Why Has No Person of Colour Ever Served on the High Court?
Australian Financial Review, 22 December 2021
In 120 years, no judge of colour has ever been appointed to the High Court of Australia. Asian Australians comprise 10 percent of the Australian population. Yet across all courts, the Asian Australian Lawyers Association estimates that only 1 percent of Australian judges are Asian-Australian.
When it comes to gender, the figures aren’t much better. Across federal and state courts, only 39 percent of judges are women. This is despite the fact that women comprise a majority of lawyers, and a majority of the population as a whole. The share of Australians with a non-Anglo background is high and rising. Yet if you go into any courtroom in the country, it’s most likely that you’ll see a white bloke on the bench.
As University of New South Wales adjunct professor Ray Steinwall points out, recent appointments in the United States show a very different pattern. There, the judiciary is 73 percent white and 66 percent male. But President Biden’s bench picks are far more diverse. Nearly three-quarters of President Biden’s judicial nominees are women, 28 percent are African American, 21 percent are Hispanic and 12 are Asian American or Pacific Islander. A recent batch of nominees announced by President Biden included the surnames Ho, Chun, Lopez, Ohta and AliKhan.
Since the Coalition won office in 2013, it has appointed five High Court justices. All are white. Three are men. Two are the children or spouses of previously Coalition-appointed High Court justices.
Across the entire Australian judiciary, there are hardly any Indigenous judges. Aboriginal and Torres Strait Islander people are disproportionately likely to be charged with a crime; yet if the case comes to court, it is almost guaranteed that the judge will not be Indigenous.
Other nations have taken a different path. In 2005, the United Kingdom created a Judicial Appointments Commission, responsible for recommending court appointments. Comprised of laypeople, judges and legal professionals, it makes applying to be a judge like applying for other jobs. Vacancies are advertised, people apply, some are interviewed, and the Commission makes a recommendation.
Most other Commonwealth countries have a similar system. Indeed, during Labor’s term in office from 2007 to 2013, we used an advisory panel to appoint judges to all federal courts except the High Court. Sadly, that approach was scrapped when the Coalition came to office. Since 2013, federal judicial appointments have essentially been a black box. Positions are not advertised. Candidates are not formally interviewed. Everything is done at the discretion of the government. Given that, is it any wonder that the share of women in the federal judiciary is similar to the share of women in the Coalition Party room?
History teaches us that without an open process, organisations often revert to decisions by GOBSTAT – good ol’ boys sitting around a table. For judicial selection, this favours chummy insiders who went to school with the Attorney General, and excludes non-traditional applicants. As well as women and ethnic minorities, an open process favours introverts, outsiders, and people with atypical backgrounds. For example, President Biden’s judicial appointments include a slew of public defenders and civil rights lawyers, tilting the balance away from the conventional mix of corporate lawyers and prosecutors.
Background isn’t everything, of course. Initiatives such as the Judicial Council on Cultural Diversity – established by former High Court Chief Justice Robert French – help judges effectively use interpreters and understand the discomfort Indigenous defendants may feel in a courtroom. The best judges recognise the limits of their experience, and strive to create an atmosphere of calm respect, free of prejudice and hostility.
Nonetheless, it would be foolish to imagine that the identity of judges doesn’t matter. When I worked as a High Court associate to Michael Kirby, I saw first-hand the impact on gay and lesbian Australians of having a gay man on the highest court of Australia. And I saw in Justice Kirby how experiencing prejudice in one sphere of life can make someone more aware of how prejudice affects others. It isn’t a coincidence that the Asian Australian Lawyers Association chose him as their inaugural patron.
Recent analysis by the Australian Law Reform Commission noted that diversity on the bench may reduce the extent of bias. As the report put it, there may be value in ‘increasing diversity in social groups of appointments to judicial office to mitigate the effects of implicit social bias on particular groups’.
The demography of the bench will never perfectly match the nation, but people should be able to see themselves in the faces of those chosen to dispense justice. The nomination process should be conducted with the kind of professionalism that characterises senior appointments in public service agencies and in large corporations. Sadly, the current system brings us face to face with the extremely narrow ambit of the Coalition’s acquaintance with Australia’s legal talent; and its disdain for reflecting diversity on the nation’s highest Court.
In 2021, the process for picking federal judges shouldn’t look as secretive as choosing the Grand Master of a Freemason lodge. As befits Australia’s egalitarian traditions, it should be open, fair and accessible. The better the system, the more likely we are to end up with a set of judges that reflects the glorious diversity of modern, multicultural Australia.
Andrew Leigh is the Federal Member for Fenner, and a former High Court associate to Michael Kirby.