[46] Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 10 (references omitted).
[47] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.9. Compare Malleson K, “Prospects for Parity: the Position of Women in the Judiciary in England and Wales” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 177-180.
[48] Compare Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 19
[49] Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 10.
[50] Hunter R, “Women in the Legal Profession: The Australian Profile” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 94-95; Kaufmann S and Frost G, “Flexible Partnership – Making it work in Law Firms” (Victorian Women Lawyers, Melbourne, 2002); Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 13.
[51] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 6, 16.
[52] Ibid 16.
[53] Re Nolan; ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496.
[54] See, e.g., Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Human Rights and Equal Opportunity Commission Act 1986 (Cth); Equal Opportunity for Women in the Workplace Act 1999 (Cth); Equal Opportunity (Commonwealth Authorities) Act 1987 (Cth); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1995 (Vic); Racial and Religious Tolerance Act 2001 (Vic); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Equal Opportunity Tribunal Rules 1988 (SA); Racial Vilification Act 1996 (SA); Equal Opportunity Act 1984 (WA); The Criminal Code (WA) (see Criminal Code Ch XI - Racist Harassment and Incitement to Racial Hatred); Spent Convictions Act 1988 (WA) (see part 3, division 3); Anti-Discrimination Act 1988 (Tas); Discrimination Act 1991 (ACT); and Anti-Discrimination Act 1992 (NT). See also Human Rights Bill 2003 (ACT), which was notified on 10 March 2004.
[55] Compare Leeth v The Commonwealth (1992) 174 CLR 455, 467 per Mason CJ, Dawson and McHugh JJ with 485-487 per Deane and Toohey JJ and 502 per Gaudron J; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 99 per Toohey J and 107 per Gaudron J; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 203 per Toohey J; 208-9 per Gaudron J; and 260-264 per Kirby J.
[56] Wells C, “The Remains of the Day: The Women Law Professors Project” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 225, 226, quoting Lie SS, Malik L and Harris D, The World Yearbook of Education 1994: The Gender Gap in Higher Education (Kogan Page, London, 1994) 4.
[57] See e.g., Re Nolan; ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 496-7; and Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 208-209 per Gaudron J.
[58] Australian Law Reform Commission, Report No 69: Part I, Equality Before the Law: Justice for Women (Commonwealth of Australia, 1994) par 2.7.
[59] See, eg, Kaufmann S and Frost G, “Flexible Partnership – Making it work in Law Firms” (Victorian Women Lawyers, Melbourne, 2002); Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002).
[60] Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives, 184.
[61] Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 14.
[62] Compare Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives, 184-5.
[63] Lawyers have suffered in the same way elsewhere in the common law world. See Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 14-15; Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives, 185.
[64] See Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 9, where the results of the study are mentioned.
[65] Silverii J, “Women bridging the gap: survey” Law Institute Journal, February 2002, 17.
[66] Law Institute of Victoria, “Men Still Dominate Higher Ranks of Legal Profession”, Media Release, 27 January 2003: www:http://www.liv.asn.au/news/media/.
[67] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.11.
[68] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 10; Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.11.
[69] Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives, 76-78.
[70] Keys Young, Research on Gender Bias and Women Working in the Legal System: Report prepared for Department for Women (New South Wales, Sydney, 6 March 1995) 65; Thornton M, Dissonance and Distrust: Women in the Legal Profession, 199.
[71] Hagan J and Kay F, Gender in Practice: A Study of Lawyers’ Lives, 93.
[72] See Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 9.
[73] Wells C, “Ladies in Waiting: The Women Law Professors’ Story” (2001) 23 The Sydney Law Review 172-175; Wells C, “The Remains of the Day: The Women Law Professors Project” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 226-7, 230.
[74] Wells C, “The Remains of the Day: The Women Law Professors Project” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 233.
[75] Ibid.
[76] Wells C, “Ladies in Waiting: The Women Law Professors’ Story” (2001) 23 The Sydney Law Review 175.
[77] Wells C, “Ladies in Waiting: The Women Law Professors’ Story” (2001) 23 The Sydney Law Review 176.
[78] Wells C, “The Remains of the Day: The Women Law Professors Project” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 232; also Thornton M, “Discord in the Legal Academy: The Case of the Feminist Scholar” (1994) 3 The Australian Feminist Law Journal 59; University of Buffalo, Report of the President’s Task Force on Women at UB http://www.provost.buffalo.edu/facdev.
[79] Wells C, “The Remains of the Day: The Women Law Professors Project” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 232; Wells C, “Ladies in Waiting: The Women Law Professors’ Story” (2001) 23 The Sydney Law Review 175-176; also Thornton M, “Discord in the Legal Academy: The Case of the Feminist Scholar” (1994) 3 The Australian Feminist Law Journal 57.
[80] Wells C, “The Remains of the Day: The Women Law Professors Project” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 235.
[81] Cited in Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 20.
[82] Keys Young, Research on Gender Bias and Women Working in the Legal System: Report prepared for Department for Women (New South Wales, Sydney, 6 March 1995) 38.
[83] Hunter R and McKelvie H, Equality of Opportunity for Women at the Victorian Bar: A Report commissioned and published by the Victorian Bar Council (The Victorian Bar Inc, 1998) x.
[84] Compare Davis R and Williams G, “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” (2003) 27 Melbourne University Law Review 825, 835-844 and Malleson K, “Prospects for Parity: the Position of Women in the Judiciary in England and Wales” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 182-185.
[85] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.6.
[86] Kirby M, “Women Lawyers – Making A Difference” (1998) 10 Australian Feminist Law Journal 125; Kirby M, “Women in the Law – What Next?” Lesbia Harford Oration 2001 http://www.hcourt.gov.au/speeches/kirbyj.
[87] Statistics collected by the Equality Before the Law Committee of the Victorian Bar in 2001 – 2002; The Age, 16 July 2003, Letters to the Editor (Frances Millane, Chair of the Equality Before the Law Committee, Victorian Bar); Towers K, “Female Barristers Not Briefed” in Australian Financial Review, 11 July 2003.
[88] Rhode DL, “Gender and the Profession: An American Perspective” in Schultz U and Shaw G (eds), Women in the World’s Legal Professions, 11; Keys Young, Research on Gender Bias and Women Working in the Legal System: Report prepared for Department for Women (New South Wales, Sydney, 6 March 1995), 41-57; Hunter R and McKelvie H, Equality of Opportunity for Women at the Victorian Bar: A Report commissioned and published by the Victorian Bar Council (The Victorian Bar Inc, 1998) 33-36, 126.
[89] Compare Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 23-24; Kaufman S, and Frost G, “Flexible Partnership – making it work in law firms” (Victorian Women Lawyers, Melbourne, June 2002).
[90] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 9.2.
[91] Law Society of New South Wales, After Ada: A New Precedent for Women in Law (29 October 2002) 14.
[92] Gilligan C, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press, Cambridge, Mass., 1982).
[93] Ginsburg RB, “Some Thoughts on the 1980’s Debate over Special Versus Equal Treatment for Women” (1986) IV Law & Inequality 143, 148.
[94] Neave M, “The Gender of Judging”, (1995) 2 Psychiatry, Psychology and Law 3, 16
[95] Compare The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361 at 374 per Kitto J.
[96] Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994) par 3.33.
[97] Ibid par 4.52.
[98] See, e.g, Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
[99] See, e.g., Graycar R and Morgan J, The Hidden Gender of Law (Federation Press, Annandale NSW, 1990); MacKinnon CA, “Feminism, Marxism, Method and the State: Towards Feminist Jurisprudence” (1983) 8 Signs 635; Naffine N, “Possession: Erotic Love in the Law of Rape” (1994) 57 Modern Law Review 10; Naffine N, “Windows on the Legal Mind, The Evocation of Rape in Legal Writings” (1992) 18 Melbourne University Law Review 741; Neave M, “From Difference to Sameness – Law and Womens Work” [1992] MelbULawRw 18; (1992) 18 M U L R 768; Graycar R, “Hoovering As a Hobby: The Common Law’s Approach to Work In The House” (1985) 28 Refractory Girl 22; Graycar R, “Compensation for Loss of Capacity of Work in the Home” [1985] SydLawRw 4; (1985) 10 Sydney Law Review 528.
[100] Wilson B, ‘Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall Law Journal 507, 515.
[101] See, e.g., Keys Young, Research on Gender Bias and Women Working in the Legal System: Report prepared for Department for Women (New South Wales, Sydney, 6 March 1995) 44; Hunter R and McKelvie H, Equality of Opportunity for Women at the Victorian Bar: A Report commissioned and published by the Victorian Bar Council (The Victorian Bar Inc, 1998) 138-141; Supreme Court of Western Australia, Report of the Chief Justice’s Taskforce on Gender Bias to the Hon Mr Justice DK Malcolm AC (Perth, Western Australia, 30 June 1994); Judicial Council of California Advisory Committee on Gender Bias in the Courts, Achieving Equal Justice for Women and Men in the California Courts (California, July 1996) 63-67; Bennett CE, “Encouraging Fairness from the Bench”.(1986) IV Law and Inequality 109, 110-111.
[102] Australian Law Reform Commission, Report No 69: Part II, Equality Before the Law: Women’s Equality (Commonwealth of Australia, 1994) par 2.17.
[103] [1983] HCA 2; (1983) 152 CLR 238, 243 per Gibbs CJ, Mason, Wilson and Brennan JJ; compare Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 365 per Brennan CJ, Deane, Dawson and Toohey JJ; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 98 per Toohey J, 108 per Gaudron J, 116-117 per McHugh J and 134 per Gummow J; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 20 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ and 23, 26 per Gaudron J.
[104] Compare Leeth v The Commonwealth (1992) 174 CLR 455, 485-487 per Deane and Toohey JJ and 502 per Gaudron J; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 99 per Toohey J and 107 per Gaudron J; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 203 per Toohey J; 208-9 per Gaudron J; and 260-264 per Kirby J.
[105] Shetreet S, “Who will Judge: Reflections on the Judicial Process and Standards of Judicial Selection” (1987) 61 Australian Law Journal 766-778.
[106] For example, in the case of courts, see Davis R and Williams G, “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” (2003) 27 Melbourne University Law Review 862-863. A similar observation has been made in relation to briefing barristers: see Black MEJ, “Keynote Address”, Seminar on Equality of Opportunity for Women at the Victorian Bar, 5 April 2000.
[107] Compare Davis R and Williams G, “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” 856-863.
[108] Hobhouse C, Oxford: As it was And as it is today (Batsford, London, 1939) 101-102.