Pamela Burton shows that success did not come to Gaudron easily: she stumbled often. But self-belief was crucial in her personality. Gaudron would become a judge. Yet, to resist the chronological for a moment, there was one occasion on which she did not grasp an opportunity. Towards the end of her career on the High Court, Prime Minister Paul Keating raised with her the availability of the chief justice’s chair. Gaudron shouted him down. She would not leapfrog her senior colleagues, even to set another benchmark for women.

My father admired the power of judges, and wished me to become one. In the event, I left the Bar in case I was in danger of becoming one, a fear my Master thought baseless. A judge’s duty to the law is absolute, a kind of servitude. I know a judge who sought chairmanship of many charities to leaven his life, perhaps to give it greater meaning. Several judges see their duty as a form of entrapment, and few can make anything of a substantial other life; they must be so careful with whom they associate. Some become hobby farmers, one federal judge is also a vintner, and I have stalked lakes with several fine flyfishers from the benches. But these are solitary pursuits.

Gaudron would have none of this. She revelled.One strength of this biography is that Burton gives us a clear sense of the personality that craved success and brooked no diversion – not through direct observation of Gaudron, who was well known to her, but through Gaudron’s behaviour on the benches and individual judgments. Burton’s summaries of the latter are clear and precise.

As the solicitor-general of New South Wales, Gaudron was aggressive and controversial. Burton credits her with a central role in the effort to scotch the right of appeals from the High Court to the Privy Council. Negotiations with the British were stuck on the issue of multiple states having rights to advise the Palace. In London, Gaudron presented herself at the British Foreign Office to complain of slow progress and suggested that one state representative should speak for all. This was eventually agreed. At the time, Gaudron was in London appearing before the Privy Council.

Burton’s descriptions of her subject’s personality are general (‘clever, funny and different’, with ‘insults ready to trade’). Better are her anecdotes.

Staples recalls Gaudron’s tact and humour after one social lunch that included a bottle of red wine. Gaudron and Staples returned to a full bench hearing over which Gaudron presided. Staples, not unusually, engaged in an argument with counsel, and to guard against it getting out of hand, Gaudron slipped him a note. It read: ‘Shut up. Your lunch is showing.’

In the National Wage Case 1974 for women’s equal pay, Clyde Cameron, a minister in the Whitlam government, arranged for her to be briefed for the Federal Government in its push for equal pay. Gaudron was then thirty-one. As the judges filed in, women agitators in the gallery heckled and waved placards.

Clyde Cameron was there. He saw Gaudron turn to the hecklers to calm the commotion that broke out, and heard her say, ‘Pull your heads in, you bloody fools. Just shut up. You’re not helping your case by shouting and carrying on with banners. For Christ’s sake, shut up.’ Turning back to face the bench, she quickly resumed her professional composure.

Long ago, I happened on an old friend from the Bar and asked how he was faring. ‘You know what it’s like, running up and down on the spot,’ he said. Mary Gaudron wouldn’t have understood any of this. There were too many fights to contest, successes to achieve. Aiming for appointment to a bench, she avoided specialisation. Instead, she could do criminal, equity and trust, administrative, procedural, commercial, conciliation and arbitration, international and constitutional law.

As the New South Wales solicitor-general in the 1980s, Gaudron was before the High Court when states were given leave to intercede when an issue of states’ rights arose. Gaudron took each opportunity and performed spectacularly well. During the Franklin Dam case in 1983 she remarked: ‘The Commonwealth power with respect to corporations poses more immediate problems for the State Government than any other matter considered in the Tasmanian decision.’ The Commonwealth had applied its power to regulate corporations because the Hydro-electric Commission was a corporation. Was Gaudron the first to foresee the dangers of a federal power-play using the corporations power simply because one of the parties was a corporation? I can’t find an earlier example.

Gaudron’s various appointments caused much outrage among conservative politicians, among media barons and their cockerels, and among male lawyers. Until the early 1960s there were few female lawyers, and women could not serve as jurors. When the jury lists were opened to women, some barristers seriously considered whether the forms of advocacy might need to change. When at last women were considered for a bench, the given wisdom favoured the appointment only of the most expert lawyers; this was the ‘highest qualifier’ argument. Gender, supposedly, was irrelevant. Of these debates Burton notes: ‘Gaudron suggested that “merit” was a relevant criterion for the appointment of judges only when it came to women.’

The ‘highest qualifier’ view was mine for a time, until I realised that humankind believes as we wish to believe and that elevation to positions of power for those more alert to unfairness, inequality, and prejudice was sensible. These special qualities make relevant gender, race, and class. On the appointment of Ian Callinan QC to the High Court, Burton says: ‘Callinan’s appointment to the Court was the Coalition Government’s response to pressure to appoint not only a conservative but a Queenslander.’ So dies the purist argument to appoint only the highest qualifier.

While I have your attention, can I make a plea for the avoidance of the term ‘activist judge’? James I was so concerned about the misery inflicted by harsh law that he directed his chancellor to establish a rival court to deliver greater equity. In the event of conflict, equity should prevail. Courts administering law and equity were fused in the 1870s.Why do many commentators prefer to forget this?

In Burton’s account of Mary Gaudron’s radical career in law, key factors in her intricate personality become clear: loyalty to comrades, intense ambition, shrewd judgements of powerful friends, considerable self-regard, a vulnerability to slights, scornfulness of criticism, pride in her intellectual ability, a clear sense of herself as an agent of fairness. For her times, it was a winning combination.

Some wonder about the depth of Gaudron’s judicial legacy. For my own part, I’d be satisfied with Mabo and Wik. Eddie Mabo’s case, which he lost but others won, established customary title to land, but considered only the Murray Islands. The Wik People’s case extended the ruling to mainland pastoral leases, finding that common law customary title was not extinguished by pastoral leases because those leases did not grant exclusive rights to their leaseholders. Customary rights coexisted. The reasoning here is not complicated. Common Law is a system by which courts recognise customary arrangements and rule on them, which findings create precedent. The furore over the Native Title cases was caused by shock that common law covers all peoples in the jurisdiction, not just those who are white.

After Wik, Tim Fischer, the acting prime minister, called the decisions unacceptable and sought curbs. As Burton relates, ‘Federal Attorney-General Daryl Williams urged coalition members to cease their attack on the judiciary at the same time as PM Howard appeared to support the critics of the Court.’ One wonders now if this prompted Howard to replace Daryl Williams as attorney-general with a lesser lawyer, Philip Ruddock. From around 2005 I heard  Ruddock’s  tone becoming more and more judicial, and wondered if this marked an anticipation of a coming time on the High Court bench.

As a young barrister in 1980, Gaudron was briefed to appear (as junior to Clive Evatt) for Wilfred Burchett in his defamation action against Senator Jack Kane. Evatt withdrew and Gaudron lost her brief, because the solicitor did not brief women. Burchett and Gaudron in concert would have been an interesting proposition, both from the same ‘barefoot to school and backside out of the trousers’ mould. The irascible seldom get on well together for long, yet reading Burton’s portrait of Gaudron puts me in mind of Burchett, whom I knew in Paris. After a time, the idiosyncratic personality becomes an irritant, but contemplating both of these controversial Australians, I am left with a suspicion that within those difficult souls lie deeply admirable qualities.

CONTENTS: APRIL 2011