Anyone who regularly practices in our courts will tell you that the ethnic and gender composition of lawyers in NSW is diverse. But when it comes to magistrates and judges, the situation is very different – most of whom are still ‘white’ and ‘male’.
There have been positive steps towards addressing the gender imbalance in the Australian judiciary – with Victoria proposing legislation that requires at least 50% of newly appointed magistrates and judges to be female, and NSW indicating that it may soon follow. Three out of seven High Court Justices are now women – although the number should perhaps be greater considering that females comprise more of the Australian population then males, and are some of our most brilliant legal minds. 63% of new law graduates in NSW are now women.
However, there are no affirmative action proposals when it comes to racial minorities – and members of the judiciary from minority groups such as Asians, Muslims and those from the sub-continent are few and far between – despite those groups making up a sizeable proportion of highly capable solicitors and barristers in NSW.
We recently contacted the Judicial Commission of NSW for information about the ethnic and religious composition of magistrates and judges in NSW, but were informed that no current information is available; which is unfortunate given ‘you can’t manage what you don’t measure’.
The absence of up-to-date information is a sad reflection of the lack of importance placed by the Judicial Commission upon a truly representative judiciary.
Indeed in 1977, Chief Justice Barwick gave a ‘State of the Australian Judicature’ address where he stated that:
“There is a critical need for the collection of additional data on the judicature, and for research that provides a better understanding of the forces that will shape the evolution of the Australian Judicial system over the coming decades.”
Regrettably, the current Judicial Commission appears to have forgotten that insightful speech.
Older Private Research
A private study conducted by Kathy Mack and Sharyn Roach Anleu in 2008 attempted to gather information about the ancestry and religion of the Australian judiciary.
The study, titled ‘The National Survey of Australian Judges’, surveyed the background of judges from all levels of courts in every Australian state and territory.
The researchers were quick to acknowledge the shortfalls of their study – including the failure to differentiate between jurisdiction, both in terms of judicial hierarchy (eg Local vs Supreme Court) and geography (between states and territories). They were disappointed with the absence of official figures, noting that further research is desperately needed in order to address any problem of an unrepresentative judiciary.
The survey nevertheless found as follows:
- 51.1% of judges identify their ancestry as Australian,
- 34.9% as English,
- 30.3% Irish,
- 21.1% Scottish
- 14.6% “Other European” (Including Greek, Italian and German), and
- 3.6% as “other”.
The total exceeds 100% because 35% selected more than one ancestry.
The religious breakdown was:
- 59.3% Christian (26.9% Catholic, 23.9% Anglican and 8.5% other Christian),
- 33.1% No religious affiliation,
- 5.6% Jewish, and
- 2.0 % Other.
The researchers concluded that:
“To sum up, larger proportions of judges, compared with Australians generally, are male, older, have grown up in a large city, identify as Australian, have no religious affiliation, attended a private or Catholic school and are married/partnered.”
Importance of a Representative Judiciary
A representative judiciary is vital to promoting public confidence in the justice system, and guarding against unfair discrimination against unrepresented groups, or the perception thereof.
Diversity on the bench also enriches the decision making process and the development of legal doctrine by incorporating perspectives that may be different to the prevailing mindset and experiences of the over-represented group.
Judges are often called upon to incorporate their own cultural and social experiences, and exercise their own discretion, when formulating judgments and handing-down a range of decisions. This is why there can be seven different methods of reasoning given by seven different High Court Justices (or any court’s judges for that matter) on the very same legal question.
Having a representative judiciary therefore performs an important symbolic and substantive function, and is something which should be promoted rather than simply ignored by those who control and administer such a powerful body.