Judging gender
Women appointed to the judiciary by Peter Beattie's Labor government in Queensland were there due to their gender, not their merit, former High Court chief justice Sir Harry Gibbs implied at a function at Brisbane's Supreme Court on February 11.
According to the Weekend Australian (February 12-13), Gibbs warned that the appointment of an insufficiently qualified or unmeritorious judge risked injustice or disturbing the morale of the bench and the faith of the legal profession in the system.
While some changes have been made, the legal system remains dominated by men. To become a judge, one must have practised law, yet opportunities for women to succeed in law are still limited.
A survey commissioned by the NSW Law Society in 1997 revealed that in NSW, despite the number of male and female law students being approximately equal, women were over-represented in the lower end of the legal industry's wage scale and under-represented amongst the high earners.
Less than 6% of female lawyers were partners in their law firms, compared to 28% of male lawyers. Women made up 67% of the staff at low-paying community legal centres, many of which have since had their funding cut.
During its term, the Beattie government has appointed 12 women and 11 men to the judiciary. After Gibbs' comments, the state's attorney-general, Matt Foley, defended the appointments as merit-based, saying that he refused to make judicial appointments just from the "old boys' club" and that the bench should reflect the broader community.
The composition of the bench in relation to the wider community is the subject of some discussion. Former federal attorney-general Michael Lavarch said, "It is a reasonable aim of an appointment process, and consistent with merit principles, that the process can seek to ensure that all 91×ÔÅÄÂÛ̳ of society (particularly women, Aboriginal and Torres Strait Islanders and members of different ethnic groups) are not unfairly under-represented in the judiciary".
The Law Council disagrees with the suggested criteria of "fair reflection of society". A representative, RW Gotterson QC, said, "While interest-group representation is opposed, that is not to say that judges ought not to fairly reflect society in the general sense of having cultural sensitivity, gender sensitivity, wisdom in a broad sense, and an understanding of the community's aspirations and objectives ... but achievement of these objectives does not justify or require interest-group representation."
Dismissing 51% of the population as an "interest group" is a pretty accurate reflection of the attitude of much of the "old boys' club" towards women.
Those who argue that the bench should seat more women are not expecting unqualified or unmeritorious women to be appointed. They argue that there are many suitable qualified women who are being overlooked by an establishment which seeks to perpetuate its own privilege, in its own image.
But it is not just an issue of the bench at present being largely a bunch of old, white men. Just as, if not more, relevant is that it is largely made up of a bunch of old, white, wealthy men — and not just because of their extremely generous salaries.
The law is a bastion of the rich. Gender is perhaps less of a primary dividing line than social and economic privilege. This is especially the case in the upper echelons of the legal profession, where those from the public education system are particularly under-represented.
Wealthy, male domination of this profession is, if anything, getting worse. The privatisation of university education, for instance, is restricting access to women and the poor, especially to those high fee courses like law.
Women's exclusion from positions of power and influence will, in coming years, be more a result of women's economic disadvantage than solely our gender, although gender, especially in relation to child-care responsibilities, will remain an important factor.
That's not only true within the profession, either. The majority of laws are to protect property, with most incarcerations due to property crimes rather than offences against people or society as a whole. Because women make up the bulk of the poor (it has been estimated that approximately 80% of those living below the poverty line are women) the law as a whole does not stand on our side.
The law being what it is, class-based and partisan, it's likely that the appointment of 12 women judges in Queensland was made on the same basis as all judicial appointments, in the interests of the government of the day, whether ALP or Coalition.
But this bias, a political bias in favour of wealth and privilege, is not what evokes outrage from people like Gibbs. You have to suspect that he just can't believe that women could possibly be qualified to be judges, and fears that appointing women (even upper-middle class women) might be beginning of the downfall of the legal system he has sought for so long to protect.
Yes, more women must get involved in the decision making processes of society, including in the judiciary. But the inclusion of more women in the current structures will not necessarily make them just or democratic.
If we want justice and democracy, we need to change the structures themselves. That means women must join with men to build a society where all people, regardless of age, gender, class or ethnic background, have a real say in the way society functions.
By Margaret Allum