Charlotte Steer ‘The Ethic of Care and its Application Outside the Law of Negligence
Ethic of Care Poster

Kylie Burns ‘Judicial Use of Common Sense and “Nudging Judging”

Kate Fitz-Gibbon and Jane-Maree Maher ‘Donning the Robes? Re-creating feminist knowledge within the framework of judgment

Jennifer Nielsen ‘Judging the “Ordinary”’

Kcasey McLoughlin ‘What a Difference Difference Makes in Judging the Judges: Gender, Justice and Judicial Power on the Australian High Court’

In 2012, Jack Waterford made the following comment about the contributions of women judges on the High Court of Australia:

‘The women have seemed a particular disappointment, especially for those who have hoped for different or wider perspectives than from those steeped in old styles of the law.’ 
Jack Waterford, ‘Judges rest their writing hands’, Canberra Times. April 7, 2012, 16.

Being labeled “a particular disappointment” is perhaps a little jarring both for women judges and for those who agitated for their elevation, irrespective of the dimensions and source of that disappointment.  Of course, there have been many disappointments for women in their attempts to gain access to greater legal authority. Women have long been held to different standards to those applied to men and this has been especially true of judicial appointments. But the notion that women have been disappointing in these roles raises significant questions about the alleged dichotomy between the theoretical justifications for appointing women judges and the reality of their contributions. The comparatively low numbers of women judges sitting on the highest appellate courts in various jurisdictions across the world has understandably caused much consternation for feminist legal scholars. Therefore, the appointment of three women judges to the High Court of Australia since 2005 can be quite readily construed as a marker of progress when it comes to better gender equality on the bench. And yet, despite the High Court of Australia shifting the gendered composition of its bench where three women sit beside four men, it seems that women continue to be held to different standards lest they disappoint someone. The notion that women judges have been disappointing is disconcerting even qualified by reference to the fact that at least some of the disappointment might be felt by those who hoped that the women judges would bring ‘different or wider perspectives than from those steeped in old styles of the law.’ Or put more baldly, what Waterford, is really articulating, albeit from a journalistic perspective and maybe even unconsciously, is the awkward paradox at the heart of feminist engagement with the gender, difference and judging.  Namely, the notion that women judges might be a disappointment to the feminists who agitated for them to be there.

The impetus for this paper was to further explicate the notion that women judges were somehow disappointing in the difference stakes by examining, at least in ways that are possible, the veracity of that claim.  But, given the dilemmas of difference, the paper sought a new frame for examining difference. In this respect, the paper if a defence of a kind of difference, arguing that it remains as important as ever to discuss and analyse the contributions of women judges. The particular lens through which the paper examines the contributions of women judges is their first, or ‘maiden’, judgment. Part of the decision to examine these “maiden” judgments arises from the fact that the women judges were afforded a leadership role as for the most part their “brethren” judges agreed with their reasoning. Notwithstanding the masculinist assumptions underlying the terminology, the problematized imagery of the maiden is actually quite prescient in terms of the analysis undertaken in this paper. There are clear political purposes and dimensions in the parliamentary “maiden speech”, and as such I draw on these notions of self-fashioning which are explicit in the political context in examining the first judgments of the women sitting on the High Court.

I provide a sketch of the first judgment handed down by each of the women judges currently sitting on the High Court of Australia. Justice Susan Crennan first judgment as handed down in Harriton v Stephens (2006) 226 CLR 52, for Susan Kiefel this wasQueensland Premier Mines v French (2007) 235 CLR 81 and in Virginia Bell’s case this was Hickson v Goodman Fielder (2009) 237 CLR 130.  The fact that the women judges currently sitting on the High Court were afforded a leadership role in their first ever judgment might pass without mention if it were not for the fact that this leadership role seems to be at odds with their jurisprudential contributions at large. Although I do not find any particular evidence of difference (if it is to be measured by reference to feminist reasoning), I argue that the interplay of leadership and judicial authority in these first judgments opens up news spaces to consider the possibilities and limitations of difference for feminist legal theorists.


Kcasey McLoughlin is admitted as a Solicitor of the Supreme Court of NSW and is currently an Associate Lecturer in Law at the Newcastle Law School. Kcasey's doctoral research explores the interaction between women, gender and difference in the judiciary. This research is specifically concerned with the way in which notions of gender and difference have impacted upon the contributions of women judges to the High Court of Australia. Her work focuses on both legal and political discourses around gender and difference in the announcement, swearing-in and jurisprudence of High Court judges.   Although her research explores the contributions of women jurists, she is also interested in the way in which law affects women's lives and experiences. Kcasey's interest in feminist legal theory and feminist political theory means that she is eager press the boundaries between law and political science in ways that are meaningful to both disciplines.

Contact Details:

Newcastle Law School
McMullin Building 
Faculty of Business and Law
Callaghan NSW 2308
T: +61 2 49215510

About Australian Feminist Judgments Project Events

The Australian Feminist Judgments Project is an inspired and innovative research project which investigates the possibilities, limits and implications of a feminist approach to legal decision-making. The project involves a group of feminist academics, lawyers and activists who have agreed to write alternative judgments in a series of Australian legal cases.

The project hosts a number of events, including workshops, symposiums, and book launches.