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. Continue reading