Dr Kcasey McLoughlin
Newcastle Law School
- Phone:(02) 4921 5510
Balancing the scales
Kcasey McLoughlin is an early career researcher and social commentator who probes the notion of gendered difference in Australian law.
TRANSFORMATION OR APPROBATION
Kcasey McLoughlin crafted her PhD thesis, critically interrogating the impact of gender within the High Court of Australia.
The High Court of Australia is the supreme court in the Australian court hierarchy, with seven judges presiding over the court at any one time.
Kcasey's thesis was originally inspired by a period between 2009 and early 2015, when three of the seven judges were women.
This gender proportion was in stark contrast to previous incarnations that were heavily gendered or completely exclusive of women.
Kcasey's thesis examined the influence of gender, and gender politics, on the High Court processes, from appointment through to the retirement of judges.
Additionally, Kcasey's thesis it also asked whether women judges effectuate a gendered perspective informed by life experience, or innate difference in legal reasoning.
By exploring the judgments of this period, Kcasey is also assessing whether the important radical transformations as envisaged by 20th century feminist theorists agitating for gender balance in judiciary bodies has occurred, or is even possible, within the High Court of Australia.
Firstly, the appointment process of high court judges, and the inevitable discourses around those appointments are examined in Kcasey's work.
Conversations regarding the meritorious virtues of newly appointed male judges are rarely undertaken.
In contrast, the appointment of female judges incites much discussion about merit, and assurances that affirmative action has not been invoked. Kcasey recently published an article in the Alternative Law Journal about the politics of merit and diversity in High Court appointments.
Speeches given by newly appointed judges at their swearing in ceremony also reflect a gender disparity.
Kcasey points out that new male judges are more than willing to emphasise aspects of their lives that don't fit within a dominant narrative. One male judge even affirmed the importance of women judges in his speech.
Comparatively, the women judges disregarded the challenges they have faced as being irrelevant and downplayed their difference, choosing to avoid a possible label of advocate.
A study of women judges' maiden or first judgments to be published in the forthcoming issue of the international journal Feminist Legal Studies in 2015, gives insight into prevailing models of collegiality on the court.
"It's quite fascinating. They actually have this wonderful moment of judicial authority when they start out, but subsequently their contributions have very much been based on consensus," Kcasey explains.
The retirement speeches made by retiring female High Court judges are also examined in Kcasey's thesis.
Justice Susan Crennan retired in early 2015. Her final speech celebrated the consensus and collegiality of the bench.
Justice Crennan's subsequent replacement by Justice Geoffrey Nettle sparked discourse around gender equity. Debate around gender quotas, an equity measure Australia seemed unwilling to institute, also followed.
Kcasey concedes that the women appointed to the High Court are delegated power within a masculinist structure and are therefore somewhat limited in their capacity to affect change.
But she does admit to being fascinated by just how much these female judges have participated in forming part of the consensus.
THE PATH TO PROMINENCE
It was Kcasey's dislike of consensus that originally started her on this career path.
"I've wanted to be a lawyer since I was about seven. My parent's told me I was very good at arguing, although it turns out that is not always the most appropriate skill set for this profession," she laughs.
In high school, Kcasey was awarded the Sir Adrian Solomons Memorial Law Bursary, and undertook work experience in a legal firm, confirming her choice of career.
Upon graduating with Honours, Kcasey applied for a PhD scholarship. This allowed her to volunteer at a community legal centre and tutor across many subjects, before gaining a full time teaching position at the UON in 2012.
"I love teaching. There is a lot I like about being an academic. There is autonomy, and space to write about things that you care about," she says.
By extension, Kcasey's work is also concerned with the impact of law on the lives of Australian women. She has already made several thought provoking contributions to national discourse around feminism, law and politics.
Kcasey wrote a pointed piece for The Conversation regarding the framing of the appointment of Justice Michelle Gordon to the High Court in 2015.
In it, she argues that the reinstatement of the almost equal gender balance in the High Court was merely serendipitous for a government looking for an appointee who would maintain the philosophical status quo of the existing bench.
Kcasey has also written about the implications of Zoe's Law on the legal status of abortion in this state.
"The narrative around Zoe's Law has become very problematic," she says.
"The unfortunate side effect of the unimaginable grief of an individual is a debate which has the potential to impact on the autonomy all women have over their own bodies."
She has also authored articles exploring the ethical and legal quandries that are inherent within the ever-evolving manifestations of the Abbott government's paid-parental leave scheme plans.
Kcasey is aware that her choices around topics may affect her future career prospects, but feels ethically compelled to join in on these debates.
"I had a vision of myself having courtroom dramas and that is still an option. For now, contributing to important conversations that we need to have as a nation, is important to me."
She smiles, "Even if they may not help my employability status."
Investigating instances of inequity and agitating for change is a life's work for Kcasey. The High Court is only her first target, and demanding diversity of representation, only a first step.
"There is all kinds of scope to look at diversity. People say 'So what are you going to do, have a seat for this person and one for that person?'"
"But that's a really simplistic binary. What we should be doing is having conversations about diversity and its benefits. Diversity enhances our public institutions rather than undermines them."
Kcasey notes that even without radical advocates or codified changes in processes, the evolution of society will be slowly but inevitably mirrored in changes to the High Court.
She notes that the male judges appointed in the future will be brought up in a different time to their previous counterparts, and can be feminists.
Despite the idealistic vision of the feminist theorists of the past, even equal representation in power may not create fast or noticeable change, as Kcasey's study of the period of almost equal gender balance in the High Court proves.
"Inherently we have a pretty conservative bench, it's certainly not been a tale of how three women got on the bench and destroyed the joint. That's not been the case at all."
Let's just see what happens once Kcasey gets there.
Kcasey McLoughlin is currently a Lecturer in Law at Newcastle Law School. Kcasey's research explores the interaction between women, gender and difference in the judiciary. Her PhD was awarded in 2016 and this research examined the way in which gender and difference have impacted upon the contributions of women judges to the High Court of Australia. As an interdisciplinary researcher interested in feminist legal theory and feminist political theory she is eager to press the boundaries between the disciplines of law and political science in ways that are meaningful to both disciplines. Kcasey's experience working for a Member of Parliament in a regional electorate provided valuable experience in politics and policy and reinforced the important role lawyers can play in public policy debates.
Kcasey is admitted as a Solicitor of the Supreme Court of NSW and has experience in commercial legal settings and in community legal centre work. Her experience as a Solicitor at the University of Newcastle Legal Centre advice sessions further underscored her commitment to clinical legal education. Kcasey is passionate about the educational benefits of mooting and has co-ordinated Newcastle Law School's Mooting Program since 2013. This has involved coaching students in various competitions (the Ashurst Equity Moot, Kirby Contract Moot, the Harry Gibbs Constitutional Law Moot and the Jessup Moot) and forging connections with the legal profession to enhance the opportunities available to our students.
Kcasey's research about gender, judging and the judiciary has been published in national and international journals. In addition to her research about women and the judiciary, Kcasey's research is more broadly interested in how law affects women's lives. She has written about abortion, sexual violence against women, paid parental leave and gendered constructions of harm in free speech cases.
Kcasey has supervised four students in the completion of their Honours dissertations in Law and enthusiastic about opportunities for future supervision.
Teaching Expertise and Experience
Legal System and Method; Family Law; Mooting (Advocacy); Professional Conduct; Constitutional Law
Kcasey also has experience teaching in the Politics Discipline. She has taught into introductory Political Theory and Australian Politics courses and the upper level Feminist Political Theory course, Challenging Political Discourses.
- Doctor of Philosophy, University of Newcastle
- Bachelor of Arts, University of Newcastle
- Bachelor of Arts (Honours), University of Newcastle
- Bachelor of Law/Diploma of Legal Practice(Honours), University of Newcastle
- Family Law
- Feminist jurisprudence
- Feminist legal and political theory
- Gender and judging
- Legal System and Method
- Mooting (Advocacy)
- English (Fluent)
Fields of Research
|160299||Criminology not elsewhere classified||50|
|160399||Demography not elsewhere classified||50|
|Title||Organisation / Department|
|Lecturer||University of Newcastle
Newcastle Law School
Faculty Student Engagement Award
Faculty of Business and Law, The University of Newcastle
Faculty of Business and Law Research Higher Degree Best Publication Award
For publications that are currently unpublished or in-press, details are shown in italics.
McLoughlin KJ, 'Â¿A Particular Disappointment?Â¿ Judging Women and the High Court of Australia', Feminist Legal Studies, 23 273-294 (2015) [C1]
Journal article (7 outputs)
Jose J, McLoughlin K, 'John Stuart Mill and the Contagious Diseases Acts: Whose Law? Whose Liberty? Whose Greater Good?'', Law and History Review, 34 249-279 (2016)
Copyright Â© the American Society for Legal History, Inc. 2016.Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws create... [more]
Copyright Â© the American Society for Legal History, Inc. 2016.Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws created to restrict the liberty of some individuals or class of individuals in order to protect the public good are in effect outcomes of tradeoffs between abstract universals, namely liberty and the public good. A three way relationship is imagined in which law, liberty, and the public good are in creative tension. The role of the law in this three way tension is further imagined to be the mediator where it serves to calibrate this tension in ways that are also assumed to legitimate the intended outcomes in practice. In particular, where the outcome is the prevention of harm, then laws that curtail liberty must be seen not just as measures for the public good, but rather as necessitated by the potential effects of the very harm itself. The justification for this view is often traced back to the views of nineteenth century political philosopher John Stuart Mill, who famously expressed this in terms that have become known as the harm principle; specifically that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
Jose JW, McLoughlin K, 'John Stuart Mill and the Contagious Diseases Acts: Whose Law? Whose Liberty? Whose Greater Good?', Law and History Review, 34 249-279 (2016)
McLoughlin KJ, 'Australian Feminist Judgments: Righting and Rewriting Law (Book Review)', Alternative Law Journal, 40 144-144 (2015) [C3]
McLoughlin K, 'Judicial fictions and the fictive feminists: re-imagination as feminist critique in PGA v The Queen', Griffith Law Review, 24 592-615 (2015)
Â© 2016 Griffith University.Hale's dictum about conjugal rights suggests that imagination plays an important role in the propagation of legal fictions as the basis for enduring le... [more]
Â© 2016 Griffith University.Hale's dictum about conjugal rights suggests that imagination plays an important role in the propagation of legal fictions as the basis for enduring legal judgments. Imagination is no less important for understanding how feminist legal theorists might redress the stark reality of women's exclusion from the bastions of legal power, no less than for considering how women might transform the law and legal processes. The emergence of feminist judgment writing as feminist method and critique is yet another act of imagination supporting this transformation. This article examines the imagined parameters of the spousal immunity for rape at common law imagined in PGA v The Queen (2012) 245 CLR 355, and those imagined in the feminist judgment crafted in response to it. The article explores the ways in which legal fictions are deployed in these judgments to construct both real and imagined understandings of the intersections of law and marital rape. By holding a mirror to the real and the imagined in this specific case, the article critically interrogates imagination and judgment as feminist method with a view to assessing their methodological importance for considering questions of fundamental concern to feminist legal theory.
McLoughlin KJ, 'Â¿A Particular Disappointment?Â¿ Judging Women and the High Court of Australia', Feminist Legal Studies, 23 273-294 (2015) [C1]
McLoughlin KJ, 'The Politics of Gender Diversity on the High Court of Australia', Alternative Law Journal, 40 166-170 (2015) [C1]
Jose JW, Convery A, McLoughlin K-RJ, Owen SM, 'Reproducing political subjects: Feminist scholarship and the political science curriculum', Australian Journal of Political Science, 46 535-549 (2011) [C1]
|Show 4 more journal articles|
Conference (9 outputs)
McLoughlin KJ, 'Still Debating Difference?: Feminist Legal Theory and Judicial Diversity', Australian National University (2015) [O1]
McLoughlin KJ, McDonald B, 'Accepted Wisdom About the Politics of Abortion and Miscalculating the Strength of Civil Rights', The Australian Political Sudies Annual Conference 2015 Refereed Papers (2015) [E1]
McLoughlin KJ, 'What a Difference Difference Makes in Judging the Judges: Gender, Justice and Judicial Power on the Australian High CourtÂ¿', Law and Society Association of Australia and New Zealand Conference, Public and/or Private Lives (2014) [E3]
McLoughlin K-RJ, Lindsay KA, 'What's hate got to do with it?: Legal and political constructions of race, indigeneity and free speech in the light of Eatock v Bolt  FCA 1103', Australian Political Studies Association Annual Conference (2012) [E3]
Jose JW, Convery A, McLoughlin K-RJ, Owen SM, 'Hidden in plain sight: Feminist political theory and political theory', Australian Political Studies Association Annual Conference 2010. Full Papers (2010) [E1]
Jose JW, McLoughlin K-RJ, 'In harm's way: JS Mill's feminist opposition to the contagious diseases acts', Australian Political Studies Association Annual Conference 2009: Refereed Papers (2009) [E1]
|Show 6 more conferences|
Other (5 outputs)
McLoughlin KJ, 'Mother of all backflips on parental leave', . Newcastle: Herald (2015)
McLoughlin KJ, 'Two-for-one: a good new High Court judge, and a woman to boot', . Australia: The Conversation (2015)
McLoughlin KJ, 'Court appointment of woman judge sound', . Newcastle: Herald (2015)
McLoughlin KJ, 'Sworn To Be: Gender and Difference in Australian High Court Judicial Swearing- in Speeches', ( pp.1). Sydney, Australia: Australian Political Studies Association (2014) [O1]
|Show 2 more others|
Grants and Funding
|Number of grants||1|
Click on a grant title below to expand the full details for that specific grant.
20161 grants / $5,000
New Staff Grant: The personhood is a political: an international analysis of the discourses of motherhood and personhood in the legal regulation of abortion. $5,000
Funding body: University of Newcastle - Faculty of Business and Law
|Funding body||University of Newcastle - Faculty of Business and Law|
|Type Of Funding||Internal|
May 14, 2015
Kcasey McLoughlin discusses the government's policy shift on parental leave
April 17, 2015
Kcasey McLoughlin discusses the appointment of a new judge to the High Court of Australia
November 18, 2014
Kcasey McLoughlin discusses Zoe's Law and its possible implications for women's rights