Victoria’s top law officer has rejected federal Attorney-General Philip Ruddock’s assertion that “we shall not be appointing a woman, we shall be making an appointment on the basis of merit”, arguing that the term ‘merit’ has brought with it the banishment of women from the judiciary.

It is both puzzling and frustrating that a paradigm exists in the legal profession which disqualifies women from the assumed parameters of judicial office, the state’s Attorney-General Rob Hulls said.

“Seemingly benign, a deft slight of conservative hand has used that deceptive term ‘merit’ to exclude rather than include women,” he said.

The assertion seems to suggest that one does not necessarily follow another, “a suspicion that the appointment of a women would be based on sentiment or special treatment”, he said.

A state that two years ago appointed a female Chief Justice of the Supreme Court, Victoria has long been a leader in the fight for women within the profession. Speaking at a forum entitled Women at the Bench last week at the Law Institute of Victoria (LIV), Hulls said the widely-held assertion that judicial appointments should be made on merit has only been employed as an excuse not to appoint candidates “for whom Australia’s benches have been crying out”.

According to the organisers, last week’s forum attempted to “dispel myths about the process of becoming a judge”.

Speakers aimed to “give an accurate picture of life at the Bench and inspire more women to take up judicial appointments”.

The judiciary must become a career path in which people can balance their work and home lives, said Hulls. “This is why I am so determined to shake up the expectations about judicial office that, let’s face it, have made it the bastion of privileged men — those who have had no financial trouble putting themselves through Law School and building a practice, those who have been free to pursue their professional life because there was a woman looking after hearth and home, and those who were not expected to take primary responsibility for children, those for whom the law has been a linear trajectory, with no detours.”

Hulls argued that the “apparent appeal to objectivity”, that people shall be appointed to the Bench on the basis of merit, is wielded to maintain the status quo. He said it was an attempt to “perpetuate the myth that the law, as a profession and as a mechanism of state, is a value-free zone, rather than the harbourer of privilege”.

“This fiction is the same one responsible for countless injustices in the law,” Hulls said. “It is my hope that, in Victoria, we have reclaimed that word ‘merit’ for a better legal system. It’s my hope that we have turned the dichotomy on its head, revealing the truth that ‘merit’ includes, rather than excludes women, and instead prohibits homogeneity for homogeneity’s sake.”

In an interview with Lawyers Weekly, LIV CEO John Cain said Victoria had taken a different approach to appointing women to the Bench. “What we have seen over the last years of this Government is a greater emphasis on appointing women to judicial offices. Now, that is probably different in practice, in that there is more emphasis on trying to identify high quality, high calibre women to take judicial office.

“I don’t think it could be said in relation to any of theappointments that this attorney has made, that he has simply appointed women for women’s sake. What he has done is identified talented people and appointed them,” Cain said.

There have been many improvements in giving women access to the Bench, said Cain, but more needed to be done. “We still have a fair way to go before we reach the optimum position,” he said.

“A satisfactory outcome is a distribution of work to women in the profession, not just to solicitors and barristers, but a genuine distribution of work that reflects the important role that women play in the profession,” he said.

Potential female judges ‘creamed off’

THE STATE’S Chief Justice, Marilyn Warren has also expressed concern about women’s appointments to the judiciary. Speaking this year at the LawAsiadownunder2005 conference on the Gold Coast, she argued there is a only a small number of women with sufficient experience to join the Bench. “The problem is that there is only a small pool for judicial appointment,” Warren said, “and most of that small group of women have now been ‘creamed off’.”

That pool could be enlarged by conditions that are more likely to encourage women to remain in the profession. For example, research conducted by Victorian Women Lawyers has shown there is a clear need for women to be able to work part time, which would make it easier for them to have families while continuing to practise.

The prospect of many years in judicial office could be made more attractive by offering women — and also men — earlier retirement, Warren said.

“The message is: women don’t stop,” she added. “But it’s a hard thing to be the only woman on the Bench.” Only four of the 34 judges of the Victorian Supreme Court, including the Court of Appeal, are female.