The announcement that justice Susan Kiefel will replace Robert French on his retirement from the court marks an important milestone in Australia’s constitutional history.
But what is the significance of a woman as chief justice? And what does this appointment mean for the politics of judicial diversity?
Kiefel’s elevation to chief justice was not entirely unexpected. Speculation was rife that she would be appointed from within the court, which was perhaps best demonstrated by the fact she was odds-on favourite.
At last, the idea of a woman sitting at the peak of Australia’s judiciary was no longer as inconceivable as it might have been in 1903, when the High Court was formally established.
There are no special provisions regarding the appointment of the chief justice, but elevation from within the court has not been uncommon. Of the 13 chief justices, just over half have been appointed while serving as justices. The breadth of the government’s power and discretion in making these historic appointments means we know little about how these decisions are actually made.
However, certain considerations have traditionally taken precedence over others. These considerations reflect certain values and assumptions about what counts as meritorious when selecting our judges.
For example, an appointee’s state of origin is sometimes raised as a valid consideration – while gender (or other matters such as race, sexuality or ethnicity) is often regarded as an illegitimate consideration.
Following a now familiar pattern in announcing the appointment of a woman judge, Attorney-General George Brandis was keen to point out that every step Kiefel had taken in her career was “a step that she took on merit”.
In contrast, Brandis made no such appeal in announcing that Federal Court judge James Edelman will be appointed to the High Court. Instead, there were comments about the precocious nature of his achievements in recognition (he will be 43 when sworn-in in January).
Kiefel’s appointment is a politically astute one. After almost a decade on the High Court, she is the second-most-senior judge after the chief justice. Her contributions to the court to date mean this is not a radical judicial appointment.
The appointment also means the government has been able to shore up its commitment to gender equality without making any explicit commitment to it or explicitly acknowledging the importance of judicial diversity. In addition to having already appointed more women justices to the High Court than Labor, the Coalition now boasts having appointed the first woman chief justice.
Women’s exclusion from legal and political power for much of last century makes Kiefel’s appointment all the more significant. Women will now have been in roles at the peak of each of the branches of government – women have previously served as prime minister, Commonwealth attorney-general and governor-general.
Why does it matter? Two broad streams of argument have been used to justify the appointment of women to judicial roles: difference and equality.
Arguments on the basis of “difference” suggest the quality of justice available will be improved because women bring different perspectives and experiences to their roles.
Arguments premised on equality contend that the legitimacy of decision-making institutions in a democracy rests on equality of opportunity to participate in those institutions.
The visibility of women on the bench created by the almost-equal gender balance and the new chief justice makes an important symbolic statement about women’s admission to legal authority in Australia.
If history is any indication, it is unlikely that the new chief justice will be drawn to comment on matters of gender and judging. It therefore remains to be seen what kind of contribution Kiefel will make to the High Court as chief justice, and whether her status as the first woman in that role will have any bearing on the court’s legacy.
The chief justice offers intellectual leadership and shapes the direction of the court. If her extra-judicial comments are anything to go by, it seems the Kiefel court, like the French court before it, might be marked by consensus. Assuming Kiefel stays on the bench until she is 70, she has eight years to make her mark.