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Douglas, Heather; Bartlett, Francesca; Hunter, Rosemary; Luker, Trish --- "Introduction: Righting Australian Law" [2014] UTSLRS 20; (2014) Australian Feminist Judgements (ed.) Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter 1

Last Updated: 16 May 2017

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Introduction: Righting Australian Law

Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter

The Australian Feminist Judgments Project

The Australian Feminist Judgments Project aims to test new and enduring questions about the relationship between law and feminist ideas, approaches and objectives. We ask: is it possible to formulate a feminist judicial practice, and if so, what are the boundaries of this enterprise? What kinds of judicial practices and judgments ‘count’ as feminist? In this way, this book and the project contribute an Australian perspective to the growing international literature that investigates the role that feminist legal theory might play in judicial decision-making.[1]

This book collects 25 judgments which put into practice and test feminist ideas in real Australian legal cases. Bringing together the work of feminist academics and lawyers, this is a collection of ‘alternative’ judgments in Australian cases, where the authors have imagined the decision and the reasoning that might have been adopted if a feminist judge had heard the case.[2] This is done in a variety of ways, from adding another voice to an appellate decision of the High Court to replacing the original decision at trial. The constraint imposed on authors was to write within the legal genre of decision-making to produce an ‘authentic’ and legally plausible judgment. Preceding each judgment, a commentary chapter written by a different author provides context, explanation and sometimes challenge.

The collection brings together many of the most eminent Australian feminist legal scholars who are experts in diverse areas of law, as well as contributions from new and emerging scholars. Importantly, the work of several Indigenous scholars is represented here. As we discuss in chapter 2, several of the Indigenous authors challenged the Australian common law system as a way of deciding cases and as a genre of writing which is unable to tell their stories appropriately.

We discuss the feminist approaches taken in relation to the judgments in this collection in chapter 2. In this chapter, we consider the feminist judgments projects as an emerging movement, the concept of feminist judging, the context and methodology for the Australian Feminist Judgments Project and the potential impact and application of the judgments in this collection.

An Emerging Movement?

While the idea of academics rewriting judgments is not new,[3] this project draws its main inspiration from two significant recent developments in feminist legal scholarship. In Canada and in England and Wales, feminist judgment writing projects have emerged in which feminist academics, lawyers and activists have written alternative judgments in legal cases.[4] The Canadian project grew out of frustration experienced by feminists about how section 15 of the Canadian Charter of Rights and Freedoms—the equality provision—was being interpreted and applied by the Canadian Supreme Court.[5] As Diana Majury reports, despondency sparked action and energy with the revelatory question: ‘so why don’t we show them how it could have been done? ... Why don’t we rewrite these decisions that are so wrong?’[6] The resulting Women’s Court of Canada is an on-going project which currently hosts a number of rewritten equality cases that ‘show how it’s done’.

In comparison to the Canadian project, the English project was broader in scope and set out to write ‘missing’ feminist judgments in a range of appellate cases relating to various areas of law. Their project set out to ‘inaugurate a new form of scholarship, one which seeks to demonstrate, in a sustained and disciplined way, how judgments could have been rewritten and cases could have been decided differently’.[7] The English project resulted in a collection of 23 rewritten cases and associated commentaries.[8] In her review of the collection, Margaret Davies suggested that

it is perhaps possible to say that the imaginative gap between the legal establishment and feminist legal theory is at last being reduced. Arguably, the judgments also represent the return of feminist scholarship to feminist activism through the socially engaged practice of judging.[9]

She also emphasised that the collection shows ‘what is plausible and possible for the law in individual cases, but more importantly it constitutes a collective effort to shift the discourse and emphasis of law’.[10]

Other feminist judgments projects continue to emerge. For example, the Irish Feminist Judgments Project, entitled ‘Judges’ Troubles: Northern/Irish Courts and the Gendered Politics of Identity’, emphasises the jurisdictional specificity of Irish decision-making and underlines the strong relationship between judicial decision-making and local political and cultural struggles and contestations.[11] A Feminist International Judgments project is currently being established, in part to address the silencing of women’s voices in international law.[12] A United States Supreme Court edition of the feminist judgments project was also launched recently.[13] While in 2010, Davies hesitated to describe the various feminist rewriting projects around the world as a ‘movement’,[14] this collection, along with other emerging collections, arguably brings us a step closer.

Feminist Interventions in Law

Since the 1970s, feminist legal activism in Australia has focused on legislative reform;[15] feminist interventions in relation to judicial decision-making have largely taken the form of critique.[16] Margaret Thornton points out that the 1970s and 1980s represented a dynamic period of law reform ‘that produced no-fault divorce, anti-discrimination legislation and a swag of egalitarian policies associated with the modernisation of the Australian state’.[17] These reforms were driven by feminist scholarship and activism. More recently, feminist engagement with institutional law reform projects has led to important changes, such as the decriminalisation of abortion in Victoria.[18] However, there are mixed views about the success of feminist engagements with legislative reform and participation in law reform commission references.[19] Some of the recent reforms, in particular, the reformulation of homicide offences and defences leading to the abolition of provocation in several jurisdictions,[20] have been the subject of critique which has raised questions about whether they have been successful in addressing long-standing concerns about the legal responses to domestic homicide.[21] Others have noted the unintended or disappointing consequences that sometimes flow from legislative reforms, in part because the impact of legislative change is dependent on wider cultural and social changes, and on implementation by often unsympathetic legal personnel.[22]

In terms of the appointment of women judges, Australia has been a leader in the field. Indeed, when Dame Roma Mitchell was appointed as a judge of the Supreme Court of South Australia in 1965, she was the first woman judge appointed to the office in the whole of the British Commonwealth.[23] However, despite the expectation that numbers would steadily increase, women remain under-represented in the ranks of judicial decision-makers.[24] Women are now represented on all Australian courts, but make up only around one third of the judiciary.[25] The disparity is highlighted by the fact that while women make up over 65 per cent of graduates from Australian law schools,[26] and indeed over half of Australian law school graduates have been women since the 1980s,[27] these statistics are not reflected in the appointments of senior legal professionals or judges.

We continue to see ‘firsts’ in the Australian judiciary, which may indicate a ‘steady’[28] increase. The first Chief Justice of the Family Court of Australia, Elizabeth Evatt, was appointed in 1976. Over a decade later, in 1987, Justice Mary Gaudron was the first woman appointed to the High Court. In 1998, Justice Margaret McMurdo was the first woman to be appointed as the presiding judge of an appellate court in Australia and in 2003, Justice Marilyn Warren became the first woman to be appointed as chief justice in any Australian state or territory. We are yet to see a woman chief justice of the Federal Court or the High Court.

The number of women judges is clearly of great symbolic value, and their presence and visibility enhances the democratic representativeness and legitimacy of the judiciary.[29] However, it is important to ask whether the presence of women in the judiciary makes any difference to the practice or substance of decision-making. We are aware that this is not a new question and that feminist legal scholars have debated issues around gender and its effects on judging for at least 25 years.[30] Evidence from international research on whether women judges make a difference is equivocal, and tends to depend on the jurisdiction and the area of law being observed.[31] In their research on Australian judicial officers, Kathy Mack and Sharyn Roach Anleu identified gendered differences in the answers to survey questions by male and female magistrates and judges.[32] For example, they found that more female than male magistrates and judges thought interactive qualities of empathy, communication and being a good listener were essential skills for their work.[33] They found that this gender difference was more significantly pronounced at the magistrates’ court level than in the higher courts. Furthermore, Mack and Anleu found that female magistrates were much more likely than male magistrates to report that legal knowledge was an ‘essential’ skill in their work. In explaining these differences, the study authors suggest that women magistrates’ ‘commitment to greater interactive qualities and more legal skills ... may indicate an attempt to use knowledge and expertise as strategies of empowerment’.[34]

However, in the United States, Sally Kenney’s research suggests that the more women there are serving on a court, the less compelled a woman judge may feel to ‘articulate “a woman’s point of view”’.[35] In another study of women judges in England and Wales, Hilary Sommerlad suggests that any impact is likely to be ‘strictly constrained’,[36] since judges ‘are already socialised in the rules of the profession’.[37] This research suggests that simply ‘adding women and stirring’ is unlikely to make a difference.[38] As Lorraine Code points out:

The admission of a few women to carefully controlled places, so that they can serve as ‘role models’—those cardboard and ephemeral constructs—offers minimal revolutionary promise. The problem exists at a deeper level ... It is about subjectivity and cognitive agency, about displacing entrenched thought structures.[39]

Feminist theory has, moreover, problematised the idea of a singular subject position ‘woman’ as a source of experience on which law might be based.[40] In her consideration of whether women judges make a difference, for example, Erika Rackley focuses on the need for diversity in the sense of differences from the established judicial ‘norm’, which includes people of different sex, ethnicity and sexuality. She argues that these different backgrounds and experiences of the world all bear on the way a judge performs her role.[41] Observing that rather than being about ‘letting in’, diversity is about ‘letting go’ (that is, of privilege and moral superiority), Rackley suggests that rather than being an end in itself, diversity is a process.[42] She explains that diversity ‘acts as a catalyst for disruption; impacting upon the legal monotony, destabilising its taken-for-granted assumptions and uncovering alternative ways of seeing, understanding, and judging’.[43] In this way, sex is only one point of difference, as women judicial officers often bring a diverse set of backgrounds, experiences and perspectives to the role as compared to their ‘benchmark’ male counterparts.[44]

Arguably, the efforts of some Australian governments to achieve a greater gender balance in the judiciary have involved recognition that a more diverse judiciary will bring more diverse perspectives to bear on decision-making, which will improve the quality of justice dispensed by Australian courts.[45] These efforts at encouraging judicial diversity, including a diverse range of women, such as Indigenous women and women from immigrant or lower socio-economic backgrounds, are important. Some of the chapters in this collection illustrate that women who speak from an identity informed by an intersection of their sex and race,[46] or sex and sexuality,[47] may bring unique, and perhaps disruptive, ideas about judging and the meaning of justice. Rather than legitimising the current legal order,[48] such radical approaches provide new ways of thinking and acting in the judicial context. These ideas are explored further in chapter 2, where we draw on the feminist judgment writers’ reflections on their approaches to decision-making and the influence of their backgrounds and experiences.

Feminist Judging

Rosemary Hunter observes that the assumption that women judges will necessarily make a difference is ‘at best naïve and at worst essentialist’,[49] and instead argues that feminist judges are more likely (and indeed ought) to make a difference.[50] However, positivist method, with its claim to neutrality,[51] considers the political commitments of judges an improper point of reference for decision-making. The judicial role demands, at the very least, the appearance of neutrality and impartiality. Does this role, then, so restrict regard to political philosophy as to limit change and the possibility of a feminist approach? Indeed, is the subject position of a feminist judge an oxymoron? As Baroness Hale puts it in the Foreword to the English collection of feminist judgments: ‘Is it possible to be both a judge and a feminist?’[52] Both Hunter and Hale have argued that there is ample scope for feminist judicial practice at all levels. This does not mean referring to feminist theorists as legal authorities, but rather, bringing a feminist consciousness to bear on one’s understanding of litigants, facts, evidence and legal rules. Indeed, to the extent that feminists are committed to values of inclusivity and equality, these are also values that the law itself proclaims.[53]

Aside from judicial norms, however, the possibility or potential for feminist influence in current legal processes may be limited by law’s deeply embedded structures and methods. As radical feminist writer Audre Lorde observed in her famous essay:

What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy? It means that only the most narrow parameters of change are possible and allowable ... For the master's tools will never dismantle the master's house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.[54]

In the context of law, theorists such as Mary-Jane Mossman and Carol Smart have also insisted upon the imperviousness of law and legal method to feminist arguments, critiques and perspectives.[55] Smart has called for a ‘de-centring’ of law,[56] and Catharine MacKinnon advocates a complete dismantling of law’s infrastructure to achieve appropriate outcomes for women.[57] Reg Graycar suggests that ‘we will not have feminist judges or feminist adjudication until we have the opportunity to redesign the forums’.[58]

These critiques usefully remind us that projects engaging with the rewriting of legal decisions are inherently constrained by their methodology. But the extent of those constraints and the space that remains available for a feminist approach to decision-making are still being explored. Critical and postmodern legal scholars have observed that legal method is considerably more open-ended and produces less determinate results than it might claim.[59] Moreover, feminist judgments projects aim to engage with the law as law reform projects, by demonstrating the ways decision-makers make choices about how to interpret and apply the law. For instance, the feminist judgments in this collection not only reason from the experience of women, but also importantly unmask seemingly neutral laws and show that prevailing approaches to fact-finding are contingent and often partial.[60] In this way, they achieve feminist goals within the parameters of existing legal principles and practice. As Ann Genovese points out in her commentary chapter for Goode and Goode:[61]

By taking law’s doctrines and techniques seriously, feminist jurists have shown many times that to change law—to reform its practice or alter its perceptions—does not necessarily involve a polemical position that would force feminists to sit outside the door of the court. Instead, the task has been to master law, to understand its rehearsed movements and its rules of interpretation, as well as to monitor its lived effects.

In chapter 2, we consider in more detail how the authors in this collection apply legal method to create feminist judicial decisions.

In terms of a feminist method of decision-making, Hunter provides a checklist of approaches that a feminist judge may bring to the task. She suggests that a feminist judge should:[62]

In chapter 2 we examine how the judgments in this collection engage these various strategies.

It is notable that Hunter does not prescribe that a particular form of feminism be applied and accepts that it is unlikely that there will be a singular feminist position on the issues arising in any given case. Rather, she points out that there are multiple feminisms which will have differing approaches and possible results when put into practice.[63] The kinds of feminist theoretical approaches adopted in the judgments in this collection are outlined in chapter 2. As we discuss there, in the Australian project, there seems to have been less dispute between differing feminist positions than occurred in the English project.[64] This may be due to the less controversial nature of the cases chosen, or the compelling arguments made in the draft judgments. In only a very few cases are alternative feminist approaches canvassed in the commentary chapters.[65]

Although a feminist approach will often make a difference to the outcome of a case, this will not always be true. In some instances the feminist contribution will be to provide different reasons for reaching the same result.[66] As discussed in chapter 2, seven of the cases in this collection are concurring judgments, arriving at the same outcome as the original case but by means of a process of legal reasoning informed by feminist concerns. Finally, while feminist judgments projects illustrate feminist judicial methods and approaches in a concentrated way, they differ from the real world in two important respects. In reality, it cannot be assumed that a judge who identifies as a feminist will necessarily incorporate feminism into all her judgments (for a variety of reasons),[67] nor that a judgment reflecting feminist concerns would necessarily be written by a judge who thought of herself (or himself) as a feminist.[68]

The Australian Legal Context

When we began conceiving the parameters of the Australian Feminist Judgments Project, we were conscious that it would necessarily reflect a distinctive historical and political context, as well as a unique jurisprudence. As a result of the history of Australia’s federated structure, the eight individual states and territories have law-making power in a number of key areas including criminal law, evidence and private law, with each state and territory maintaining its own court system and set of statutes. The Commonwealth has power to make laws with respect to matters such as family law, taxation and immigration. Furthermore, Australia differs from other countries, such as Canada and the United Kingdom,[69] in that it does not have a constitutional or statutory Bill of Rights.[70] Historically, however, the High Court has been called upon to protect both express and implied rights under Australia’s Constitution, and pursuant to the common law and Australia’s international treaty obligations. Several of the cases in this collection address rights issues in this way.[71]

As an Australian project, we recognised from the outset that the collection of feminist judgments must speak to the country’s settler-colonial history. As the British settlers arrived in Australia from the end of the eighteenth century, they steadily began to impose their laws on the Indigenous people.[72] For over two centuries, the concept of terra nullius, or ‘land belonging to no one’, was used to justify dispossession and disregard of Indigenous sovereignty and laws. It was not until 1992, in the Mabo case,[73] that the concept of terra nullius was formally exposed by the High Court as a legal fiction. At the time, the Mabo decision seemed to open up new opportunities for the recognition of Indigenous sovereignty in Australia, however, successive attempts to achieve formal recognition through the courts have failed.[74] This history has encouraged some, like Aileen Moreton-Robinson, to reimagine notions of Indigenous sovereignty as separate from the political state, a project that is as yet unfinished.[75] This collection of feminist judgments includes a number of cases that speak to the unresolved relationship between Indigenous peoples and the white legal system in regards to legal issues including land rights, discrimination and criminal justice.[76]

Despite its Indigenous history, Australia is often described as a ‘nation of immigrants’. Between 1945 (when immigration statistics began to be kept in Australia) and 2010, around seven million people settled in Australia.[77] The 2011 Census records that over one quarter of Australia’s population was born overseas, with a further one fifth having at least one overseas-born parent.[78] Although Australia has a long history of, and economic reliance on, immigration, each year people who seek asylum in Australia are confronted by ever more punitive government approaches to refugee policy. Refugee cases have often become the subject of intense media and public scrutiny, and continue to attract controversy. Given this history, and present context, we recognised that it was important that an Australian collection include feminist judgments that address the impact of Australian laws on asylum seekers.[79]

The collection also includes cases reflecting the diversity of federal jurisdiction, including tax law, environmental law, consumer law, family law and anti-discrimination law.

A Collaborative Approach

The idea of an Australian feminist judgments project was first discussed at a feminist legal theory reading group in Brisbane in 2010. Some of those present saw the project as an opportunity to engage Australian academics interested in feminist theory in a collaborative project. A general invitation to an initial meeting was issued to feminist legal academics, women’s legal services and legal practitioners and around 25 academics and lawyers attended the first workshop in Brisbane in 2010. There was an enthusiastic response to the idea of creating a collection of Australian feminist judgments and, after successfully applying to the Australian Research Council for funds to support the project,[80] the next step was to elicit judgments appropriate for rewriting. Generally, participants came forward with judgments they wanted to rewrite. However, we were keen to ensure that we included cases from a wide variety of legal fields and some authors were specifically contacted and invited to rewrite a judgment in a particular area of law. Feminist academics with specific expertise were also contacted and invited to write commentaries for some cases. From the beginning, commentary and judgment writers were asked to work collaboratively, by discussing their approach to the task and providing feedback to each other along the way.

One of the challenges faced in Australia when co-ordinating a national project is the size of the country and the immense distances between us. Unfortunately, unlike the English project, participants were not all able to meet together at any single time. Despite the problem of distances, we are pleased that the project contributors are fairly geographically representative and include participants from Victoria, South Australia, New South Wales, Queensland and the Australian Capital Territory.[81] In order to bring participants together, once cases and commentary writers were identified, we held workshops on judgment writing in Melbourne, Sydney and Brisbane. Participants, and their associated cases, were divided geographically rather than thematically and everyone involved was asked to attend a workshop. Conscious that most of the judgment writers are academics and therefore were unlikely to have experience in judgment writing,[82] two or three currently serving feminist judges were invited to the workshops in each city to share their expertise and insights about judgment writing. In particular, they were invited to comment on the craft and constraints of writing decisions. At the end of these workshops, the insights of the judicial decision-makers were collated and disseminated to project participants.

The judges who presented at the workshops identified several points that underline the differences between academic writing and judgment writing. Notably, they emphasised that a judgment is not abstract and its content is likely to have a direct effect on the parties’ lives. In this way, they stressed the importance of placing the people involved in the dispute at the centre of the decision. Some talked about the need to take care of parties, by being respectful of them, observing that the way the story is represented in the judgment is important in this regard.[83] The therapeutic potential of judgments was also highlighted, with some observing that a judgment may be able to provide solace to the party who has failed, acknowledge suffering,[84] or congratulate a victim of sexual assault for her courage in reporting the assaults.[85] Importantly, a judgment must ultimately result in a decision or orders; this clearly differentiates it from the rigours of critique associated with academic writing. Some judges conflated feminism with general principles of fairness as expressed in the judicial oath.[86] It was also suggested that while a feminist approach may not be explicitly identifiable in a judgment, it may nevertheless inform the judgment because the judge’s background, personality, personal experience and world view have a particular influence in relation to fact-finding and assessments of credibility. In this way, a feminist judge perceives facts from a feminist perspective.[87]

There was significant discussion at the workshops about whether additional cases which were not cited in the original judgment could be discussed in the rewritten judgment, as well as the approach to referencing extrinsic or contextual material.[88] Generally, judges referred to the fair hearing rule,[89] that if a judge is going to refer to material not raised in submissions, it should be put to both parties so that they have the opportunity to comment. It was recognised that legal decision-makers must tread a fine line on the matter of judicial notice or statements of accepted social facts, with the suggestion that material such as research findings from academic literature could sometimes actually be introduced, but without acknowledgement of source.[90] The way the judgment writers ultimately dealt with these issues is discussed in chapter 2.

The judges who presented at the workshops also emphasised that writers should write simply and clearly, use short sentences and avoid the passive voice. One judge summarised this approach as the KISS principle: keep it short and simple.[91] The same judge suggested this could be adjusted to ‘keep it simple sister’ for the purposes of the project![92]

After the workshops, writers worked on their judgments alone or in collaboration with one or more other writers.[93] In many cases, authors closely collaborated with their commentary writer to ensure that, as far as possible, significant matters were covered. After authors completed their first drafts, all judgments and commentaries were subject to peer review. All work for the project was circulated to other participants for comment and extensive feedback was provided by the editors of the collection. A final set of workshops took place in Melbourne, Sydney and Brisbane in 2013, attended by the authors, as well as a retired judge.[94] In these workshops, we reality-tested each judgment and commentary chapter, and participants debated issues arising from them. Detailed written feedback was provided to all authors to assist them in preparing final drafts.

The authors were asked to write alternative feminist judgments under the same constraints that would have applied to the original decision-makers. They were asked to apply the law and theoretical knowledge available at the time the original judgment was written. Thus, the majority of the feminist judgments that appear in this collection,[95] could, at least theoretically, have been written at the time of the original judgment. We say ‘theoretically’ because the authors had arguable advantages that were not available to the original decision-makers. They had the obvious benefit of hindsight, in addition to being able to write on an area of particular academic interest on which many of them had been working for years. The authors also had up to two years to write their judgments, and thus did not write under the time constraints that usually affect working judges.[96] They were, however, subject to an intensive editing process and tight word limit constraints.[97] While these points of difference may suggest inauthenticity, they may equally be considered to provide a firm foundation for legal decision-making. The feminist judgment authors had time, expertise, iterative feedback and strong encouragement to write in an economical and focused way, and so, it might be argued, could get the judgment ‘right’.[98]

The Structure of the Book

Introductory chapters

This chapter and the following chapter introduce and provide background to the feminist judgments. In this chapter, we locate the judgments within the literature on women judges, judicial diversity and feminist judging; outline the context and methodology for the Australian Feminist Judgments Project; and suggest ways in which the judgments may be used in legal education and legal and judicial practice. In chapter 2 we draw on the reflections of the judgment authors to explore particular challenges they encountered in writing judgments and how those challenges were addressed. The chapter goes on to analyse the strategies adopted by the authors to rewrite existing cases from a feminist perspective.

Judgments

This collection includes 24 feminist judgments which are explicit rewritings of original cases and one essay by Irene Watson who explains why it was not possible to write a feminist judgment in the case of Kartinyeri v The Commonwealth of Australia.[99]

The collection draws on cases decided in a range of Australian jurisdictions and at various levels of the court hierarchy. It includes cases decided in the High Court, Federal Court, Family Court and the various state courts including Supreme Courts and Courts of Appeal. While the majority of cases were decided in the appellate jurisdiction of the High Court and Courts of Appeal, where judges usually sit together in groups of three or more, the collection also includes some single judge decisions. In the former cases, the author offers an extra voice on the court and in the latter cases, the author offers an alternative judgment. Although the context of federation in Australia may be expected to result in a collection of jurisdictionally-specific judgments, most (17) of the judgments are decisions of the High Court which have precedent value throughout Australia and four relate to issues of federal jurisdiction. Three sentencing cases rewrite state court decisions, but the feminist strategy they employ—of focusing on context and putting the victim’s voice back into the judgment—could equally be applied in sentencing decisions in any jurisdiction. The final state court decision is a discrimination case—an area of shared federal and state jurisdiction—and again, the feminist strategy of interpreting the legislation purposively is equally applicable to discrimination cases anywhere.

The project intentionally sought out judgments not only in different courts, but also in different areas of law. In considering how law is taught, Graycar has lamented that ‘most of the courses... accept and reproduce existing (but I would argue) artificial doctrinal boundaries. So we all recognize as “women’s issues” sexual assault and family law, but not tax.’[100] With Graycar’s comments in mind, the collection covers not only topics of long-standing interest to feminist scholars, such as family law, sexual offences and discrimination law, but also areas which have had less attention, including equity, immigration, taxation and environmental law.[101] The book is divided into four sections: public law, including cases in the areas of constitutional law, tax law, immigration law and environmental law; private law, including torts, consumer protection and equity; crime and evidence, including sentencing decisions; and interpreting equality, including family law, discrimination law and treaty law—the latter being an invented category for the future imagined by Nicole Watson in her judgment in In the matter of Djappari (Re Tuckiar). While we acknowledge that traditional divisions of legal knowledge, specifically the public/private divide, have been subject to considerable feminist critique, we have adopted this structure in the hope that it will make the book easy to access for researchers, students and practitioners of law. We consider the broad coverage of subject areas represented by the judgments to be a particular strength of the collection which indicates the extensive scope for feminist judgment writing.

The collection includes decisions spanning 80 years, from the case of Tuckiar v R originally heard in 1934 (but reimagined here as In the Matter of Djaparri (Re Tuckiar) and heard in 2035)[102] to the recent High Court case of PGA v R,[103] decided in 2012. While it was our aim to attract cases on a variety of areas of law, there was particularly strong interest from project participants in rewriting criminal law and evidence cases—areas classically of interest to feminist legal scholars—and there are eight cases in the collection that traverse this field.

Fittingly, the collection begins and ends with contributions by Indigenous authors. In the first chapter, Irene Watson points to the impossibility of an Indigenous feminist rewriting of a judgment about Indigenous knowledge within a white legal framework. Ending the collection, Nicole Watson provides scope for optimism with a futuristic vision of a new model of justice in an imagined First Nations Court of Australia, a court which ‘critique[s] decisions that have had significant impacts on the ability of Aboriginal and Torres Strait Islander people to exercise their right to legal equality’.[104]

Commentaries

Each judgment is preceded by a chapter which provides commentary on the case. We deliberately sought additional authors to write these chapters, so that they could provide a critical perspective on the judgments. Writing the commentary chapter presented a more traditional academic task. The authors analyse the original judgment and examine and critique the relevant law. They also place the case in its social, policy and legal context, and consider how the original judgment was received as well as the issues it was thought to raise at the time. Commentary chapters also consider what the feminist judgment does differently and the contribution the feminist judgment makes to the development of the law and feminist jurisprudence. These chapters aim to render the case and the feminist judgment accessible to non-specialist readers, including students or others not familiar with a particular area of law. We encourage readers of this collection to read the commentary chapter and judgment together. However, of themselves, the commentary chapters provide original scholarly appraisals of the law.

Applications and Implications

The process of rewriting existing legal judgments as feminist judgments is clearly an instructive activity which indicates that feminist approaches to legal decision-making may be learnt. Sexist attitudes among the judiciary are inculcated, inter alia, in the law school.[105] From the period of second-wave feminism in the 1970s, feminist legal scholars have endeavoured to challenge liberal legal ideologies of objectivity and neutrality. By the 1980s, stand-alone feminist jurisprudence courses along the lines of ‘Women and the Law’ began to emerge in a number of Australian law schools.[106] However, by the end of the century, Rachael Field found that there had been ‘virtually no progress’ in the inclusion of subjects addressing issues for women and the law, suggesting that ‘we seem to have gone backwards’.[107] In interviews conducted with legal academics in the mid-2000s in Britain, Canada, New Zealand and Australia, Margaret Thornton heard that women law students rejected feminism on instrumental grounds. She reported that they no longer wanted the word ‘feminist’ to appear on their transcripts in case it might interfere with their employment prospects, observing that:

[L]egal academics everywhere have recounted how merely mentioning the ‘F-word’ in class is enough for students to sigh and put down their pens. Feminism, the students believe, belonged to their mothers’ generation and it had nothing to say to them. Furthermore, ‘it was not going to be in the exam’![108]

Despite this discouraging state of affairs, feminist judgments projects in Canada and the United Kingdom have contributed to the reinvigoration of interest and engagement with feminism in legal education. In Canada, Jennifer Koshan and colleagues have reported on the value of teaching using some of the Women’s Court of Canada decisions, particularly as a way of introducing feminist analysis into law school classes.[109] In the United Kingdom, an issue of the journal The Law Teacher is devoted to articles which reflect on the critical contribution of feminist judgments as teaching resources to be used in law school classrooms.[110] For example, Rosemary Auchmuty considers the role for feminist judgments in a core LLB subject in property law. She observes that most students do not take optional units in gender and the law and emphasises the importance of including a consideration of ‘the role of law in perpetuating gender (and other) inequities’ in a core LLB module.[111] She also emphasises the importance of reading case reports, noting that ‘good lawyers need to be able to read and understand cases’ and yet increasingly students do not read cases.[112] Auchmuty’s answer to these challenges was to set writing an alternative judgment as assessment for her students and to use the English collection of judgments as a set of examples students could emulate, rather than focusing on a specific case.[113] Auchmuty believed that this approach would introduce students to new ideas, and help students to read cases as well as learn legal rules and problem-solving techniques.

Feminist judgments might also be used in legal theory modules.[114] Caroline Hunter and Ben Fitzpatrick consider the role of the English collection of feminist judgments in a legal philosophy module that seeks to ‘link theoretical principles and lived experiences of law’.[115] Cases are one of the key resources used in the module and feminist judging is included in a final section of the module called ‘Critical Accounts of Law’.[116] As part of this module, students are asked to read a case and associated academic commentary and consider what a feminist voice can bring to judging. While the authors have not, so far, used judgments from the English project in their course, they suggest that a feminist judgment could be used in conjunction with the original case.[117]

Hunter has identified three ways in which rewritten judgments from the English project have been used as teaching resources.[118] Firstly, they demonstrate how feminist theoretical ideas can be applied in the practice of legal decision-making. As she points out, students who are sceptical about whether this leads to bias or incoherence, or indeed whether it is actually possible, are able to see for themselves the ways a feminist judicial practice may be performed. Secondly, feminist judgments can be used to provoke critical thinking about judicial decision-making by ‘exposing the contingency of the decisions made’, highlighting judicial techniques of persuasion and the choices made in the construction of the ‘facts’ of the case, in this way directing students to reflect upon the relationship between the narrative and the facts.[119] Thirdly, feminist rewritten judgments can usefully be used to provoke critical thinking about the particular decision made, opening up the space for discussion of a different development of jurisprudence and suggesting the possibility of new directions in the common law.[120]

While this literature reflects a flourishing interest in the use of feminist judgments in legal education, such projects and publications also have a potential role to play in professional and judicial education. A presentation on the English Feminist Judgments Project at an International Association of Women Judges conference in London in 2012 attracted a large audience and lively debate. We have been encouraged by the interest expressed by members of the Australian judiciary in the Australian project and hope that for practising lawyers and judges, this book will also be of value in demonstrating how case preparation, submissions and judgments may be done differently and in ways that are more sensitive and inclusive.

There is clearly a flourishing scholarship around feminist judging and the need for a diverse judiciary. This book contributes to both of these projects. The central aim of this project, as other projects before it,[121] is law reform. As explored further in the following chapter, the feminist judgments in this collection rewrite law in order to right it.


[1] See, eg, Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing, 2010); Ulrike Schultz and Gisela Shaw (eds), Gender and Judging (Hart Publishing, 2013); Ulrike Schultz and Gisela Shaw (eds), Women in the Judiciary (Routledge, 2012); Diana Majury, ‘Introducing the Women’s Court of Canada’ (2006) 18 Canadian Journal of Women and the Law 1; Rosemary Hunter, ‘The Power of Feminist Judgments?’ (2012) 20 Feminist Legal Studies 135.
[2] We acknowledge at the outset that the concept of a ‘feminist judge’ is a contested idea which could take a number of forms and we explore the challenges and possibilities this issue raises for the project below. See generally: Rosemary Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7; Beverly Baines, ‘Must Feminist Judges Self-Identify as Feminists?’ in Ulrike Schultz and Gisela Shaw (eds), Gender and Judging (Hart Publishing, 2013) 379; Beverly Baines, ‘But Was She a Feminist Judge?’ in Kimberley Brooks (ed), One Woman’s Difference: The Contributions of Justice Bertha Wilson (UBC Press, 2009) 211.
[3] Jack Balkin (ed), What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (New York University Press, 2002); Jack Balkin (ed), What Roe v Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (New York University Press, 2005).
[4] See the first six decisions of the Women’s Court of Canada, available at <http://womenscourt.ca> . See also Hunter, McGlynn and Rackley, above n 1.
[5] Majury, above n 1.
[6] Ibid 2.
[7] Rosemary Hunter, Clare McGlynn and Erika Rackley, ‘Feminist Judgments: An Introduction’ in Hunter, McGlynn and Rackley, above n 1, 3.
[8] Hunter, McGlynn and Rackley, above n 1.
[9] Margaret Davies, ‘The Law Becomes Us: Rediscovering Judgment’ (2012) 20 Feminist Legal Studies 167, 168.
[10] Ibid 179.
[11] Irish Feminist Judgments Project, ‘Judges’ Troubles: Northern/Irish Courts and the Gendered Politics of Identity’ <https://www.dur.ac.uk/glad/activities/feminist_judgments/irishfjp/>.
[12] Int Law Grrls, ‘Invitation to Participate in the Feminist International Judgments Project’ (16 January 2014) <http://ilg2.org/2014/01/16/invitation-to-participate-in-the-feminist-international-judgments-project/> . See also Eva Brems (ed), Diversity and European Human Rights: Rewriting judgments of the ECHR (Cambridge University Press, 2013).
[13] Bridget Crawford, ‘Announcing New Book Project: Feminist Judgments – US Supreme Court Edition’ (11 February 2014) Feminist Law Professors <http://www.feministlawprofessors.com/2014/02/announcing-new-book-project-feminist-judgments-supreme-court-edition/> .
[14] Davies, above n 9, 169.
[15] Reg Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) 442; Reg Graycar, ‘Law Reform by Frozen Chook: Family Law Reform for the New Millennium?’ [2000] MelbULawRw 29; (2000) 24 Melbourne University Law Review 737. See also Anne Summers, The End of Equality: Work, Babies and Women’s Choices in 21st Century Australia (Random House, 2003).
[16] See generally: Graycar and Morgan, ibid; Margaret Thornton (ed), Public and Private: Feminist Legal Debates (Oxford University Press, 1995).
[17] Margaret Thornton, ‘Post-Feminism in the Legal Academy?’ (2010) 95 Feminist Review 92, 93; see also Margaret Thornton, The Liberal Promise: Anti-discrimination Legislation in Australia (Oxford University Press, 1990).
[18] Victorian Law Reform Commission, Law of Abortion: Final Report, Report No 15 (2008).
[19] See, eg: Reg Graycar and Jenny Morgan, ‘Law Reform: What’s in it for Women?’ (2005) 23 Windsor Yearbook of Access to Justice 393; Marcia Neave, ‘Institutional Law Reform in Australia: The Past and the Future’ (2005) 23 Windsor Yearbook of Access to Justice 343; Patricia Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Federation Press, 1998).
[20] See, eg: Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report, Project No 97 (2007); Victorian Law Reform Commission, Defences to Homicide: Final Report, Report No 94 (2004).
[21] In relation to these reforms see R v Middendorp in this collection. See also Jenny Morgan, ‘Homicide Law Reform and Gender: Configuring Violence’ (2012) 45 Australian and New Zealand Journal of Criminology 351; Kate Fitz-Gibbon and Julie Stubbs, ‘Divergent Directions in Reforming Legal Responses to Lethal Violence’ (2012) 45 Australian and New Zealand Journal of Criminology 318; Heather Douglas, ‘A Consideration of the Merits of Specialised Homicide Offences and Defences for Battered Women’ (2012) 45 Australian and New Zealand Journal of Criminology 367.
[22] Graycar and Morgan, above n 15, 442-5; Renee Romkens, ‘Law as a Trojan Horse: Unintended Consequences of Rights-Based Interventions to Support Battered Women’ (2001) 13 Yale Journal of Law and Feminism 265, 267; Rosemary Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (Cambria Press, 2008).
[23] Shelley O’Connell, ‘Dame Roma: Not One to be Excluded’ (2011) 33(10) Bulletin (Law Society of SA) 26; see also Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press, 1996). See also Mary Jane Mossman, The First Women Lawyers: A Comparative Study of Gender, Law and Legal Professions (Hart Publishing, 2006).
[24] Graycar and Morgan, above n 15, 422-3; Rosemary Hunter, ‘Women in the Legal Profession: The Australian Profile’ in Ulrike Schultz and Gisela Shaw (eds) Women in the World’s Legal Professions (Hart Publishing, 2003) 87.
[25] Australian Institute of Judicial Administration, Statistics (2013) <http://www.aija.org.au/JudgesMagistrates2013.pdf> . To compare with statistics from 1995, see Thornton, above n 23, 294.
[26]Margaret Thornton, ‘The New Knowledge Economy and the Transformation of the Law Discipline’ (2012) 19 International Journal of the Legal Profession 265, 267.
[27] Sharyn Roach Anleu, ‘Women in the Legal Profession: Theory and Research’ in Patricia Easteal and Sandra McKillop (eds), Women and the Law: Proceedings of a Conference Held 24-26 September 1991 (Australian Institute of Criminology, 1993) 1.
[28] Michael Kirby, ‘Women in Law—Doldrums or Progress?’ (Speech delivered at the Women Lawyers of Western Australia Dinner, Perth, 22 October 2003).
[29] HP Lee and Enid Campbell, The Australian Judiciary (Cambridge University Press, 2013) 84-6.
[30] Susanna Sherry, ‘Civic Virtue and the Feminine Voice in Constitutional Adjudication’ (1986) 72 Virginia Law Review 543; Judith Resnik, ‘On the Bias: Feminist Reconsiderations of the Aspirations for our Judges’ (1988) 61 Southern California Law Review 1877; Bertha Wilson, ‘Will Women Judges Really Make a Difference?’ (1990) 28 Osgoode Hall Law Journal 507; Regina Graycar, ‘The Gender of Judgments: An Introduction’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (Oxford University Press, 1995) 262; Sandra Berns, To Speak as a Judge: Difference, Voice and Power (Ashgate, 1999); Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Routledge, 2013).
[31] For a summary of the evidence, see Dermot Feenan, ‘Editorial Introduction: Women and Judging’ (2009) 17 Feminist Legal Studies 1. See also Jennifer L Peresie, ‘Female Judges Matter: Gender and Collegial Decision-Making in the Federal Appellate Courts’ [2005] YaleLawJl 34; (2005) 114 Yale Law Journal 1759. This research examined 556 cases of sexual harassment and sex discrimination decided in the United States between 1999-2001. It found that three-judge panels with at least one female judge decided cases for the plaintiff more than twice as often as did all-male panels.
[32] Kathy Mack and Sharyn Roach Anleu, ‘Skills for Judicial Work: Comparing Women Judges and Women Magistrates’ in Schultz and Shaw (2013), above n 1, 211, 227-9.
[33] Ibid 226-7.
[34] Ibid 229.
[35] Sally Kenney, ‘Thinking about Gender and Judging’ in Schultz and Shaw (2012), above n 1,104.
[36] Hilary Sommerlad, ‘Let History Judge? Gender, Race, Class and Performative Identity: A Study of Women Judges in England and Wales’ in Schultz and Shaw (2013), above n 1, 372.
[37] Ibid 372. See also Thornton, above n 23, 2; Margaret Thornton, ‘“Otherness” on the Bench: How Merit is Gendered’ [2007] SydLawRw 16; (2007) 29 Sydney Law Review 391.
[38] Graycar and Morgan, above n 15, 422.
[39] Lorraine Code, What Can She Know? Feminist Theory and the Construction of Knowledge (Cornell University Press, 1991) 263.
[40] Ibid; Elizabeth V Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Beacon Press, 1988); Judith Butler, ‘Contingent Foundations: Feminism and the Question of “Postmodernism”’ (1991) 11(2) Praxis International 150; Joan W Scott, ‘Experience’, in Judith Butler and Joan W Scott (eds), Feminists Theorize the Political (Routledge, 1992) 22; Maggie Troup, ‘Rupturing the Veil: Feminism, Deconstruction and the Law’ (1993) 1 Australian Feminist Law Journal 63.
[41] Rackley, above n 30, 28-9; Berns, above n 30, 8.
[42] Erika Rackley, ‘What a Difference Difference Makes: Gendered Harms and Judicial Diversity’ in Schultz and Shaw (2012), above n 1, 49.
[43] Ibid 37. See also Brenda Hale, ‘Equality and the Judiciary: Why Should We Want More Women Judges?’ [2001] Public Law 489; Brenda Hale, ‘Making a Difference? Why We Need a More Diverse Judiciary’ (2005) 56 Northern Ireland Legal Quarterly 281.
[44] Thornton, above n 37.
[45] In Queensland, The Honourable Matt Foley, the Attorney-General from 1998-2001, appointed an unprecedented number of women to the Queensland judiciary and to positions of legal authority. His appointments included Justice Margaret McMurdo as President of the Court of Appeal, Di Fingleton to the position of Chief Magistrate and Leanne Clare as Director of Public Prosecutions. His judicial appointments included women from immigrant and lower socio-economic backgrounds and two Indigenous people: see Marg O’Donnell, ‘Not Just Good Girls’ (2008) 21 Griffith Review 111, 117-18. In Victoria, The Honourable Rob Hulls, Attorney-General from 1999-2010, had a deliberate policy of appointing more women judges. In his first seven years in office, 37 out of 80 appointments were women, including Chief Justice of the Supreme Court, Marilyn Warren: see Thornton, above n 37, 398. See also Sean Cooney, ‘Gender and Judicial Selection: Should There Be More Women on Our Courts?’ [1993] MelbULawRw 2; (1993) 19 Melbourne University Law Review 20.
[46] See, eg, Kartinyeri v The Commonwealth; ACCC v Keshow; and In the matter of Djaparri (Re Tuckiar) in this collection.
[47] See, eg, Appellant S395/2002 v Minister for Immigration and Multicultural Affairs and JM v QFG and GK in this collection.
[48] As Sommerlad adds, there is a danger that a push for diversity becomes just a way of legitimising the current order, where we make a ‘business case’ for more women, rather than focus on important goals of diversity: Hilary Sommerlad, ‘Diversity, Merit and the English Judiciary: The Lessons that Can be Learned from the Reform of Selection Processes, a UK Contribution’ (2013) 40 City Square, Fordham Urban Law Journal 94.
[49] Hunter, above n 2, 7.
[50] Ibid.
[51] Code, above n 39.
[52] Brenda Hale, ‘Foreword’ in Hunter, McGlynn and Rackley, above n 1, v.
[53] Ibid; Hunter, above n 2; Rosemary Hunter, ‘An Account of Feminist Judging’ in Hunter, McGlynn and Rackley, above n 1, 30-35; Brenda Hale, ‘Maccabaean Lecture in Jurisprudence: A Minority Opinion?’ (2008) 154 Proceedings of the British Academy 319.
[54] Audre Lorde, Sister Outsider: Essays and Speeches (Crossing Press, 1984) 110-14.
[55] Mary Jane Mossman, ‘Feminism and Legal Method: The Difference it Makes’ (1987) 3 Wisconsin Women’s Law Journal 147; Carol Smart, Feminism and the Power of Law (Routledge, 1989).
[56] Smart, ibid.
[57] Catharine A MacKinnon, Towards a Feminist Theory of the State (Harvard University Press, 1989).
[58] Reg Graycar, ‘A Feminist Adjudication Process: Is There Such a Thing?’ in Schultz and Shaw (2013), above n 1, 455.
[59] See, eg, Hunter, above n 1, 139. Even earlier, Julius Stone in Precedent and Law: The Dynamics of Common Law Growth (Butterworths, 1985) at 97 argued that in appellate judgments and where points of law are disputed the conclusion is rarely compelled; rather the materials leave open ‘leeways of choice’ within which judges must decide.
[60] See, eg, Appellant S395/2002; Louth v Diprose; Phillips v R; R v Webster; R v Middendorp; and U v U in this collection.
[61] See ch 23 of this collection.
[62] Hunter, above n 2; Rosemary Hunter, ‘Justice Marcia Neave: Case Study of a Feminist Judge’ in Schultz and Shaw (2013), above n 1, 401.
[63] Indeed, this was one of the key lessons arising from the English Feminist Judgments Project: Hunter, McGlynn and Rackley, above n 7, 12-13.
[64] Ibid.
[65] See, eg, Lodge v Federal Commissioner of Taxation and U v U in this collection.
[66] Hunter (2013), above n 62, 417-18.
[67] Ibid; Sommerlad, above n 36, 371-372.
[68] See, eg, Baines (2009), above n 2; Baines (2013), above n 2.
[69] Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’); Human Rights Act 1998 (UK).
[70]While in 2004 the Australian Capital Territory introduced a Human Rights Act 2004 (ACT) and in 2006 Victoria introduced a Charter of Human Rights and Responsibilities Act 2006 (Vic), neither gives individuals the right to bring complaints about breaches of human rights before the courts.
[71] See, eg, in this collection: Dietrich v R on the right to a fair trial; R v Pearson; Ex parte Sipka on the right to vote; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (Applicants S134/2002) and Appellant S395/2002 on the rights of refugees; Kartinyeri v The Commonwealth on Indigenous rights under cultural heritage legislation.
[72] Around 2.5 per cent of Australians identify as Indigenous and yet Indigenous people have a disproportionate level of contact with punitive legal systems in Australia: 26 per cent of people in custody are Indigenous people and Indigenous children are 8 times more likely that other children to be removed from their families under child protection orders: Australian Human Rights Commission, Face the Facts (2012), ch 1 <http://www.humanrights.gov.au/publications/face-facts-2012/2012-face-facts-chapter-1> .

[73] Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo).

[74] Heather Douglas and Mark Finnane, Indigenous Crime and Settler Law: White Sovereignty After Empire (Palgrave Macmillan, 2012) 149-59; Phillip Falk and Gary Martin, ‘Misconstruing Indigenous Sovereignty: Maintaining the Fabric of Australian Law’ in Aileen Moreton-Robinson (ed), Sovereign Subjects: Indigenous Sovereignty Matters (Allen and Unwin, 2007) 33; Larissa Behrendt, ‘The Power we Bring: Indigenous Sovereignty and Self-Determination in the Treaty Process’ (2002) 5 Balayi: Culture Law and Colonisation 1.
[75] Aileen Moreton-Robinson, ‘Writing off Indigenous Sovereignty’ in Moreton-Robinson, ibid, 101-2.
[76] See: Kartinyeri v The Commonwealth; ACCC v Keshow; In the matter of Djappari (Re Tuckiar); R v Morgan; and McLeod v Power in this collection.
[77] Janet Phillips, Michael Klapdoor and Joanne Simon-Davies, ‘Migration to Australia since Federation: A Guide to the Statistics’ (Background Note, Parliamentary Library, Parliament of Australia, 2010) 2.
[78] Australian Bureau of Statistics, Reflecting a Nation: Stories from the 2011 Census, 2012–2013 (2012) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/2071.0main+features902012-2013> .
[79] See Applicants S134/2002 and Appellant S395/2002 in this collection.
[80] ARC Discovery Projects Grant: Australian Feminist Judgments Project: Jurisprudence as Praxis (DP 120102375).
[81] We actively sought participants from Tasmania, Western Australia and the Northern Territory but ultimately were unsuccessful.
[82] Although one retired judge was involved and some other participants had experience in writing tribunal decisions.
[83]See, eg, Lisa Sarmas, ‘Storytelling and the Law: A Case Study of Louth v Diprose[1994] MelbULawRw 8; (1994) 19 Melbourne University Law Review 701.
[84]See, eg, Baroness Hale in R (on the application of Gentle) v Prime Minister [2008] UKHL 20 (where she expressed sympathy with mothers of soldiers killed in Iraq war). On empathy and judges, see also Mitchell Crusto, ‘Empathetic Dialogue: From Formalism to Value Principles’ (2012) 65 Southern Methodist Law Review 845.
[85] ‘A judge should never cause unnecessary hurt’, Australasian Institute of Judicial Administration, Guide to Judicial Conduct (AIJA, 2nd ed, 2007) 19.
[86] See, eg, the Schedule to the High Court of Australia Act 1979 (Cth): judges swear that ‘I will do right to all manner of people according to law without fear or favour, affection or ill-will...’
[87] Regina Graycar has emphasised the pivotal role of fact framing in judicial decision-making: see ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 University of British Columbia Law Review 1, 10-11. Justice Ruth McColl has referred to the ‘subconscious factors’ and ‘underlying philosophy of life’ that affect judicial decision-making even though they may remain un-named: see Justice Ruth McColl, ‘The Art of Judging’ [2008] SCULawRw 5; (2008) 12 Southern Cross University Law Review 43, 51. The Hon Michael Kirby has noted also that ‘hidden away in language may be a world of inappropriate attitudes and prejudice’: see Michael Kirby, ‘On the Writing of Judgments’ (1990) 64 Australian Law Journal 691, 702-3.
[88] We explore these issues further in ch 2.

[89]See generally Antoun v R [2006] HCA 2; (2006) 224 ALR 51.

[90] The issue of judges introducing their own materials into their decision-making has emerged as an important issue in recent Australian scholarship: see, eg, Zoe Rathus, ‘A Call for Clarity in the Use of Social Science Research in Family Law Decision-Making’ (2012) 26 Australian Journal of Family Law 81; Kylie Burns, ‘The Way the World Is: Social Facts in High Court Negligence Cases’ (2004) 12 Torts Law Journal 215; Kylie Burns, ‘The Australian High Court and Social Facts: A Content Analysis Study' (2012) 40 Federal Law Review 317. Note also that the issue is not a new one—Smyth points out that Windeyer J was responsible for half of the citations to secondary sources during the 1960s High Court: see Russell Smyth, ‘Other Than “Accepted Sources of Law”? A Quantitative Study of Secondary Source Citations in the High Court’ [1999] UNSWLawJl 40; (1999) 22 University of New South Wales Law Journal 19, 36.
[91] On the value of simplicity, see Kirby, above n 87, 705.
[92] Keeping judgments short is a particularly modern concern resulting from word processing which allows large swathes of text to be copied and pasted from one place to another, as well as the increasing demands of the appeal process: see Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001’ (2004) 32 Federal Law Review 255, 259-65; John Doyle, ‘Judgment Writing: Are There Needs for Change?’ (1999) 73 Australian Law Journal 737, 740.
[93] Six judgments were co-written: R v Morgan; R v Taikato; Dietrich v R; Goode and Goode; PGA v R; R v Webster; and in one case, written by a team of three: R v Middendorp.
[94] The Honourable Sally Brown also provided extensive review and feedback to authors on the final drafts of judgments and commentaries.
[95] Excluding ACCC v Keshow and In the matter of Djappari (Re Tuckiar).
[96] Kathy Mack, Sharyn L Roach Anleu and Anne Wallace, ‘Everyday Work in the Magistrates Courts: Time and Tasks’ (2011) 21 Journal of Judicial Administration 34; see also Jason Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes (Australian Institute of Criminology, 2007).
[97] Judgment writers were asked to limit their contribution to 5000 words or less and commentary writers to 2000 words or less.
[98] In the next chapter we describe what the judgment writers said about their own work and the process of writing. Many of the authors indicated that the main task they saw themselves performing was correcting the law, in the sense that the original judgment has misapplied a statute or extended a principle incorrectly.
[99] [1998] HCA 22; 195 CLR 337.
[100] Regina Graycar, ‘“To Transform the Normative Tradition of Law...”: A Comment on the Feminist Project in the Law School’ (1986) 58 The Australian Quarterly 366, 369. See also Jenny Morgan, Who Kills Whom and Why: Looking Beyond Legal Categories (Occasional Paper, Victorian Law Reform Commission, 2002).
[101] See the Introduction in Graycar and Morgan, above n 15, for a discussion about the role of legal categories in constructing women’s lives.
[102] [1934] HCA 49; (1934) 52 CLR 335.
[103] [2012] HCA 21; (2012) 245 CLR 355.
[104] In the matter of Djaparri (Re Tuckiar) (2035) 30 FNLR 1.
[105] Australian Law Reform Commission, Equality Before the Law: Women’s Equality (Report No 69, 1994) 91.
[106] Margaret Thornton, ‘The Development of Feminist Jurisprudence’ (1998) 9 Legal Education Review 171, 172; Rachael Field, ‘Women in the Law School Curriculum: Equality is About More than Just Access’ (1999) 10 Legal Education Review 141, 147.
[107] Field, ibid, 144-5.
[108] Thornton, above n 17, 95.
[109] Jennifer Koshan et al, ‘Rewriting Equality: The Pedagogical Use of Women’s Court of Canada Judgments’ (2010) 4 Canadian Legal Education Annual Review 121.
[110] The Law Teacher (2012) 46(3). The English project website also includes various teaching resources that could be adapted for use with the Australian feminist judgments in this book: Feminist Judgments Project, ‘Teaching Resources’ <http://www.kent.ac.uk/law/fjp/resources/teaching.html#resources> . See also Rosemary Hunter, ‘Feminist Judgments as Teaching Resources’ (2012) 2(5) Onati Socio-Legal Series 47.
[111] Rosemary Auchmuty, ‘Using Feminist Judgments in the Property Law Classroom’ (2012) 46 The Law Teacher 227, 227.
[112] Ibid 231.
[113] Ibid 229; Feminist Judgments Project, above n 110.
[114] Feminist Judgments Project, ‘The Feminist Judgments Project in the Classroom’ <http://www.kent.ac.uk/law/fjp/resources/classroom.html> .
[115] Caroline Hunter and Ben Fitzpatrick, ‘Feminist Judging and Legal Theory’ (2012) 46 The Law Teacher 255, 256.
[116] Ibid 259.
[117] Ibid 263.
[118] Rosemary Hunter, ‘Introduction: Feminist Judgments as Teaching Resources’ (2012) 46 The Law Teacher 214, 219.
[119] Ibid 220.
[120] Ibid.
[121] Hunter, McGlynn and Rackley, above n 7, 8.


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