Female Crime

Judicial fictions and the fictive feminists: re-imagination as feminist critique inPGA v The Queen

“…Although Heydon and Bell JJ 'tell a less heroic tale of Australian law and its treatment of married women' they are seen as being 'more concerned to defend the great jurists of the past and to insure against the more abhorrent departure from principle which is retrospectivity'. 126 Naffine's observations therefore make a statement about what counts as feminist judging through the prism of Heath and Larcombe's contribution. Here we see that what counts as feminist judging is a question of substance rather than form.…”

“…There was no critical reflection on past law and practice … Moral outrage at the treatment of women is missing because the mistreatment is denied. 125 The light shed by the alternative feminist judgment implies that neither Bell nor Heydon JJ's judgment passes muster as a feminist judgment, despite the fact that the real and imagined judges are in agreement. Although Heydon and Bell JJ 'tell a less heroic tale of Australian law and its treatment of married women' they are seen as being 'more concerned to defend the great jurists of the past and to insure against the more abhorrent departure from principle which is retrospectivity'.…”

“…This awareness is 'pivotal' because with it comes the 'acceptance of responsibility for the rules whose construction relies on fictions and myths'. 128 Therefore we know that the truth to which Naffine alludes is not in deriding legal fictions as 'untrue'. Notwithstanding the contested nature of truth generally, legal truth for the feminist judges might be understood as recognition of the role of legal fiction and their place within it.…”

“…Naffine's appeal to truth in introducing the feminist judgment reminded us 'that judges are bound to state the legal truth, even if it is harsh'. 127 Although writing only about the published judgments, Naffine and Neoh's points about judicial awareness of the role of creativity in judicial method are instructive in coming to understand the role of 'truth' in judgment writing and law. This awareness is 'pivotal' because with it comes the 'acceptance of responsibility for the rules whose construction relies on fictions and myths'.…”

“…78 Lesses appeared as junior counsel for the prosecution in the High Court. [125][126][127][128][129]. 83 Many of their arguments, particularly in relation to the majority's partial treatment of the case law in denying the existence of the immunity, are reproduced, at least in part, in their alternative feminist judgment and I will examine those dimensions of their reasoning below.…”