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Australian Feminist Judgments: Righting and Rewriting the Law, edited by Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter. Oxford: Hart Publishing, 2015, 382pp (£35 paperback). ISBN: 9781849465212.

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Australian Feminist Judgments: Righting and Rewriting the Law, edited by Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter. Oxford: Hart Publishing, 2015, 382pp (£35 paperback). ISBN: 9781849465212.

Published online by Cambridge University Press:  02 January 2018

Heather Roberts
Heather Roberts*
Affiliation:
Australian National University
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Type
Book Review
Information
Legal Studies , Volume 35 , Issue 3 , September 2015 , pp. 558 - 565
Copyright
Copyright © Society of Legal Scholars 2015 

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References

47. Douglas, H et al (eds) Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart Publishing, 2014).Google Scholar

48. Sydney Morning Herald 12 October 2014.

49. On the Australian media's negative depictions of women judges, see M Thornton ‘“Otherness” on the bench: how merit is gendered’ (2007) 29 Sydney L Rev 391.

50. The decisions of the Women's Court of Canada (henceforth ‘WCC’) were published in the Canadian Journal of Women and the Law, vol 18, and are also available at http://womenscourt.ca. See further D Majury ‘Introducing the Women's Court of Canada’ (2006) 18 Can J Women & L 1.Google Scholar

51. Hunter, R, McGlynn, C and Rackley, E (eds) Feminist Judgments: From Theory to Practice (Oxford: Hart Publishing, 2010); henceforth ‘UKFJ’.Google Scholar

52. Douglas et al head their methodological discussion with ‘an Emerging Movement?’ (p 2). ‘The question mark recognises Margaret Davies’ 2012 reflection that while the term ‘“movement” might be premature’ to describe the feminist judgment-writing enterprise, ‘a modest degree of “ferment” may be apparent’. M Davies ‘The law becomes us: rediscovering judgment’ (2012) 20 Feminist Legal Stud 167 at 169. However, as the Australian editors indicate, further projects are under way (eg Northern/Irish Feminist Judgments Project, Feminist International Judgments project). See H Douglas et al ‘Introduction: righting Australian law’ in Douglas et al, above n 47, p 3.

53. A brief history of the Canadian and Uk projects is also provided by R Hunter ‘the power of feminist judgments?’ (2012) 20 Feminist Legal Stud 135–138; and Douglas et al, above n 47, pp 2–3.

54. See Hunter, R, McGlynn, C and Rackley, E ‘Feminist judgments: an introduction’Google Scholar in UKFJ, above n 51, p 13; and D Majury, above n 50, at 6.

55. For example, the Uk and Australian projects are similar in size: the Uk project rewriting 23 cases and the Australia project 24, and also including a critical reflective essay explaining why a feminist judgment could not be written in a further case (see further below, text accompanying n 71).

56. Douglas et al, above n 47, p 8; and Hunter R ‘An account of feminist judging’ in UKFJ, above n 51, p 35.

57. See Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for Environment and Heritage [2006] FCA 736.

58. Douglas et al, above n 47, p 14.

59. Significantly, however, Australian Feminist Judgments differs in format by including the years of the original decisions in the Table of Contents. This valuable change allows readers to navigate the collection chronologically. The alternative legal reality created by such a reading is striking: an Australia in which childcare was tax-deductible for primary carers from 1972 (ch 6)? In which the gendered context of assessing a well-founded fear was considered in self-defence cases from 1996 (ch 15)?

60. Douglas et al, above n 47, p 1 (emphasis added). In this context, the distinctiveness of ch 3 of the Australian project – deliberately not a feminist judgment – might have been made more visually striking.

61. CF Hunter et al, above n 54, p 29.

62. The editors note that Australian Feminist Judgments includes ‘some single judge decisions’ (p 14). On my reading, these are six lower-court decisions: Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for Environment and Heritage (ch 9, environmental law); Australian Competition and Consumer Commission v Keshow (ch 11, consumer law); R v Webster (ch 19, sentencing); R v Middendorp (ch 20, sentencing); R v Morgan (ch 21, sentencing); and McLeod v Power (ch 25, racial vilification). In addition, in Lodge v Federal Commissioner of Taxation (ch 6) High Court Justice Anthony Mason sat alone.

63. [1990] Nswsc 700/90.

64. K Duncanson ‘Truth in sentencing: the narration of judgment in R v Webster’ in Douglas et al, above n 47, p 309.

65. Douglas et al, above n 47, p 11.

66. B Opeskin ‘The state of the judicature: a statistical profile of Australian courts and judges’ (2012) 35 Sydney L Rev 489 at 514.

67. The introductory chapters explain that the Australian project was a combination of suggestions from authors and invited contributions to ensure that the collection included ‘cases from a wide variety of legal fields’. See Douglas et al, above n 47, p 11.

68. Ibid, p 13.

69. Ibid, pp 34–36. Five chapters involve Indigenous peoples, but in two the feminist judges apply the original decision's constraints. In ch 20, E Marchetti and J Ransley (writing as ‘Marsley JA’) rewrite R v Morgan (2010) 24 VR 230 to give the victim's voice, and Indigenous ‘elders’ views, a greater role in the Indigenous sentencing court process. In ch 25, J Nielsen rewrites McLeod v Power [2003] FMCA to explore the concept of whiteness as not-raced in a racial vilification case brought by a white-male prison guard against an Aboriginal woman.

70. Ibid, pp 9–10 and R Hunter ‘Australian legal histories in context’ (2003) 21 Law & Hist Rev 607.

71. Kartinyeri v Commonwealth (1998) 195 CLR 337. Although the High Court case focused on the Commonwealth's ‘race’ power in s 51(vi), the underlying dispute traversed many areas of substantive and procedural law. See K Bowrey ‘Commentary on Kartinyeri v Commonwealth’ in Douglas et al, above n 47, p 41.

72. (1934) 52 Clr 335.

73. T Anthony ‘Commentary on In the Matter of Djappari (Re Tuckiar)’ in Douglas et al, above n 47, p 441.

74. [2005] Fca 588.

75. See eg Thornton, above n 49.

76. B Naylor ‘Unconscionability, education and Indigenous women: Accc v Keshow’, in Douglas et al, above n 47, p 179.

77. 211 Clr 238.

78. Although indicating a ‘tentative’ view that a ‘feminist judge’ must be a woman, Hunter left that question open in R Hunter ‘Can feminist judges make a difference?’ (2008) 15 Int'l J Legal Prof 7 at 8. As the editors note, ‘Australian Feminist Judgments’ interest is in feminist judging methods, not the attributes of a feminist judge: Douglas et al, above n 47, p 2.

79. For a history of women judges in Australia, see ibid, p 4.

80. By my calculations, women sat in the original cases in chs 3, 5, 7, 12, 13, 15, 16, 17, 23 and 26.

81. Mary Gaudron's cases were: Kartinyeri (ch 3); Dietrich v The Queen (ch 5); Louth v Diprose (ch 12); Cummins (ch 13); Taikato v The Queen (ch 15); Phillips v The Queen (ch 16); RPS v The Queen (ch 17); and U v U (ch 22).

82. (2006) 225 Clr 355 (a High Court decision on similar fact evidence in rape trials).

83. Douglas et al, above n 47, p 33.

84. On ‘first’ women, and feminist judging, see ibid, p 1 fn 2. On Mary Gaudron, see Burton, P From Moree to Mabo: the Mary Gaudron story (Perth: UWA Publishing, 2010); and H Roberts ‘“Swearing Mary”: the significance of the speeches made at Mary Gaudron's Swearing-in as a Justice of the High Court of Australia’ (2012) 34 Sydney L Rev 293.Google Scholar

85. Douglas et al, above n 47, pp 32–34.

86. Goode v Goode (2006) 206 Flr 212 (ch 23) and Pga v the Queen (2012) 245 Clr 355 (ch 16).

87. (2006) 206 Flr 212.

88. (2012) 245 Clr 355.

89. N Naffine ‘Admitting legal wrongs: Pga v R’ in Douglas et al, above n 47, p 260.

90. See further ibid, pp 4–6.

91. Ibid, p 9.

92. See http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/SecondQuarter/14-April-2015-Appointment-of-the-Honourable-Michelle-Gordon-to-the-High-Court-of-Australia.aspx (accessed 19 April 2015).