‘Collegiality Is Not Compromise’: Farewell Justice Crennan, The Consensus Woman

Abstract

The recent retirement of Justice Susan Crennan prompts questions about her judicial legacy. These questions take on a particularly gendered dimension given her Honour’s status as the second woman appointed to the High Court of Australia. This article examines critically the legacy Justice Crennan and others sought to craft about her upon her retirement from the Court. It does so by examining the judicial farewell speeches made in commemoration of her time on the Court. These largely overlooked social scripts provide revealing insights about the interaction between individual and institutional values in public legal discourse. Two motifs punctuate these speeches in ways that are significant in forming impressions about the gendered dimensions of Justice Crennan’s legacy – her Honour’s ‘humanity’ and ‘collegiality’. By asserting that ‘collegiality is not compromise’ (as Justice Kiefel before her had done), Justice Crennan emphasised its importance for the institutional wellbeing of the Court. In so doing, Justice Crennan brought into sharp focus gendered implications that flow from recent tensions about the role and contributions of judges. These tensions reveal that the masculinist character of law and its institutions continues to shape how women’s legal authority is received.

Notes

1 The transcripts of the special sittings in farewell to Justice Crennan are available at http://www.austlii.edu.au/. The transcripts are not paginated.

2 Crennan, Kiefel and Bell JJ constituted a Bench of three at the Sydney and Melbourne High Court Registries. Therefore, in accordance with the institutional conventions adopted by the High Court, no other judges are recorded as present during these farewell sittings for Justice Crennan.

3 For an analysis of the difficulties in dislodging the long ingrained imagery of the judge as a man (and portrayal of the ‘feminine’ as disruptive to the imagined image of the judge), see Erika Rackley, ‘Representations of the (Woman) Judge: Hercules, the Little Mermaid, and the Vain and Naked Emperor’ (2002) 22 Legal Studies 602.

4 Justice Crennan was replaced by Justice Geoffrey Nettle. The fifth woman appointed to the High Court of Australia was therefore appointed after Justice Crennan’s retirement. In following a familiar pattern where no woman has been appointed to replace another woman on the High Court, Justice Michelle Gordon was appointed to replace Justice Kenneth Hayne in 2015. For further discussion of the gendered politics of judicial appointment see Kcasey McLoughlin, ‘The Politics of Gender Diversity on the High Court of Australia’ (2015) 40 Alternative Law Journal 166.

5 Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press 1996) 3-4.

6 The political foundations of the Commonwealth Constitution were exclusionary with respect to race, class, and gender – women were formally excluded from almost every aspect. Yet scholars of history, law, and politics have revealed the contribution of women to nation-building in Australia. See Helen Irving, ‘Fair Federalists and Founding Mothers’ in Helen Irving (ed) A Woman’s Constitution? Gender & History in the Australian Commonwealth (Hale & Iremonger 1996) 1; Isabel Karpin and Karen O’Connell, ‘Speaking into a Silence: Embedded Constitutionalism and the Rights of Women in Australia’ in Beverley Baines and Ruth Rubio-Marin (eds) The Gender of Constitutional Jurisprudence (Cambridge University Press 2005) 22.

7 There are conflicting views about the potential difference women judges might make as jurists and these debates are beyond the scope of this article. However, there is also some caution in ensuring that arguments about judicial diversity emphasise the importance of diversity without resting on expectations about difference. See Kate Malleson, ‘Justifying Gender Equality on the Bench: Why Difference Won’t Do’ (2003) 11 Feminist Legal Studies 1.

8 See, for example, Rosemary Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15(1-2) International Journal of the Legal Profession 7.

9 The idea for feminist judgment writing as critique is said to have emanated from Canada but the first sustained project came out of the United Kingdom. Although there are now examples of projects in various jurisdictions, see especially Rosemary Hunter, Clare McGlynn and Erika Rackley (eds) Feminist Judgments: From Theory to Practice (Hart 2010). The Australian iteration of the project was published in 2014. See Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter (eds) Australian Feminist Judgments: Righting and Rewriting Law (Hart 2014).

10 See Kcasey McLoughlin, ‘Judicial Fictions and the Fictive Feminists: Re-imagination as Feminist Critique in PGA v The Queen’ (2015) 24(5) Griffith Law Review 592 for an examination of what fictional feminist judgments might tell us about how real-life judgments reflect, counter, or reinforce masculinist legal meanings. PGA v The Queen (2012) 245 CLR 355 (the decision involving the so-called immunity for spousal rape) was the only decision involving Crennan, Kiefel and Bell JJ to be reimagined by the Australian Feminist Judgments Project. The jurisprudential contributions of Crennan, Kiefel and Bell JJ in this decision further reinforce the difference amongst women as jurists. Whereas Crennan and Kiefel JJ joined the majority in finding that rape was a crime known to the common law in 1963, Bell J was in dissent in finding that it was not (and in so doing arguably reflected a conception of law’s history that was much more sensitive to women’s lived experiences).

11 In an historic first in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92 the High Court split along gender lines. Mr Man Haron Monis (aided and abetted by his partner Ms Amirah Droudis) had been found guilty of using the postal service to transmit offensive material. Monis sent letters to the family members of soldiers killed in Afghanistan, grieving spouses and parents, as well as to elected officials. Monis and Droudis challenged the validity of the relevant provision as it applied to them, arguing their conviction should be quashed because s 471.12 infringed the implied freedom of political communication – the closest thing to freedom of speech in Australia. In a joint judgment, Crennan, Kiefel and Bell JJ found the provision in the Criminal Code 1995 (Cth) which prohibited certain uses of postal services valid, whereas in separate judgments French CJ, Heydon and Hayne JJ would have held that in the circumstances, the provision amounted to an impermissible burden on the implied freedom.

12 Gabrielle Appleby and Ngaire Naffine, ‘Civility, Gender and the Law: Critical Reflections on the Judgments in Monis v The Queen’ (2015) 24(4) Griffith Law Review 616–639.

13 See, for example, Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2014 Statistics’ (2015) 38 University of New South Wales Law Journal 1078 at 1088, 1092.

14 Susan Kiefel, The Individual Judge speech delivered at the 2014 Sir Richard Blackburn Lecture, ACT Law Society, Canberra 13 May 2014 <https://www.actlawsociety.asn.au/documents/item/944> (last accessed 26 August 2015).

15 Susan Crennan, Transcript of Proceedings, Ceremonial: Farewell to Crennan J, Sydney [2014] HCATrans 258 (14 November).

16 Justice Crennan was likely referring to the journalistic commentary made by Waterford some two years earlier where he described the women judges as a ‘particular disappointment’ in the context of an analysis of authorship practices of the High Court where ‘three hands’ appeared to be responsible for authoring most of the judgments, so much so he concluded that ‘[i]t would be cruel, but fair, for the outsider to wonder what the other four judges do, apart from sign on to drafts written by Gummow or French’. See Jack Waterford, ‘Judges Rest their Writing Hands’ Canberra Times 7 April 2012 p 16.

17 Susan Crennan, Foley’s List Event: ‘Celebration of Women in the Law’ speech delivered at the High Court of Australia, Melbourne 16 April 2014 <http://www.hcourt.gov.au/assets/publications/speeches/currentjustices/crennan/Celebration_of_Women_in_the_Law_-_16-04-2014.pdf> (last accessed 4 December 2015).

18 For an examination of the potential for women judges to ‘disrupt’ the prevailing gender regime by contributing dissenting judgments, see Marie-Claire Belleau and Rebecca Johnson, ‘Judging Gender: Difference and Dissent at the Supreme Court of Canada’ (2008) 15 International Journal of the Legal Profession 57. But contrast Heather Elliott, ‘The Difference Women Judges Make: Stare Decisis, Norms of Collegiality, and “Feminine Jurisprudence”: A Research Proposal’ (2001) 16 Wisconsin Women’s Law Journal 41 at 47. Elliot hypothesised that if ‘women are prone to “tend or befriend”, rather than fight or flee, women may be drawn to the work required to come to consensus, thus ensuring continued collegiality’. These seemingly incongruous positions about what patterns in judgment writing might tell us about the relationship between gender and judging actually serve as an important reminder that neither dissent, writing alone, or collegiality (joint judgments) are meaningful without situating those practices within the institutional regime in which they occur.

19 Thornton above note 5 at 209.

20 As above.

21 Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Routledge 2013) 137.

22 Heather Roberts, ‘Women Judges “Maiden Speeches” and the High Court of Australia’ in Beverley Baines, Daphne Barak-Erez and Tsvi Kahana (eds) Feminist Constitutionalism (Cambridge University Press 2012) 113.

23 Justice Crennan’s comments made in the context of a 1992 interview were cited in articles published at the time of her appointment to the High Court. These comments further suggested that women’s careers had been limited by matters of biology (subsequently remedied by the contraceptive pill) rather than other forms of exclusion. See, for example, Michael Pelly, ‘Ex-Teacher, Legal Dynamo and, Oh Yes, a Woman: Welcome to the High Court’ Sydney Morning Herald (online) 21 September 2005 <http://www.smh.com.au/news/national/exteacher-legal-dynamo-and-oh-yes-a-woman-welcome-to-the-highcourt/2005/09/20/1126982062304.html> (last accessed 10 October 2016); Piers Akerman, ‘Left Alone: A Woman who Courted no One’ The Daily Telegraph (online) 22 September 2005 <http://newsgroups.derkeiler.com/Archive/Soc/soc.men/2005-09/msg01024.html> (last accessed 14 June 2011); Fergus Shiel, ‘Bench Pressure Should Suit Court’s New Face’ The Age (online) 24 September 2005 <http://www.theage.com.au/news/general/bench-pressure-should-suit-courts-new-face/2005/09/23/1126982231914.html> (last accessed 5 September 2011).

24 Akerman as above.

25 Phillip Ruddock, High Court Appointment; Naming of Court Building Press Conference Transcript, Commonwealth Parliamentary Offices, Melbourne, 20 September 2005 <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/TQCH6/upload_binary/tqch61.pdf;fileType=application%2Fpdf#search=%22ruddock%202005%20media%20pressrel%20court%20building%202000s%202005%2009%22> (last accessed 14 June 2011).

26 Margaret Thornton, ‘Otherness on the Bench: How Merit is Gendered’ (2007) 29(3) Sydney Law Review 391 at 391.

27 As above at 397.

28 Rosemary Hunter, ‘Women Barristers and Gender Difference’ in Ulrike Schultz and Gisela Shaw (eds) Women in the World’s Legal Professions (Hart 2013) 103 at 119.

29 As above at 119. See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso 2006).

30 As above at 115.

31 Leslie Moran, ‘Judicial Diversity and the Challenge of Sexuality: Some Preliminary Findings’ (2006) 28 Sydney Law Review 565; Leslie Moran, ‘Forming Sexualities as Judicial Virtues’ (2011) 14 Sexualities 273.

32 Heather 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 Law Review 493.

33 Roberts above note 22.

34 As above at 131.

35 For example, Crennan’s status as ‘grandmother judge’ featured in the speeches made at her swearing-in. See Roberts as above at 136.

36 Heather Roberts, ‘Telling a History of Australian Women Judges Through Courts’ Ceremonial Archives’ (2014) 40 Australian Feminist Law Journal 147 at 161-162.

37 In some important respects the timing of judicial farewells is reminiscent of judicial portraiture whereby portraits are painted during the judge’s professional life but only put on display upon the judge’s departure from the Court. Like judicial portraiture, the memorialisation of the judicial subject (reflecting on and commemorating their judicial legacy or institutional ‘life’) occurs at the time of their institutional ‘death’. See Leslie Moran, ‘Judging Pictures: A Case Study of Portraits of Chief Justices, Supreme Court of New South Wales’ (2009) 5(3) International Journal of Law in Context 295 at 298 where he notes the timing of the hanging on the portraits of retiring Chief Justices and explains the ‘double role’ these portraits play in ‘identity formation, first in the self-fashioning of the identity of the individual sitter and secondly in the fashioning of the identity of the institution’.

38 Elizabeth Fullerton, Swearing In Ceremony Of The Honourable Elizabeth Fullerton SC Swearing-in speech, Supreme Court of New South Wales, Sydney, 19 February 2007, at [55].

39 Michael McHugh, Ceremonial Sitting – Farewell to the Honourable Justice McHugh, Sydney [2005] HCATrans 840 (7 October).

40 See, for example, the speeches made at the farewell of Chief Justice Gleeson where the then Attorney-General Robert McClelland gave the lead speech, followed by speakers from leaders at the Bar and finally, the retiring Chief Justice himself: Robert McClelland, Ceremonial – Retirement of Chief Justice the Hon A.M. Gleeson AC, Canberra [2008] HCATrans 317 (29 August). A similar ritual was observed marking the retirement of Chief Justice Mason in 1995: Michael Lavarch, Ceremonial Sitting – Retirement of Chief Justice Mason, C00/1995 [1995] HCATrans 110 (20 April). Attorney-General Michael Lavarch (1995) gave the lead speech, followed by leaders from the Bar, including one Mrs Susan Crennan QC (President of the Australian Bar Association).

41 In 2005 Chief Justice Gleeson presided over special memorial sittings for the late Sir Ronald Wilson and Sir Harry Gibbs: Murray Gleeson, Ceremonial Sitting – In Memory of the Right Honourable Sir Harry Gibbs, Canberra [2005] HCATrans 475 (3 August); Murray Gleeson, Ceremonial – Sitting in Memory of the Late Sir Ronald Wilson, Perth [2005] HCATrans 873 (25 October). More recently, in 2015, Chief Justice French presided over special sittings in memory of the late the Hon. John Toohey and Sir Kenneth Jacobs: Robert French, Ceremonial – Sitting in Memory of the Late the Honourable John Leslie Toohey AC, Perth [2015] HCATrans 182 (10 August); Robert French, Ceremonial Sitting in Memory of the Late the Honourable Sir Kenneth Jacobs KBE QC, Canberra [2015] HCATrans 258 (13 October).

42 Kenneth Hayne, Ceremonial – Farewell to Hayne J, Melbourne [2015] HCATrans 115 (15 May).

43 Robert French, Ceremonial – Announcement of Appointment of Senior Counsel [2015] HCATrans 4 (2 February). However, in the case of Hayne J, French CJ made approbatory remarks at a special sitting in honour of Hayne J’s contribution to the Court. See Robert French, Ceremonial – Farewell to Hayne J, Canberra [2015] HCATrans 105 (13 May). Although any commentary about the reasons for this would be purely speculative, it might have been that there were no other ceremonial sittings scheduled, or it could have been that French CJ wanted to afford special recognition to Hayne J on the occasion of the publication of his Honour’s last Full Court judgment. In any case, no provision was made for reply as part of this sitting but Hayne J but did note how touched he was by this acknowledgement of his contribution at one of the later farewells.

44 French CJ above (February).

45 As above.

46 Daryl Dawson, Ceremonial Sitting – Farewell to the Honourable Sir Daryl Dawson AC KBE, Sydney [1997] HCATrans 265 (25 August).

47 As above.

48 Frank Brennan, ‘My Friend Justice Kirby’ (2009) 19(2) Eureka St 37 at 37. The full ceremony is available for viewing at <http://www.michaelkirby.com.au/content/farewell-ceremony-justice-michael-kirby> (last accessed 7 October 2016).

49 As above.

50 See Michael Kirby, Judicial Farewell, High Court of Australia, Canberra Registry, 2 February 2009 at 3 <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_2feb09.pdf> (last accessed 10 October 2016).

51 Something should be said here about notions of self-effacement and the judicial role. Sandra Berns has argued that judges who come to occupy an iconic status (she cited Justices Murphy and Barwick as Australian examples and Lord Denning in the UK, but Justice Kirby comes to mind as a more contemporary example too) are examples where the public persona of the judge overshadowed their role and diminished rather than reinforced the weight of their judgments and associated legal authority. See Sandra Berns, To Speak as a Judge: Difference, Voice and Power (Ashgate 1999) at 205 and 231. Although Kirby’s sexuality arguably diminishes the extent to which he might be seen to reflect the disembodied legal persona so averred by positivists, it is very difficult to imagine a woman judge departing from tradition in such a way. This is the case because, notwithstanding Berns’s point about the potential for men judges to become so iconic as to disrupt the disembodied legal persona of the judge, women’s corporeality as legal knowers means that the stakes are even higher in securing their authority as legal knowers.

52 Kirby above note 50.

53 Speeches were made by Attorney-General Robert McClelland, President of the Australian Bar Association Tom Bathurst, President of the Law Council John Corcoran, President of the New South Wales Bar Ms Anna Katzmann and the Hon Tom Hughes QC.

54 See Pam Ayres, Owen Dixon (Miegunyah Press 2003) 233 for a discussion about the way in which Sir Owen Dixon’s famous pronouncement about the High Court’s purported approach to Constitutional interpretation at his swearing-in has often been (incorrectly) invoked in accounts of his judicial legacy.

55 Tom Hughes, Ceremonial – Remarks of Final Sitting of Gaudron J, Sydney S00/2002 [2002] HCATrans 636 (13 December).

56 There has been considerable interest in Justice Gaudron’s jurisprudential legacy, and no doubt much of this interest arises from her status as the first woman appointed to the High Court of Australia. For example, an edited collection honouring Justice Mary Gaudron was published in the Public Law Review shortly after her retirement. In the Introduction, Kim Rubenstein noted that the purpose of the collection was to recognise the ‘distinctive contribution of the first and only woman High Court Justice of Australia’. See Kim Rubenstein, ‘Introduction to the Public Law Review Collection Honouring Justice Mary Gaudron’ (2004) 15 Public Law Review 281 at 281. Yet even in the article specifically addressing Gaudron J’s contribution to women in the law through her public speeches, her farewell does not warrant a mention. See Jennifer Batrouney, ‘The Contribution that the Hon Mary Gaudron QC has Made to Women and the Law’ (2004) 15 Public Law Review 339.

57 Mary Gaudron, Ceremonial – Remarks of Final Sitting of Gaudron J, Sydney S00/2002 [2002] HCATrans 636 (13 December).

58 Anonymous commentary published in the legal periodical, Justinian, criticised Justice Gaudron’s appointment at the time of her elevation to the High Court in a piece that acknowledged her academic achievements but countered that ‘academic distinction alone cannot make a practitioner strong in merit’. The columnist therefore reasoned that her ‘melancholy of sins of omission and commission as well as better claims of other candidates’ were all matters which should have counted against her appointment’: cited in Pamela Burton, From Moree to Mabo: The Mary Gaudron Story (UWA Publishing 2010) 258.

59 Although Justice Gaudron did not invoke this language at her farewell, she had attempted to play down the historical significance of her appointment by commenting at her swearing-in that she wanted to be seen as ‘simply one of seven’: Gaudron cited in Roberts above note 32 at 497.

60 Given that Justice Gaudron was much more willing than Justice Crennan to identify with and support feminist critiques of the legal profession, it is noteworthy that the speeches reflecting on Justice Crennan’s retirement evidence a growing willingness to reflect on her status as a woman judge. It might be that during the intervening decade there was a slight shift in how women were received as judges, at least in part informed by the increasing regularity of their appointment. For Gaudron’s views about women in the law, see, for example, Mary Gaudron, Australian Women Lawyers Speech, High Court of Australia, Melbourne, 19 September 1997 <http://www.hcourt.gov.au/assets/publications/speeches/formerjustices/gaudronj/gaudronj_wlasp.htm> (last accessed 14 January 2016).

61 James Peters, Transcript of Proceedings Ceremonial – Farewell to Crennan J, Melbourne [2014] HCATrans 287 (12 December).

62 As above.

63 Geoff Bowyer, Transcript of Proceeding Ceremonial – Farewell to Crennan J, Melbourne [2014] HCATrans 287 (12 December).

64 As above.

65 Justin Gleeson, Transcript of Proceedings Ceremonial – Farewell to Crennan J, Sydney [2014] HCATrans 258 (14 November).

66 Jane Needham, Transcript of Proceedings Ceremonial – Farewell to Crennan J, Sydney [2014] HCATrans 258 (14 November).

67 Her Honour’s expertise in the commercial law field (a field historically dominated by men) might offer some evidence of her negotiation of the masculinist gender regime. Indeed, her success in this field might have further reinforced her steadfast denial that she had suffered discrimination as a woman in fashioning a career in what might be areas of law dominated by men.

68 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 CLR 173.

69 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458.

70 Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42.

71 Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (2013) 253 CLR 284.

72 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247.

73 Peters above note 61.

74 As above.

75 Gleeson above note 65.

76 As above.

77 Harriton v Stephens (2006) 226 CLR 52 involved a wrongful life claim where a child was born with serious congenital defects as a consequence of being infected with rubella in utero. Crennan J had to decide whether the child’s claim (by her tutor) that her life with profound disabilities represented legally cognisable damages. Crennan J held, at 129, that it did not, reasoning that ‘it is odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born’.

78 Peters above note 61.

79 Gleeson above note 65.

80 As above.

81 For example, Carol Pateman and Margaret Thornton have each examined the way in which liberalism constructed women as closer to nature (evidenced by nurturing and other roles associated with the feminine) in ways that rendered the masculine synonymous with disembodied reason and saw women’s corporeality deployed as evidence of their lack of rationality and hence, suitability for public life and authority. See, for example, Carole Pateman, ‘Feminist Critiques of the Public/Private Dichotomy’ in Stanley Benn and Gerald Gaus (eds) Public and Private in Social Life (St Martin’s Press 1983) 281; Margaret Thornton, ‘The Cartography of Public and Private’ in Margaret Thornton (ed) Public and Private: Feminist Legal Debates (Oxford University Press 1995) 1 at 2.

82 Indeed, it is certainly arguable that Kirby J’s dissenting decision (at 100) in Harriton, which would have found for the child on the basis of ‘ordinary principles of negligence law’ embraced a version of humanity which better accounted for the lived experience of the child and her family.

83 Needham above note 66.

84 As above.

85 Bowyer above note 63.

86 Peters above note 61.

87 Susan Crennan, Transcript of Proceedings Crennan J – Swearing-in, Canberra [2005] HCATrans 895 (8 November).

88 As above.

89 Michael Kirby, ‘Women in the Law: What Next?’ (2002) 16 Australian Feminist Law Journal 148 at 154.

90 Susan Crennan, Transcript of Proceedings Ceremonial – Farewell to Crennan J, Melbourne [2014] HCATrans 287 (12 December).

91 Crennan above note 15, emphasis added.

92 As above.

93 Crennan above note 90.

94 As above.

95 As above.

96 Leslie Moran, ‘Forming Sexualities as Judicial Virtues’ (2011) 14 Sexualities 273 at 278.

97 Hayne above note 42.

98 John Eades, Transcript of Proceedings Ceremonial – Farewell to Hayne J, Sydney [2015] HCATrans 90 (17 April).

99 Kenneth Hayne, Transcript of Proceedings Ceremonial – Farewell to Hayne J, Sydney [2015] HCATrans 90 (17 April).

100 Cited in Katie Walsh and Marianna Papadakis, ‘The “Feminisation” of Law up for Debate’ Australian Financial Review (online) 21 May 2015 <http://www.afr.com/business/legal/the-feminisation-of-law-up-for-debate-20150423-1mrmmw> (last accessed 12 January 2016).

101 As above (quoting Justice Margaret McMurdo).

102 As above (quoting Michelle Painter QC).

103 Jean-Jacques Rousseau, Politics and the Arts: Letter to D’Alembert (trans Alan Bloom) (Free Press 1960, first published 1759) 109.

104 Georg Wilhelm Friedrich Hegel, Philosophy of Right (trans Malcolm Knox Thomas) (Clarendon 1967, first published 1820) 166.

105 ‘Foley’s List’ represents one of Victoria’s largest and longest established groups of barristers. Its website describes it as ‘an independent group of over 290 barristers servicing the legal fraternity in all areas of practice’. The website further notes the List’s commitment to equal opportunities for women barristers and describes the Celebration of Women in Law Event as an annual occasion. The nature of the occasion and the List’s purported commitment to equal opportunity likely had some bearing on Justice Crennan’s remarks. See http://www.foleys.com.au/EqualOpportunity.aspx.

106 Crennan above note 17 at 9-10.

107 Waterford above note 16 at 16.

108 Crennan above note 17 at 3.

109 As above.

110 As above.

111 As above.

112 As above at 5.

113 As above at 9.

114 As above.

115 See Crennan’s comments cited in Akerman above note 23.

116 Dyson Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205 at 212.

117 As above.

118 Kiefel above note 14 at 4.

119 As above at 8.

120 As above at 7. Here Justice Kiefel was quoting Lord Neuberger, President of the Supreme Court of the United Kingdom, a fellow supporter of joint judgments.

121 Ruth Bader-Ginsburg, ‘Remarks on Writing Separately’ (1990) 65 Washington Law Review 133 at 142. Obviously there are different patterns of judgment writing on appellate courts and the United States’ ‘middle way’ approach lends itself to writing separately more readily than the more traditional but now somewhat waning British ‘seriatim’ opinion.

122 Debates about institutional collegiality and individual judicial legacy are not unique to Australia and certainly predate the recent tensions generated by Heydon’s speech. A rich body of scholarship has emerged, much of it from the United States, that has begun to explore the conditions that foster and discourage collaborative judgment writing. See, for example, Cass Sunstein, David Schkade, Lisa Ellman and Andres Sawicki, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Brookings Institution Press 2006); Virginia Hettinger, Stefanie Lindquist and Wendy Martinek, Judging on a Collegial Court (University of Virginia Press 2006).

123 Lynch and Williams above note 13 at 1092.

124 As above.

125 Lynch and Williams were referring explicitly to Justice Crennan’s approach to Constitutional matters but her involvement in majority decisions was high across the board in any case.

126 Lynch and Williams above note 13 at 1088.

127 Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2013 Statistics’ (2014) 37(2) University of New South Wales Law Journal 544, 558.

128 As above.

129 Rowe v Electoral Commissioner (2010) 243 CLR 1 concerned the validity of certain provisions which amended the Commonwealth Electoral Act 1918 (Cth) which effectively removed a grace period for new voting enrolments between the issue of the writs and the close of polling. These provisions were held to contravene the requirement, contained in ss 7 and 24 of the Constitution, that members of both Houses of the Commonwealth Parliament be ‘directly chosen by the people’. Justice Crennan essentially agreed with the majority but further emphasised that the democratic right to vote is supported and protected by the Constitution.

130 Those farewelling Justice Crennan did not specify which of the two Williams decisions they were referring to, but in any event Williams v Commonwealth of Australia (1) and (2) both involved (successful) challenges to the Australian Government’s School Chaplaincy Program. In the first case the High Court found that the funding agreement was invalid because it went beyond the executive power of the Commonwealth. Crennan J wrote alone but agreed with those in the majority. Heydon J was the only dissenting judge. The Commonwealth enacted remedial legislation in an attempt to save their School Chaplaincy program in the wake of the Williams decision. The Court held that aspects of those amendments were invalid as they were beyond the Commonwealth’s legislative capacity conferred by s 51 (xxiiA). The decision was this time unanimous (Heydon J had left the Court) but Justice Crennan again wrote alone. See Williams v the Commonwealth (No 1) (2012) 248 CLR 156; Williams v The Commonwealth (No 2) (2014) 252 CLR 416.

131 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 CLR 173 concerned the validity of particular patents. It was a unanimous joint decision of the Court.

132 See IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458. The Court unanimously overturned the Federal Court’s decision and found that IceTV had not infringed Nine’s copyright in television programing. French CJ, Crennan and Kiefel JJ wrote the leading joint judgment.

133 Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 concerned the authorisation of copyright infringement by a person who is neither the owner nor the licensee of the copyright. The key question was whether iiNet (an Australian internet service provider) had authorised its customers’ infringing acts (sharing films on BitTorrent). The Court unanimously held that iiNet’s conduct did not constitute authorisation of the infringing acts. French CJ, Crennan and Kiefel JJ wrote together, and Gummow and Hayne JJ wrote together.

134 Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (2013) 253 CLR 284 concerned whether method of medical treatment of the human body is a patentable invention. Crennan and Kiefel JJ wrote together.

135 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247 considered whether the Patents Act 1990 (Cth) conferred power on the Commissioner of Patents to extend the time within which Lundbeck could apply for an extension of the term of its patent. Crennan, Bell and Gageler JJ held that the Commissioner was permitted to enable such an application whereas Kiefel and Keane JJ dissented.

136 For an analysis of the significance of first or ‘maiden’ judgments, see Kcasey McLoughlin, ‘A Particular Disappointment? Judging Women and the High Court of Australia’ (2015) 23 Feminist Legal Studies 273.

137 Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2010 Statistics’ (2011) 34 University of New South Wales Law Journal 1030 at 1047.

138 Michael Pelly, ‘Susan Crennan Leaves the High Court with a Team Player Reputation’ The Australian (online) 6 February 2015 <http://www.theaustralian.com.au/business/legal-affairs/susan-crennan-leaves-high-court-with-a-team-player-reputation/news-story/97b1fa773eadc839da8acda8054b0127> (last accessed 8 December 2015).

139 See Claire L’Heureux-Dubé, ‘The Dissenting Opinion: Voice of the Future?’ (2000) 38 Osgoode Hall Law Journal 495 at 513-514. Canadian Supreme Court Justice L’Heureux-Dube argued that dissent and collegiality are not mutually exclusive at the institutional level, although is perhaps useful to acknowledge that she was invoking a particular meaning of collegiality in terms of fostering relationships amongst colleagues. L’Heureux-Dube argued that ‘dissenting opinions tend to foster collegial relations among judges, even while they allow them to be true to themselves’. The notion here is that collegiality on the Court will be improved because judges, free to dissent, will not be required to confront and debate decisions or compromise each time they disagree with their colleagues. This view is not necessarily at odds with Kiefel and Crennan JJ’s insistence that ‘collegiality is not compromise’, but rather, emphasises that the ability to dissent is itself important. In any case, even understanding collegiality in the specific way invoked by Kiefel and Crennan JJ, joint judgments might also fall on the side of dissenting judgments

140 Belleau and Johnson above note 18 at 60.

141 As above at 68.

142 As above at 63.

143 As above at 68.

144 Richard Posner, How Judges Think (Harvard University Press 2010) 256.

145 Rackley above note 21 at 177.

146 See Elliot above note 18 at 47. Certainly the notion that women are consensus builders accords with Elliot’s thesis that what has been understood as a ‘different voice’ may instead be ‘women’s response to their position on the bench and the need to forge relationships with their male colleagues’. Although this position arguably reproduces essentialist understandings of the woman judge, it nonetheless reveals the gendered ways in which women’s contributions might be received and interpreted.

147 Rackley above note 21 at 177.

148 Thornton above note 5 at 3-4.

149 Rackley above note 21 at 137.