In 1975 the Bar Association of New South Wales conducted a referendum among its members on whether or not wigs and/or gowns should be retained for appearances in Court. A clear majority (61%) favoured retention of the wig and an even greater majority (78%) favoured retention of the gown.
Commenting on this referendum the then Chief Justice Sir Garfield Barwick said in 1977:
“I think the day will come when the wigs will go. That is a matter of time. I doubt whether the day will come when the robe will go….”
The issue was revisited by the Law Reform Commission of New South Wales. In its Report 31 in 1982 it recommended the retention of the gowns but said that the wearing of wigs should be discontinued.
It is a measure of how slowly change in legal practice occurs that 30 years later wigs are still worn, albeit inconsistently, in Australian courts. Wigs were abandoned by the Judges of the High Court in 1988 although barristers appearing in that jurisdiction are still required to be wigged.
In the Family jurisdiction barristers wear robes but no wigs in the Federal Magistrate’s Court. In the Family Court the practice of wearing wigs is arbitrary. If the Judge enters Court sans wig or removes his/her wig upon seating, the barristers are able to follow suit. In the Brisbane Family Court the majority of Judges sit without their wigs but to appear before the majority without being thus attired is to risk an adverse comment.
In the Court of Appeal the Judges are not wigged but, as in the High Court, the barristers appearing before them are not granted the same latitude.
It is difficult to maintain a straight face when responding to the usual arguments in favour of retention of wigs when confronted with these inconsistencies and manifest absurdities.
The issue of wigs was considered by the British legal profession in 1992. A House of Lords Consultative Paper summarized the main arguments thus:
(a) Judicial attire preserves respect for authority and the status of the Court.
(b) Traditional garb imbued in lay persons a sense of the solemnity of the Court.
(c) The theatrical aspect impresses on laypersons that the law is a serious, important and magisterial process.
(d) It gives Judges useful anonymity and conformity.
(e) Wigs disguise Judges and therefore offer a measure of protection.
(f) The traditional garb is a “brand” symbol of English courts.
(g) It makes clothing irrelevant and therefore equalizes Judges.
Of these seven conventional arguments only (a) is capable of withstanding serious scrutiny. It begs the question however of whether removing wigs would lessen the otherwise laudable aim of preserving respect for the Court. In order to argue the affirmative one would have to argue that those jurisdictions which do not have wigs for Judges and/or counsel have a lesser degree of respect or status than those that do.
A few examples illustrate the tenuous nature of the affirmative argument. Judges and counsel in Canada, the United States and all of western and northern continental Europe do not, and at least in modern times, never have worn wigs. One cannot seriously argue that respect for the law and the status of the Court is less in Norway, France, Sweden, the Netherlands, Germany and Denmark for example, than it is in Australia.
In New Zealand the wearing of wigs by Judges and counsel was abolished in 1996 with no discernible diminution in the respect with which the court is held. Nor have they suffered from their loss of “useful anonymity”.
None of the other arguments listed by the House of Lords Consultative Committee when examined in the light of the experiences of the countries mentioned, and countless others. They all survive perfectly adequately without wigs or post the abolition of wigs.
Ireland abolished the requirement that wigs be worn in 1995 and in family related proceedings neither wigs nor gowns are worn.
Perhaps most tellingly the United Kingdom, the original model for Australia and other former colonies, has itself decided that 18th century attire no longer fits the requirements of a modern society. From late 2008 Judges in the civil and family jurisdiction no longer wear wigs, bands or elaborate gowns. For Judges a simple gown is worn over normal business attire.
Judges in the Privy Council, House of Lords and Supreme Court are not even robed. Counsel appearing before them however, are robed and wigged. In the case of appeals from the English courts to the European courts, which are now the final court of appeal, those same counsel appear without wigs.
This inconsistency in attire further undermines the argument for retention of wigs and indeed, effectively rebuts all seven of the arguments advanced by their Lordships in 1992.
As already noted, the inconsistent practice in Australia where the wig is worn in some courts and not others, where practice within the same jurisdiction varies on the whim of the individual Judge, and where Judges are not wigged but expect counsel to be merely reinforces the absurdity.
It is respectfully submitted that the day foreshadowed by Barwick CJ in 1977 is now long past. It is time to consign the wearing of wigs to the dustbin of history where they will join a long list of other legal anachronisms discarded as no longer appropriate to the practice of modern law.
The traditionalists will undoubtedly bemoan such a prospect. The onus is upon them however, to explain why it is that Australia needs to remain unique among modern developed democracies in insisting that wigs remain essential to the conduct of law.
James O’Neill
