The appointment of Susan Kiefel AC as Chief Justice of the High Court of Australia in November last year challenged two of the key components of the longest standing stereotype of the legal profession: that it is dominated by white, middle class men.
Kiefel’s appointment is, indeed, momentous. In 113 years, she is only the first woman to be the nation’s top judge. Having left school at the end of Grade 10, she completed her education while working as a legal clerk, passing the Barristers Admission Board course with honours. With an Honorary Doctorate from Griffith University, the attention Justice Kiefel received from media, legal professionals, and the wider public following her appointment was not the first time she has been recognised for the way she has led the way for women in the legal profession, and the significant contribution she has made to her industry.
But to laud the historic appointment as one demonstrating that barriers to female and low socioeconomic success in the law have been removed is perhaps looking at justice a little too blindly. While the gender divide for law students has certainly been levelled, what hasn’t is the alarmingly low retention rate for talented women lawyers. And the majority of those who undertake tertiary legal studies have not only gone to a private or selective school that supported them through to attaining a significantly high ATAR; they call a city their home. As noted by Marcia Devlin, Deputy Vice-Chancellor at Federation University Australia, low SES and rural students generally have lower ATARs than those who are wealthy and live in metropolitan areas, and this has nothing to do with their intelligence: ‘[t]hey just have less of the social and cultural capital that counts for school education outcomes’.
Attend any event targeted at women lawyers today and you will likely be told by someone in a corporate law firm of the support that they receive within their workplace – whether that be through maternity plans, flexible work spaces, or part time employment. But while these examples are to be commended, the general statistics speak differently. Unconscious bias towards women remains, half of women lawyers who work part-time report discrimination, and women make up only 10% of senior appointments. Although Kiefel became the first female Queen’s Counsel in Queensland 30 years ago, the law remains an industry that is one of the least friendly for women. Radical change is yet to be seen in repairing a massive gender pay gap, inflexible workplaces, and a dearth of women in senior positions within both the judiciary and private practice.
And while it’s certainly fantastic to now have a woman in the most senior legal position in the country, we must be careful of the difference between recognising achievements, and putting pressure on all women lawyers to do the same. As President of the ACT Women Lawyers’ Association and ANU Alumnus Prue Bindon cautioned at last year’s Women in Law Breakfast, we must be careful when we recognise women as trail blazers, lest we continue to mount pressure on them to ‘have it all’ – a job, a family, and achievements no woman has had before them.
Elitism of various degrees is a further stereotype of lawyers that refuses to fade. Whether lawyers are criticised for thriving off family connections or coming from private schools, the fact remains that ‘[t]he main barrier to people from disadvantaged backgrounds entering the legal profession is the need to be accepted into and then complete law school’. And depending which research you believe in what leads to better school results – the private vs public debate, or conclusions that it’s all down to socioeconomic background – it’s indisputable that a combination of student demand and University aims to create illusions of quality in their courses results in unrealistically high ATAR cut-offs, which disproportionally affect low SES students. And once in university, greater degrees of stress and difficulties in accessing various avenues for support continue to affect rural and low SES students in their path to graduation, and therefore to future legal practice.
With the ATAR cut-off forever creeping higher for law admissions, resulting in opportunities for bonus points that recognise disadvantage being wiped away, it is right that we be concerned about how representative the lawyers we are educating will be. If our current Chief Justice came from Far North Queensland and didn’t even complete high school, can the number 98 on its face value really be considered an indicator of who the top legal mind in Australia may be?
Malcolm Turnbull reportedly remarked to Chief Justice Kiefel that her appointment was an historic moment for women. Her reply, ‘I regarded it as more of a natural progression’, reflected a more grounded sentiment. She has worked hard to rise through the profession, just as 13 Chief Justices have before her. What sets her apart, that she was a woman who overcame disadvantage by working full-time while studying at night, is, however, by no means a thing of the past.
Brigid is a third year BA/LLB (Hons) student, feminist, and a Peppercorn editor.
 Marcia Devlin, The ‘truth’ about ATARs (19 January 2015), National Centre for Student Equity in Higher Education <https://www.ncsehe.edu.au/truth-about-atars/?doing_wp_cron=1489491236.7104649543762207031250>.
 Angela Melville, ‘Barriers to entry into law school: an examination of socio-economic and Indigenous disadvantage’ (2014) 24 Legal Education Review 45, 45.
 Jamie Walker, ‘Susan Kiefel: from high school dropout to chief justice’, The Australian (Surry Hills), November 30 2016, 1.
Photo credit: http://www.hcourt.gov.au/justices/current/chief-justice-kiefel-ac