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BY ANDREW LYNCH

There is a distinct irony that while the current Commonwealth Attorney-General has unapologetically reclaimed complete executive discretion over federal judicial appointments, the Premier of Victoria has announced that his government will meet a 50 per cent quota for the appointment of women to the bench in that state.

Unsurprisingly, this contrast reflects starkly divergent views on the existence of any benefit in diversifying the personal and professional attributes of those who sit on the bench.

Consider the answer that the Commonwealth Attorney-General, Senator Brandis QC, gave when asked in 2013 what a Coalition government would do to promote greater judicial diversity. Brandis replied simply: ‘The Coalition believes judicial appointments should be based on merit’. The all-too familiar orthodoxy that the elusive concept of ‘merit’ is the sole criterion for judicial appointment rejects not just any scope for diversity to be a factor but, more fundamentally, that diversity could have any relationship to the qualities that an individual may bring to judicial office.

Now contrast that with the justification given by Victorian Premier Daniel Andrews when in late March he reflected on the lack of equal gender representation on an array of the Victorian government boards and the Supreme and County Courts. Andrews reported that less than a third of judges on the Supreme and County Courts of Victoria are female. He went on:

[F]rom now on … no less than 50 per cent of all future appointments to all paid government boards, and all Victorian courts, will be women.

 It’s not a target. It’s not an aspiration. It’s an assurance.

 Of all the appointments my government makes between now and November 2018, at least one half of them will be women, and I’ll be held accountable for it.

 This is a step forward for our state: Public institutions that actually represent the public. It means balance. It means better decisions. It means reaching deeper into a growing pool of talent …

In the first decade of this century, Victoria’s Attorney-General Rob Hulls was also explicit about his ambition to end male domination of the bench. Hulls did not (at least expressly) adopt a quota such as Premier Andrews has announced, but nevertheless in 2007 Professor Margaret Thornton reported that he had ‘dramatically changed the gender profile of the Victorian justice system’ by appointing women to almost half of 80 vacancies on State courts over the relevant period. Women judges were still far less numerous than their male colleagues, but Hulls undoubtedly made an impact. On the latest 2015 figures, women account for 37 per cent of judges sitting in Victoria courts. Leaving aside the ACT (where the figure is 55 per cent, but the judiciary is a mere 11 persons), Victoria is the nation’s leading jurisdiction in approaching a gender balanced judiciary. Of the rest, only the Commonwealth and New South Wales have a judiciary in which women count for over a third of those serving. South Australia and Western Australia are the lowest performers, being the only two jurisdictions with less than 30 per cent of judges being female. Professor Brian Opeskin has graphically illustrated just how much progress in the appointment of women judges across the Australian court system has occurred since 2000: the ratio of male judges per 100 female judicial officers at least halved in respect of the three levels of supreme, district and magistrates’ courts from that year until 2012. But there is clearly still a long way to go.

But the strategy a government might adopt in this regard depends greatly on the value they attach to diversity. Brandis clearly rejects any deliberate, systematic attention to gender (or indeed other attributes such as ethnicity or professional background) in making appointments to the federal judiciary. This does not necessarily reflect any degree of hostility to a more diverse judiciary (since becoming Commonwealth Attorney-General, Brandis has appointed judges of both sexes, including to the High Court), but simply a willingness to let this come about through the passage of time. Lord Sumption of the United Kingdom Supreme Court, who adopts exactly this stance, has characterised the debate over judiciary diversity in his own jurisdiction as one in which the division is over ‘not the direction of change. It is the speed.’

Others are less content to wait. They may even suspect that without a concerted effort the odds are stacked against the judiciary, after centuries of being the exclusive domain of men, ever becoming suitably reflective of the community’s own diversity. For many the sheer fact of women’s historical and contemporary professional disadvantage relative to their male peers is more than enough justification for taking remedial action. Then there is the argument based upon public confidence and the greater legitimacy enjoyed by a judiciary reflective of the community. Recently Justice Susan Kiefel and Professor Cheryl Saunders offered the familiar and yet sound reflection that ‘the effect of these [more numerous female] appointments is to achieve a level of legitimacy not only for women but for the courts.’ As former Justice Michael McHugh said over a decade ago, ‘when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution.’

But if one additionally accepts that there are benefits from having a diverse judiciary, then the case for a more deliberate approach to that end arguably becomes both clearer and more pressing. For despite the judiciary’s quality and its diversity being divorced in the mind of the current Commonwealth Attorney-General, arguments abound that the two are in fact mutually supporting. McHugh had cause to consider the substantive value of diversity when he found himself on an all-male High Court after Justice Mary Gaudron retired in 2003. He appreciated that diversity was likely relevant to judicial decision-making ‘if one concedes the possibility that the judicial mind is not always – perhaps never – a blank sheet of paper and that the law often reflects “gender-based myths, biases and stereotypes …”’. He concluded, ‘if that possibility exists … the decisions of such a court may be improved by the presence of female judges.’ In 2005, he was more definite, saying that ‘[i]n many cases, women lawyers bring a different approach to solving legal problems. And … attitudes and approaches in Law are all important. Law is not an exact science. At the margins of legal doctrine, the approach of individuals is frequently decisive.’ In the same year, Justice Michael Kirby claimed:

For an appellate court to reach great strengths there is a need for diversity amongst its members. If everyone has the same judicial philosophy, background and experience, a court is seriously weakened. … [D]iversity is also a protector of intellectual rigour, as each judge measures his or her opinions against those of colleagues who may approach judging in a slightly different way and sometimes come to different conclusions about the law’s requirements and how they should be expressed.

These statements are far from isolated ones and have their counterpart in judicial utterances – notably in other countries from senior female judges – throughout the common law world. They are, in turn, strongly supported by academic study of the topic, including the fascinating global phenomenon that is the Feminist Judgments Project, which has extended to an Australian version. In launching the latter book in December 2014, Justice Margaret McMurdo, President of the Queensland Court of Appeal, dismissed as unfounded the hoary fear that women judges are unable to exercise their powers with impartiality. Saying it is ‘time to “mainstream” the “f-word”’, McMurdo insisted that to be ‘true to their oaths and affirmations of judicial office, arguably context may require all judicial officers, women and men, to be feminists’. There are compelling reasons to accept that stance. In doing so, it is surely implicit that courts will benefit from a membership that enables them to be sufficiently attuned to the diverse experiences and perspectives of both genders.

Additionally, Kiefel and Saunders advanced a broader professional and societal benefit to a judiciary more reflective of the gender of the population as a whole:

At a professional level, it is more likely that the high number of women law graduates will be encouraged to remain in the profession. Women who achieve senior status in the legal profession provide role models to those more junior and may themselves then aspire to judicial office. In a wider, societal sense these appointments facilitate the acceptance of women as persons having public authority. The importance of this acceptance should not be undervalued.

If one accepts all or just some of these arguments – public confidence and the legitimacy of the courts; the enhancement of judicial decision-making through the presence of different perspectives and experiences; and the fairness of equal opportunity in the legal profession and its importance to the community as a whole – then it seems reasonable to explicitly factor diversity considerations into the process by which individuals are selected for judicial office.

But is a quota the way to go? What is remarkable about Andrews’ announcement is that the plan to use a quota is easily the most uncompromising way in which a government may seek to achieve judicial diversity. It is also far from uncontroversial, including amongst those who fervently advocate for a more representative judiciary. In the United Kingdom, the procedures set down for judicial appointments by the Constitutional Reform Act 2005, which includes selection by a standing Judicial Appointments Commission in the majority of cases and by specially convened commissions for the most senior positions, has been almost ceaselessly debated and reviewed. The chief concern has been the effect of those reforms in advancing the diversity of the United Kingdom judiciary, with critics saying that the changes have made a negligible difference – or worse. However, until recently, one of the few points of apparent consensus in the debate over the strategies necessary to deliver a more diverse bench was that the use of quotas was near to unthinkable.

In 2010, the UK government’s Advisory Panel on Judicial Diversity recommended against the use of both quotas and targets. The Panel said those it spoke with, but particularly those from under-represented groups ‘firmly and almost unanimously’ rejected quotas. Two problems were claimed: first, that quotas would undermine the position of people from under-represented groups appointed on the strength of their true personal ability, and second, that they might also discourage applications from suitable candidates from well- represented groups, who now fear the system is stacked against them.

Two years later, a House of Lords Committee report into judicial appointments was even less impressed with quotas as a solution to the problem of judicial diversity:

We received no evidence calling for the use of mandatory quotas in the appointments process. Quotas were described as ‘insulting’ and ‘patronising’; they would send out the message that candidates had only been appointed because of their sex, race etc.; they would dilute the quality of the judiciary and undermine the merit principle. We see no case for the introduction of quotas.

However, in November 2014, two Queens Counsel commissioned by the Labour opposition to report on judicial diversity, were far more favourably disposed, saying, ‘the advantages of a carefully constructed quota system outweigh any possible disadvantages.’ Sir Geoffrey Bindman QC and Karon Monaghan QC reported less resistance among lawyers from minority groups than the earlier inquiries had found, and suggested that ‘the lack of progress by other measures’ might account for this change in attitude. They were ‘persuaded that a quota system is now necessary to ensure the fair and proportionate representation of women and other minorities at senior level in the judiciary’. Of course, the outcome of the United Kingdom election puts paid to this report supporting changes to judicial appointments in that jurisdiction for the foreseeable future.

None of this is to argue the case for or against quotas to ensure the appointment of greater numbers of female lawyers to the judiciary. But it is to emphasise that this is a matter that has been the subject of quite sustained consideration and discussion elsewhere – and as an aspect of judicial appointments reform more broadly (as well, of course, as part of an even larger body of literature on the use of quotas generally in government and the private sphere). By contrast, the move to implement a 50 per cent quota for the Victorian judiciary is the result of apparently very little in the way of consultation or an investigatory process.

One vital question, prompted by the United Kingdom inquiries, is what effect the use of a quota might have upon those who appear to benefit from it – will they welcome or resent it? In 2009, former Supreme Court judge Bruce Debelle QC declared that a prescription as to the number of women appointed to the bench ‘would be demeaning both to female lawyers and to judicial office’. That may or may not be so, but has the Victorian government thought to seek the views of those affected before striking out on this course? We might also ask what might be done at the outset to effectively counter the likely backlash from male judges and practitioners who see the move as foreclosing their own opportunities for advancement. The suggestion by the UK Advisory Panel that a quota will discourage applications from those belonging to well-represented groups has real purchase in Victoria where expressions of interest in appointment are sought. This consequence might be just one manifestation of a churlish and blatantly derogatory attitude of male practitioners such as that which Thornton highlighted in her discussion of Hulls’ policy of appointing more females to the bench. There may be very good reasons for dismissing such complaints and forging ahead with use of a quota but is it worth trying to build support more broadly for the legitimacy of such an appointments system? In short, quotas raise issues that even committed advocates of judicial diversity would prefer to see acknowledged and addressed.

On the other hand, is diversity something one is better to simply ‘do’ rather than discuss? When one looks to the United Kingdom experience, the topic seems to have become more than a little fraught with major reform to improve the transparency and processes around judicial appointments not bringing about the desired changes to the judiciary’s composition. That probably best explains Bindman and Monaghan’s recommendation that quotas are the best way of just getting on with achieving those changes. It appears that Premier Andrews feels similarly.

Professor Andrew Lynch is Co-Director of the Judiciary Project, Gilbert + Tobin Centre of Public Law, UNSW Law.

Suggested citation: Andrew Lynch, ‘Judicial gender diversity in Australia – can we talk about quotas’ on AUSPUBLAW (9 June 2015) <https://auspublaw.org/2015/06/judicial-gender-diversity-in-australia-can-we-talk-about-quotas/>.