2023 Sybil Morrison Lecture
An abiding commitment to justice: The Hon Justice Carolyn Simpson AO KC
I am aware of the extreme fortune and privilege I have to be a woman in the legal profession in 2023. My life in the law would have been completely different had it not been for the determination and achievements of the pioneering women that came before me. Justice Carolyn Simpson was one of those pioneers, as a woman who joined the NSW Bar in 1976 – a very different time, when women faced significant barriers in entering the legal profession. Justice Simpson overcame those barriers and was appointed one of the first female silks in NSW in 1989 and the second female judge of the NSW Supreme Court in 1994.
Many of the reports of Justice Simpson’s work and life refer to her tenacity, intellect and her deep and abiding commitment to justice. Through the example she has set, both during her time as a barrister and a judge, Justice Simpson reminds us of the importance of women’s leadership in our society and of the importance of advocating for justice and equality for all people in our community.
Early life
Justice Simpson was born in regional NSW and completed high school as a boarding student at PLC in Sydney. Justice Simpson’s father is said to have insisted that she and her siblings all finish school and obtain university degrees, which they did.1
After graduating from high school, she went to Teachers’ College at Bathurst and then taught English and History at Broken Hill High School, Kingsgrove North High School and Kogarah High School. In an interview, Justice Simpson said that she ‘wasn’t very good’ at being a school teacher and had a ‘burning desire’ to be a journalist.2 Luckily for us, she didn’t have much luck obtaining employment as a journalist. So, as her Honour says, ‘almost by accident’, she decided to study law. In 1976, she completed the Barristers’ Admission Board Course and became a judge’s associate to Judge Robson in the District Court and in her words, became ‘hooked’.3
Career at the Bar
Justice Simpson was admitted to the NSW Bar in 1976 and developed a wide and diverse practice in crime, administrative law, common law and anti-discrimination matters.
Her Honour took silk in 1989, only the sixth woman in NSW to do so.
In her time at the NSW Bar, Justice Simpson was passionate about protecting and advancing civil liberties and social justice and had a formidable reputation, particularly with respect to women’s issues. Her Honour was the President of the NSW Council for Civil Liberties from 1976 to 1980. With Justice Simpson at the helm, the Council advocated for important issues including reforms to the criminal justice system under the Summary Offences Act, the Mental Health Act, and prisons. Justice Simpson never shied away from using her platform to advocate for improved opportunities, rights and recognition for the marginalised and vulnerable in society – prisoners, young offenders, students from low-income backgrounds, and women.
Appointment as a Judge
Her Honour was sworn-in as Judge of the Supreme Court of NSW in February 1994. At that time there were only 31 women barristers in NSW and Justice Simpson was only the second female judge appointed to the Supreme Court.4 When reflecting on her appointment and her lack of female judicial colleagues, Justice Simpson commented:
The long and short of it is that many years ago women weren’t getting the opportunities to prove that they were capable barristers and suitable potential appointees. So the absence of women on the bench now is a reflection of those practices of 15 or 20 years ago. I mean it takes 20 years to grow a judge.5
Her Honour’s appointment was a small step forward in challenging the status quo, and addressed a concern that the judiciary should be made more representative of the community. A discussion paper on judicial appointments released by the Commonwealth Attorney-General in 1995 found that most judges were male, appointed in their early fifties and products of private schools. The paper said judges should be appointed from a broader field of candidates to represent a ‘fair reflection’ of society so that women, Aboriginal and Torres Strait Islanders and members of other ethnic groups would not be overlooked.6
Justice Simpson made legal history in 1999 as one of three women judges who formed the first all-female bench to sit in an Australian court – the NSW Court of Criminal Appeal –with Justice Beazley and Justice Bell.
Justice Simpson was a judge of the Supreme Court for 24 years, including almost three years in the NSW Court of Appeal. In March 2018, she retired as a full-time Judge of the Court. She had been the Supreme Court’s longest serving judge, and in Chief Justice Bathurst’s words was ‘a significant source of consistency and continuity’.7
Reflecting on her time on the bench at her farewell ceremony, Justice Simpson spoke openly about the drudgery of the work faced by a judicial officer – spending sunny Sunday afternoons ‘mired in the mysteries and the miseries of the Civil Liability Act or the Workers Compensation Act or trying to untangle the apparently conflicting statements of legal principle or statutory construction or sifting through the psychological reports in a sentence appeal and aware that in the outside world people are gardening, sipping coffee, reading not for work but for fun’. Yet, Justice Simpson was quick to point out that her appointment as a judge was always an ‘honour and a privilege’.8 Justice Simpson continues to serve the state of NSW and currently sits on the Court of Appeal as an Acting Justice.
In May 2018, Justice Simpson was appointed Commissioner of the NSW Law Reform Commission review of the law of consent in sexual assault matters.9 The Commission’s report led to important legislative reform and the inclusion of communicative and affirmative consent language in the Crimes Act 1900 (NSW).10
In 2019, Justice Simpson was made an officer of the Order of Australia for distinguished service to the law, and to the judiciary, particularly in the areas of criminal, defamation, administrative and industrial law.
Women at the Bar
When Justice Simpson joined the Bar in 1976, women accounted for only 5 per cent of barristers in NSW and just 12 per cent of solicitors.11
As a young female barrister, Justice Simpson faced prejudice and exclusion from the boys’ club that was the Sydney Bar. Of that time Justice Simpson said:
There were some tough times: it was not easy for women in those days. If you got a brief at all, it was in family law. Some of us didn’t want to do family law. It was hard, so you had to stay with it.…women were an ‘absolute minority’ at the Bar at the time.12
Since then, women in the legal profession have made tremendous strides. For several years, the number of women graduating from law school has been equal to or greater than the number of men.13 Females now dominate in all sectors of legal practice outside the Bar.14 More and more women are being promoted to leadership positions in practice and in government. We now have three female High Court judges –Justice Michelle Gordon, Justice Jacqueline Gleeson and Justice Jayne Jagot, and recently had four, prior to the retirement of Chief Justice Kiefel. In the May Bar Practice Course this year, I am proud to say that women made up 46% of the cohort. Women in the law are having a breakout moment (just like the Matildas in the 2023 FIFA Women’s World Cup).
But there is still a long way to go. We still face challenges in addressing harassment in the workplace, inflexible working conditions for people with carer responsibilities, and the regrettably low numbers of women partners at large law firms and senior women barristers. According to the NSW Bar Association, women make up approximately 25 per cent of all practising barristers, but only 13 per cent of all senior counsel.15
And while women barristers are now engaged in more than 30 per cent of all legal matters, we still face a real gender pay gap. The Law Council of Australia’s Equitable Briefing Annual Report for 2019—20 reveals that while briefs handled by women rose by 11 per cent between 2016 and 2020, the value of that work only rose by 8 per cent.16
There is no doubt that we have come a long way in breaking down the barriers that existed for women in 1976, in large part due to the courage and achievements of pioneers like Justice Simpson. With continued determination, our community of women lawyers, barristers and judges will continue to knock down barriers. We should all support the platforms we have to celebrate women’s achievements in the law, encourage our colleagues to brief more diverse junior and senior counsel, and call out exclusionary practices. Inspired by Justice Simpson, I am optimistic about what the future holds for our profession. I am grateful to her Honour for paving the path ahead.
I end with a quote from Justice Simpson at her NSW Supreme Court farewell ceremony:
‘To the young women, and, I add, to young men without the preferred connections and to those of different ethnic origins, I say the task is not impossible. Yes, it will be difficult, there is no doubt about that. Yes, you will encounter injustice, prejudice and bias, usually unarticulated. You will encounter resistance, sometimes overt, sometimes so subtle that you will hardly know where it is coming from. You will have to struggle more than your male counterparts – but give it a go. Look at the bench beside and behind me. The task is not impossible. I am not saying that you will not face obstacles, you will. You owe it to yourselves to give it a go and you owe it to the next generation who will, by your efforts, find it a little easier.
‘To those young women contemplating a career in the legal profession, perhaps with judicial ambition, do not be daunted. The obstacles are there, and your challenge is to surmount them. To adopt and adapt the message of the former President of the United States, yes, you can.’ BN
ENDNOTES
1 ‘It’s a different world but these girls still face big challenges – WOMEN IN EDUCATION’, The Australian, 8 March 2019.
2 ‘It’s a different world but these girls still face big challenges – WOMEN IN EDUCATION’, The Australian, 8 March 2019.
3 Speech of Justice Carolyn Simpson, Swearing in Ceremony of the Hon Carolyn Chalmers Simpson QC, 1 February 1994.
4 Swearing in speech of Mr Tobias QC, President, NSW Bar Association, Swearing in Ceremony of the Hon Carolyn Chalmers Simpson QC, 1 February 1994.
5 Lindsay Simpson, ‘Bias on the Bench’, Sydney Morning Herald, 7 March 1994.
6 Attorney-General Michael Lavarch, Discussion Paper: ‘Judicial Appointments - Procedure and Criteria’ (September 1993).
7 Transcript of Proceedings, Farewell Ceremony for the Honourable Justice Carolyn Simpson upon the Occasion of her Retirement as a Judge of the Supreme Court of New South Wales (Supreme Court of NSW, 27 March 2018. The transcript of Justice Simpson’s farewell speech is available at http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2018%20Speeches/Simpson_20 180327.pdf.
8 Transcript of Proceedings, Farewell Ceremony for the Honourable Justice Carolyn Simpson upon the Occasion of her Retirement as a Judge of the Supreme Court of New South Wales (Supreme Court of NSW, 27 March 2018. The transcript of Justice Simpson’s farewell 2018 speech is available at http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2018%20Speeches/Simpson_20 180327.pdf.
9 https://www.lawyersweekly.com.au/wigchamber/23304-trailblazer-appointed-to-lead-nswconsent-law-review.
10 NSW Law Reform Commission, Consent in Relation to Sexual Offences, Report No 148 (September 2020).
11 Colleen Ryan, ‘Women and the Law, the Long Path to Equality’, Sydney Morning Herald, 12 December 1981.
12 ‘It’s a different world but these girls still face big challenges – WOMEN IN EDUCATION’, The Australian, 8 March 2019.
13 Michael Pelly, ‘Women reach an important milestone in legal profession’, Australian Financial Review, 5 May2023, https://www.afr.com/companies/professionalservices/women-reach-an-important-milestone-inlegal-profession-20230503-p5d5an.
14 Michael Pelly, ‘Women reach an important milestone in legal profession’, Australian Financial Review, 5 May 2023, https://www.afr.com/companies/professionalservices/ women-reach-an-important-milestone-inlegal-profession-20230503-p5d5an.
15 New South Wales Bar Association, ‘Statistics’<https://nswbar.asn.au/the-bar-association/statistics>.
16 See Law Council of Australia, Annual Report for the 2019—2020 Financial Year of the Equitable Briefing Policy, 8 September 2020; Michael Pelly, ‘Women barristers reach 30pc milestone but pay gap remains’, Australian Financial Review, 8 March 2022, https://www.afr.com/companies/... reach-30pc-milestone-20220308-p5a2w8.