Sex and High Court appointments: must all Judges have been barristers?

When Justice Claire L'Heureux-Dubé retired in July 2002 from the Supreme Court of Canada, she was replaced by Justice Marie Duchamp, who, like Justice L'Heureux Dube at the time of her appointment in 1987, was a member of the Quebec Court of Appeal.

However, in 1983, when Justice Roma Mitchell, the first woman appointed to the Supreme Court of any Australian State or Territory, retired from her position on the Supreme Court of South Australia, there were no other women on any of those courts. Some few years later, Justice Mary Gaudron was appointed to the High Court of Australia, the apex of this country's judicial system. Like Justice Mitchell before her, she will leave that court in February 2003 as the only woman ever to have served on it.

Over the past months, ever since Justice Gaudron announced her intention to retire in February 2003, there has been considerable attention focussed on whether the government would replace her with a woman or with a man. But that question leaves aside the much bigger issues that might have been discussed. Specifically, how are judges appointed in Australia, and what do we mean by 'merit'?

One of the reasons that so few women have held high judicial office in this country is that judges of superior courts in Australia are almost invariably appointed from the ranks of practising senior barristers. Barristers are those members of the legal profession who do primarily court work and opinion work. They do not see clients directly but take their instructions from solicitors, who act as intermediaries. They are generally found around Queen's Square in Sydney, and are easily recognisable by their tendency to wear those quaint wigs and gowns. The most senior of them are elevated to the status of Queen's Counsel or in some states, such as NSW, 'senior counsel' - these are called 'silks'.

During the recent debate, we heard a lot about how appointments should be made strictly on 'merit', rather than by reference to some characteristic such as sex, or geographic representativeness. Merit is one of those terms that is rarely analysed in any detail. We don't tend to use the word unless there is some suggestion that factors like sex, or race, or even geography are also considered relevant, ie, it is used only when we talk of looking outside the traditional white male paradigm. One commentator has described the notion of 'merit' as a form of 'homosocial reproduction' or 'cloning' given the tendency to see those who look most like ourselves, and those whose lives most mirror our own, as meritorious. In a speech earlier in 2002, Justice Mary Gaudron said that merit "slyly conveys the message that men of silk are men of merit - a proposition which, if true, would mean that there were many, many fewer than 300 men with silk in NSW, and many, many fewer than 700 Australia-wide".

Should this very small part of the legal profession be the only pool from which we draw when we seek to find the very best legal minds, the intellectual leaders of the judiciary whose role is to adjudicate upon a range of competing legal principles? In countries such as the United States, where the legal profession is not divided into solicitors and barristers, the pool of those from whom appointments are made is inevitably wider. In that country, as in Canada, many of the finest judges have been appointed from the senior ranks of the legal academy. The current Chief Justice of Canada, The Hon Beverley McLachlin, one of three women currently serving on that country's highest court, was a professor at the University of British Columbia at the time she was appointed to the bench in that province from where she was later promoted to the Supreme Court. Several of the other nine current judges have academic backgrounds, others have practice backgrounds, and some have both.

Rather than focus on the specifics of any individual appointment to the Court, perhaps it is time to have a broader discussion about the appointment of judges and about whether the judiciary is able to respond adequately to the diversity of the community, and of the legal issues that affect Australians in this new millennium.