Entering the Australian Judiciary: Gender and Court Hierarchy

• Published date: 01 July 2012
• DOI: http://doi.org/10.1111/j.1467-9930.2012.00365.x
• Date: 01 July 2012

Entering the Australian Judiciary:

Gender and Court Hierarchy

KATHY MACK and SHARYN ROACH ANLEU

There is considerable attention to increasing judicial diversity along a range of

dimensions, in particular, gender. Women remain underrepresented in many

courts, especially at the higher levels of the judiciary. A comprehensive socio-legal

study of the Australian judiciary compares experiences and attitudes of women

who have become judicial officers at differentlevels of the court hierarchy. Under-

standing their personal and professional backgrounds and the features that

attracted them to the judiciary has important implications for addressing gender

disparity. Effective recruitment and selection must focus on the expectations and

experiences of women in relation to particular judicial contexts.

INTRODUCTION

Despite recent increases in the proportion of women, the judiciary is still a

male-dominated institution in many respects. Women account for approxi-

mately one-fifth to one-third of the judiciary in countries that follow the

common law system such as Australia, the United States, Canada, or the

United Kingdom (with some exceptions for particular courts) (Office of

the Commissioner for Federal Judicial Affairs Canada 2011; Judicial

This research initially was funded by a University-Industry Research Collaborative Grant in

2001 with Flinders University and the Association of Australian Magistrates (AAM) as the

partners and also received financial support from the Australasian Institute of Judicial Admin-

istration. Until 2005, it was funded by an Australian Research Council (ARC) Linkage Project

Grant (LP210306), 2002–2005, with AAM and all Chief Magistrates and their courts as industry

partners and with support from Flinders University as the host institution. From 2006, the

research has been funded by an ARC Discovery Grant (DP0665198), 2006–2008, also from 2010

by an ARC Discovery Grant (DP1096888). We are grateful to Russell Brewer, Carolyn Cor-

kindale, Colleen deLaine, Elizabeth Edwards, Ruth Harris, Julie Henderson, John Horrocks,

Leigh Kennedy, Lisa Kennedy, Mary McKenna, Rose Polkinghorne, Wendy Reimens, Mavis

Sansom, Chia-Lung Tai, Carla Welsh, Rae Wood, and David Wootton for research and admin-

istrative assistance. Portions of this article were presented at the 2008 Annual Meeting of the

Law and Society Association/Canadian Law and Society Association and at the Gender and

Judging Workshop at the International Institute for Sociology of Law Oñati Spain, June 2009.

We are grateful to the participants in the programs for their helpful comments and to the

anonymous reviewers for their careful reading of the manuscript and helpful suggestions.

Address correspondence to Kathy Mack, School of Law, Flinders University, GPO Box

2100, Adelaide, SA 5001, Australia. Telephone: 61-8-8201-5537; e-mail: judicial.research@

flinders.edu.au.

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LAW & POLICY, Vol. 34, No. 3, July 2012 ISSN 0265–8240

© 2012 The Authors

Law & Policy © 2012 The University of Denver/Colorado Seminary

Appointment Commission of England and Wales 2010 (JAC); American Bar

Association Commission on Women in the Profession 2009). In Australia,

although the overall percentage of women has increased, proportions of

women in the higher courts remain consistently smaller than in the lower

courts (Australasian Institute of Judicial Administration 2010; Thornton

2007, 1996; Thomas 2005). In countries based on the European structure, such

as France or Germany (Schultz and Shaw 2003), or in Latin America (Busta-

mante 1991), overall proportions of women vary more widely, as do percent-

ages of women in higher courts, though women tend to be concentrated in the

lower ranks of courts in Europe (Williams and Thames 2008; Thomas 2005).

To understand and remedy the underrepresentation of women in the judi-

ciary, research must examine early stages of entering the judiciary, asking

why women and men are (or are not) attracted to the judiciary (Judicial

Appointment Board for Scotland 2009 [JAB]; JAC 2009; Genn 2008;

Thomas, Balmer, and Lane 2006; Williams 2006; Feenan 2005). Particular

levels of the judiciary must also be considered. Genn (2010) points out that

“[a] principal trap when talking about ‘the judiciary’ is that of scope and

generalisation. When we refer to the ‘the judiciary’, which judges are we

talking about?” (154). It is also important to consider women specifically; the

experiences and attitudes of women and their paths and obstacles to entering

the judiciary may be different from those for other underrepresented groups

(Hurwitz and Lanier 2008). Similarly, it is necessary to recognise differences

among women (Hunter 2005; Boigeol 2003; Mather 2003; Rhode 2003; Wells

2003; Martin, Reynolds, and Keith 2002; Menkel-Meadow 1995).

This article investigates ways gender interacts with becoming a judicial

officer at different levels of court using data from two national surveys of the

Australian judiciary conducted in 2007. After analysing personal and social

characteristics and professional backgrounds of the Australian judiciary,

it examines the reasons why women (and men) who have become judicial

officers consider entering the judiciary and the qualities they regard as more

or less attractive when they decided to undertake judicial work. This analysis

distinguishes characteristics and attitudes of women magistrates who sit in

the lower or “inferior” first-instance courts from women judges who sit in the

higher or “superior” courts as well as comparing them with their male col-

leagues. This approach recognises that gender can be understood as a con-

tingent social process rather than an inherent immutable characteristic and

so may be performed or manifested or perceived differently in different

contexts (Collins, Manning, and Carp 2010; Kenney 2010). Gendering is part

of a process of structuring workplace, roles, status, and society (Jurik and

Siemsen 2009; Holmes 2007) and so also contributes to the construction of

judging, though it may do so differently in different court settings. Women’s

reasons for entering the judiciary and their attitudes towards judging may

differ from each other’s as well as from men’s.

The findings sometimes challenge and sometimes reinforce the binary con-

struction of male/female judicial differences and the importance of court

314 LAW & POLICY July 2012

© 2012 The Authors

Law & Policy © 2012 The University of Denver/Colorado Seminary

hierarchy in understanding the process of becoming a judge or magistrate.

The results of this empirical research provide a more nuanced understanding

of gender and judging and suggest strategies to increase the gender diversity

of the judiciary.

THE AUSTRALIAN JUDICIARY

Australia is a federal system, with national courts and a court system for each

state and two territories operating separately. There are approximately 1,000

judicial officers, organised into more than twenty-five different courts. The

terms “judiciary” or “judicial officer” refer to all members of the Australian

judiciary, judges and magistrates. In this article, the term “magistrate”

describes members of the judiciary who preside in first-instance state courts.

The term “judge” refers to those who preside in the state supreme and district

courts or in any Commonwealth court.

Commonwealth courts include the High Court, the Federal Court, the

Family Court, and the Federal Magistrates Court. The High Court is the

final court of appeal from state and Commonwealth courts. The Federal

Court’s jurisdiction is mainly trade practices and administrative law, while

the Family Court handles divorce and issues related to property and children.

The Federal Magistrates Court handles less complex matters within the

Federal Court and Family Court jurisdictions. (Federal Magistrates are

included in the National Survey of Australian Judges rather than the

National Survey of Australian Magistrates, as the nature of their work and

their status within the Australian Constitution as Chapter III judges more

closely matches that of the other Commonwealth judges rather than the

magistrates who preside in the first-instance state courts.)

Each Australian state and territory has a supreme court and a magis-

trates or local court. Supreme courts hear appeals from both levels of lower

courts as well as preside over very large civil matters and especially serious

criminal cases. Magistrates courts in the Australian states and territories

are first-instance courts of general jurisdiction. These magistrates are paid

judicial officers, nearly always full time, with legal qualifications, and

appointed until a fixed retirement age, usually sixty-five years (Roach

Anleu and Mack 2008). They sit alone without juries, in regional and

remote areas as well as in capital cities; those who appear in these courts

are often unrepresented. The volume and pace of work is substantial; 90%

of all civil and criminal cases are initiated and finalised in the lower courts

(Australian Government Productivity Commission 2011; Mack and Roach

Anleu 2007; Roach Anleu and Mack 2007, 2005b). Five states have an

intermediate trial court (the district or county court), which hears criminal

jury trials and civil matters without juries. Some jurisdictions have special-

ist courts, such as land and environment courts, industrial commissions, or

children’s courts, which may operate as separate courts or as a branch of a

generalist court.

Mack and Roach Anleu ENTERING THE AUSTRA LIAN JUDICIARY 315

© 2012 The Authors

Law & Policy © 2012 The University of Denver/Colorado Seminary