Female High Court judges more likely to be interrupted than men

Female High Court judges more likely to be interrupted than their male counterparts, new study finds

Susan Keifel
Female judges in the High Court are significantly more likely to be interrupted by lawyers than their male colleagues, a new study, reported by the Sydney Morning Herald, has found.

The research paper, Female Judges, Interrupted: A Study of Interruption Behaviour During Oral Argument in the High Court of Australia, also found evidence that interruptions of female judges “counter-intuitively” increased in 2017, when the High Court was appointed its first ever female Chief Justice, the Hon Susan Kiefel AC.

Sydney graduate lawyer Amelia Loughland conducted the study between 2015 and 2017, covering the period when Justice Michelle Gordon was appointed to the High Court, bringing the number of female judges to an historic three out of seven.

The period covered both the final years of Chief Justice Robert French’s tenure and Chief Justice Susan Kiefel’s first year.

According to the study, in 2015-2016, the three female judges appointed to the High Court collectively received 52 per cent of the total number of interruptions from lawyers. The remaining four male judges received 48 per cent of interruptions.

In 2017, when Chief Justice Kiefel took on the top job, the number of interruptions for female judges increased to 69 per cent, a 17 point increase from the previous two years. Their male counterparts received only 31 per cent of interruptions.

A close look at the specific kind of interruptions experienced by judges in the High Court reveals that “gendered conversational norms are reproduced by male advocates against female judges”, such that male barristers represented 96.8 per cent of interruptions in 2015-16 and 90 per cent in 2017.

Male barristers’ “deferential behaviour” towards male judges may reveal an unconscious bias in favour of male judicial authority, according to the study.

The number of female barristers working in the High Court was so small, their interruptions were deemed “insignificant”. There was only one case in the three years of the study in which both sides were represented by female counsel.

While women now lead the High Court and have made strides in the legal profession, the study reveals that women even at the “pinnacle of a high-status career” continue to experience gendered behaviour.

In her concluding words, Loughland suggests that unconscious bias training and equitable briefing programs are essential to change the gender power dynamics in the High Court.

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