Thirty-two years after Sandra Day O’Connor was appointed to the United States Supreme Court, thirty-one after Bertha Wilson was appointed to the Supreme Court of Canada, and twenty-six after Mary Gaudron was appointed to High Court of Australia, there is no longer any need to defend the suitability of women to serve on their countries’ highest courts. All three First Women had distinguished careers, as their successors are currently doing. Although women Justices remain a numerical minority, three now sit on each of these courts, and in Australia, with a bench of seven, three is as close as you get to parity. Two recent constitutionally-mandated retirements provided the opportunity for the then Australian Attorney-General – herself a woman – to appoint a fourth woman to the High Court and to achieve, with one swoop, an unprecedented numerical majority and a victory for the empowerment of women. The appointments, in the event, were unobjectionable. Two eminently-qualified men. Still, it was disappointing. But why?
There are at least two answers. The first, which is relatively uncontroversial, is that regular, even routinised, appointments of women to positions of authority reflect progress in the societal acceptance of women as decision-makers. Individual women, thus, stand for all women, or at least as harbingers of further progress. Four women out of seven would have recorded a radical shift in Australia’s legal culture since Gaudron took her place in 1987, alone in a masculine world. Still, three is encouraging: not quite a deluge, but not a drop in the ocean either.
The second answer is much more contentious. It is that the life experience of women, different from that of men, will be reflected in their judicial practice. The more the bench is able to understand the full range of experiences in the population, the better justice will be served. Some commentators go further and maintain that women, as such, bring a different perspective to judging, even a different judicial ‘voice.’
Much has been written about whether it makes a substantive difference, either in reasoning or outcome, when women serve as judges. Women judges themselves have contributed to this discussion. Almost all conclude that there is some identifiable difference, but few can, or are willing, to say exactly what, and there is an understandable reluctance to imply that women think differently because they are biologically different. But having women on the bench is a value in itself and need not depend upon a demonstration that gender makes an attributable difference.
Sometimes, however, a case occurs where the gender divide is striking. Questions are raised (if not answered) about whether it is a simple coincidence that the male judges all concurred on one side, and the female judges did likewise on the other. The recent Australian case Monis v The Queen is such a case. It was also numerically unusual. Only six Justices sat – three men and three women - creating the opportunity for an even split. And this, indeed, is what happened.
Monis came to the High Court by way of appeal from the New South Wales Court of Appeal. It concerned a challenge to an offence under a provision of the federal Criminal Code which prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, ‘offensive’. The first appellant, Man Haron Monis, had sent personal letters and a recorded message through the post to parents and relatives of soldiers who had been killed in action in Afghanistan. The second appellant, Amirah Droudis, had aided him. Their letters included false expressions of sympathy, quickly followed by personal abuse against the deceased (among other things, calling them ‘murderers’, ‘pigs’, and ‘dirty animals’, and describing them as morally inferior to Hitler)*. This, not surprisingly, had caused offence, not to mention deep distress, to the recipients.
Monis and Droudis did not deny their conduct. They claimed, however, that the offence under which they were indicted breached the Constitution’s implied freedom of political communication. Although the letters dealt with personal tragedies and targeted private individuals, they were styled as forms of political protest against Australia’s military involvement in Afghanistan. Had the court dismissed this characterisation claim, there would have been no case for an appeal.
The political content of the letters was critical. The Australian Constitution provides a guarantee of free speech by implication from Australia’s constitutionally mandated system of representative democracy (which is inoperative without the freedom to communicate political messages). It thus protects only political speech. Although the court has defined ‘political’ very broadly, it has resisted the expansion of this guarantee into a generalised protection of free speech. No freedom, of course, is absolute. A law which burdens political communication or speech may nevertheless be valid, if it is appropriate and adapted to serve a legitimate purpose in a manner compatible with the maintenance of Australia’s constitutional system of government. It was this test, then, that was applied to the law under which Monis and Droudis were indicted.
All the judges agreed that the content of the letters was relevantly political and that the law in question had the effect of burdening the freedom of political communication. They disagreed, however, about its legitimacy. Strikingly, all the men found the law unconstitutional, and all the women, writing jointly, found it valid. Since there was no majority, the decision of the lower court was affirmed. Thus, Monis and Droudis lost their appeal.
This result might have been unremarkable, except for the case’s subject matter. Deep personal feelings were involved, family tragedies, the unbearable pain a parent feels in losing a child. None of the judges was insensitive to this dimension. Indeed, Justice Dyson Heydon began his judgment with an astonishing disquisition on the greater pain experienced by a parent at the death of a child compared to the experience of the adult child at the death of an elderly parent. He illustrated the former with a poem, ‘My Boy Jack’, written during the First World War by a father who had lost his son, describing both the searing grief and the consolation to be had from the fact that the boy had died in service to his country.
The emotional logic was powerful, but the legal logic was more elusive. It appeared to go like this: conduct of the nature in question is especially egregious. It does not lie on the borderline where ‘mere offence’ might be invoked to cloak the suppression of views. All reasonable people would consider such letters to be objectively offensive and deservedly outlawed. Bewilderingly, however, Heydon did not follow this logic. He found the law to be valid. He had never agreed that the Constitution included a freedom of political communication, he said, but (to paraphrase) since the court had affirmed this many times, there was no alternative. Australians could now get a taste of just how awful the result could be. The result, he wrote, ‘demonstrates how flawed [the] law is.’
In contrast, Chief Justice Robert French and Justice Kenneth Hayne, writing separately but with concurring reasoning, raised the spectre of awfulness in the law itself. Its effect, they suggested, would be to ‘chill’ speech. The law was overbroad and the test of objective offensiveness (to paraphrase) offered an open door for suppressing socially unacceptable speech. History, Justice Hayne wrote, ‘teaches that abuses and invective are an inevitable part of political discourse’. Their very point is to cause offence. Democracy just has to live with this. Protecting civility in political discourse is not a legitimate governmental purpose.
Justice Heydon, as we saw, claimed there was no alternative but to find the law invalid. This, given the outcome, was questionable. The women judges, speaking as one, offered an alternative. They did not challenge the implied freedom of political communication, but held that the law’s purpose of protection against this particular type of offence was legitimate and constitutionally compatible. They stressed the extreme nature of the offence, and the capacity of the law to confine itself to extreme conduct.
Women have long been sensitive to the down-side of free speech. Pornography is understood as harmful and degrading of women and it is largely (although not universally) condemned by feminists; yet it is protected as ‘speech’ under the U.S. Constitution. (Consider, in contrast, the South African Constitution which also protects freedom of expression, but not expression which amounts to ‘advocacy of hated based on … gender .. that constitutes incitement to harm’). Feminists have also questioned the American ‘fighting words’ test under which the protection offered by the U.S. First Amendment is withdrawn where the speech is likely to incite immediate physical retaliation. Women, they note, are less likely to strike back if provoked by speech. In the Australian context, Adrienne Stone has drawn attention to Chief Justice Murray Gleeson’s context-sensitive example, in the case of Coleman v Power (2004) concerning the Queensland Vagrants Act which, among other things, prohibited the public utterance of ‘threatening’, ‘abusive’ or ‘insulting’ words. The Chief Justice evoked the picture of a mother in a public park, who is subject to abuse or threats by strangers, and who chooses to leave quietly with her children rather than respond physically. Under the ‘fighting words’ test, she – unlike the violent retaliator (most likely male) - would be unprotected by the law.
Let us complete the logic in the shared recognition by Justices Susan Kiefel, Susan Crennan, and Virginia Bell that the conduct in the Monis case was objectively offensive. Abusing people whose children have died is not a reasonable form of political speech; using the postal service to do this is not a valid public activity. Indeed, if it is legitimate (as it would be) for the law to prohibit the hoax sending of sachets of flour disguised as anthrax, notwithstanding that a political message was written on the packet, then it is legitimate to prohibit the type of communication engaged in by Monis and Droudis. Nothing in the law prevented the appellants from using other forums for their views. They could have handed out leaflets, or placed advertisements in the paper, or shouted out at speakers’ corners in parks. The offensive words would still be there, but they would be directed to ‘the world’, detached from the private and captive experience of reading an abusive letter on the subject of one’s deepest personal grief.
The women judges’ joint judgment highlighted this difference. They stressed the method of communication and (as Gleeson CJ had done in Coleman) the context in which the offence was committed and experienced. In their words, ‘[t]he modern approach to interpretation … requires that the context be considered in the first instance and not merely later when some ambiguity is said to arise’. One cannot help noticing the coincidence between this statement and the observations of women judges and feminist scholars: attention to context and experience is the one common theme in all the tentative accounts of what makes the ‘feminine’ judicial voice distinctive. The fact that an individual male judge (despite his manly display of self-denying fortitude), at least hesitated to extend protection to speech that causes such offence – not because of the values or beliefs held by the target of the speech, but because of the inherent nature of parental love - demonstrates that it is not a matter for women alone.
But, just maybe, the advent of women on the bench and the ‘modern approach’ are connected in subtle ways of which we are occasionally permitted to see a glimmer.
* The Court was invited to consider the U.S. case of Snyder v Phelps (2011), which involved roughly similar facts (albeit the conduct in question was in public), but declined to find an analogy between the Australian implied freedom of political communcation and the U.S. First Amendment protection of free speech generally.