Guest Editor: Justice Clyde Croft
Supreme Court of Victoria
Federal Circuit Court of Australia
The Commonwealth Attorney-General, Nicola Roxon, announced on 12 September 2012, that the Federal Magistrates Court would be renamed the Federal Circuit Court of Australia and the current 63 Federal Magistrates would be judges in the renamed court.
The Attorney-General said that the new name and title of “judge”, “will better recognise the character and importance of the work undertaken by the court”. In terms of court hierarchy and “relativities” as between State and federal court hierarchies, the change better reflects the current reality that the Federal Magistrates Court has, particularly given the nature of its work, been equated with State intermediate courts, rather than State Magistrates’ Courts.
Of course, as Chris Merritt observed in an article in The Australian of 13 September 2012, these changes will raise issues of remuneration and relativities as between the newly named court and remuneration of judges in the State intermediate courts. For example, he says: “At the moment, Federal Magistrates earn $305,070, which is $23,490 more than their counterparts in the NSW magistracy but $46,900 less than NSW District Court judges.”
He continues: “The changes to the Federal Magistrates Court come just days after Ms Roxon increased spending on the courts by $38 million. That increase, across four years, is linked to higher fees for the federal court system that are expected to give the government $100 million in extra revenue.”
Women in the law
In contrast to the position discussed in our note in September ((2012) 86 ALJ 575 at 576) with respect to flexible working hours for women with children in law firms, Lawyers Weekly of 7 September 2012, paints a more positive picture, particularly as a result of the efforts of Jane Needham SC, Junior Vice President of the Bar Association of New South Wales, and others to establish flexible work arrangements. One step in this direction was the amendment to the New South Wales silk protocol, which was passed unanimously when Ms Needham applied for silk in 2004, to include explicit reference to part-time or flexible practice not being a bar to appointment as silk. Other barriers to advancement, more in the nature of perceptions rather than formal, discussed are work practices and, what may be described as “gravitas”. Addressing these issues, Lawyers Weekly noted comments by both Needham and Justice Virginia Bell which indicate that these barriers are at least diminishing at the Bar:
Having had a flexible practice for 10 years, Needham says she is a “huge advocate” of these new projects that promote diversity. She believes the Bar needs to reject the perception that 60 hours is the minimum working week for a barrister. On a positive note, she adds that judges are becoming more receptive to flexible work arrangements and family issues when setting court timetables.
“Attitudes are changing”, Needham adds.
Outdated perceptions of the skills needed to be an effective barrister are also being challenged, she continues, referring to comments made by High Court judge Virginia Bell on rhetoric.
In a keynote at the Australian Woman Lawyers conference in August, Bell dismissed the idea that rhetoric is the mark of an effective barrister. She argued that the view that a barrister must have “a commanding physical presence … and voice, and an eloquence of style and address” is a myth that discriminates against women.
This “irrational” opinion is one of the reasons why female barristers are not receiving the same quality of work as men of similar experience and ability, she told delegates: “There exists an impression that men are superior to women in the ability to present a case in court”.
Needham agrees that, on occasion, there is client resistance to working with a female barrister. She believes that clients need to be educated on this issue, echoing Bell’s plea to lawyers to “redress this misconception in their discussions with clients”.
Bell also claimed that judges today prefer reason rather than style of delivery, to dominate court proceedings – a view Needham shares.
“I don’t believe there is any perception by judges that women are any less capable than men”, Needham says.
While Bell believes there is no longer a place for colourful advocacy in modern litigation, letting go of traditions does not come easily to barristers, who have been bewigged and robed for centuries, despite the impracticality of this attire in Sydney’s summer months. However, the changes of the past year may very well be a sign of things to come, as visionaries at the Bar, who are increasing in number, are making moves to modernise what is often perceived as the stuffy barristers’ profession.
These issues are not issues solely of concern to or with respect to women. Nevertheless, their significance in terms of career advancement is more significant for women than for men, as is clear from Michael Pelly’s article in the Legal Affairs section of The Australian of 14 September 2012, where he said:
While women comprise more than 50% of law graduates, it will take time for these numbers to be transformed into practising lawyers. At the largest Bar in the nation, NSW, the divide is 81:19. Only 6.7% of those women are silks.
Of the almost 60,000 solicitors in Australia, the split is 55:45 in favour of the blokes. At partner level it is 79:21.
The position of the Victorian Bar is not dissimilar to the New South Wales Bar, the corresponding figures (taken from Victorian Bar Membership Statistics published in February 2012) indicate that women comprised 25.3% of members of the Victorian Bar (24% are juniors and 1.3% are silks).
A more encouraging picture is presented by the figures for judicial appointments, as Michel Pelly comments:
Some of those partners have found their way to the bench, such as Julie Ward of the NSW Supreme Court and formerly with Mallesons Stephen Jacques. She is one of 11 females among 51 full-time judges (22%) on the largest superior court in Australia. At the NSW District Court – the latest second-tier court – 17 of the 65 (26%) judges are women. … Over the past five years the numbers are even more impressive. For example, there have been 23 appointments to the Federal Magistrates Court since 2007 of which 11 (48%) are female. The Family Court led the way for courts of more than 10 judges, with 43% of its judges being female.
The clear winner among all state courts was the County Court of Victoria with 41% (27 of 66), while the most female friendly supreme court was in Queensland (9 of 26, 35%).
Pioneers such as Mary Gaudron, Elizabeth Evatt and Jane Matthews have rightly pointed out the judiciary can hardly be representative of society if it is dominated by men.
At 28% there is still some way to go, but even they would recognise that females have never had it so good when it comes to the bench.
Tradition always seems to be part of the mix in relation to these issues, as Justice Bell observed. While tradition has a place in a stable society, once it becomes an excuse to maintain the status quo at the expense of a very large section of the legal profession and society, and results in the waste of talent and denial of satisfaction in the development of a career based on merit, it is clearly destructive and ought to be challenged vigorously.
Tradition and the law
Speaking of tradition, the law is one profession where tradition really dies hard. For example, one must wonder at the utility of junior counsel continuing to dress in the mourning dress for the death of Charles II in 1685 (a position demonstrated in a very interesting article by Professor Sir John Baker QC FBA,1 Professor of Legal History in the University of Cambridge) and wigs, which were merely 17th-century gentleman’s dress rather than the then more expensive true dress of the Bar.
At the end of the mourning period, junior barristers would not return to the true dress of the Bar, in spite of attempts by the judges and others to persuade to them to do so. On the final day of the Michaelmas Term in 1697, Sir John Holt, Chief Justice of the King’s Bench, “ordered all barristers to appear next term in their proper gowns and not in the mourning ones, as they have done since the death of King Charles”.2 The Lord Chief Justice did, apparently, have some success but the order did not stand for long.3
Even the origin of this tradition has been lost in the myths of more modern times. Perhaps this should be regarded as encouraging, as it indicates that traditions are not immutable and can be questioned once they are understood, even to the extent of considering more modern and practical dress.
1. Baker JH, “History of the Gowns Worn at the Engish Bar” (1975) 9 Costume 15.
2. Baker, n 1 at 18, referring to Luttrell N, A Brief Historical Relation of State Affairs (1854) iv, 299.
3. Baker, n 1 at 18.
Click on the citation for the full article: (2012) 86 ALJ 723.