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According to merit?: Looking for Ms Right

Every Issue

Cite as: Jan/Feb 2010 84(1/2) LIJ, p.75


Women should not be held to a higher standard than men as there is no gender divide when it comes to mediocrity.

Some of the women appointed to judicial positions are very good but some are not and that is the issue . . .

“Some of the bad appointments were an attempt at gender balancing by the Attorney-General. It is a terrible nonsense all this stuff about widening the horizons and getting judges from different walks of life.” 1

What a surprise – not all women are perfect. And here’s an even greater one – neither are all men! Why is it that there is this continued overly excessive scrutiny of women judges, politicians and board members that we do not exercise in relation to men? And why is it that: “Between a man and a woman who hold the same job, shoulder the same burdens at home and have the same education and skills, the woman is likely to feel she must work harder”?2

And is it, at least in part, responsible for the relative dearth of women in leadership positions in Australia – in all arms of government and in private enterprise?

Victorian Attorney-General Rob Hulls has had an outspoken commitment to changing what he perceives to be the “boys club” nature of the legal profession, in particular the Bar and the judiciary, and to enhancing cultural change in the profession by looking beyond “the usual suspects”.3

Not only have a significant proportion of his appointments been women, he has also changed the nature of the appointment process. Since 2000 for the magistracy and 2001 for superior courts, Mr Hulls has actively sought expressions of interest for appointment from members of all sectors of the profession, private, community and government, with applications from women, people with disabilities and of indigenous or culturally diverse backgrounds encouraged.

The position of Chief Justice of the Supreme Court was advertised in 2003, resulting in the appointment of Chief Justice Marilyn Warren (www.courts.vic.gov.au, accessed 28 April 2008). There is also the point that judges, male or female, are drawn from well-educated, financially secure backgrounds. Indeed, the dilemma for many is that their income will drop significantly on appointment to only about five times the average weekly wage with generous pension entitlements.4 Government boards equally have gender and culturally inclusive selection criteria and policies.

In Victoria the aim is that 50 per cent of all appointments to boards and committees will be women. This will help to reverse what is both a clear and a worrying trend – the number of women on boards and in executive management positions has declined since 2006 and in some cases reverted to pre-2004 levels, with Australia now trailing the US, UK, South Africa and New Zealand.

Conducted by Macquarie University in 2008, the Equal Opportunity for Women in the Workplace (EOWA) Census shows the number of women executive managers in the ASX200 has declined to 10.7 per cent from 12 per cent in 2006 and 11.4 per cent in 2004. The number of companies with no women executive managers has risen sharply to 45.5 per cent from 39.5 per cent in 2006.5

Author, columnist and former political adviser Dr Anne Summers, speaking at the 2009 Victorian Premiers Conference on Women on the theme “Women’s Leadership in the Workplace”, highlighted the significant discrepancy between men’s and women’s participation in the workforce and the even more significant pay gap.

In what she termed “the GFC that is much closer to home, the Gender Fairness Crisis”, Ms Summers pointed out that: “On virtually every measure, women are behind – and going backwards”.6

Are quotas and policies, such as those of the Victorian government, the best way to arrest this decline?

Victorian Minister for Women’s Affairs, Maxine Morand, seems to thinks so. On Equal Pay Day 2009, she challenged Victorian companies to set “ambitious targets to recruit more women onto their boards and to review the salaries of women employees compared to the male employees . . .

“Legislation may be needed to set quotas for board appointments in the private sector given that only 8 per cent of board members in the top 200 are women.”7

But this will never be achievable while the community expects any women appointed to be better than any man appointed to a similar position.

Jokes that “Whatever women do they must do twice as well as men to be thought half as good” unfortunately ring true.

Mediocre women exist, just as mediocre men do, and occasionally examples of each will be appointed judges, board members and community leaders.

This should not act as an argument against their appointments. It could, however, be a reason for clearly identifiable selection criteria rather than appointment based on nebulous concepts such as merit.


DR LIZ BISHOP is a lecturer in health and human rights, Department of Epidemiology and Preventive Medicine, Monash University.

1. Former County Court Judge John Barnett as quoted in “Judges reject old boy label”, Herald Sun, 30 September 2009.

2. EH Gorman and JH Kmec, “We (have to) try harder: gender and required work effort in Britain and the United States” (2007) 21 Gender & Society 828.

3. Attorney-General Rob Hulls, Letter to the Editor, Herald Sun, 2 March 2006; “Judges reject old boy label” Herald Sun, 30 September 2009.

4. Regina Graycar has pointed to this divide saying: “It may be the case that women judges in Australia have more in common with their white, male counterparts than they have with women who are sole parents living on social security, or rural Aboriginal women, or immigrant women doing piecework”: “The gender of judgments: an introduction” in M Thornton, Public and Private: Feminist legal debates, Oxford University Press, Melbourne, 1995, 265.

5. 2008 EOWA Australian census of women in leadership as at www.eowa.gov.au.

6. See http://annesummers.com.au/wp-content/uploads/2009/09/Victorian-Premiers-Womens-Summit-2009.pdf (accessed 26 November 2009).

7. Maxine Morand, media release, 1 September 2009 “Supporting the Victorian community to reduce the pay gap” as at www.pb.org.au.

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