High Court judge issues gender challenge

Retiring High Court Judge Justice Michael McHugh has criticised the discriminatory nature of the legal profession, the systemic and structural practices of which he claims deny women access to the law’s upper echelon.

In a speech delivered at a recent High Court Dinner in Perth, Justice McHugh said that, since his appointment in 1989, there had been no change in the small percentage of cases argued in the court by female advocates.

He also pointed out that Australia’s High Court now stands alone among final appeal courts of the US, England, New Zealand, Canada, Ireland, India, and Singapore in its lack of female members.

“The inescapable conclusion as to why women have so few speaking parts in the High Court is the product of the discriminatory, systemic and structural practices in the legal profession that have been well documented in recent years,” Justice McHugh said.

He said two Western Australian Supreme Court judges, Christine Wheeler and Carmel McLure, had presented some of the very best arguments he had heard while on the court. Both judges have been mentioned as possible successors for Justice McHugh.

Justice Wheeler in particular has been touted in the media as a possible appointment to the High Court.

Four of the present justices of the High Court will retire in the next few years.

Justice McHugh said gender representation in the High Court  was lagging other sectors of society.

“Women now also hold many senior positions in the public service. What then is the explanation for the High Court of Australia – part of the third branch of government – not having even one female justice,” he said.

Since its inception in 1903, the High Court has only had one female Judge, Mary Gaudron, who served from 1987 to 2003.

Of the 33 justices and 10 chief justices who have served on the High Court bench, only two have been Western Australians  – Sir Ronald Wilson (1979 to 1989) and John Thooey (1987 to 1998).

President of Women Lawyers of Western Australia and barrister at Francis Burt Chambers, Anette Schoombee, said it was extremely important that people in high positions in the legal profession make the commitment to support the issue.

“There is no doubt that women often bring a different set of life experiences and perception of certain matters to the bench, and that without some more balanced representation, women in the community and their experiences and views of the world are not reflected on the bench,” Ms Schoombee told WA Business News.

“We agree that there are many female lawyers and judges who would be very capable of filling a position as a justice of the High Court, and it depends on the subjective criteria imposed by those who make the selection on a potential candidate.”