The Scarlet Letter | Season 2 |Episode 6 | Caroline Morgan

Ever thought about how fairness might sometimes be a double-edged sword? Caroline Morgan, from the Legal Services Board and Commissioner's Office in Victoria, shares her journey into feminism and how procedural fairness can sometimes hinder broader goals like consumer protection. She questions whether this fairness has gone too far, potentially affecting the operation of law. This episode blends legal insights, personal anecdotes, and feminist theory, making it a must-listen for anyone interested in law and gender equality.

First published 2017.

The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.

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Transcript | The Scarlet Letter | Season 2 |Episode 6 | Caroline Morgan

Tamara Wilkinson: [00:00:00] Good morning, I'm Tamara Wilkinson and you're listening to The Scarlet Letter, the monthly podcast of the Feminist Legal Studies Group at Monash University's Faculty of Law. Today I'm chatting with Caroline Morgan, who's one of my colleagues in Monash's HDR program. She's doing an SJD on the topic of procedural fairness and unfair break on regulatory effectiveness.

Caroline, thank you so much for joining us today for a chat. It's great to have you.

Caroline Morgan: No problem. Thank you Tamara for having me and hello everyone out there.

Tamara Wilkinson: Can you start maybe by telling us just a really short overview of what your SJD topic is about?

Caroline Morgan: Sure my research interests concern the doctrine of procedural fairness and natural justice and how it is [00:01:00] sometimes an unfair break on regulatory effectiveness at the expense of other important goals such as consumer protection.

And my interest has really developed from my work context. I am currently on leave from my role but I work with the Legal Services Board and Commissioner's Office. So Regulator of Warriors in Victoria and some of my experiences over since I joined the office in 2006 have Indicated to me that sometimes procedural fairness gets in the way of getting the job done.

So I decided to do some research into this topic and apply to Undertake an SJD. So I'm only in the early stages of my studies. I have near past confirmation. However I'm happy to sit here and talk, especially about feminism, because I've always had an interest in feminism as a woman. It's always been very close to my heart.

Tamara Wilkinson: I'm happy to do that. Can you tell me a bit about, when you began to engage with feminism? Was it, as a young woman, or?

Caroline Morgan: Yes, [00:02:00] as long as I can remember. Reading books as a young girl. Feeling that I could do and do anything the same as the boys in my class at primary school.

And if not better, especially the boys sometimes develop a little bit slower. So I guess that always sparked an interest. So yeah, from a very young age, I decided I would always keep my own name and things like that. And it went on into secondary school and then into university. I did give a presentation on feminist legal theory in my first year history and philosophy of law class.

And as an undergraduate at Melbourne uni and the male lecturer who was filling in at the time said to him, said to the class, I think that term patriarchy is an anachronistic move on sort of thing. And I felt really I disagreed with him and I was a little bit annoyed because I don't think it's that critical.

I think it's still very much a live issue. I can only think that he may have been coming from a postmodern kind of angle about, different theories and no one philosophy or whatever. [00:03:00] Yeah. That's the only way I could think of that he was, where he was coming from. Yeah. But yes, it's, feminism remains close to my heart.

And it's it in itself is complex. There's lots of different views within the feminist movement and within feminist legal theories. Yeah. So I have learned to tame some of my views to a little bit for that reason and respect others who have slightly different views about the topic as well.

Tamara Wilkinson: Yeah. So Caroline and I both took a seminar last year that was taken by Janice Richardson, one of the founders of the Feminist Legal Studies group. And that module was on Feminist Legal Theory. And as part of the module, we had to prepare a short research essay that related in some way to our topic and brought in Feminist Legal Theory.

Can you tell us a little bit about what you wrote for that paper, because it was a really excellent topic, I thought really interesting.

Caroline Morgan: Thanks for that. So yes, my topic, as I say, is about procedural fairness, and I began my essay by saying that I think feminist legal theory has [00:04:00] much to contribute to this area.

As it too has concerns with substantive justice and progressive change, which is where I'm coming from in terms of my angle about procedural fairness, getting in the way of sort of social justice outcomes. So I think it does have a lot to contribute and I began by talking about feminist legal theory as a lens through which the law and it's institutions that education can be viewed and interpreted.

And in that. Since I did quote Graycar, who you would all know if you've done a lot of reading in fairness legal theory, and I use that sort of theories to try and critique procedural fairness.

Tamara Wilkinson: Yeah. Yeah. Which is quite an interesting angle to take. I'm quite fascinated by your approach to procedural fairness in your topic as a whole, because it really comes at it from a different angle than.

Often discussions about procedural fairness are about promoting procedural fairness and then yours is looking at it and saying, but has it gone too far? Is it actually fettering the operation of law, [00:05:00] which I think is really interesting.

Caroline Morgan: Yeah. And yeah, procedural fairness is a really important doctrine and right that we all should have.

And it's more about, yeah, how Where to get the balance right between one person's right to fairness and other sort of broader community goals So it's not about getting rid of the doctrine at all. It's more about how do we get that balance right between one person's right and other equally important considerations.

Tamara Wilkinson: Yeah

Caroline Morgan: Procedural fantasy is an administrative law doctrine, which is a law concern with public and state institutions. And I'm conscious that yeah, the distinction between public and private spheres has been of central concern to feminists and feminist legal theories. And generally the public realm domain has been occupied by men and the private and domestic sphere fall within that sort of traditional feminist views coming out of the 70s.

And further that those two realms, public and private, have been given asymmetrical value where women and the private sphere has been [00:06:00] undervalued. So I think it is noteworthy that procedural fairness is found in the public law. where one might expect little or no express role for women and women's experiences.

And indeed, there is no express. Procedural fairness applies in a very neutral, objective manner and there isn't any express role for women in that sense. But as others would also know like most other laws in Australia and across the world objective sort of gender neutral terms can often be the veil, which hides what's going on underneath in terms of discrimination and reinforces the norms of the dominant systems.

And. Something that I do find curious about procedural fairness, given that we've moved a bit away from using that term natural justice, is that judges are often at pains to emphasize that administrative law is about legality and lawfulness and not substantive and just outcomes. And this is because the importance of the separation of powers and the non policy roles of the judiciary.

But I think it is curious then that judges have been content to use the term fairness, even [00:07:00] with the qualification of procedural, because whenever you think of fairness, Surely as a woman or coming from a feminist perspective, you're thinking about fairness in that sort of subjective sense almost.

I do find it a bit strange that there is a doctrine called fairness, but yet it's totally gender neutral and didn't probably apply to women a hundred years ago. Yeah. Yeah. The rules of procedural fairness, they've emerged from the old common law doctrine of natural justice, and like any rule or law of old, it's part of a history that of course ignored women.

And one of the common and preferred justifications for procedural Fairness is found, is its foundation in natural law and the dignity of the individual and this rationale raises issues for feminists because the common law and its claim to antiquity is traditionally being used to exclude women.

So there's all these wonderful claims of it's so important and we've had it around for millennia, but hello, what was happening two years ago, 200 years ago, 300 years ago, 400 years ago? Yeah. I don't think it actually applied to dignity of women.

Tamara Wilkinson: Yeah, it's easy to say how it applies to everyone equally, but has that actually historically been what's [00:08:00] happened?

Caroline Morgan: No, I don't think it has, and I don't think, and that's true of not just women but other marginalised groups and interests too, so I'm conscious of that as well.

Tamara Wilkinson: Yeah.

Caroline Morgan: Competing justification for procedural fairness is the democratic value of participation. So moving away from sort of dignitary ideas, dignitarian ideas.

And I do wonder whether participation should justify procedural fairness a little bit more. Because to me, it's been democracy and democratic values that have done more for women. It's been through that participation rather than individual dignity. Because as I say, we can talk about that going back to Biblical days, but women didn't have much dignity back then at all.

Yeah. Yeah. And the threshold for claims for procedural fairness concerns whether or not an administrative decision affects a person's interests. And it's only in recent times that the categories of interests have broadened beyond legal rights relating to interests traditionally associated with men such as property and reputation and employment. They were very male, interest. Yeah [00:09:00] The reason on case of a couple of years ago now of this Vesta And the interest concerning the love of a dog. This is a case that went to the High Court about a council decision to put a dog down following a dog attack.

Yeah. Shows how far the doctrine of procedural fairness has evolved. Like they've started to recognize different types of interests. And that was about, yeah, the the love of a dog. Yeah. However, it could be argued that ownership of the dog has been traditionally a man's concern. Indeed, one article critiquing this case was, had the title for every man and his dog.

Yeah. Again, you can see the the underlying vice is there, I think. Yeah, so it's, yeah. Oh, you can definitely critique this doctrine from a feminist perspective. Yeah. The right to be heard is one of the main rules of procedural fairness, which is the right to put your case when someone's challenging you.

And as I said it's a doctrine that has been traced right back to ancient times, and often the literature will refer you to the story of Adam in the Bible and that [00:10:00] he was allowed to explain why the apple was eaten and all the rest of it so there's a lot of sort of all these claims to antiquity and famous philosophers, et cetera who were usually all men.

True. And despite all this sort of high moral rhetoric, there is no mention of women or other marginalized persons. And this of course, is because women were not recognized as persons until relatively recently. Yeah. So this to me immediately shows you how the doctrine is totally fallible and exists within the norms and the prejudices of the times.

Tamara Wilkinson: Yeah.

Caroline Morgan: One of the difficulties with the right to be heard is that it is just an opportunity to make submissions. There is no guarantee of an outcome. Indeed in the past, even when women were given the opportunity to speak, they were often not treated as credible or persuasive. Yeah. And there are lots of things that I've seen in public social media about how much women speak, particularly, in movies, I'll say women speak less than men or even in interviews you'll hear who speaks more.

So it's interesting to think about that when we talk about the right to speak. Because I do think that's quite a male thing as well. [00:11:00]

Tamara Wilkinson: And a lot of times women are criticized about how they speak and are often seen as unreliable witnesses. And yeah. found to be less authoritative and less convincing.

Caroline Morgan: Yeah. Yeah. So I am skeptical about, saying, okay, women now have the right to speak and that's great. But that doesn't mean that the person listening is really hearing you. Particularly if everything's stacked against you in terms of the systems of the time. Yeah. And there is that famous quote, I think from Nelson Mandela about, a black man singing in a white man's court.

And it's all in the end, it's useless what they say because nothing's going to change if the system is really tipped against you. Yeah. The second rule of procedural fairness that is the right to be heard by an unbiased decision maker which in itself is, very relevant to feminism.

Yeah. But it doesn't usually extend, however, to predispositions on views of social or intellectual matters. So that it does not apply in the case of minority or marginal interest. So you can be biased in that sense, but that's no, of no consequence. You need to be biased in a [00:12:00] direct sense of, I don't have a pecuniary interest in this position, in this outcome.

Tamara Wilkinson: It's no guarantee that you're not a racist, sexist throwback.

Caroline Morgan: So that's, to me, it shows you that the rules of procedural fairness are not capable of, nor do they pretend to, solve or cure the problems of partiality that arise from gender or other interests outside of the predominant norms.

Yeah. I won't be addressing feminism in my thesis, but I do have as a background concern that it is a doctrine where it reinforces the norms of the time. And if someone doesn't really want to hear you, then they won't anyway. Yeah. They can make it look like they've heard you, but that's about it.

But yeah, feminism remains a passion of mine and an interest. And I guess it's part of my, as I say, my, cynicism about doctrines that pretend to be fair that aren't necessarily as fair as they could be.

Tamara Wilkinson: Yeah. So what will be next for you once you complete your SJD? What do you hope to move on to?

Caroline Morgan: I hope to in the future combine a bit of [00:13:00] work with lecturing.

Tamara Wilkinson: Yeah. Best of luck with completing your SJD. I'm sure it's going to go extremely well. And thank you so much for coming to speak to us today. Thank you, Tamara. Thank you. And thank you all for listening to The Scarlet Letter. You can catch us again next month on SoundCloud or iTunes.