By Pamela Burton
$49.95pb, 492 pp,
For The Australian Book Review.
H.V. Evatt, on the hustings during a country-town campaign, was asked by an eight year-old girl, ‘What is the Constitution?’ and later mailed her a copy. The girl was Mary Gaudron, whose path to the High Court was set by that moment.
Pamela Burton shows that success did not come to Gaudron easily, she stumbled often, but self-belief was a crucial asset in her personality. She would become a judge. To avoid the chronological here, one occasion she did not grasp an opportunity came near the end of her career in the High Court, when PM Keating raised with her the availability of the Chief Justice’s chair. She shouted him down. She would not leapfrog her senior colleagues, even to set another benchmark for women.
My father admired the power of judges, and wished me to become one. In the event, I left the Bar in case I was in danger of becoming one, a fear my Master thought baseless. A judge’s duty to the law is absolute, a kind of servitude it becomes. I know a judge who sought chairmanship of many charities to leaven his life, perhaps to give it greater meaning, and several see their duty now as a form of entrapment, but few can make anything of a substantial other life, since they must be careful who they associate with. Some become hobby farmers, one Federal judge is also a vintner who now cannot find time to keep his palate in, and I’ve stalked lakes with several fine flyfishers from the benches, but these are lone pursuits.
Gaudron would have none of this. She revelled.
A strength of this biography is, if we’re in search of the personality which so sought success and brooked no diversion, Burton gives us this. Not in direct observation of Gaudron who was well known to her, but in Gaudron’s behaviour on the benches, and in her judgements. Burton’s summaries of the judgements are clear and precise.
As NSW Solicitor-General Gaudron was aggressive and controversial. Burton credits her with a central role in the effort to scotch the right of appeals from the High Court to the Privy Council. Negotiations with the British were stuck on the issue of multiple states having rights to advise the Palace. In London Gaudron presented herself at the British Foreign Office to complain of slow progress and suggesting one states’ representative speak for all. This was eventually agreed. At the time, Gaudron was in London appearing before the Privy Council.
Burton’s descriptions of her subject’s personality are broadstrokes, ‘clever, funny and different’ and ‘had insults ready to trade.’ Better are her anecdotes.
Staples recalls Gaudron’s tact and humour after one social lunch that included a bottle of red wine. Gaudron and Staples returned to a full bench hearing over which Gaudron presided. Staples, not unusually, engaged with an argument with counsel, and to guard against it getting out of hand, Gaudron slipped him a note. It read: ‘Shut up. Your lunch is showing.’
In the National Wage Case 1974 for women’s equal pay, Clyde Cameron arranged for her to be briefed for the Federal Government in its push for equal pay. She was then 31. As the judges filed in, women protagonists in the gallery heckled and waved placards.
Clyde Cameron was there. He saw Gaudron turn to the hecklers to calm the commotion that broke out, and heard her say, ‘Pull your heads in, you bloody fools. Just shut up. You’re not helping your case by shouting and carrying on with banners. For Christ’s sake, shut up.’ Turning back to face the bench, she quickly resumed her professional composure.
Long ago I happened on an old friend from the Bar and asked how he was faring. “You know what it’s like, running up and down on the spot,’ he said. Now, Mary Gaudron wouldn’t have understood any of this. Too many fights to have, successes to try for, and designing herself for appointment to a bench she avoided specialisation. She could do criminal, equity and trust, administrative, procedural, commercial, conciliation and arbitration, international and constitutional law.
When NSW Attorney-General in the 1980s she was before the High Court when states were given leave to intercede, if an issue of states’ rights may arise. Gaudron took each opportunity and performed spectacularly well. Of the Franklin Dam case, as Burton quotes her:
She said, ‘The Commonwealth power with respect to corporations poses more immediate problems for the State Government than any other matter considered in the Tasmanian decision.’
That was 1983. The Commonwealth had applied its power to regulate corporations because the Hydro-electric Commission was a corporation. Was Gaudron the first to foresee the dangers of a Federal power-play using the corporations power simply because one of the parties is a corporation? I can’t find any earlier.
Ever, her appointments caused outrage among conservative politicians, among media barons and their cockerels, among most lawyers who were men. Until the early sixties, not only were few lawyers women, women were not jurors. When the jury lists were opened to women, barristers were in serious discussion about the ways advocacy might need to change.Came the time a woman was considered for a bench, the given wisdom favoured appointing only the very most expert; this was the ‘highest qualifier’ debate. Gender was irrelevant. Of the times, Burton notes:
Gaudron suggested that ‘merit’ was a relevant criterion for the appointment of judges only when it came to women.True. The ‘highest qualifier’ view was mine for a time, until I came to realise humankind believes as we wish to believe, so appointments to positions of power for those who more readily identify unfairness, inequality and prejudice becomes sensible. These special qualities make relevant gender, race, class.
On the appointment of Ian Callinan QC to the High Court, Burton says:
Callinan’s appointment to the Court was the Coalition Government’s response to pressure to appoint not only a conservative but a Queenslander.
So dies the purist argument to appoint only the highest qualifier.
And while I have your attention, I plead that we spurn the term ‘activist judge.’ James 1 became so concerned with misery inflicted by harsh law that he directed his Chancellor to set up a rival court to deliver greater equity. In the event of conflict, equity should prevail. Courts administering law and equity were fused in the 1870s.Why do many commentators so like to forget this?
From Burton’s account of Mary Gaudron’s radical life in law, I came to see her intricate personality as shaped by loyalty to comrades, intense ambition, fine judgement of powerful friends, high self-regard, vulnerability to slight, dismissive of criticism, pride in intellectual ability and a clear picture of herself as an agent of fairness. For her times, a winning combination.
Some wonder about the depth of Gaudron’s legacy. For my own, I’d be satisfied with Mabo and Wik. Eddie Mabo’s case, which he lost but others won, established customary title to land, but considered only the Murray Islands. The Wik People’s case extended the ruling to mainland pastoral leases, finding common law customary title was not extinguished by pastoral leases because those leases did not grant exclusive rights to their leaseholders. So customary rights co-existed.
The reasoning here is not complicated. Common Law is a system by which courts recognise customary arrangements, rule on them, which finding creates precedent. Furore over the Native Title cases was caused by shock that the common law system covers all peoples in the jurisdiction, not only the white.
After Wik, Acting PM Tim Fisher called the decisions unacceptable and sought curbs, although:Federal Attorney-General Daryl Williams urged coalition members to cease their attack on the judiciary at the same time as PM Howard appeared to support the critics of the Court.
One wonders now if this later prompted Howard to replace Daryl Williams as A-G with the far lesser lawyer Philip Ruddock. From around 2005, I heard Ruddock’s tone becoming more and more judicial, and wondered if this may mark an anticipation of a coming time on the High Court bench.
As a young barrister in 1980, Gaudron was briefed to appear for Wilfred Burchett in his defamation action against Senator Kane, as junior to Clive Evatt. Evatt withdrew and Gaudron lost her brief because the solicitor did not brief women. Now, I’m judging Gaudron from this book alone, but Burchett and Gaudron together would have been interesting, both of the same barefoot to school and backside out of the trousers class. The irascible seldom get on well together for long, yet reading Burton’s drawing of her puts me in mind of Burchett whom I knew in Paris. After a time, the idiosyncratic personality becomes an irritant, but with both I’m left with a suspicion that within those difficult souls lie deeply admirable qualities.