The almost equal gender balance on the High Court of Australia has been restored with the announcement that Federal Court judge Michelle Gordon will replace Justice Kenneth Hayne. When she takes her seat on the bench in June this year as the 52nd justice of the High Court of Australia, she will return the number of women sitting on the High Court to three out of seven judges.
Attorney-General George Brandis’ decision to appoint Justice Gordon suggests that the government may have taken heed of calls for gender diversity in appointments following criticism from some quarters that the court’s second woman judge, Justice Susan Crennan, was replaced by Justice Geoffrey Nettle. That the new judge is married to the judge she is replacing adds a novel and unprecedented dimension to the appointment.
Perhaps unsurprisingly, those making judicial appointments have traditionally been loath to acknowledge that gender had any bearing on their decision. By focusing on claims of “merit” rather than the need to redress almost 100 years of exclusion from legal authority, decision-makers have been disinclined to justify their appointments around the politics of difference and diversity.
The government of the day is largely unfettered in making judicial appointments at the highest levels. Certainly there is nothing that legally compels the government to consider notions of diversity in making these historic appointments.
In practice, the appointment is generally made by the government of the day, with the attorney-general directing the process in most cases and presenting a nominee to cabinet, then formally recommending the appointment to the governor-general.
Justice Gordon is the fifth woman appointed to the High Court of Australia, and the third appointment by the conservative side of politics. Given Prime Minister Tony Abbott’s long-running “woman problem”, appointing a woman judge seems prudent especially in light of the criticisms which arose when Justice Crennan was replaced with a man.
But does the appointment of Justice Gordon mean that the politics of gender inclusion is over? And should her familial connections have any bearing on her appointment?
The credentials of the High Court’s newest judge
Even if the government’s decision-making process was informed by considerations of gender, it preferred to construct the narrative of Justice Gordon’s appointment exclusively around her credentials. Similarly, in appointing Justices Crennan and Kiefel in 2005 and 2007 respectively, the then attorney-general, Philip Ruddock, was at pains to avoid any conversation about the importance of gender diversity in judicial appointments.
The marital connection in this appointment is novel, but it certainly does not render the appointment a radical one. In fact, the inverse is true: the new judge’s career trajectory and connections clearly point to her status as a legal insider rather than outsider.
Brandis downplayed Justice Gordon’s familial connections in justifying the judge’s credentials. He made the important point that:
It would, of course, in this day and age be outrageous for a person who was otherwise well-qualified for an appointment as Justice Gordon certainly is, to be disqualified on account of who they were married to.
Divorced from gender and marital status, this is not a surprising appointment.
Although Justice Gordon is, at 50, on the younger side (a positive in the government’s eyes, surely), her current position as a justice of the Federal Court of Australia and her commercial law background all underscore her suitability for appointment in the way that such appointments are traditionally framed.
In justifying the appointment, Brandis emphasised that Justice Gordon would “bring great strength to the High Court of Australia on the basis of her enormous experience acting for both regulators and corporates”.
In this instance, the government gets to have its cake and eat it too. It shores up its gender credentials by appointing a woman. But it gets to do so without any direct engagement with the importance of gender diversity in judicial appointments.
The importance of gender diversity was completely absent in any of the political rhetoric that attended the government’s announcement of Justice Gordon’s appointment. So is gender now irrelevant? Hardly.
Although women will make up 40% of High Court judges come June, women have made up slightly less than 10% of all High Court judges in the court’s history.
Given that even a whiff of affirmative action can generate controversy (even where no such policy has been invoked), decision-makers remain disappointingly disinclined to engage in conversations about the importance of gender diversity.
Appointments that redress that imbalance should be welcomed and the most recent appointment is no exception. But this appointment does not negate the need for continuing conversations around the importance of diversity, and about what diversity might truly look like in the High Court and other crucial senior positions.