The historic appointment of Jayne Jagot to replace Justice Patrick Keane on the High Court gives the court a majority of woman justices for the first time in its nearly 120-year history.
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While a long time coming, this milestone could have been achieved 10 years earlier during Nicola Roxon's term as attorney-general. In August 2012, Stephen Gaegeler was appointed to replace William Gummow, followed in November of that year by Patrick Keane's appointment to replace Dyson Heydon. Heydon had been appointed to replace Mary Gaudron, the first and only women High Court judge until 2005. If Labor had returned Heydon's seat to a woman, then the Labor government could have marked this achievement in 2012, for by then Susan Crennan, Susan Kiefel and Virginia Bell were all on the bench.
While we have finally achieved four women and three men on the High Court of Australia, this may not necessarily be embedded. The reality of a healthy gender equal cabinet in the Albanese government gave us the greatest possibility for the Attorney-General to be supported in achieving this milestone. But this is not a guaranteed future.
In celebrating this important coming of age in 2022, many have referred to Ruth Bader Ginsburg's simple answer when asked at what point there would be enough women on the bench? "When there are nine." But this would not be a healthy institutional outcome.
Just as it was not ideal having all men on the High Court for most of its life, so too would it not be ideal to have only women or a majority of women from now going forward - we'd need the next 49 appointments to be women to equalise the numbers overall.
Instead, we need to embed as far as mathematically possible, equal numbers of men and women on the court at all times which ideally means alternating the fourth spot - four women, three men justices now, four men, three women justices when the next vacancy falls due.
As it happens, the next vacancy will be when the Chief Justice Susan Kiefel retires in January 2024, also providing the opportunity to entrench a female, male alternation of the position of Chief Justice.
This is more than symbolism; it will be an important structural representation of a democratic system committed to ensuring diversity and equality of civic participation and capacity for the highest office. It will prevent backsliding which is not without precedent.
In December 2011, the country's first female PM Julia Gillard watched on as the first female governor-general Quentin Bryce swore-in the first female attorney-general, Nicola Roxon.
Just over a year later in 2013, the same governor-general was swearing in Tony Abbot's first ministry with only one woman in its cabinet. And the one- and only-woman governor-general Quentin Bryce has been followed by two men.
As all those speculating on each High Court appointment know, there is never only one best person for a High Court vacancy - there is always a pool of available appointees. Moreover, we need to unpack, what we mean by merit when selecting appointments. Critically, who determines merit?
In previous times, predominantly male cabinets decided on their version of the best person for the job by seeking reflections of themselves and what they understood as depictions of merit.
The characteristics we want in High Court judges include integrity, wisdom, intellect and judgment. These characteristics are not gender specific, although because men have traditionally exercised public positions of power, there has been a subtle implication that men best reflect these characteristics. But other matters important to the position include: reflection of the community, responsiveness to the community's needs, life experiences which reflect those of the community.
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Currently, section 6 of the High Court Act states, "where there is a vacancy in an office of justice, the attorney-general shall, before an appointment is made to the vacant office, consult with the attorneys-general of the states in relation to the appointment".
This sentence could be amended to include, "and to ensure that a continuing 4-3 gender split be maintained on the High Court, with wherever possible the position of Chief Justice alternating on the basis of gender."
In a world in which we can accept gender is not binary, the commitment to inclusion which underpins this structural move would also include in each category at each appointment people who identify as non-binary and trans. And by using this open categorisation as a structural commitment it would open up the discussion about other forms of diversity within these groupings - First nations people, people from migrant and ethnically diverse backgrounds, and the rich range of qualified and meritorious lawyers to be considered who would bring to the law and their practise of it their own experiences.
It was no doubt life experience that assisted Chief Justice Kiefel and her fellow judges when responding to the allegations around Justice Dyson Heydon.
With a majority of women now on the bench it will be important to bake in diversity into the appointment process, as this is part of the meritorious equation. Law is not just a scientific tool used to determine answers - it is full of values, and values are developed through life experience.
- Kim Rubenstein is a professor at the University of Canberra and Academic Director of the 50/50 by 2030 Foundation.
