The need for cultural diversity in the judiciary
In the first study of its kind, data gathered by the Asian Australian Lawyers Association (AALA) provides empirical support for the long suspected view that levels of cultural diversity within Australia’s judiciary and legal profession are dismal.
The study reveals that while Asian Australians represent almost 10% percent of the Australian population they comprise only 3.1% of partners in law firms, 1.6% of the national bar and 0.8% of the judiciary.This is despite an increasing number of Asian Australians studying and completing law and working in the profession.
The study acknowledges its data limitations as Australian courts, law societies and bar associations simply do not collect any or meaningful data on the cultural diversity of its members.In the United States where this data is comprehensively collected, Asian Americans and Native Americans also represent less than 1% of the federal judiciary. Less than 2% of the Northern Ireland judiciary is from a non-white ethnic background.Women fair better – comprising approximately 40% of the judiciary in Australia and the US.
Last year’s report from Diversity Council Australia points to the equally poor representation of Asian Australians at executive levels and within ASX 200 companies. That report suggests a ‘bamboo ceiling’ attributable to outdated leadership models, cultural bias and stereotyping.
Reports of recent judicial appointments allude to the appointees’ pedigree – often a euphemism for someone from the right school, the right university, family and cultural background.A former Attorney General, visibly frustrated with my arguments to him on the absence of cultural diversity within the judiciary, challenged me to point to an injustice that had resulted. After I got over the insensitivity of the question, the answer was obvious. The criticism is not necessarily of individual appointments (though clearly there are some) but of the process itself. Proper process is fundamental to good law as it is to good policy.
Advertising judicial vacancies is often advanced as evidence of due process. As anyone who has applied for a public sector role well knows, selections are often made long before any advertisement appears. Advertisements do little to actively source diverse candidates especially if there is no confidence in the selection process once an application is made. In any case some recent appointments have proceeded without any advertisements, leading lawyers to be rightly sceptical about the process by which the appointments were made.
A feature common to some jurisdictions is a selection committee comprising a representative of the Attorney General’s department and bar association. As the AALA data suggests, the bar association’s record on cultural diversity hardly equips it to identify culturally diverse talent.
Evidence given to the House of Lords Committee on the Constitution in its study on Judicial Appointments shows that many culturally diverse lawyers consider the system biased, distrust it and simply give up – further reinforcing the convenient stereotype that they have not shown any interest in appointment.
Diversity matters because as former High Court Justice Michael McHugh once said, “when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution”. A diverse judiciary brings differing perspectives and experience to bear on an issue.
Judicial appointments are often defended as merit based. Of course appointments should be based on merit. However there are many views on what constitutes merit. It certainly does not consist of only pedigree. Homogeneity as Michael McHugh alluded to is hardly a requirement for judicial appointment. Also as Lord McNally alluded to during his Committee’s study, the expression ‘merit’ is “deployed by people who, when you scratch the surface, are really talking about ‘chaps like us’.”
Although the data shows that the situation is little better in the UK and the USA, at least there governments have taken the issue seriously, commissioned inquiries and in the case of the UK, government decided to act on the recommendations of the House of Lords Committee.The Committee’s work points to some very clear processes to address cultural diversity. They include a broader selection panel comprising other branches of the profession, lay members and people from diverse ethnic backgrounds, training to overcome unconscious bias and to actively identify diverse talent, greater clarity and consistently around the merit criterion and diversity as an explicit factor in selection.
A number of judges and lawyers consider that these measures are still insufficient. That the only true means for achieving cultural diversity in the judiciary is for Australia to follow the UK model. The UK Judicial Appointments Commission is an independent body separate from the executive and strives to apply the principles articulated by the Committee in nominating suitable candidates for appointment.
The process for judicial appointments in Australia is hopelessly flawed, inherently biased and irretrievably broken. If governments question the AALA data then they should commission their own data and their own studies or compel institutions to start collecting it. Faced with the data we have it is insulting to the diverse pool of qualified and competent Australian lawyers to simply allow the current situation to continue. Federal and State governments must take the issue seriously and implement active steps to promote cultural diversity in the judiciary. And it must start now – the idea that ‘give it time and diversity will occur’ has not proven to be the case despite decades and is a convenient excuse for evading the issue altogether.
This is a longer version of an article published in the Australian Financial Review http://www.afr.com/business/legal/judicial-appointments-hopelessly-flawed-and-broken-20150604-ghgfvp