2017 Selden Society lecture – the Hon Justice Atkinson AO on Justice Mary Gaudron

2017 Selden Society lecture – the Hon Justice Atkinson AO on Justice Mary Gaudron


Welcome everybody to the Banco Court. Welcome too, to people joining us by video
from Mackay, Townsville and Rockhampton. I’m a poor substitute today. Justice Martin is laid low by flu. But it’s a particular pleasure for me to
chair this lecture in the Selden series to be delivered by my friend and colleague Justice
Atkinson. I won’t spend very much time talking about
her Honour’s accomplishments which you can see on the program. You know that she’s a former President of the
Anti-Discrimination Tribunal and Chair of the Queensland Law Reform Commission as well
as having a distinguished career as a judge. She’s written judgments like Tyler v Custom
Credit, which is one of the most cited decision in the Queensland Legal Lexicon. And she’s presided over difficult and high
profile criminal trials like the Cowen trial. And as of today she is the longest serving
judge on the Supreme Court. But perhaps the most significant aspect of
her Honour’s career for these purposes is the year she spent as associate
to former Chief Justice Brennan of the High Court. Which gives her an insight into the environment
in which Justice Mary Gaudron spent the most important years of her career. It strikes me that there’s no better person
to talk about a distinguished, strong minded, pioneering judge than a distinguished, strong
minded, pioneering judge. So I welcome Justice Atkinson to speak to
us tonight. [APPLAUSE] Thank you Chief Justice for your kind introduction. Judicial colleagues, members of the profession,
friends, one and all. Thank you for inviting me to give a Selden
Society lecture. I must admit it’s always one of the highlights
in my calendar to come to one of these lectures. So I just hope I can live up to those that
I have enjoyed in the past. I would like to start by acknowledging the
traditional custodians of the land on which we meet this evening and pay my respects to
their elders past, present and emerging. I expect we are part of a long tradition of
people who have met together to discuss and revere respected elders as we do tonight. As the title indicates, I will speak tonight
about Mary Gaudron, the girl from the small country town of Moree who grew up to become
the first woman to serve on the High Court of Australia. In drawing together the narrative of Mary
Gaudron’s life to date, certain connections between her early experiences and later motivations
and actions appear irresistible. I have been aided considerably in making these
connections by the comprehensively researched, albeit unauthorised, biography of Mary Gaudron
by Pamela Burton, published in 2010. Justice Gaudron herself said, she had, “a horror
of biographies”, consequently, apart from a small amount of material including my own
personal knowledge of her, there is a paucity of personal material available other than
what Pamela Burton has assembled in what is a major work of record and scholarship. I encourage those of you who would like to
know more details of Mary Gaudron’s life and career to read Burton’s book and I acknowledge
the significant extent to which I have relied on it. I should mention at the beginning the personal
debt I owe Mary Gaudron. I was just at the commencement of my legal
career when she reached the apotheosis of hers. My last day as Associate to Justice Brennan
at the High Court was her first day as a judge of that court. She was a breath of fresh air, open, generous
and informal. She made her Associates a cup of tea! Her family consisted of her two daughters,
her husband, there had never been one of those before and her five-year-old son who spent
the hour of his mother’s swearing in by colouring in, a standby for mothers everywhere
but not usually seen in the High Court. In those days children under seven, even those
accompanied by a parent, were not usually allowed to be in the public gallery of the
court as I found out when Justice Brennan invited my husband to bring our young children
to observe their mother in court. I was surprised when they didn’t turn up. That’s because they were delayed outside. So let me talk about Mary’s beginning. Her story commences on 5 January 1943, when
baby Mary was born at East Moree’s railway community. Her father worked as a fettler with New South
Wales railways, placing him, like the other railway workers and their families, in a socio-economic
class falling somewhere between the town’s wealthy pastoralists and its poor Aboriginal
communities. The disparity between these groups was formative
in highlighting issues of social and racial inequality that became marked in Gaudron’s
thinking and advocacy throughout her life. A large Aboriginal settlement, called Top
Camp, was located close to her childhood home and the conditions there were bleak. Noeline Briggs-Smith, known as Auntie Noeline,
an Aboriginal researcher who grew up in that settlement, recalls that,
‘Living in the tin huts made out of metal from kerosene cans meant living with the smell
of kerosene, with the smell of cow dung and trying to sleep with the noise of the trains
shunting at night.’ More significant than these adverse living
conditions, however, was the overt racism directed towards the Aboriginal community
in the Moree township. In a speech given subsequent to her retirement
from the High Court, Gaudron gave the following examples,
‘Aborigines were not allowed on the bus that travelled from East to West Moree, nor
in the Municipal swimming pool. They were allowed into the picture theatre
but only in the front rows which were roped off from the rest of the audience. Aboriginal children did not go to school like
the rest of us, although some few received a rudimentary schooling on the Mission. And if they were ill, Aboriginal people were
treated, if at all, in the isolation ward of the local hospital.’ The starkness of this discrimination had a
significant effect on Mary Gaudron. She continued,
“It was impossible – absolutely impossible – not to be aware that, in the phrase made
famous by George Orwell, some people were more equal than others – indeed, significantly
so.’ Indeed, the notoriety of Moree’s racial
inequality led to it being chosen as a destination for the Freedom Bus Ride led by Charles Perkins
in 1965, the year that Mary Gaudron graduated from university. So, her upbringing in Moree gave her an early
awareness of the impact of politics on social issues, like racial discrimination, in addition
to the industrial issues that affected its workers. These were frequent topics of discussion in
the Gaudron household and her father, in particular, would forcefully express his views on why
the then Coalition government was ruining the country and why there was a need for Labor
Party rule. It is perhaps unsurprising, then, that an
interest in labour law and in anti-discrimination would form an important part of Gaudron’s
work throughout her career in the law. The prospect of a legal career was, itself,
of early origin. Famously, at the age of eight, Mary received
a copy of the Australian Constitution from then leader of the Labor Party, and former
Justice of the High Court of Australia, Herbert ‘Doc’ Evatt. Evatt had been giving a speech from the back
of a Holden ute, campaigning against the Menzies Government’s plan to amend the Constitution
so as to outlaw the Communist Party of Australia. Mary’s intellectual curiosity, even at this
age, led her to ask ‘Please sir, what’s a Constitution?’ After determining that it was a bit like the
‘Ten Commandments of government’, Mary asked where she could get a copy. The opposition leader told her that she could
write to him at Canberra and he would send her one. She did and he did. Young Mary was excited by the prospect of
receiving her own Constitution, telling her schoolmates about having sent for it. All were expecting some grand or elaborate
document – perhaps even some tablets of stone – but were ultimately disappointed
to find the copy Mary received looked to be little more than a small pamphlet. A school bully was derisive, it was ‘just
a book’ and of ‘no use to anyone’; ‘You’re not a lawyer’, he said. That perhaps inevitable retaliation from Mary
Gaudron was ‘Well, I’m going to be one.’ Mary Gaudron was remembered by her teachers
as brilliant, quick-witted and high-spirited. She was not a conformist – producing an essay
at her Catholic school setting out why she had concluded that God did not exist. In Mary’s last year of high school, she
tested the waters of a future legal career by seeking out the advice of a local solicitor. His blunt assessment was that she had set
her sights too high and that “girls don’t do law”. This was perhaps her first personal exposure
to the issue of gender inequality, something that would become increasingly obvious as
she proceeded to ignore the solicitor’s advice and set her sights on the path to study
Arts and Law at the University of Sydney, aided by the award of a Commonwealth scholarship. Mary Gaudron’s first impressions of university
are evocatively captured in the Address she gave on the occasion of her being conferred
an honorary Doctorate of Laws by her alma mater. Those impressions were,
‘…not of the magnificent sandstone buildings that then predominated, nor of the remote
and intimidating academics in their austere black robes, but of the sophistication of
my fellow students. They had all the answers. They knew, for example, what was and was not
examinable, what to be read and what could safely be ignored, whose ideas were in and
whose were not. All of this imparted to me and a clutch of
other awestruck freshettes from the bush with solemn superiority.’ Respect for their superiority was quickly
overcome as Mary Gaudron settled into university life. She came to appreciate that it was often the
question, rather than the answer, that was all important. She worked and studied part time, took up
social and recreational activities, and made new friends, often with those whose unrestrained
behaviour encouraged her own. The obstacles put up by entrenched sexism,
however, were not so easily overcome. Lectures commenced with the salutation ‘Gentlemen’,
and only that and ‘many distinguished lawyers took a lot of trouble and effort to
explain to her that it was not their policy to take women as articled clerks.’ Upon taking work at the Commonwealth Crown
Solicitor’s office, she discovered that there was entrenched wage discrimination in
favour of men and that if she were to marry her employment would automatically terminate
as, in fact, occurred when she married fellow caving enthusiast Ben Nurse in February 1963. Nonetheless, Mary Gaudron stood out at law
school as an unconventional but academically brilliant student. She was well liked for her wit, humour, tenacity
and audacity. The latter qualities were demonstrated when
the Vice-Chancellor proposed, against the recommendation of the Dean of the Law School,
to award the University Medal in law to a male student who came second behind her in
the results. The Vice-Chancellor’s view was that the
male student was more likely to benefit from the award than Gaudron, as she, having recently
married and had a baby, would be occupied in looking after her family. Rejecting this suggestion, Mary Gaudron reputedly
said ‘The only difference between us is that I sit to pee.’ Mary was given the award, making her only
the second woman, after Elizabeth Evatt, to have received that honour. The recognition that Mary Gaudron received for her
achievements was hard won but important. One academic success, in particular, had the
direct consequence of aiding her transition to the bar upon graduation. When, in her fourth year at university, Gaudron
sat her end of year succession law exam she was nine months pregnant with her first child. The course was conducted by then Professor
Frank Hutley QC, a brilliant man notorious for his rudeness and his sheer pleasure in
failing students, some unfortunates had been required to re-sit the course three or four
times. Mary Gaudron, stretching to write over her
baby-in-utero, finished the exam early and with aplomb, receiving a grade close to 100
per cent and the Succession prize for topping the year. Remembering her succession paper as the ‘finest
he had ever marked’, Hutley invited her to read with him at Wentworth Chambers when
she was admitted to practice as a barrister in 1968. This invitation proved useful. Although Gaudron at first refused to ‘squat’
in chambers, thinking wrongly that her academic record would invite offers of a room of her
own, Hutley’s endorsement helped her to overcome resistance to the idea that a second
woman would be allowed into those chambers the clerk had threatened to resign if this
were ever to occur. After repeated rejections at other chambers
– being ‘reassured’ by others that it ‘was neither discriminatory nor personal, it was just that she was a woman’. Gaudron accepted a standing offer to share a room
with Janet Coombs, the only other female barrister at Wentworth Chambers. This was something of a vindication for Coombs,
who had previously proposed this arrangement to Gaudron only to be told, rather brashly,
“I’m sure I can do better than that”! After two years sharing rooms on the 13th
floor, having become a permanent member after 6 months, Mary Gaudron had a room to herself. Two more years passed and she purchased Hutley’s
chambers, generously offered to her by him at cost price when he was appointed to the
New South Wales Court of Appeal. Gaudron carved out a niche in defamation and
negligence work, frequently receiving briefs to act on behalf of unions and the Labor Party. No doubt her working class background and
stated political views assisted in this regard. However, she did not restrict her practice,
taking briefs in diverse areas, including crime, taxation, probate and succession. Significant cases during Gaudron’s relatively
short career at the bar included O’Shaughnessy v Mirror Newspapers Ltd, a successful appeal
to the High Court in a complex defamation matter about Peter O’Shaughnessy’s production
of Othello which had been described by a respected theatre critic as a “disaster” and
the “waste and dishonesty” of the production had made the critic “very angry indeed”. Ms Gaudron appeared without a leader as a
junior barrister of only two years’ standing and managed to have the decisions not only of the trial
judge but of the New South Wales Court of Appeal consisting of the Chief Justice and
Justices Jacobs and Mason overturned. Another important case was the Pat Mackie
case, a successful and high-profile month-long defamation trial brought by the prominent
unionist Pat Mackie against Frank Packer’s Australian Consolidated Press and the 1972
Equal Pay Case which represented both a career highlight and a turning point for the young
barrister. That Equal Pay Case in fact represented the
first of a series of such cases in which Gaudron and others appeared before the Conciliation
and Arbitration Commission to represent the Commonwealth, presenting submissions aligned
with the policies of the newly installed Whitlam government. Perhaps fittingly, Gaudron got this gig by
impressing the soon-to-be Minister for Labour Clyde Cameron with her advocacy in the O’Shaughnessy
and the Mackie cases. Before the Commission, Gaudron argued forcefully
that working conditions for Australian men and women should be on the basis of ‘equal
pay for work of equal value’, including in industries consisting largely or exclusively
of female employees. In doing so, she drew on the International
Labour Organisation’s Convention on Equal Remuneration. Her success in arguing the position
ultimately led to her appointment to the Commission at the age of only 31. Commissioner Gaudron’s time on the Conciliation
and Arbitration Commission was richly rewarding. She was able to draw on her expertise in industrial
law to distil the essence of complex workplace disputes and she proved to be a skillful negotiator. In describing the work of the Commission,
Justice Gaudron said, ‘There was endless variety, the industrial
situations were invariably hilarious so long as you maintained sufficient distance therefrom,
and one had the opportunity for inspections to quite interesting places, although in retrospect
I think I could have gone without my interminable inspections of sewage works. Thanks to those, there is no doubt that I
can claim to be the only Judge of the High Court with an intimate knowledge of activated
sludge.’ She later commented that her time on the Commission
was ‘infinitely more fun’ than being on the High Court. Perhaps ironically, then, it was her performance
on the Commission that left a powerful positive impression on Bob Hawke, whose government
it was that ultimately appointed her to the highest court in the country. The case Gaudron handled in a manner that
so impressed Hawke, who was then President of the ACTU, was the 1978 Telecom dispute. She chaired a conference between Telecom and
the Australian Telecommunications Employees Association, who were taking retaliatory action
against each other following staff cuts and strikes instituted because of Telecom’s
plan to computerise its exchange system. In a day that has been remembered as
‘Bloody Sunday’, Gaudron assembled the parties in a hearing room at 10:30am and almost
immediately adjourned the matter to a conference which she chaired. With no break during which food was allowed
in or the disputants out, a settlement was reached at 10:35pm, and the proceedings were
finally resolved at 11:00pm, ending a month-long dispute during which citizens attempting to
engage in telephone communications had been experiencing considerable difficulties. Hawke later told his biographer,
‘We all knew she was an extraordinarily intelligent woman and… her sense of humour
was a big help in keeping things together. In conferences of that length fatigue and
frustration cause short tempers, and often the whole thing breaks down. It’s a tremendous plus if the mediator can
keep the atmosphere light.’ Despite Mary Gaudron’s enjoyment of the
Commission’s work, her work there ended in less than ideal circumstances. She resigned as a matter of principle in protest
over the manner in which the President of the Commission and other Commission Members
had treated fellow commissioner, and friend, Justice Jim Staples. Staples had been resistant to the Fraser government’s
approach to industrial relations and that government’s changes to the law governing
how the Commission was to handle disputes and he spoke out against those changes. Although Gaudron did not approve of all of
Staples’ conduct in protesting against the changes, she was most aggrieved that the letter
expressing disapproval of his actions, that she and other Members of the Commission
had signed, had been used subsequently as justification for depriving Staples of his
panel responsibilities. Gaudron thus became only the second Arbitration
justice to ‘resign on principle’ and the first to relinquish judicial rank by doing
so. At the end of 1979, Mary Gaudron took a part-time
position as head of the newly established Legal Services Commission in New South Wales. She also became a visiting fellow at the University
of New South Wales’ Law School. Her next highly significant role came with
her appointment to the position of New South Wales Solicitor-General in February 1981. Once again she had Clyde Cameron’s support
for this appointment. Importantly, she also had the support of Frank
Walker, who was then Attorney-General in Neville Wran’s Labor Government and had been at
university with her. Mary Gaudron was very pleased to be offered
the role – she saw it as the best job to have in the law. Her respect for the position was enormous
and her ambitions high. She told the media what she hoped to achieve
in the following terms, ‘I should like to see a greater awareness
in the community at large of legal rights, responsibilities and remedies available. Perhaps in the long term I should like to
see that the law is not something apart from ordinary life… People should see that the law is there not
to stand against them, but for their benefit.’ The position of Solicitor-General involves
providing frank, fearless and independent advice to the government on often complex
legal and political questions. It also involves representing the State in
court, putting the government’s case. Conventionally, this is a position for Senior
Counsel but Mary was not a QC, having only practised at the Bar six years before being
elevated to the bench of the Commission. Thus, in a rare example of tradition working
in her favour, the Attorney-General arranged for Ms Gaudron to take silk just prior to
her appointment making her just the third woman in Australia to attain that status. Around the same time, and just days before
commencing her new job, Gaudron married her new partner John Fogarty, and later gave
birth to their son Patrick. There is a story I heard while I was employed
at the High Court which I hope is not apocryphal. One Friday a case was very nearly completed. All that was left was Ms Gaudron’s reply. The presiding judge decided to adjourn the
matter to finish on the next sitting day the following week. An urgent whispered conversation took place
amongst the judges and the presiding judge announced that on second thoughts they would
finish hearing the case that day. Patrick, I was told, was born that weekend. The period during which Gaudron held the role
of Solicitor-General was politically tumultuous and the range of matters on which she was
called to give advice extensive. The reform agenda of the Wran government included
formulating a Bill of Rights, prohibiting non-consensual sex in marriage at that time
it was not an offence bringing NSW anti-discrimination policies into line with the UN Convention
on the Elimination of all forms of Discrimination against Women and the recognition of Indigenous
land rights, including the proposal to pay compensation to Aboriginal communities previously
dispossessed by government resumption of their reserves. Gaudron QC as she then was displayed a high
degree of aptitude in analysing the interaction of State and Commonwealth powers in Australia’s
federal system of government. She appeared in numerous significant High
Court cases on constitutional issues, such as Miller v TCN Channel Nine concerning s 92’s guarantee of free trade and commerce between the States and the Tasmanian Dam Case
concerning the reach of the Commonwealth’s external affairs powers. The skills she displayed in such cases was
later relied on in support of her suitability for a High Court appointment. Gaudron also happened to contribute to the
significance of that later appointment by her involvement, as Solicitor-General, in
the move to abolish appeals from the High Court to the Privy Council, that shift occurring
just in time for her arrival to the bench of what then became the final arbiter of disputes
in this country. Before all this was to occur, however, one
particular problem or perhaps, rather category of problems came to occupy a significant amount
of her time as Solicitor-General. They arose from the mounting allegations of
crime and corruption amongst police, politicians and the judiciary that were surfacing in New
South Wales in the 1980s. This environment led to numerous politically-charged
decisions having to be made about whether adequate evidence had been obtained to support
high-profile prosecutions and decisions concerning which potential witnesses should be given
immunity from prosecution. In the absence of the office of Director of
Public Prosecutions, a position created later, it was the Solicitor-General whose job it
was to make those calls. The pressure around such decisions came to
a head with the advent of the so called ‘Age tapes’ controversy and the allegations that followed
involving her close friend and supporter, High Court Justice Lionel Murphy. The Age newspaper had published extracts from
copies of cassette tapes and written material purporting to be transcripts or summaries
of intercepted telephone conversations, all suggestive of improper connections between
public officials and the New South Wales criminal underworld. Solicitor Morgan Ryan was said to be central
to the so-called ‘Network of Influence’ the Age tapes had shown. Given Ryan’s frequent contact with Justice
Murphy, the publication of the Age tapes had a snowball effect that had the ultimate consequence
of the judge being prosecuted for interfering with the administration of justice. The details of that saga have been detailed
extensively elsewhere, including by me in another speech. Relevant for our purposes, however, is that
Gaudron’s handling of the legal issues raised by this and other similar controversies, in
the face of considerable press pressure and cynicism, was always considered by those who
worked with her to be of the highest standard, succinct, timely and carried out with the
utmost professional integrity. Mary Gaudron’s appointment to the High Court,
the most significant of the many ‘firsts’ in her career, was inevitably a source of
controversy, not unexpectedly, charges of tokenism, emotionality and cronyism were directed
at her elevation. She was cognisant of the increased scrutiny
attendant upon her position as first woman Justice. She noted, in her inaugural speech from the
High Court bench, that “too often, we emphasise differences at the expense of common cause,
I would wish that the day had arrived when the appointment of a woman to this Court was
unremarkable.” Nonetheless, the appointment of the first
woman was indeed remarkable and it, along with Gaudron’s force of personality, presaged
a number of changes to High Court practice. One early change was that the title “Mr
Justice” was immediately abandoned by all the judges in favour of, simply, “Justice”. I remember my own feeling of optimism about
the future when I saw the name plates on their chambers being changed on the announcement
of her appointment. Another was that she discontinued the practice
of having a tipstaff and a single associate, instead appointing two young lawyers to the
position. Now it is the norm for each High Court justice
to have two associates to assist them in their onerous work. The most significant changes to the court’s
embodiment of notions of equality concerned not its members’ verbal formulae, but rather
their jurisprudence. In this regard, Justice Gaudron was instrumental
and I propose to briefly sketch a few examples. There was, of course, the famous joint decision
of Justices Deane and Gaudron in Mabo v Queensland (No 2). As this audience is aware, the question for the court to decide in Mabo was whether, notwithstanding Crown sovereignty, Australian law could recognise
the existence of native title rights to lands that had been occupied for generations by
the country’s First Peoples. If the answer to that question was yes, the
question would then be whether, in the particular case, the Meriam people of the Murray Islands
in the Torres Strait had established their native title right. A 6:1 majority of the High Court found that
‘the Meriam People were entitled as against the whole world to possession, occupation,
use and enjoyment of the lands of the Murray Islands.’ And, as is well known even beyond legal circles,
in reaching this conclusion the Court rejected the notion that Australia was unoccupied, terra
nullius prior to colonisation. For Justices Deane and Gaudron, this was more
than a case of overturning a factual mistake that had been proceeded upon, in ignorance,
in the past. For them, the true facts concerning Indigenous
occupation had been long known but ignored. It was therefore critical, in their view,
to tell the unvarnished true history of Indigenous dispossession in the judgment to ensure that
the law, from now on, would proceed on a legitimate basis. One famous passage from their judgment illustrates
this approach, ‘The acts and events by which that dispossession
in legal theory was carried into practical effect constitute the darkest aspect of the
history of this nation. The nation as a whole must remain diminished
unless and until there is an acknowledgement of, and retreat from, those past injustices.’ By stating the history of Indigenous dispossession
and discrimination in stark but accurate language, the judgment sought to ensure that, in that
case and in those to follow, the legitimacy of legal propositions concerning that history
could be assessed in a clear and true light. Justice Gaudron’s notion of what “equality”
means was developed over a series of cases, including Street v Queensland Bar Association,
Castlemaine Tooheys v South Australia and Leeth v Commonwealth. A helpful device Justice Gaudron used in explaining
the concept was to define its opposite, inequality or discrimination. Extra-curially, Justice Gaudron succinctly
paraphrased her reasoning in this way, inequality is ‘the different treatment of persons
who are equal and the equal treatment of persons who are different.’ In the case law, this apparently straightforward
notion was teased out and applied in a variety of contexts, its subtleties, as revealed by
the interpretation and application of anti- discrimination legislation and s 117 of the
Australian Constitution, were articulated. In Leeth, for example, Justice Gaudron emphasised
that differential treatment of those who are, relevantly, different will still amount to
unlawful discrimination unless the differential treatment is ‘reasonably capable of being
seen as appropriate and adapted to that difference.’ In Australian Iron & Steel Pty Ltd v Banovic,
one of the leading cases on indirect discrimination, Justices Deane and Gaudron found that a ‘last
on, first off’ policy of retrenchment, whilst prima facie fair and non-discriminatory, was
unlawful because it operated to systematically benefit male over female employees due to
historical discriminatory recruiting practices that had favoured men. As to her judicial manner, she could be robust
when she thought that the submissions before her were poorly framed. I remember going to watch her when she heard
the first of the interlocutory matters in the Patrick Stevedores case here in Brisbane
in 1998. In those matters, she pressed Gavan Griffith QC who had just finished his term as Solicitor-General for the Commonwealth and was appearing for the Commonwealth Attorney
General on what was the constitutional question involved which required
the case to be removed to the High Court. She refused to put up with obfuscation. I quote. Her Honour, “Well, I want to know what the
constitutional question is for these causes of action”. His long-winded answer did not satisfy her. “No, but you will not tell me what the question
is”. Mr Griffith, “ Your Honour, the question
is whether one has a matter for the purposes of section 75 or section 77 or in combination
of operation, your Honour, merely by reason of the fact that the Commonwealth is joined
as one of the parties with some 23 other respondents”. “That is a proposition that is seriously
advanced”? “Well, your Honour, that is a question to
be determined”. “It is a proposition that is seriously advanced”? “As a question to be determined”. “Dr Griffith, do you seriously contend that
a proceeding alleging a cause of action against the Commonwealth and other co-defendants
is not a matter for the purposes of sections 75 or 76 of the Constitution”? Another attempt at a long-winded and what
she regarded as a non-responsive answer by council followed.… Her honour, “Yes. But I am trying to understand – I mean, if
you said to me – if you were to seriously advance – and I might, of course, find difficulties
in containing my mirth – but if you were to seriously advance that a proceeding alleging
a cause of action in conspiracy against the Commonwealth and other co-defendants is not
capable of being treated as a matter in respect of which jurisdiction could be conferred on
the Federal Court, then I can see a constitutional question. I cannot see that it is a genuine one, but
I could see one”. Any judge trying to deal with a difficult
matter with apparently unhelpful counsel would appreciate her exasperation. Justice Gaudron’s notion of “equal justice”
found its way into her judgments in a wide range of cases, both criminal and civil. Her thinking on equality, discrimination and
fairness also informed her approach to dealing with cases concerning with the meaning of citizenship. Her advocacy in opposition to practices which
unfairly diminished the rights of vulnerable groups of people remained, and even strengthened,
upon her early retirement from the High Court at the relatively young age of 60. When Mary Gaudron left the High Court, she
had the joys of rest and relaxation with friends and family firmly in mind. This she achieved, with frequent trips to
her second home in the Loire Valley. Her French cottage also became a welcome point
of detour for many judicial colleagues on their way to and from international judicial
conferences. However, Ms Gaudron did not remain idle. She first took a three-year appointment as
Visiting Professor in the University of New South Wales’ Faculty of Law. Then, just four months after retiring from
the High Court, she commenced a part-time appointment to the International Labour Organisation’s
Administrative Tribunal in Geneva, a United Nations initiative established to define and
protect the rights of workers. The Tribunal hears complaints from serving
and former staff members of various United Nationals organisations, including the ILO
itself. In 2006, she became Vice-President of the
Tribunal and, in late 2009, became its President. Her term on the Tribunal ended in 2012, when
she resigned due to ill health. Ms Gaudron’s Tribunal work also led to other
interesting assignments. Memorably, in 2003 she was appointed by the
ILO to a commission of three to examine trade union rights in Belarus. The experience of visiting Belarus in 2004
and interviewing trade union and government officials reinforced for her the value of
s 75(v) of Australia’s Constitution as a means of protecting human rights. Ms Gaudron had been in the majority in several
High Court cases that held that this provision guaranteed the availability of review of ‘decisions’
infected by jurisdictional error for example, because of a denial of procedural fairness. She saw that the Belarus Constitution contained
many guarantees of basic human rights – far more, in fact, than are found in the Australian
Constitution – but the absence of an equivalent of s 75(v) meant that, in practice, these
rights could be trampled on with no recourse to the courts. Ms Gaudron was to speak often about her experience
in Belarus, citing it as an example of how human rights abuses can occur even where,
at least on paper, there are protections in place to prevent this. The experience also shaped her view that international
law and international human rights bodies are necessary and important mechanisms for
safeguarding citizens against abuses by their own governments. There is no doubt that Mary Gaudron has had
a powerful and lasting influence on the development of Australian law and those who practise it. At the time of her retirement from the High
Court, David Curtain QC, then President of the Australian Bar Association, spoke of her
work in the development of “every important area of Australian law – the common law,
criminal law, equity, conflicts of laws, constitutional and administrative law, native title, free
speech and natural justice.” Of course, in the time I had available in
this speech, and out of a desire to present a snapshot of the entire span of her career,
it has not been possible to touch on all of these contributions. What is apparent from even this brief survey
of Mary Gaudron’s career is that she was a trailblazer, as the Chief Justice said,
in Australian legal history. But she should not be remembered simply as
a collection of firsts or as someone who shattered at least a few glass ceilings. There are at least two reasons for that. First, Mary Gaudron’s intellect and humanity
produced legal work and advocacy of a standard that can proudly stand alone, without a token
‘first woman’ leg to prop it up. Second, as Ms Gaudron herself was conscious
of observing, there is a problem with the ‘glass ceiling’ metaphor. She discussed this in the Richard Blackburn
speech that she gave in 2003. It implies that rather than women being held
back by discriminatory practices or unequal treatment, their continued lack of representation
amongst the upper echelons of the legal profession and in the wider workforce is down to some
‘mysterious indefinable je ne sais quoi, some phenomenon not quite capable of explanation.’ As some of the starker examples of prejudice
in Mary Gaudron’s life and career show, commonly the problem is much more concrete
than that. Although it is still not quite the case that
the appointment of a woman to a position of high office can pass without comment about
her gender, it is a testament to Mary Gaudron’s abilities and personality – to “her steely
determination to seldom take a backward step”– that we are creeping ever-closer
to that ideal. Let me close on a personal, and local, note. Mary Gaudron freely gave me sage advice and
met with me when she came to Brisbane to check how my early career at the Bar was going. She had, I should cautiously mention, a less
than entirely complimentary view of the Queensland Bar as it then was and initially encouraged
me to commence practice in the allegedly more accepting atmosphere of Sydney. However, we can now celebrate that the first
female Chief Justice of the High Court of Australia is a former Queensland barrister,
that eight of my 26 colleagues on the Supreme Court of Queensland are women, including the
Chief Justice, and that the members of the Queensland Bar when they stand in this court
room for their President’s speeches at welcome and retirement ceremonies look slightly less
like the front row of a Brisbane GPS rugby team than they used to. I’m glad I stayed here, but it is in no small
part because of Justice Gaudron’s pioneering role, outspokenness, indefatigable spirit
and legal brilliance that these changes have occurred. Thank you. [APPLAUSE] Well, like many of the Selden lecture that’s been a fascinating combination of legal history
and biographical detail. Within this case the extra illumination of
personal experience of Justice Gaudron. Now I’m about the give you a gift of which
I think Justice Gaudron would approve. And can we thank Justice Atkinson again. [APPLAUSE]

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