Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Women Judges, Private Lives: (In)Visibilities in Fact and Fiction

Author(s): Margaret Thornton, Heather Roberts

Once unseen, women are now visible in increasing proportions on the bench in common law courts, although this reality has generally not percolated into fictional worlds, where ‘the judge’ is invariably male. Fiona, cast by Ian McEwan as the protagonist, in The Children Act, is a notable exception. In the novel, McEwan directs our gaze beyond the traditional separation of judicial identity into public/private (visible/invisible) facets of life and raises questions regarding the impact of life on law, and law on life. This article draws on McEwan’s work to illuminate a study of how judicial swearing-in ceremonies tell the stories of Australian women judges. At first glance, this may seem an unusual pairing: The Children Act is an international best-selling work of fiction whereas the official records of court ceremonial sittings are a somewhat obscure body of work largely overlooked by scholars. However, the speeches made in welcome in open court on these occasions by members of the legal profession and by the new judge in reply, offer glimpses of the attributes of women judges not discernible in formal judgments. These ‘minor jurisprudences’ challenge the familiar gendered stereotypes found in the sovereign body of law.

Read on SSRN

Centre: PEARL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Law, Governance and Development, Legal Education, Legal History and Ethnology, Private Law, The Legal Profession

Tasmanian Dam Case

The Tasmanian Dam Case 30 Years On: An enduring legacy

Author(s): Heather Roberts, James Stellios

In one of the great contests between State and federal power, the Tasmanian Dam Case pitted the immovable object of Tasmania’s commitment to a massive hydro-electric project against the irresistible force of the Commonwealth’s determination to protect the environment.

Who would prevail? Was it more important to create jobs and provide cheap power, or to preserve the natural beauty of the Tasmanian wilderness? On whom did the Australian Constitution confer the power to decide this question?

By the narrowest of majorities, the High Court decided in 1983 that the Commonwealth had the final say, and upheld legislation that prohibited the construction of a dam on the Gordon River below the Franklin.

Because of the passions aroused by the case, the Court took the unprecedented step of issuing a statement explaining that its job was not to decide whether the proposed dam was a good idea or not, but to determine whether this was a matter of State or federal power. Yet this issue was just as hotly contested. Could any subject be brought within federal power merely by the presence of an international treaty on that subject? Would affirming this proposition destroy the intended balance between State and federal power? Would denying the proposition disable Australia from full participation in international affairs?

Three decades after the High Court’s decision, these and other questions of law and policy remain of vital importance. This book brings together a fascinating collection of commentaries on the impact of the decision, and how the hopes and fears following the decision have played out.

This stimulating and timely book contains reflections from then Commonwealth Attorney-General Gareth Evans, then High Court Justice Sir Anthony Mason and leading Indigenous lawyer Professor Mick Dodson. The book also examines some novel questions, such as whether the outcome of the case was inevitable, how similar issues have played out in Canada, and whether better conservation outcomes are more likely to come from the Commonwealth or the States. These and other chapters offer fresh perspectives on one of the most important cases in High Court history.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Telling a History of Australian Women Judges Through Courts' Ceremonial Archives

Author(s): Heather Roberts

Swearing-in ceremonies are held to mark the investiture of a new judge on the bench. Transcribed and stored within courts’ public records, these proceedings form a rich ‘ceremonial archive’. This paper showcases the value of this archive for the (re)telling of Australian legal history and, particularly, a history of Australian women lawyers. Using a case study drawn from the swearing-in ceremonies of women judges of the High Court, Federal Court, and Family Courts of Australia between 1993 and 2013, the paper explores what this archive reveals about the Australian legal community’s attitudes towards women in the law. It argues that despite the regional and jurisdictional differences between these courts, recurring themes emerge. Notably, while feminising discourse dominates the earlier ceremonies, stories of the judges’ personal and judicial identity come to display a more overt feminist consciousness by the end of the Labor Governments in power in Australia between 2007 and 2013.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

Women Judges, 'Maiden Speeches,' and the High Court of Australia

Author(s): Heather Roberts

Since the Australian High Court was established in 1903, ceremonies have been held to mark the swearing-in of a new Justice. This chapter utilizes the speeches made at the swearing-in ceremonies of Gaudron, Crennan, Kiefel, and Bell as a prism to explore the representation of women judges in the Australian legal community, and in particular, the Australian High Court.

These ceremonies are a rich resource by virtue of the two kinds of speeches made on these occasions. First, leaders of the Australian legal community make speeches welcoming the new High Court judge to the bench. In a legal system where federal judges are chosen behind closed doors, the welcome speeches have performed a key role in introducing the new judges to the public, and attesting to their skills as lawyer and judge. Importantly, the litany of a new judge’s accomplishments on these occasions contextualizes the concept of “merit” in a High Court appointment. Furthermore, the speech by the Commonwealth Attorney-General has provided a measure of public justification of his decision to appoint a particular judge. This chapter explores how the welcome speakers have grappled with the novelty of the feminine in the stories about the four female High Court judges. I argue that gender too often dominated this narrative, to a discriminatory and feminizing effect. In this regard, however, Bell’s ceremony may signal a new direction in the Australian legal community’s attitude toward female judges.

The second element of the swearing-in ceremony is the judge’s response to the welcome speeches. As his or her inaugural speech as a member of the High Court, this speech is the judicial equivalent of the “maiden speech” by members of parliament. The judge’s speech is delivered in a setting rich with contradiction: a statement from the bench, yet of no judicial force; liberated in content and style from the boundaries of a legal dispute and yet constrained by the weight of convention regarding the “appropriate” remarks for an incoming judge; and, a statement of individual identity, values, and principles made from the “identity-less” judge of the common law tradition. For present purposes, the critical feature of the inaugural speeches of Australia’s four female High Court judges is how they tell their stories and the place of gender in that narrative. I argue that these speeches reflect a continuing pressure faced by women judges to distance themselves from the perception of their “otherness” on the bench. This pressure manifested first in Gaudron’s speech, Women Judges, “Maiden Speeches,” and the High Court of Australia when she tempered her bold acknowledgment of her identity as the first woman to join the High Court with affirmations of her sameness with her brother judges. Significantly, twenty years later, Bell’s swearing-in speech continued to display both a self-conscious silencing of her feminine voice and statements affirming her distance from outsiders on the bench.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

‘Swearing Mary’: The Significance of the Speeches Made at Mary Gaudron's Swearing-in as a Justice of the High Court of Australia

Author(s): Heather Roberts

During the High Court of Australia’s first century, Mary Gaudron served as the first and only female member of its bench. This paper commemorates the 25th anniversary of Gaudron’s appointment to the High Court by examining the speeches made at her swearing-in ceremony, in February 1987. Largely ignored by scholars, swearing-in ceremonies provide unique insights into the history of courts and the personality and philosophy of their judges. Through the prism of Gaudron’s swearing-in ceremony, this paper showcases the significance of these occasions as a commentary on the institutional and intellectual life of the Court. In particular, Gaudron’s swearing-in ceremony tells a fascinating story of institutional and gender politics in the High Court: the legal community’s varied response to the novelty of a woman High Court Justice; Gaudron’s intricate balancing between her distinctive vision of her obligations as a mentor to women lawyers and her role as ‘one of seven’ on a collegiate bench; and the perennial tension between innovation and tradition in legal method.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

Women Judges, 'Maiden Speeches,' and the High Court of Australia

Author(s): Heather Roberts

Since the Australian High Court was established in 1903, ceremonies have been held to mark the swearing-in of a new Justice. This chapter utilizes the speeches made at the swearing-in ceremonies of Gaudron, Crennan, Kiefel, and Bell as a prism to explore the representation of women judges in the Australian legal community, and in particular, the Australian High Court.

These ceremonies are a rich resource by virtue of the two kinds of speeches made on these occasions. First, leaders of the Australian legal community make speeches welcoming the new High Court judge to the bench. In a legal system where federal judges are chosen behind closed doors, the welcome speeches have performed a key role in introducing the new judges to the public, and attesting to their skills as lawyer and judge. Importantly, the litany of a new judge’s accomplishments on these occasions contextualizes the concept of “merit” in a High Court appointment. Furthermore, the speech by the Commonwealth Attorney-General has provided a measure of public justification of his decision to appoint a particular judge. This chapter explores how the welcome speakers have grappled with the novelty of the feminine in the stories about the four female High Court judges. I argue that gender too often dominated this narrative, to a discriminatory and feminizing effect. In this regard, however, Bell’s ceremony may signal a new direction in the Australian legal community’s attitude toward female judges.

The second element of the swearing-in ceremony is the judge’s response to the welcome speeches. As his or her inaugural speech as a member of the High Court, this speech is the judicial equivalent of the “maiden speech” by members of parliament. The judge’s speech is delivered in a setting rich with contradiction: a statement from the bench, yet of no judicial force; liberated in content and style from the boundaries of a legal dispute and yet constrained by the weight of convention regarding the “appropriate” remarks for an incoming judge; and, a statement of individual identity, values, and principles made from the “identity-less” judge of the common law tradition. For present purposes, the critical feature of the inaugural speeches of Australia’s four female High Court judges is how they tell their stories and the place of gender in that narrative. I argue that these speeches reflect a continuing pressure faced by women judges to distance themselves from the perception of their “otherness” on the bench. This pressure manifested first in Gaudron’s speech, Women Judges, “Maiden Speeches,” and the High Court of Australia when she tempered her bold acknowledgment of her identity as the first woman to join the High Court with affirmations of her sameness with her brother judges. Significantly, twenty years later, Bell’s swearing-in speech continued to display both a self-conscious silencing of her feminine voice and statements affirming her distance from outsiders on the bench.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

A Mirror to the Man: Reflecting on Justice William Deane: A Private Man in Public Office

Author(s): Heather Roberts

Sir William Deane was a member of the High Court of Australia during one of its most creative periods, from 1982 to 1995. His decisions displayed a notable commitment to social justice and a willingness to extend the constitutional protection of human rights. These tendencies were particularly prominent during the Mason Court years (1987-1995), manifesting in decisions including Mabo v Queensland (No 2) (1992) 175 CLR 1; Dietrich v The Queen (1992) 177 CLR 292; Leeth v Commonwealth (1992) 174 CLR 455; and the political communication cases of 1992 and 1994. Although his judgments displayed a clear vision of his judicial responsibilities, Deane adopted a strict extra-judicial silence regarding the principles that informed his judicial philosophy. However, as Australia's 22nd Governor-General Deane was more open regarding his personal beliefs and their influence on his performance of those duties. This article utilises Deane's public statements as Governor-General to shed light on the foundations of his judicial philosophy. In particular, as Governor-General Deane drew on his Christian faith to support his commitment to highlight the cause of indigenous reconciliation and the plight of the disadvantaged in Australia. This article argues that Deane's spiritual convictions, as articulated in his vice-regal statements, can also be regarded as underpinning his understanding of his role as High Court Justice.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team