CONDOLENCES

Ms CLUTTERHAM (Sturt) (19:12): It's a privilege to rise today to speak about the Hon. Mary Gaudron KC, the first woman to take silk in New South Wales, the first woman to serve as state solicitor general and, in 1987, the first woman appointed to the High Court of Australia. I rise not as someone who knew Justice Gaudron, as my friends the member for Fenner, the member for Indi and the member for Berowra did; all made heartfelt and meaningful contributions this evening.

But I rise as someone who was impacted by her and who greatly admired and respected her. I wish I had had the chance to meet her and go to one of her champagne parties that the member for Fenner told us about this evening, which sounded truly excellent. I commenced my law degree at the then University of Adelaide in March 2001, in my second year of uni.

I was two months shy of being 19, and I found law really hard. At the University of Adelaide there was a really heavy focus on legal theory and a great emphasis on precedent with hours spent trying to find the obiter and distinguish it from the ratio in really dense, long judgements. In 2001, the composition of the High Court of Australia was as follows: Chief Justice Anthony Gleeson, Justice Michael McHugh, Justice William Gummow, Justice Michael Kirby, Justice Kenneth Hayne and Justice Ian Callinan—all men.

We also, of course, had Justice Mary Gaudron, the only woman. I admired her greatly. As part of the Bachelor of Laws degree, as I said, we had to read a lot of High Court judgements.

To be frank, the most popular judge wasn't Justice Gaudron; it was Justice Kirby. His progressive approach made him stand out on that bench, which I thought generally applied a more conservative black-letter approach to the Constitution, so I too was on the Kirby bandwagon. But there was another judge I always sought out when reading a judgement, and that was Justice Mary Gaudron.

I was not alone in seeking her out. What did she say? What did she think?

What perspective did she bring? Did she write the majority or join it? Did she write a dissent or join it?

Her views were always of great interest to me, not only because of the high-quality way that she constructed her position and the high-quality way she analysed the various competing and complex arguments put before her but, yes, because she was a woman, that first woman on that High Court bench dominating and leading and being excellent in a profession that was, throughout her career, absolutely run by men.

We've all heard her stories—law firms telling her they don't hire women as a general policy, barristers' chambers refusing her the opportunity to buy into a room when she joined the bar in 1968. But she persevered and she succeeded in circumstances when it might have been easier to stop and do something else. She had something to offer—a great intellect, work ethic and a sense of social justice—and she wanted to contribute, and jurisprudence in this country is better for her having had the gumption to just ignore those who told her no, to just crack on and find her own path.

That path led her to be appointed to the High Court bench at the age of 44. That's my age right now, which is why I find her feat even more remarkable. Having reached this age of 44, I think I admire her and her achievements more than ever now.

When I started reading Justice Gaudron's judgement in the early stages of this century, it was in an era when the legal profession was dominated by men still. More women than men were starting to study law at university but there was a dearth of female barristers, a dearth of female senior associates, special counsel and partners. The way that the law was practised was heavily and almost exclusively about how much time you were present in the office, slaving away over those little billable hours.

It wasn't conducive with having a family or, frankly, a life. There also remain stubborn attitudes about women's capability, intellect, together with questions about whether they possess the necessary aggression and disposition to really handle being a top lawyer. These attitudes persisted during my 20-year career, but I always thought, 'If Justice Gaudron could do it then so could I and so could other women.' I saw women lawyers routinely allocated tasks like preparing documents to go in a brief to counsel, with their male colleagues—often more junior—getting to write the actual brief to counsel.

I saw women regularly allocated to smaller cases, which would bring in less money for a firm, or allocated to non-billable work like presentations and articles, with their male colleagues given roles speaking to and directly advising clients. This happened regularly. At a previous firm I was working at in the not too distant past, there was one woman partner in the whole of Australia.

When I asked the male global managing partner what the plan was to mentor, sponsor and promote more women, I was told that the strategy was to wait for the men to die—then the women would get an opportunity. When I was a young lawyer, I had a client ask me to read a contract but then 'get someone with brains to read it'. I did a fair bit of advocacy in international commercial arbitration proceedings and I regularly had clients not want me to do that, even though I was half reasonable at it, because I was a young woman.

But the attitudes and barriers that Justice Gaudron faced were far more significant than my experiences. She persevered and she became a High Court judge. Her appointment and her tenure on the bench are significant for the entire legal profession, not just for women.

Men could also see her value, and we heard her value being spoken about tonight by the member for Fenner and the member for Berowra. They could see her intellect, her sharpness, and they respected it. But most importantly, women could see her.

We often say 'you cannot be what you cannot see', so to Justice Mary Gaudron, I say: I saw you. I heard you. I read your words and I thank you for them and for paving the way for Justice Bell, Justice Kiefel, Justice Gordon, Justice Jagot and Justice Jacqueline Gleeson to make their way to the High Court bench.

Some of Justice Gaudron's words were significant, and she penned the majority judgement with Justice Deane in Mabo v Queensland (No. 2), which recognised the existence of native title in Australia under common law operating to firmly and rightly acknowledge the connection that First Nations people have with this country. Justice Gaudron's judgement was significant, finding that native title rights were sourced from Indigenous laws and customs and not from a grant from the Crown and that the doctrine of terra nullius was not applicable to Australia at the time of British settlement in New South Wales.

This has shaped modern Australia, and the significance of this judgement and Justice Gaudron's contribution in this respect continues today. It is an incredible legacy. Mary Genevieve Gaudron was a trailblazer.

She understood and accepted this. But it was her fervent wish that, in her lifetime, women's achievements in the legal profession would be characterised not as trailblazing but as business as usual. In her swearing-in speech in 1987 she said: Because I believe that too often we emphasise difference at the expense of common cause, I would wish that the day had arrived when the appointment of a woman to this Court was unremarkable.

Well, the current High Court benefits from three out of seven justices being women. Thanks to Justice Gaudron, having women on the High Court is no longer something that is nice to have; it is something we expect. I extend my deepest condolences to Justice Gaudron's family and to the legal profession.

May Mary Gaudron rest in peace.