Clients boycott women at their peril, says Chief Justice

Robert French rejects coercion as a solution to the under-representation of women at the senior ranks of law firms.

Outgoing Chief Justice of the High Court of Australia Robert French in his chambers at the High Court in Canberra. Picture: Ray Strange

Chief Justice Robert French has rejected coercion as a solution to the under-representation of women at the senior ranks of law firms and believes the way forward lies in education and cultural change.

He praised the work of the Law Council, the Australian Bar Association and The Australian in drawing attention to the need to remove barriers that impede the careers of women lawyers.

He said he had no wish to criticise law firms because he believed a range of factors was impeding the progress of female solicitors.

However, he believed some of the clients of law firms still held the “misguided” idea that male lawyers in particular matters would do a better job than female lawyers.

In an interview in his Canberra chambers, Justice French said part of the solution depended on showing those in business who formed the client base of law firms that excluding women lawyers was not in their interest.

He believed this process was being assisted by “the sort of thing you are publishing, the sort of activity the Law Council and the ABA have undertaken and hopefully a more educated generation of executives and business ­people”.

The Chief Justice was speaking after examining the findings of The Australian’s partnership survey showing women account for an average of just 18.5 per cent of equity partners at 45 of the leading firms, up from 17.8 per cent at this time last year (see accompanying report).

His support for education and cultural change comes ahead of his retirement at the end of next month after a career that has included eight years as chief justice of the High Court and 22 years on the bench of the Federal Court.

He said there was no doubt the issue of gender equality was of concern to the leaders of the profession and it was clear they wanted faster progress.

“But there is always a difficulty in trying to get coercive and prescriptive in bringing about culture change,” he said.

He believed progress might simply be a matter of education and cultural change. “And you can’t change culture with rules.

“It is not just about solicitors and their culture, but some classes of client who might have a misguided idea that in a particular case, a man is going to be better than a woman.

“If you are going to overlook the best person because they are a woman, then you are harming your own interests.

“It is recognition of your own interests that is going to move firms and their clients in the direction of adopting work practices and approaches to advancement that don’t disadvantage women or anybody who might want a more flexible workplace.”

He said he was well aware of the fact that the pool of potential female candidates for partnership was frequently depleted because some senior solicitors were leaving to join in-house legal departments.

On constitutional interpretation, Justice French said it was misleading to attempt to categorise judges based on whether they were “originalists” or believed constitutions should be adapted to changing circumstances.

When he interpreted the Constitution, he said he did not seek to apply any “global theory of interpretation”.

“A good illustration of it is the approach that I took in the mineral resources rent tax case,” he said.

“You are working with a text, but it is a text that was designed as a constitution. It was looking forward to the future. There will be changing circumstances.

“You look at the parameters established by the way in which they approach drafting and the words themselves, and then you look at the way it has been interpreted and then you build on that.

“It’s not up for grabs every time, as it were, as though it’s just on a clean slate. It’s embedded in that history.”

He said it was oversimplifying the judicial function to attempt to pigeonhole judges as originalists or activists.

“People will always try to label or pigeonhole it if it advances a particular line of debate they might have about the direction of a particular decision. But it becomes a rhetorical device.”

He said the term “judicial activist” had been coined in 1947 by Arthur Schlesinger in Fortune magazine and its meaning had subsequently been explored in thousands of journal articles.

In 2007, before he was appointed to the High Court, Justice French gave a talk in which said the heart of the debate about judicial activism really concerned the separation of powers.

“I said judges have a legislative function because they develop the common law, make choices about statutes which in the end determine what the law is. You can’t pretend that is not the case.

“But there are limits beyond which they cannot go without being seen as entrenching upon the proper function of the lawmakers — the elected lawmakers.”

He believed it was futile to argue about whether judges should make law and discussion should instead focus on how judges should make law.

He gave the example of the law of negligence that had been developed over a long period by judges and had been affected by statutory change.

“The common law part of it has been developed by judges,’’ Justice French said.

“There is an incremental ­lawmaking function that everybody has recognised as legitimate.

“Sometimes, of course, there is debate about whether the judges have gone too far.

“Mabo was such a decision. We have all settled down about that now and there has been statute which sets up the process by which the common law is to be applied.

“But none of that detracts from the proposition that judges do have a legitimate lawmaking role. It is fantasy to pretend otherwise.”