Gender balance at Australia’s top court tips in favour of women for first time

Major landmark welcomed; but men make up 75% of latest New South Wales Senior Counsel appointments
nberra, Australia - March 12, 2018: High Court of Australia

Greg Brave; Shutterstock

The High Court of Australia – the nation’s apex court – has announced the appointment of a new woman judge, tipping the gender balance of the bench in favour of women for the first time.

But while the unveiling of Jayne Jagot as the replacement for Justice Patrick Keane has been welcomed as a major milestone, the appointment of 20 new New South Wales (NSW) Senior Counsel (SCs), of whom just five are women, has underlined the challenges associated with achieving a similar level of parity within the senior ranks of the Bar. 

Welcoming the appointment of Jagot, Federal Attorney General Mark Dreyfus KC MP said: “For the first time since Federation a majority of Justices of the High Court will be women.” He added that Jagot “will serve the court with great distinction”.

Jagot is a former partner at King & Wood Mallesons (KWM) and the firm praised her “incredible judicial journey” since joining legacy firm Mallesons in 1991 and subsequently moving across the Bar in 2002. 

KWM global chief executive partner Sue Kench said that Jagot was “a fantastic addition” to the court, while KWM chairman David Friedlander added: “Her ‘hard’ skills as a lawyer and judge are combined with incredible ‘soft’ skills that are invaluable in any courtroom, in particular the ability to listen to anyone appearing and to show them respect.”

While only seven women have ever been appointed to the court since its establishment in 1903, this latest appointment means four out of seven members of the current bench will be female. 

Jagot’s appointment, meanwhile, coincided with the unveiling of the latest cohort of SCs by the New South Wales Bar Association.

The rank of SC – equivalent to King’s Counsel in other Australian states and territories that maintain a separate referral Bar – has been administered by the bar association since 1993.

This year's tally of twenty SCs was the same as in 2021 but down six on 2020, the largest appointment round since 2015. Seventy-seven male and 21 female barristers applied for silk, with 15 men and five women being appointed. That translated to 24% of the total number of female applicants being successful as opposed to 19% of male applicants; that proportion was comparable to previous years.

Of the 400 silks in practice, 14.25% are female, while women make up just shy of 25% of the barristers’ profession in NSW, one of Australia’s commercial heartlands. Figures for ethnic diversity are unavailable. 

The inaugural Women and Diversity in Law Awards, which are hosted by The Global Legal Post, will take place in London on 22 March 2023. Click here for more details

The majority of new SCs practise in criminal, family, civil litigation, equity and property law. However, several enjoy strong commercial practices, with recognised backgrounds at major law firms.

Justine Beaumont of Nigel Bowen Chambers, formerly of Allens, is a commercial litigator, while Nicholas Bender of Banco Chambers, has a strong commercial, insolvency and international law practice, having worked at legacy Mallesons and Linklaters in London. 

Others had worked for what are now Anglo-Australian firms, with Charles Colquhoun of Tenth Floor Chambers having practised at what is now Herbert Smith Freehills, as did 8 Selbourne Chambers' Justin Hewitt, who was also an attorney at Shearman & Sterling. 

IP lawyer Julian Cooke of 5 Wentworth Chambers worked in London for CMS and at Mallesons in Sydney. Tax and public law barrister Bradley Jones combines the law with reserve service with the Royal Australian Navy as a command legal officer, most recently on HMAS Ballarat in 2013.

Jonathan Kay Hoyle, formerly a commercial barrister in London, worked in Paris for five years at both the ICC and Freshfields Bruckhaus Deringer on international arbitration cases before spells at both Clayton Utz and Mallesons. He joined the NSW Bar in 2009.  

Last month, Western Australia appointed Jones Day partner Michael Lundberg as its first Aboriginal Supreme Court judge.

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