Inclusion and Diversity Note - Sybil Morrison Lecture 2021: Mary Gaudron QC

28/09/2021

Sybil Morrison was the first woman admitted to the New South Wales Bar. In celebration of her achievement in 1924, the Bar Association hosts an annual lecture given in her name. This year’s lecture recognises the Honourable Mary Gaudron QC and her contribution to the law. Mary Gaudron was this state’s first female Solicitor-General and, in 1987, the High Court’s first female justice.

Such achievements would be remarkable in any time but were all the more so given the headwinds confronting her. Justice Gaudron’s appointment to the High Court engendered complaints of tokenism and favouritism. Justice Gaudron was both direct in addressing such views and prescient when, at her swearing in, she stated that “too often, we emphasise differences at the expense of common cause [and] I would wish that the day had arrived when the appointment of a woman to this Court was unremarkable.” Amongst the differences that quickly went in pursuit of a common cause was that founded on the practice of referring to judges as “Mr Justice”. Now justice was to be dispensed without reference to a badge of gender.

More striking still was an aspect of Justice Gaudron’s judicial method, which she described as an obligation to ensure equality before and under the law. As the Hon Justice Roslyn Atkinson AO noted in her Selden Society Lecture, Justice Gaudron saw inequality as being the different treatment of people who were equal and the equal treatment of people who were different.

As Atkinson also noted, her Honour found that the differential treatment of those who are, relevantly different, will amount to unlawful discrimination unless that treatment is reasonably capable of being seen as appropriate and adapted to that difference. Substance was important; in the field of employment law, Justice Gaudron also found that a ‘last on, first-off’ policy of retrenchment constituted unlawful discrimination because it benefitted male over female employees as a result of past recruiting practices. The composition of the workforce was itself the product of past discrimination on the grounds of sex.

A concern for equality under the law also informed her Honour’s contribution to the law of equity. In Singer v Berghouse [No 2] (1994) 181 CLR 201, Justice Gaudron dissented on the question whether the maintenance in favour of a widow was adequate, drawing attention to the tendency of the courts to overlook or undervalue women’s work, including in the home. Her Honour considered that the widow’s decision to give up employment and look after her husband represented a considerable contribution on her part. In Baumgartner v Baumgartner (1987) 164 CLR 137, the Court found that a man held property on constructive trust for his de facto partner with the beneficial interests of the parties being in proportion to their contributions. Justice Gaudron joined with the majority, emphasising that the parties’ contributions should be adjusted to reflect the amount that the woman would have contributed had she not been pregnant with and caring for their child.

In her swearing in speech Justice Gaudron noted that her appointment was the result of the courage, determination and professionalism of women who made their mark when the value of women’s contribution had to be established. Sybil Morrison was one of many of such forebears; the lecture is the occasion to mark what has been done and what remains to be done.

Author: Miles Condon SC