By Professor Ann O’Connell

Do women think differently to men? Do women lawyers think differently to their male counterparts? More importantly, do women judges judge differently to male judges? A new book, the product of an Australian Research Council grant, seeks to deal with this question. The book is Australian Feminist Judgments: Righting and Re-Writing Law, edited by legal academics Professor Heather Douglas, Dr Francesca Bartlett, Dr Trish Luker and Professor Rosemary Hunter. The book draws inspiration from similar projects in the United Kingdom and Canada, but, as its title indicates, the focus is on Australian judicial decisions. The purpose of the project is to investigate the ‘possibilities, limits and implications of a feminist approach to legal decision making’.

The Australian project involved 55 (mainly) academic lawyers who were tasked with revisiting and rewriting significant decisions in their chosen field which were ‘influenced by, or alternatively, offended feminist principles’. Most, but not all the contributors are women. Most, but not all of the judgments are High Court decisions. The oldest judgment is from 1963 but the majority are more recent cases: 17 of the 26 decisions being handed down since 2000. This is significant because the task was not about updating the judgments to reflect contemporary social mores, but rather it was to step into the shoes of the judge (or judges) as if deciding the case afresh but at the time of the original decision.

The book contains 26 rewritten judgments covering a range of legal subjects. Some of the areas covered might be regarded as covering predictable ‘feminist’ subjects — family law, sexual offences and discrimination law — but the book also deals with less obviously feminist areas of law such as immigration, tort law, taxation, constitutional law, environment and indigenous issues. Four themes were identified to group the judgments: public law; private law; crime and evidence and interpreting equality. The contributors comprised a ‘judge’ (or ‘judges’) who rewrote the judgment and a commentator who provided the context for the original decision and a discussion of the rewritten judgment.

Coming to grips with the task involved significant preparation and consideration of what was entailed. The first ‘issue’ was to recognise that judgment writing is very different to academic writing. In addition to reading cases and commentary on judgment writing, the contributors attended workshops with judges from different courts to gain an appreciation of the role of a judge, including an appeal judge. While an academic will analyse and question a legal development such as a delivered judgment, it is clearly a different task to, as Chief Justice French has said to ‘make a decision on the facts and set out the reasons for that decision’. Interestingly, not every rewritten decision resulted in a different outcome (eg Lisa Sarmas’s rewriting of Trustee of the Property of John Daniel Cummins v Cummins [2006] HCA 6).

The second ‘issue’ was to consider what a ‘feminist judgment’ might look like. It clearly does not mean always finding for the woman or in a way that favours the female litigant. For contributors with a background in feminist legal theory this might involve seeking to apply that theory to the case. For contributors who did not have such a background there was a more basic issue that seems to translate as ‘does being a woman impact on the way in which a judicial decision is made?’ Rosemary Hunter has suggested that in terms of a feminist method of decision-making, a feminist judge should ‘ask the woman question’ and notice the gender implications of apparently gender neutral rules, as well as the implications for other traditionally excluded groups; ‘include women’, writing women’s experiences into the judgment (both as litigants and collectively) and in the construction of legal rules; challenge gender bias; contextualise and particularise, reasoning from context and making individualised rather than categorical or abstract decisions; seek to remedy injustice and improve the conditions of women’s lives; promote substantive equality; be open and accountable about the choices made between competing interests; and draw on feminist scholarship to inform decisions.

Anecdotally many women judges would claim that they decide cases based on the law, in exactly the same way as male judges. This suggests that all judicial decisions are based on objective reasoning and that subjective factors, such as a person’s life experience, are not part of the process. If this was consistent with real-life experience it is unlikely that there would be support for more diversity in judicial office. There is also some evidence that women judges do bring different qualities to the bench. The first woman appointed to the High Court was Justice Mary Gaudron who served from 1987 to 2003 and prior to that appointment had served as a judge of the Conciliation and Arbitration Commission from 1974 to 1980. A former President of the NSW Bar described her contribution to the law as having ‘an extraordinarily humanising effect’ and Justice Michael Kirby noted that after her retirement, the High Court became ‘a more blokey place’. More recently, three of the seven judges on the High Court have been women, although the total number of women who have held that highest judicial office is still only four and the three most recent appointments have all been male.

Although there is nothing to suggest that our High Court delivers judgments that demonstrate a gender split, the increase in women judges on other courts may mean that ‘being a woman’ has at least some influence on the decision making process. Individuals who have experienced a form of discrimination are likely to have a different view of the impact of discrimination; if they have experienced raising children they may have a different view of workplace demands or if they have felt fear of the threat of random violence when making their way home from work they may view victims of crime in a different way. It may also be true that even without those personal experiences, women know how women are more likely to react or behave in a given situation and so can bring a different perspective to bear to the judicial process. Sometimes this is as simple as giving the plaintiff/defendant a name or contrasting what might happen if the litigant or victim was a man or viewing a situation from a woman’s perspective (eg Kerrie Sadiq’s rewriting of Lodge v Federal Commissioner of Taxation [1972] HCA 49), irrespective of the outcome of the case.

Of the 26 rewritten judgments, 8 members of the Melbourne Law School were involved in rewriting the judgments or providing commentary. Four of these cases were High Court decisions: Professor Jenny Morgan co-wrote the judgment in the constitutional law case of Dietrich v The Queen [1992] HCA 57; Lisa Sarmas rewrote the judgment in Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6 which involved principles of equity; Associate Professor Wendy Larcombe co-wrote the criminal law case judgment in PGA v The Queen [2012] HCA 21 and I wrote the commentary for the tax decision in Lodge v Federal Commissioner of Taxation [1972] HCA 49. Other Melbourne Law School participants were Professor Jacqueline Peel, Professor Lee Godden, Associate Professor Ann Genovese and Professor Beth Gaze.

A brief analysis of these four judgments demonstrates what the project was about.

Dietrich v The Queen [1992] HCA 57 concerned the question of whether a person unable to afford legal representation is entitled to state-funded representation in order to ensure a fair trial on a serious criminal charge. A majority of the High Court upheld this proposition. The dissenting judges, Brennan and Dawson JJ gave greater emphasis to the inability of the court to interfere in executive government decisions about distribution of public money. Although not part of the reasoning of the rewrite, in the event, the trial was stayed and the defendant went on to commit many more ‘serious offences’ including the murder of a security guard. In their judgment, Jenny Morgan and Reg Graycar reject the abstract approach of the majority judgments and state that a trial should not generally be stayed in the absence of legal representation, while leaving open the possibility that there might be exceptional cases where a stay would be appropriate. Although the notion of a fair trial does not on its face discriminate against women, the judgment notes that limited funds for legal aid has meant that funding tends to be restricted to criminal cases and it was noted ‘that the vast majority of legal aid for criminal trials goes to men as it is men who commit the vast majority of criminal offences, particularly serious criminal offences’.

Lodge v The Federal Commissioner of Taxation [1972] HCA 49 concerned a claim for tax deductibility of childcare expenses incurred so that the taxpayer, Ms Lodge, could earn an income. The original case was decided by Mason J sitting as a single judge in the original jurisdiction of the High Court (before the introduction of the Administrative Appeals Tribunal and the Federal Court). Justice Mason’s view was that in the absence of binding authority on the point, the claim should be denied because the expense was not incurred as part of the income-earning process but rather put her in a position where she was able to work and so was akin to a private expense. In the rewritten judgment, Kerrie Sadiq makes her decision on the basis that there should be equal treatment of claims for expenses by taxpayers whether they are men or women, and without regard to whether they are occupying traditionally gendered roles. She also notes that in the early 1970s ‘professional men’ were entitled to claim golf memberships and entertainment expenses which did not have the direct connection to earning income said to be necessary for a deduction. Nevertheless, this is one judgment which may be contested by feminists writing now, as its outcome would produce a taxation system which would benefit high income earners more than low income parents.

In Cummins [2006] HCA 6, a trustee in bankruptcy sought orders as to the beneficial ownership of real estate legally owned by a barrister and his wife. The trustee needed to know if the property was available to meet the claims of creditors, including for a debt of almost $1 million owed to the Australian Tax Office for unpaid taxes. In opposing the claim it was argued that the barrister had transferred his interest in the property to his wife by way of gift and that alternatively, there was a resulting trust in the wife’s favour as she had contributed 76.3 per cent of the initial purchase price of the land. The High Court held that the transfer to the wife was invalid and that, based on subsequent contributions to the property, the presumption of joint ownership should apply. Lisa Sarmas delivers an additional judgment applying different reasoning from the majority judgment. In her judgment she analyses the doctrine of resulting trust and the presumption of formal equality between spouses in ownership of the family home. Sarmas rejects the reasoning of the majority judges in relation to the doctrine of resulting trusts. In her view, the doctrine determines the beneficial interests of the parties in accordance with their intentions ‘at the time of the purchase’. She argues that it is not appropriate to take into account any changes of intention as to beneficial ownership over time under the doctrine of resulting trusts. Sarmas also questions the existence of an inference of equal beneficial ownership in the family home. She observes that while this inference may provide just results for some (in particular heterosexual) couples, in many cases this inference could result in poorer results for women than traditional trust law analysis.

The case of PGA v The Queen [2012] HCA 21 concerned an accusation of rape within marriage. The case did not come to the High Court until 2012 but the conduct complained of dated back to 1963. The High Court was asked whether the common law of Australia recognised the crime of rape within marriage. In the relevant State, South Australia, legislation in the 1970s had purported to remove the immunity of husband who raped their wives. A majority of the High Court, in a joint judgment determined that the common law of Australia did recognise rape within marriage and that the husband’s immunity from prosecution for the rape of his wife had ceased to be part of the common law, at least by the time of the enactment of s 48 of the Criminal Law Consolidation Act (SA) in 1935. This Act had made rape an offence but did not say more about the elements of the offence. In their judgment, Larcombe and Heath took the view that the immunity was part of the common law of Australia until it was removed by legislation. On that basis, they found that the prosecution of a husband for the rape of his wife in the 1960s could not be sustained. The feminist judges referred to the activism of the 1970s which had inspired reform of the law to remove the common law immunity held by husbands who had raped their wives. However, they noted that this reform occurred after the rape alleged by the woman before the Court. Clearly Larcombe and Heath sympathised with the wife (and others who had experienced similar sexual violence within their marriages) who had no recourse to the criminal law. They took the unusual step of making an apology for the violence that had been accepted by the common law for so long.

What these cases, and the other cases revisited in the book, demonstrate is that the process of feminist judging is not simply about finding for the woman. What is involved is a careful analysis of the case and a determination on the facts that takes account of impact of the law on the ‘other’. Although each judgment must depend on the facts and on the legal principles at the time, woman judges will view cases through a prism that is necessarily different to that for men.

Ann O’Connell is a Professor of Law at Melbourne Law School

AGLC3 Citation: Ann O’Connell, ‘Australian Feminist Judgments: Righting and Re-Writing Law: Book Review’ on Opinions on High (16 February 2015) <https://blogs.unimelb.edu.au/opinionsonhigh/2015/02/16/oconnell-feminist-judgments/>.