Without fear or favour, affection or ill will: addressing gender bias in NSW judicial education[1]

Kate Lumley[2]

This article traces how gender equality has evolved conceptually and provides an overview of the educational initiatives in place for raising gender awareness among members of the NSW judiciary. The author gives examples of gender bias and explores some of the seminal policy and legislative responses at State and federal levels during the reformist decades of the 1970s to the 1990s. North American jurisdictions played an important role in raising judicial awareness of gender bias in the 1980s, with this issue coming to prominence in Australia in the 1990s. The author describes the work of the Judicial Commission of NSW in this area, including training sessions on gender equality, both discrete and as part of integrated education initiatives; its involvement with the National Judicial Orientation Program; and the launch of its Equality before the Law Bench Book in 2006.

Equality is an evolving and controversial ideal.[3] Since antiquity, concepts of equality have informed Western thought about justice, politics, social structure, ethics, morality and religion. Equality emerged as a modern concept from Enlightenment philosophy and was one-third of the slogan of the French revolutionaries who violently sought freedom from the oppression of the ançien regime. Enlightenment ideas of moral equality were eventually adopted in modern constitutions and declarations of human rights.[4]

Defining gender equality

Calls for gender equality found public expression during this era of political and social upheaval. In France, Olympe de Gouges published her Declaration of the Rights of Woman and the Female Citizen in 1791. In Britain the following year, Mary Wollstonecraft published her arguments for substantive equality and a rational education for women in A vindication of the rights of woman: with strictures on political and moral subjects.[5]

While equality has remained the aspirational objective of freedom from oppression and discrimination, the scope of equality has evolved over time. What was regarded as gender equality by Mary Wollstonecraft and Olympe de Gouges, or by the suffragettes in the 19th century, or by the second wave of feminism 60 years ago that broadened the debate about women’s human rights, has changed with community values. Legal recognition of gay marriage is a contemporary example of the evolving scope of equality. After considerable community debate and a national postal survey, the Australian Parliament amended the Marriage Act 1961 on 9 December 2017 so that the right to marry was no longer determined by sex or gender.

Gender inequality has a diversity of meaning both as to its impact and how society should counter it. It embraces the unequal treatment of men and women (that is, discrimination), inequality of opportunity, and inequality of outcome. Discrimination arises out of both the “unequal treatment of equals, and conversely ... the equal treatment of unequals”.[6] This expresses the Aristotelian idea of formal equality and underlies the basis of direct and indirect discrimination. Gender bias, a corollary of unequal treatment, has been defined as a “form of subtle but potent discrimination”,[7] and as systemic in nature.[8] Gender bias takes many forms. It manifests in both individual actions and attitudes, in cultural traditions, in institutional and corporate practices, and in the language of the elite. For example, the original Anti-Discrimination Act, enacted in NSW in 1977, did not use gender neutral language, instead employing the masculine third person pronoun. It was unlawful for an employer to discriminate against a person “on the ground of his sex” [emphasis added].[9] The Act was only changed to gender neutral language 17 years later in 1994.[10]

Gender bias includes undervaluing or not valuing domestic contributions;[11] lack of equal opportunity in the workforce; lack of diversity in senior roles including judicial appointments;[12] inequities in pay scales;[13] reliance on stereotypical attitudes about women and their roles, capacity and ability; the privileging of a male-defined norm, for example, the reasonable man test used in the common law;[14] the disproportionate numbers of female victims of domestic violence and sexual assault;[15] the significant underreporting of domestic violence, sexual assault and sexual abuse;[16] and the lack of procedures, until relatively recently, to minimise the trauma for victims in sexual assault trials.[17]

Closing the door on moral conservatism: government reform 1970s–1990s

The Australian federal government began to address the issue of substantive equality for women in the reformist decade of the 1970s. This was the era of social liberalism when Australia turned its back on the moral conservatism of the Menzies era.[18] No-fault divorce was introduced[19] and free tertiary education. As has been observed, the 1970s saw the development of a “robust civil society [that] enabled feminism in its many guises to emerge and establish itself as a political force for change”.[20] In NSW, the State government enacted the Anti-Discrimination Act in 1977. This included Parts III and IV which proscribed discrimination on the ground of sex and marital status in employment and in the provision of specified goods or services subject to certain exceptions.

The following decade saw the Commonwealth of Australia enacting the Sex Discrimination Act (“SDA”) in 1984 and the Affirmative Action (Equal Opportunity for Women) Act in 1986. These Acts gave effect to the Commonwealth of Australia’s obligations under the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) which Australia had ratified in 1983.[21]

The early 1990s saw the issue of equality for women firmly on the federal government’s policy and legislative agenda.[22] The government funded the National Committee on Violence Against Women which published a highly regarded report in 1992, the National strategy on violence against women.[23] During the election campaign in February 1993, the Prime Minister announced the federal government’s “New national agenda for women”.[24] An element of this agenda was the reference to the Australian Law Reform Commission (“ALRC”), chaired by the Honourable Elizabeth Evatt AO, to recommend whether legislative or procedural changes should be made to “remove any unjustifiable discriminatory effects of those laws on or of their application to women with a view to ensuring their full equality before the law”.[25] This culminated in the 1994 two-volume report, Equality before the law: justice for women and Equality before the law: women’s equality.[26] In its report, the ALRC reviewed the scope and operation of the SDA and found that the Act fell far short of achieving the substantive objective of equality in law that CEDAW required. The ALRC recommended numerous amendments to the SDA as well as a constitutional guarantee of equality.[27] The latter has not occurred. The ALRC report concluded that:[28]

Despite apparent and real gains over the last decade women still experience discrimination. Gender bias is embedded in the legal system. Addressing specific issues in particular areas will not solve the problem unless that underlying bias is also addressed.

The need to address gender bias in judicial education

It is axiomatic that the law is administered fairly. Judicial officers in NSW take an oath to administer the law without fear or favour, affection or ill will.[29] The word “equality” is not specified in the judicial oath but it underpins the oath conceptually. Equal justice is an aspect of the rule of law.[30] Equal justice requires that like cases be treated alike, but where there are relevant differences, allowance should be made for them.[31] This expression is derived from the Aristotelian principle of formal equality, namely, that “things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness”.[32] Equality before the law has come to be recognised that access to, and the delivery of justice “requires understanding of and sensitivity to the special requirements and disabilities of particular sections of the community”.[33] The law has to address both direct and indirect discrimination. To render justice equally, the law must deal with direct discrimination and take account of difference. Indigenous people, ethnic and religious minorities, people with physical and mental disabilities, vulnerable people including children, women, lesbians, gay men, bisexuals, sex and gender diverse people have come to be recognised as having special requirements in the justice system.[34]

Those entrusted to administer the law fairly are informed by their inherited and learned values, cultural assumptions, and ideologies. Although judicial neutrality is a central tenet of the rule of law, it is acknowledged that judicial officers are not ideologically or value-neutral. Unconscious judicial bias, built on cultural values and gender and class assumptions, influences the judicial decision making-process.[35] As North J put it:[36]

Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges, unaware of the assumptions or preconceptions which, in fact, governed their decision-making. Thus, actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes and says, that they have not prejudged a case.

Public expectations have shifted in the human rights’ dominated post-war era to require justification for the exercise of power.[37] The exercise of judicial authority requires justification. In their decision-making, judicial officers need to be aware of the values of their society so that they can convincingly identify what is in the public interest, and what is “reasonable” and “fair”; in other words, the core values of their society.[38]

Feminist legal scholarship began to deconstruct legal discourse in the 1980s, questioning the claim of law to be rational, objective and neutral.[39] It was only a matter of time before the issue of gender bias found its way onto the judicial agenda. North America led the way in raising judicial awareness in the common law world with the work of the National Association of Women Judges’ National Task Force on Gender Bias in the Courts. From 1982, State Chief Justices across the United States appointed task forces to investigate gender bias in their courts and recommend reform to legislation, judicial education and the administration of justice. The first task force was appointed in New Jersey in 1982 and by the end of the 1980s, five American States were engaged in implementing the recommendations of their respective task forces and developing sessions in judicial education programs to address gender bias with a focus on the role of attitudes and values in judicial decision-making.[40] In Canada, in 1986, a national judicial conference on equality[41] led to the publication in 1987 of Professor Kathleen Mahoney[42] and Sheilah Martin’s book, Equality and judicial neutrality.[43] The Western Judicial Education Centre, a project of the Canadian Association of Provincial Court Judges, developed programs on gender, race and class bias issues in Canadian judicial training programs using a variety of adult learning techniques.[44]

The first recorded mention of the need to address gender bias in the administration of justice in Australia was on 14 August 1992 when the Supreme Court of Western Australia convened a seminar on this subject.[45] The guest speaker, Professor Mahoney, spoke of the Canadian experience and the Chief Justice of Western Australia, the Honourable David Malcolm AC, suggested that Australia had much to learn from the Canadian experience in educating judicial officers about the need to eliminate bias.[46] Professor Mahoney proved to be a trailblazer in raising judicial awareness of gender issues, returning in June 1993 on a visit organised by the National Institute for Law, Ethics and Public Affairs (based at Griffith University, Queensland) to conduct workshops and lectures on gender, race and class bias in the administration of justice in most Australian States.[47] During this visit, Professor Mahoney spoke at an inter-curial seminar in Sydney that the Judicial Commission of NSW convened.[48]

Professor Mahoney’s 1993 visit coincided with considerable and intense media scrutiny of the Australian judiciary due to a series of gender-biased comments that judges had made during criminal proceedings.[49] The most notorious remarks were those of a South Australian Supreme Court judge, Justice Bollen, who during a marital rape trial commented that “rougher than usual handling” was acceptable when a husband was endeavouring to persuade his wife to engage in sexual intercourse.[50] The then Prime Minister of Australia, the Honourable Paul Keating, publicly denounced the comments, stating that he was “shocked to read that a judge … had explicitly condoned the use of violence by a man against his wife”.[51] A Victorian Supreme Court judge, who in passing sentence on a man who had pleaded guilty to one count of the aggravated rape and one count of the attempted murder of a 17-year-old schoolgirl, said a sentence significantly less than the maximum for the rape offence was warranted as the girl “was not traumatised by the event, indeed was probably comatose at the time”.[52] A Commonwealth Senate Standing Committee on Legal and Constitutional Affairs was briefed to consider whether the “recent publicity surrounding judicial comment in sexual offence cases is a proper reflection of a failure to understand gender issues by the judiciary; … and the appropriate response to any such failure”.[53]

The committee’s conclusion in its 1994 report was that overt prejudice on the part of the judiciary was not a general problem, but it was “wider than a handful of isolated instances”.[54] The committee, however, stated that systemic gender bias had to be addressed as a “real, significant but largely unconscious, problem”[55] in the legal system, in legislation and case law, and in the use of “antiquated and inappropriate gender myths and stereotypes when judges sum-up to juries”.[56] The committee recommended changes to the process of judicial selection and various initiatives in judicial and legal professional education.[57] The process for judicial appointments to federal courts was only revised in 2008 to ensure both greater transparency and merit-based appointments.[58] There are no longer any current judicial appointment processes for any of the federal courts.[59]

The 1993 Senate Select Committee also recommended that the national Australasian Institute of Judicial Administration (“the AIJA”) be adequately funded to develop gender-awareness programs in consultation with the courts.[60] The AIJA had previously accepted federal government grants to develop a national program on “gender equality and the law”.[61] In September 1993, the AIJA sent a number of Australian judges to Vancouver, Canada to attend a faculty training workshop on gender equality. These delegates then advised the AIJA’s Gender Equality Committee on strategies to develop suitable programs in Australia.[62] The Judicial Commission of NSW was also represented at the Canadian workshop.[63] Throughout the 1990s, various courts developed their own courses on gender awareness training for judges and staff.[64]

The ALRC acknowledged in its Equality before the law reference the “considerable activity in the area of gender awareness programs for the judiciary”[65] since 1993. For example, the Federal Court of Australia appointed a standing committee to advise the Chief Justice and other judges about gender issues within the court’s administration in the provision of its services.[66] The Western Australian Supreme Court established a gender bias task force to develop a judicial education program.[67] The ALRC made no recommendations in its 1994 report about gender awareness in judicial education, but observed that there was a need “to ensure that the programs are co-ordinated and adequately funded”.[68]

Addressing gender bias in the Judicial Commission judicial education program

When the Judicial Commission was established in 1987,[69] there were 222 judicial officers in NSW and only 4.5% of judicial officers were women. In 2013, there were 323 permanent judicial officers in NSW and 34.8% of these were women.[70] This is equivalent to national figures where 8.8% of the judiciary in 1995 were women, rising to 33.5% in 2013.[71] As at 30 June 2021, of the 300 permanent judicial officers in NSW, 124 are female (41%). The Land and Environment Court has the greatest gender parity with 45% of female judicial officers; the Local Court has 43% female magistrates. The Supreme Court has 24% female judges. Although women today are graduating from law school in higher numbers than men and more women are admitted as solicitors than men,[72] women remain underrepresented in the judiciary and among the ranks of partners in law firms and senior counsel.[73]

The Commission’s statutory charter is to assist the courts to achieve consistency in sentencing; to organise and supervise an appropriate scheme for the continuing education and training of judicial officers; to investigate complaints concerning the ability or behaviour of a judicial officer; and to give advice to the Minister as the Commission thinks appropriate.[74]

An early objection to the establishment of the Commission and the provision of a judicial education program was that it would interfere with judicial independence and represent an attack on the separation of powers in NSW.[75] These objections were answered when the Judicial Officers Act 1986 was amended to establish the Commission as a body independent of the executive arm of government with judicial participation in the education program being voluntary and judge-led.[76] This aligned with the educational philosophy of the Canadian Western Judicial Education Centre which has peer-leadership and judicial independence as key elements. As Professor Mahoney observed, an internal voluntary reform movement will always be more effective than an imposed one.[77]

The Commission’s judicial education policy is not to interfere with judicial discretion but to develop judicial skills, attitudes and knowledge, enhance professional expertise and promote the pursuit of juristic excellence.[78] The overarching purpose of judicial education is to improve the quality of justice so as to maintain public confidence in the impartial and independent administration of justice.[79]

The Commission aims to offer up to five judicial education days a year for each judicial officer in NSW in keeping with the national standard developed by the National Judicial College of Australia (NJCA).[80] The Commission’s judicial education program is multi-faceted, comprising conferences, seminars, field trips, interactive educational sessions, an Aboriginal cultural awareness program, a 360 degree feedback program for judicial officers, a voluntary mutual observation program for magistrates, publications, computer training, and online and printed resources. The program is based on sound adult education design principles with a focus on experiential and interactive learning, that is, learning based on experience and enhancing judicial skills. The Commission has been influenced by the work of David Kolb and the National Judicial Institute of Canada.[81]

Since its inception, the content of the program has been developed by the education committees of each court in NSW in accordance with the objective of judge-led judicial education. The committees regularly meet to discuss the proposed judicial education programs for their particular courts. The Judicial Commission’s professional staff attend all education committee meetings and provide educational input and support. A Standing Advisory Committee on Judicial Education (SAC) was also established with a representative from each of the court’s education committees. The SAC provides general guidance and informs each jurisdiction of the activities in the various courts. Information gathered from complaints lodged to the Commission about judicial officers is also used to develop specific education sessions on subjects that include domestic violence, sexual assault issues and cultural awareness.

From 1993, the Commission offered specific structured sessions relating to gender equality, Aborigines and the law, and ethnicity in the courtroom. The Commission gave evidence to the 1993 Senate Standing Committee on Legal and Constitutional Affairs which specifically noted the provision of education to magistrates about domestic violence.[82] The Legal Aid Commission of NSW gave evidence to this inquiry that, as a result of this education, there was “an improvement in the attitudes of magistrates in providing access to Apprehended Violence Orders, and action when an order has been breached”.[83] In 1994, the Judicial Commission gave evidence to the ALRC inquiry that it was providing magistrates with education on domestic violence and on women and the law as part of its education program.[84]

Throughout the last three decades, the Commission has continued to offer judicial training on gender equality with the objective of promoting equality before the law in a pluralistic society.[85] Up until 2003, discrete sessions on gender issues, including domestic violence and cultural issues, were offered at the courts’ annual conferences, seminars, orientation programs for magistrates and workshops.[86] Since the 2002–2003 reporting year, the approach has been to integrate gender awareness with a range of issues relating to equality and diversity including Aboriginality, ethnicity and disability.[87] The Commission has developed materials, workshops, seminars and sessions in court conferences to provide information and promote awareness of problems and solutions; to develop practical judicial skills (for example, in courtroom communication, assessment of credit, decision-making and sentencing); and to promote analysis and critical self-reflection of disposition, attitudes and values. Faculty and presenters are drawn from the judiciary, academics, legal practitioners, law reformers, criminologists and professional educators. The Commission evaluates every education session offered to judicial officers to ensure that each session meets its learning objectives, and to review and continually improve the judicial education program. The low number of complaints made to the Commission each year about judicial ability or behaviour demonstrably attests to the value of the education program with its objective to enhance judicial capacity and performance and improve the quality of justice.[88]

Training for judicial officers on sexual harassment

It cannot be assumed that judicial officers will not sexually harass their staff or colleagues by reason of their judicial office. While specific data on complaints to the NSW Judicial Commission about judicial sexual harassment is unavailable, this does not lead to the conclusion that the problem does not exist. As workplace sexual harassment is enabled by power disparities,[89] reporting of sexual harassment by judicial officers is arguably under-reported and if reported, not actioned for fear of repercussions for a complainant.[90]

The American Judges Association Court Review suggested in 2018 that “despite the stringent codes of conduct that bind judges and judicial employees, employment within the judiciary (and particularly within judicial chambers) has all of the hallmarks of a workplace environment that makes harassment more likely, and that makes speaking up against harassment nearly impossible”.[91] Factors that were cited as contributing to this issue include:[92]

  • power of judges over employees

  • strict hierarchical structures in which an employee has a single supervisor

  • autonomy of judicial chambers

  • isolation of judicial chambers

  • significant turnover in staff, with new clerks joining every year or two

  • leadership that is frequently male dominated

  • unique requirements of confidentiality, and

  • strong desires to avoid any public disclosure of wrongdoing in the interests of maintaining public confidence.

In the wake of allegations against a former High Court justice made public in June 2020, the Chief Justice of Australia, the Honourable Susan Kiefel AC, stated that:[93]

[t]here is no place for sexual harassment in any workplace. [The High Court has] strengthened our policies and training to make clear the importance of a respectful workplace at the Court and we have made sure there is both support and confidential avenues for complaint if anything like this were to happen again.

The Supreme Court of NSW in June 2020 published the “Supreme Court Policy on Inappropriate Workplace Conduct”.[94] This policy is designed to clarify the process as it applies to judges and judicial staff in the court and provide additional avenues for a person to raise an issue. The NSW Attorney General ordered a review in July 2020 into the way that NSW courts and tribunals handle complaints of sexual harassment.[95]

The Judicial Commission has incorporated training for judicial officers about sexual harassment prevention into its program by way of webinars. For example, a webinar “Sexual harassment prevention and response in the workplace — a new approach”,[96] presented by Ms Kate Jenkins, Sex Discrimination Commissioner, and introduced by Chief Justice Tom Bathurst AC, was held in December 2020 and a video of the webinar made available on the Judicial Information Research System. The focus of the webinar is on Recommendation 40 of the Respect@Work Report which specifically addresses judicial education and training on this subject.

In June 2021, a national working group on sexual harassment education for judicial officers was established. Led by Court Services Victoria and the Judicial College of Victoria, the Fair Work Commission, National Judicial College of Australia and the NSW Judicial Commission are also involved.

Judicial orientation programs

Since 1993, the Judicial Commission of NSW has worked jointly with the AIJA (and from 2002 with the NJCA) to offer training in gender bias as part of the National Judicial Orientation Program (NJOP). The NJOP is offered to newly-appointed judicial officers from around Australia on a voluntary basis. The average attendance for each course is about 25 judicial officers. The inaugural program was held in October 1994 and since then, programs have been offered once or twice a year, depending on demand.[97]

Until 2003, discrete sessions on gender awareness were offered. A rigorous evaluation process led the NJOP Steering Committee to incorporate gender awareness issues into sessions on topics specifically concerned with the art and craft of judging, such as sentencing. Sessions that focus on equality include: “Unconscious judicial prejudice” and “Cultural barriers in the courtroom”.

Since 1988, the Judicial Commission has also offered a five-day orientation program primarily for new magistrates from NSW, although some interstate and Asia Pacific magistrates attend. Participants have consistently rated their approval of this program at 97% or above.[98] The program is practical and includes a session with a hypothetical situation requiring participants to reflect on the attitudes and values that they bring to the judicial process with the aim of deconstructing the “myth of impartiality”.[99]

Equality before the Law Bench Book

In 2005, the Honourable J J Spigelman AC, who was then Chief Justice of NSW and President of the Judicial Commission, requested that the Commission develop and publish a Bench Book for judicial officers that would provide the necessary materials and information to assist judicial understanding and sensitivity to the special requirements and disabilities of particular sections of the community.[100] In other words, to assist judicial officers to treat “unequals” with the special measures they required during court proceedings and their interactions with the justice system. Chief Justice Spigelman wished to consolidate the considerable body of material that the Commission had acquired over two decades of operations about equality issues and integrate and transform that material into a loose-leaf service, available in hard copy and soft copy through the Judicial Information Research System (JIRS) and the Commission’s public website.[101] The Commission also wished to align with other Australian and international jurisdictions which had similar publications addressing equality issues.[102] The then Attorney General of NSW, the Honourable John Hatzistergos, launched the Equality before the Law Bench Book on 21 June 2006 at the Banco Court, Supreme Court of NSW.

The Equality before the Law Bench Book provides practical guidance to assist the judiciary to take into account the special requirements of 10 different groups of people who face potential barriers in relation to full and equitable participation in court proceedings. The 10 groups are: Aboriginal people; people from culturally and linguistically diverse backgrounds; people with a particular religious affiliation; people with disabilities; children and young people; women; lesbians, gay men and bisexuals; sex and gender diverse people; self-represented parties and older people.

The Bench Book includes a range of suggested ways for judicial officers to adapt court proceedings to ensure that individuals receive a fair and just outcome. For example:

  • employing a different method of communication for those who need it, such as children, people with no or poor English, or people with a communication disability

  • using a different form of oath for people who practise a non-Christian religion

  • knowing and using appropriate terminology so as to avoid causing offence, such as the correct mode of address for people from different ethnic groups or ensuring that religious leaders are addressed by the appropriate title

  • adjusting timing and length of court appearances to take account of people with a particular disability or people with childcare responsibilities

  • using a translator or interpreter when a witness’s English is not good enough to cope with the demands of the courtroom

  • intervening in cross-examination to disallow unfair or inappropriate questions

  • ensuring that the cultural customs or values of a particular person are respected by everyone in the court.

Chapter 7 of the Bench Book focuses on women, providing information on socio-economic factors and gender disadvantage; sexual harassment; intersectional discrimination; violence against women; women and criminal law; practical considerations for judicial officers regarding modes of addressing women, use of language and terminology; timing of proceedings, breaks, and adjournments; and how women may be particularly affected by sentencing decisions (for example the impact of a mother’s incarceration on a family), personal injury compensation and property division in family law disputes.

In 2006, the Equality before the Law Bench Book received the AIJA’s Award for Excellence in Judicial Administration, a biennial award made in recognition of a significant contribution to the furtherance of judicial administration in Australia. An ACLEA Award for Outstanding Achievement was given to the Commission in the Public Interest category on 30 July 2019.[103]


Two decades after feminist legal scholarship began to question the gender bias inherent in the common law, education about gender equality was introduced to the Australian judicial training agenda in 1993. Taking its cue from developments in North America, the Judicial Commission of NSW committed to raising judicial awareness about conscious and unconscious gender bias through its voluntary judicial education program, along with several Australian courts and the AIJA. In 2021, against the backdrop of the #MeToo movement, another North American development which came to prominence in 2017, the Commission has joined other Australian judicial education providers on a national working group on sexual harassment for judicial officers. The Commission’s focus has been on the practice and procedure of judging — the judicial method — to assist the judicial officers of NSW to administer the law without fear or favour, affection or ill will.

[1] Paper submitted to the Kyoto International Conference on Judicial Training for Gender Awareness in the Courts, April 2014, Kyoto. Published in (2014) 12 TJR 63 and 22 International Journal of the Legal Profession 212. Article revised 2021.

[2] Publishing and Communications Manager, Judicial Commission of NSW. The author acknowledges the review and assistance of Ruth Windeler, former Education Director, Judicial Commission of NSW and Maree D’Arcy, former Librarian, Judicial Commission of NSW.

[3] R Abella, “The evolutionary nature of equality”, in K Mahoney and S Martin (eds), Equality and judicial neutrality, Carswell, Toronto, 1987, p 4.

[4] G Stefan (E Zalta ed), “Equality”, Stanford Encyclopaedia of Philosophy, Spring 2011 edn, at http://plato.stanford.edu/entries/equality, accessed 7 July 2021.

[5] M Wollstonecraft, A vindication of the rights of woman: with strictures on political and moral subjects, 2nd edn, J Johnson, London, 1792.

[6] Castlemaine Tooheys Ltd v SA (1990) 169 CLR 436 at 480.

[7] K Mahoney, “Gender bias in judicial decisions” (1993) 1(3) TJR 197 at 200.

[8] Australian Law Reform Commission (ALRC), Equality before the law, Discussion Paper 54, Sydney, 1993 (ALRC DP 54), at [3.41].

[9] Anti-Discrimination Act 1977, s 25(1).

[10] By the Anti Discrimination (Amendment) Act 1994 (commenced on 8 August 1994). The repealed Interpretation Act 1897, s 21(a), provided that “Words importing the masculine gender shall include females”.

[11] See the High Court’s decision in Daly v Thiering (2013) 249 CLR 381 (Crennan, Kiefel, Bell, Gageler and Keane JJ in a joint judgment) which reversed the NSW Court of Appeal (NSWCA) decision in Daly v Thiering [2013] NSWCA 25. The NSWCA dismissed an appeal from the first instance decision in Thiering v Daly (2011) 83 NSWLR 498 where Garling J held that damages claimed in proceedings for the gratuitous attendant care provided by a mother to her son catastrophically injured in a motor vehicle accident could be awarded if a statutory scheme (the Lifetime Care and Support Scheme) had not paid or accepted an obligation to pay for such services for the past. Following the NSWCA decision, the NSW Parliament amended the Motor Accidents Compensation Act 1999 (repealing s 130A) to clarify that the Scheme is only obliged to pay for assessed treatment and care needs and is not obliged to pay for treatment and care provided on a gratuitous basis: Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012, Sch 2[5] (commenced on 25 June 2012). In effect, the Scheme abolished Griffiths v Kerkemeyer ((1977) 139 CLR 161) damages. The High Court held that a participant in the Scheme was prevented from recovering damages for economic loss for their treatment and care needs which were rendered gratuitously: at [36].

[12] See R McColl, “Women in the law”, address to the Anglo-Australasian Society of Lawyers, 3 May 2006, Sydney; R McColl, “Celebrating women in the judiciary 2014”, address to Women Lawyers Association of NSW, Union, University and Schools Club, 27 February 2014, Sydney, pp 8–10, at www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015 Speeches/McColl/mccoll_270214.pdf, accessed 7 July 2021.

[13] See S Glazebrook,“It is just a matter of time and other myths”, revised version of a paper presented at the Get Up and Speak 2013 seminar, 15 August 2013, Wellington, New Zealand, pp 3–5.

[14] As critiqued in the Canadian decision, R v Lavallee [1990] 1 SCR 852 at [43], [55].

[15] K Grech and M Burgess, Trends and patterns in domestic violence assaults: 2001–2010, Issue Paper No 61, NSW Bureau of Crime Statistics and Research (BOCSAR), Sydney, 2011, p 6, at www.bocsar.nsw.gov.au/Publications/BB/bb61.pdf, accessed 7 July 2021; Australian Bureau of Statistics, Recorded crime — victims, Australia, 2013, ABS cat no 4501.0, Canberra, 2014, at www.abs.gov.au/ausstats/abs@.nsf/Lookup/by Subject/4510.0~2013~Main Features~Sexual Assault~9, accessed 7 July 2021; see also Australian Bureau of Statistics, Recorded crime — victims, Australia, 2021 at www.abs.gov.au/statistics/people/crime-and-justice/recorded-crime-victims/latest-release, accessed 7 July 2021.

[16] See for example E Birdsey and L Snowball, Reporting violence to police: a survey of victims attending domestic violence services, Issues Paper No 91, BOCSAR, Sydney, October 2013 at www.bocsar.nsw.gov.au/Pages/bocsar_publication/Pub_Summary/BB/bb91-Reporting-Violence-to-Police-A-survey-of-victims-attending-domestic-violence-services.aspx, accessed 7 July 2021, which reported that only half (51.8%) of victims report their most recent domestic violence incident to police in NSW.

[17] For example, the Criminal Procedure Act 1986 has since 2000 contained a series of evidentiary and procedural provisions aimed at minimising the trauma of a sexual assault trial for a complainant. These provisions have been further strengthened since 2003.

[18] M Thornton and T Luker, “The Sex Discrimination Act and its rocky rite of passage” in M Thornton (ed), Sex discrimination in uncertain times, ANU ePress, Canberra, 2010, p 25.

[19] By the Family Law Act 1975 (Cth).

[20] Thornton and Luker, above n 18, p 27.

[21] And also to parts of the International Labour Organisation Convention 156, Workers with family responsibilities, 1981, (entry into force generally 11 August 1983; entry into force for Australia 30 March 1991). Australia ratified CEDAW at a special signing ceremony at the UN World Conference for the Decade of Women on 28 July 1983, having signed it in 1980.

[22] As noted in B Naylor, “Equality before the law: mission impossible? A review of the Australian Law Reform Commission’s Report Equality Before the Law” (1997) 23(2) Mon LR 423.

[23] Australian Government Publishing Service, Canberra, 1992.

[24] P Keating, “National agenda for women”, speech presented at the Bankstown Town Hall, 10 February 1993. See Office of the Status of Women, Department of Prime Minister and Cabinet, Women: shaping and sharing the future: the new national agenda for women, 1993-2000, Australian Government Publishing Service, Canberra, 1993.

[25] ALRC DP 54, above n 8, at p xi.

[26] ALRC, Equality before the law, ALRC Report 69, Sydney, 1994. The report is divided into two parts: Pt 1, Equality before the law: justice for women, published July 1994 (ALRC Report 69: Pt I), and Pt II, Equality before the law: women’s equality, published December 1994 (ALRC Report 69: Pt II).

[27] ALRC Report 69: Pt II, ibid, Recommendation 4.2. Constitutional entrenchment was recommended as “a long-term goal”.

[28] ALRC Report 69: Pt I, ibid, at [1.12].

[29] Oaths Act 1900 (NSW), Sch 4.

[30] Green v The Queen (2011) 244 CLR 462 at [28], citing A Dicey, Introduction to the study of the law of the Constitution, 7th edn, 1908, p 198; W Holdsworth, A history of English law, 1938, Vol X, p 649.

[31] Lowe v The Queen (1984) 154 CLR 606 at 617–618; Postiglione v The Queen(1997) 189 CLR 295 at 301; Wong v The Queen (2001) 207 CLR 584 at [65]; Jimmy v R (2010) 77 NSWLR 540 at [255].

[32] Jimmy v R, ibid, at [256], citing Aristotle (W D Ross trans), Ethica Nichomacea, Book V3, Clarendon Press, Oxford, 1925, at 1131a-6.

[33] J Spigelman, Foreword to Judicial Commission of NSW, Equality before the Law Bench Book, Sydney, 2006–, p iii.

[34] These categories are recognised in the Judicial Commission of NSW, Equality before the Law Bench Book, ibid.

[35] K Mason, “Unconscious judicial prejudice” in Judicial Commission of NSW, A matter of judgment: judicial decision-making and judgment writing, Education Monograph 2, Sydney, 2003, p 27; ALRC Report 69: Pt II, above n 26, at [2.4].

[36] Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 135.

[37] S Elias, “JUSTICE for one half of the human race? Responding to Mary Wollstonecraft’s challenge” (2012) 10(4) TJR 399 at 403.

[38] ibid at 405; and see generally M Gleeson, “A core value” (2007) 8(3) TJR 329.

[39] See for example texts referred to in R Graycar and J Morgan, The hidden gender of law, 2nd edn, Federation Press, Sydney, 2002, Ch 1, and ALRC Report 69: Pt II, above n 26, at [8.17].

[40] See L H Schafran, Planning for evaluation: guidelines for task forces on gender bias in the courts, Women Judges’ Fund for Justice, 1989, including references on p 1; M Maples and G Zimmerman, The crucial nature of values and attitudes in judicial decision-making, National Council of Juvenile and Family Court Judges, Reno, 1991.

[41] The Socialisation of Judges to Equality Issues Conference, The University of Calgary, Faculty of Law, Banff, Alberta, May 1986, referred to in Mahoney, above n 7, at 199.

[42] Professor of Law at the University of Calgary, Canada, and was a director of the UN-sponsored International Project to Promote Fairness in Judicial Processes.

[43] Mahoney and Martin (eds), above n 3.

[44] C Parker, “Gender bias: a timely visit” (1993) 18(4) Alt LJ 188 at 189.

[45] D Malcolm, “Gender bias in the administration of justice” (1993) 1(3) TJR 191.

[46] ibid at 195.

[47] Parker, above n 44.

[48] Judicial Commission of NSW, Annual report 1992–93, p 16.

[49] M Thornton, “The legal profession: gender, legality and authority”, address to the Australian Lawyers & Social Change Conference, 22–24 September 2004, Canberra, p 4.

[50] Parliament (Cth), Senate Standing Committee on Legal and Constitutional Affairs, Gender bias and the judiciary, Report, Canberra, May 1994 (Senate Committee Report), p 3.

[51] Keating, above n 24, p 7.

[52] Senate Standing Committee on Legal and Constitutional Affairs, above n 50, p 6.

[53] ibid p ix.

[54] ibid p xiv.

[55] ibid.

[56] ibid.

[57] ibid, Ch 5; Naylor, above n 22, at 432.

[58] L Roth, Judicial appointments, Briefing paper No 3/2012, NSW Parliamentary Research Library, April 2012.

[59] See www.ag.gov.au/LegalSystem/Courts/Pages/Courtappointments.aspx, accessed 9 July 2021; noted as a “worrying sign” by R McColl AO, “Celebrating women in the judiciary 2014”, above n 12, p 8.

[60] Senate Committee Report, above n 50, Recommendation 5, p 117.

[61] Noted in the Australasian Institute of Judicial Administration (AIJA), Annual report for the year ended June 1993, p 5.

[62] Noted in the AIJA, Annual report for the year ended June 1994, p 9.

[63] By the Chair of the Standing Advisory Committee on Judicial Education.

[64] See for example those listed in ALRC Report 69: Pt II, above n 26, at [8.66] and R Graycar, “Gendered assumptions in family law”, paper presented at the Gender Awareness Seminar, Family Court of Australia, 15 April 1994, Kooralbyn, Queensland.

[65] ALRC Report 69: Pt II, above n 26, at [8.68]. See also [8.63]–[8.66].

[66] ibid at [8.66]. This became the “Equality and the Law” committee the following decade: Federal Court of Australia, Annual report 2006–2007, p 36.

[67] ibid.

[68] ibid at [8.68].

[69] By the Judicial Officers Act 1986.

[70] Judicial Commission of NSW, unpublished data, 16 December 2013. For recent statistics, see https://aija.org.au/wp-content/uploads/2020/07/2020-JUDICIAL-GENDER-STATISTICS-v3.pdf, accessed 7 July 2021.

[71] Gender in the Australian judiciary 2013 v 1995, media release, Australian Women Lawyers, Adelaide, 4 July 2013. In 2020, 38.8% judicial officers are women: see https://aija.org.au/wp-content/uploads/2020/07/2020-JUDICIAL-GENDER-STATISTICS-v3.pdf, accessed 7 July 2021.

[72] Law Council of Australia, National attrition and re-engagement (NARS) study, Final Report, March 2014, p 9. The 2018 National Profile of Solicitors reported 52% of solicitors are women: at www.lawsociety.com.au/sites/default/files/2019-07/2018 National Profile of Solicitors.pdf, accessed 7 July 2021.

[73] As at 30 June 2013, 9.7% of senior counsel were women whereas 20% of barristers are women: NSW Bar Association, Annual Report 2012–13, p 11. In 2021, 12.85% of of senior counsel were women whereas 24.37% of barristers are women, see https://nswbar.asn.au/the-bar-association/statistics, accessed 7 July 2021. The National attrition and re-engagement (NARs) study, ibid, p 15, reports that men are twice as likely as women to be a partner in private practice. The national study surveyed 3,801 practising lawyers, or close to one in 10 members of the legal profession in Australia: ibid p 4.

[74] Judicial Officers Act 1986, ss 8, 9, 11, Pt 6.

[75] These objections are recorded in K Lumley, From controversy to credibility: 20 years of the Judicial Commission of NSW, Judicial Commission of NSW, 2008, pp 1–2, at www.judcom.nsw.gov.au/wp-content/uploads/2014/07/judcom-20years-web.pdf, accessed 7 July 2021.

[76] ibid p 2.

[77] Mahoney, above n 7, at 216; See also M Gleeson, “Performing the role of the judge” (1998) 10(8) JOB 57.

[78] Judicial Commission of NSW, Continuing judicial education policy, at www.judcom.nsw.gov.au/education/continuing-judicial-education-policy/, accessed 7 July 2021.

[79] J Allsop, “Continuing judicial education: the Australian experience” (2012) 10(4) TJR 339 at 440.

[80] National Judicial College of Australia (prepared by C Roper AM), National Standard for Professional Development for Australian Judicial Officers, 28 April 2006, at https://njca.com.au/resources/national-curriculum-standards/, accessed 7 July 2021.

[81] See for example D Kolb, Experiential learning: experience as the source of learning and development, Prentice Hall, New Jersey, 1984; T Dawson, “Lessons learned for experiential, skills-based judicial education” (2008) 20(6) JOB 47.

[82] Senate Committee Report, above n 50, at [5.112].

[83] ibid.

[84] ALRC Report 69: Pt II, above n 26, at [8.64].

[85] L Armytage, “Judicial education on gender equality: the educational response”, submission to the ALRC Equality before the Law Inquiry, 1994; L Armytage, “Continuing judicial education: the education programme of the Judicial Commission of NSW” (1993) 3(1) JJA 28.

[86] As recorded in the Judicial Commission of NSW’s annual reports from 1993 to 2003.

[87] The Judicial Commission of NSW’s Annual report 2002–03 lists “social awareness issues, including migrants, interpreters, ethnicity and gender” as an education topic in Appendix 4, p 57.

[88] For example in the 2012–2013 reporting year, the Commission received 71 complaints about 53 judicial officers. There were 350 (permanent and acting) judicial officers in NSW in 2012–2013. Of these 71 complaints, 13 complaints alleged bias on the part of the judicial officer. See Judicial Commission of NSW, Annual Report 2012–2013, pp 35–37. In the 2019–2020 reporting year, the Commission received 76 complaints about 48 judicial officers. There were 377 judicial officers in NSW in 2019–2020. Of these 76 complaints, 8 complaints allege bias on the part of the judicial officer. See Judicial Commission of NSW, Annual Report 2019–2020, pp 48–49 at www.judcom.nsw.gov.au/wp-content/uploads/2020/12/Judicial_Commission_Annual_Report_2019-20.pdf, accessed 7 July 2021.

[89] AHRC, Respect@Work: national inquiry into sexual harassment in Australian workplaces, 2020, p 18 at www.humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020, accessed 12 July 2021.

[90] K Nomchong, “Sexual harassment and the judiciary” (2020) 32 JOB 55 at 56.

[91] J Santos, “When justice behaves unjustly: addressing sexual harassment in the judiciary” (2018) 54 Ct Rev 156 at 157.

[92] ibid.

[93] Statement by the Hon Susan Kiefel AC, Chief Justice of the High Court of Australia, accessed 12 July 2021 at https://cdn.hcourt.gov.au/assets/news/Statement%20by%20Chief%20Justice%20Susan%20Kiefel%20AC.pdf, accessed 13 July 2021.

[94] Supreme Court of NSW, “Supreme Court policy on inappropriate workplace conduct”, 2020, at www.supremecourt.justice.nsw.gov.au/Documents/Home Page/Announcements/2020_07_02_Workpace Conduct Policy_v4.0_FINAL.pdf, accessed 12 July 2021.

[95] The review has not been finalised as at 12 July 2021.

[96] See https://jirs.judcom.nsw.gov.au/menus/videos.php?video=sexual_harassment_prevention&category=Other, accessed 13 July 2021.

[97] Judicial Commission unpublished data, 13 December 2013.

[98] These results are reported in the education section of the Judicial Commission of NSW’s annual reports since 2007 in figures showing the satisfaction ratings for the Commission’s education programs over a five-year period.

[99] D Heilpern, “Alligator River bias presentation”, presentation to the Magistrates’ Orientation Program, 16–21 June 2013, Kiama.

[100] Spigelman, above n 33, at p iii.

[102] Judicial Studies Board, Equal Treatment Bench Book, London, September 2005 (now superseded by the 2021 edition), at www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/, accessed 7 July 2021; Supreme Court of Queensland, Equal Treatment Benchbook, Supreme Court of Queensland Library, Brisbane, 2005, at www.courts.qld.gov.au/information-for-lawyers/benchbooks-and-ucpr-bulletin, accessed 7 July 2021; S Fryer-Smith, Aboriginal Benchbook for Western Australian Courts (AIJA Model Indigenous Benchbook Project), AIJA, Victoria, 2002, at https://aija.org.au/publications/2nd-ed-aboriginal-benchbook-for-western-australian-courts/, accessed 7 July 2021.