Gracing the corridors of most Australian federal and state courts are the names and photographs of capable and well respected judges. Most are men – few are from diverse cultural backgrounds. This is surprising as Australia is a culturally diverse nation built on immigration; more than 50% of Australians are born overseas, or have an overseas-born parent.
The lack of judicial diversity is a western phenomenon. International research shows that Indigenous people and minorities are under-represented in the judiciary. Only 5% of the 111 Justices appointed to the United States Supreme Court since 1789 have been from minority groups. Justice Sonia Sotomayor’s nomination to the United States Supreme Court in 2009 made her only the third person of color appointed to that court in its 222 year history.
Recent data in the United States shows that judges classified as Asian American and Native Americans represent less than 1% and African Americans less than 20% of the federal judiciary. Minorities also occupy less than 20% of many of the United States state courts. The representation of African Americans is at best static or possibly declining. In fact most demographic groups are under-represented in the judiciary when compared to that nation’s diverse communities. Less than 2% of the Northern Ireland judiciary is from a non-white ethnic background. Only five solicitors have ever been appointed to the United Kingdom High Court.
In comparison, women comprise approximately 40% of the judiciary in the United States, Northern Ireland and Australia – perhaps reflecting the commendable policies of many governments to actively increase female representation on the bench.
The lack of cultural diversity in Australia cannot be explained by cultural or educational factors alone. As in the United States, people with diverse cultural backgrounds in Australia are well represented at law schools and the legal profession generally. However, they are less well represented at the Bar from which the overwhelming majority of judges have historically been drawn – a diversity issue in itself.
Why should diversity matter?
Former High Court Justice Michael McHugh has said that "when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution." Also a diverse judiciary allows legal argument to be received by those who bring differing perspectives and experience to bear on an issue.
Evidence presented to the House of Lords Select Committee on the Constitution and research undertaken by the United Kingdom Judicial Appointments Commission (JAC) shed considerable light on impediments to diversity in the judiciary. In her evidence to the House of Lords Review, Cordella Bart-Stuart of the Black Solicitors Network said: “I am perhaps what I realise is a rare breed, in that I am a black woman who is a judge, who is a solicitor and who is from a post-1992 university as well.“ His Lordship replied: “Four minorities”. That in a nutshell encapsulates the despair of lawyers from diverse cultural backgrounds.
The JAC in its report “Barriers to Application of Judicial Appointments Research” noted that:
- Few solicitors apply for judicial office.
- There are perceptions of fairness or prejudice in the selection process. 37% of respondents disagreed that judges were selected on merit only.
- 72% believed it was more difficult for certain 'types of people' to apply successfully.
- People from diverse cultural backgrounds considered their ethnic background to be a considerable disadvantage to appointment.
A study by the Brennan Center for Justice in the United States has also identified implicit bias in the selection process as a significant problem. Other barriers (perceived or real) as Cordella Bart-Stuart alluded to is one’s family background, the school or university one attended and where one resides.
Whatever the cause, the consequence is that qualified and suitable candidates simply give up and are lost forever from the selection process. This may be self-fulfilling because recruiters perceive that candidates have simply not expressed an interest and therefore are not open to be considered.
Research in the United States has identified the need for active and systematic efforts to attract diverse candidates to the judiciary. In the United States it was found that recruiters who conceived of their mission as purely 'background-checking' spent little time actively recruiting candidates whilst those who thought of themselves as 'headhunters' took responsibility for recruiting candidates and keeping an eye on the diversity of the applicant pool throughout the nominating process.
In 2012 the House of Lords Select Committee on the Constitution released its Report on Judicial Appointments. In its Report the Committee concluded that: “In order to increase public trust and confidence in the judiciary, there is a need to increase judicial diversity. We do not consider that sufficient steps have yet been taken.”
To address these concerns the Committee recommended that:
- Appointments panels must include lay persons who can bring a different perspective to the assessment of candidates’ abilities
- All selection panels should be gender, and where possible ethnically diverse
- Those involved in the appointments process must be required to undertake diversity training
- There needs to be a greater commitment on the part of Government, the judiciary and the legal professions to encourage applications for judicial posts from lawyers other than barristers
The United Kingdom Government has expressed its support for these proposals. The selection committee must be actively engaged in securing diverse talent beyond traditional sources. Evidence presented to the committee suggested that appointments to appellate courts should be made from other branches of the profession including solicitors and academics. This is because the nature of appellate decision-making requires intellectual skills above all, and it was said that a lack of previous judicial experience can be overcome relatively readily.
Australia does not have a Judicial Appointments Commission or similar body. In Australia, the composition of the selection committee should be expanded to include a diverse list of practitioners including solicitors and lawyers from culturally diverse groups. The achievement of a more diverse judiciary should be an explicit factor in the judicial appointment process at federal and state levels.
An argument often raised against diversity is that it is inconsistent with appointments based on merit. There is broad agreement that merit (and other now well documented attributes) should be at the heart of selection. However, there is disagreement about what constitutes ‘merit’. Merit does not attach only to those areas from which judges are typically recruited, including the Bar. Homogeneity is not an objective of judicial appointment.
As former Commonwealth Solicitor-General (now High Court justice) Stephen Gageler said, once capable people have been identified, "wider considerations can, and ought legitimately to be, brought to bear. Considerations of geography, gender and ethnicity all can, and should, legitimately weigh in the balance."
Merit should remain at the heart of selection. However, what constitutes ‘merit’ may need to be redefined. The need for re-defining merit was highlighted during the House of Lords review in the question posed to the Lord Chancellor by Lord McNally. He said: “I have only one problem about the merit criterion. It is often deployed by people who, when you scratch the surface, are really talking about 'chaps like us'.”
In evidence to the House of Lords committee Nwabueze Nwokolo identified an alternative description of merit:
“I do subscribe to the plateau description of merit. It qualifies the group who are able to do a job. We do not want a judiciary that is not meritorious. We want to have the best judiciary in the world, but with a plateau as opposed to a summit description of merit. We may indeed be leaving out a lot of people who would benefit society as a whole. I come to this from information observed in another place – the medical profession, for instance. I hear doctors talking about the number of exams that doctors have to take, and it is constantly testing their academic ability, more so than anything else. Then in conversation between these doctors, they say, ‘What we are ending up with are quite a lot of very intelligent people who do not have a connection to community, real life, and sometimes may well be autistic.’ When we use the plateau for defining merit, we look at society as a whole. We are asserting that merit resides in many different places.”
Merit and diversity are not mutually exclusive. Article 174 of the South African Constitution, for example, brings together merit and diversity as co-existing constitutional obligations.
In the United Kingdom there has been considerable discussion about use of the ‘tie-break’ provisions allowed under section 159 of the Equality Act 2010: If two candidates are of equal merit section 159 would break the tie in favour of candidates from under-represented groups. The House of Lords Committee recommended its use.
There is no serious support for quotas because they undermine public confidence in the selection process and are patronising to minority groups. However targets (without sanctions for not meeting them) are well recognised. They have been and are increasingly being applied by Australian companies, including listed companies under ASX requirements to deal currently with the lack of female representation on Australian company boards – but not cultural diversity.
The issue of cultural diversity in the judiciary is more than an issue of process. Fundamentally it says a great deal about us as Australians and our society. As the Bar Council of England and Wales stated in their submission to the House of Lords review, diversity is an issue of human rights and equality – all members of the legal profession should have equal opportunities to aspire and be appointed to judicial office. In their view the current profile of the judiciary sends a clear message that equal opportunities do not exist, in particular for those from diverse cultural backgrounds and solicitors.
The current lack of diversity in Australia needs to be addressed by an active and systematic process to attract diverse judicial applicants. A review of current practices and policies at all levels must be initiated to identify impediments to diversity. The greatest progress has been made in jurisdictions where there is clear will and leadership on the issue of cultural diversity in the judiciary.
If Australia is to play a leadership role in the Asia/Pacific that is the fastest growing in the world, there is an urgent need to improve diversity on the bench to reflect the contemporary society that it serves.
Ray Steinwall is General Counsel of Novartis Pharmaceuticals Australia and a Member of the Australian Competition Tribunal. These are his personal views.