New Zealand Law Society - Female Australian High Court judges interrupted more than male peers

Female Australian High Court judges interrupted more than male peers

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The Melbourne University Law Review is to release research later this year into the interruption behaviour during oral argument in the High Court of Australia, which found that female judges are much more likely to be interrupted than male judges.

An advance copy of the research has been released.

The study, by graduate lawyer Amelia Loughland, took place over two years with the analysis of the transcripts of Full Bench hearings. The dominant interrupters were male advocates. During the period 2015 – 2016, the three female judges collectively received 52% of the total number of interruptions, whereas the four male judges received 48%. Counterintuitively, after the appointment of a female Chief Justice in 2017, the interruptions increased: the three female judges received 69% of the total interruptions, whereas the male judges received only 31%.

The study considered possible explanations for the disparity, the simplest being that women create a greater opportunity for interruption by speaking more than their male counterparts, however the study found that the female judges spoke roughly in proportion to the representation of their gender on the Court.

Another possible explanation was seniority meaning that more deference might be afforded to senior judges. However, the explanatory power of this argument was diminished by a comparison between judges of similar seniority and volubility but different genders. Gordon J (female) and Edelman J (male) were both first year judges during the period of analysis. Gordon J was interrupted twice as much as Edelman J.

‘Female register’ was rejected as an explanation as there were only a handful of instances in which a judge was interrupted after using polite or prefatory language.

The remaining explanation for the interruption patterns is that advocates perpetuated gendered norms during oral argument. Conversational interruptions can be seen as an expression of dominance and a reflection of gender power relations in society more broadly.

The study also found that advocates demonstrated far greater deference to male judges after realising they had interrupted them.

Female judge

Gordon J: There is an - - -

Mr Donaldson: I am sorry, Justice Gordon, if I could just finish; I am terribly sorry, your Honour. The closest example would be …

Male judge

Keane J: Okay. Well, the particular question I had - - -

Mr Walker: I am sorry. I have interrupted, your Honour

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