Alongside existing justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett, soon-to-be Justice Jackson will be the fourth woman on the bench of nine – the first time in America’s history the gender split on the Supreme Court has come so close to parity.

Also of significance is the fact that whilst she is the third justice of African-American descent, she is the first such woman to be confirmed to the lifetime appointment.

The appointment serves as a reminder of the need to continually strive for and ensure representative diversity in Australia’s judiciary. And while, as Attorney-General Michaelia Cash recently noted, the Federal Circuit and Family Court of Australia (FCFCOA) now boasts 51 per cent female judges – the first time a Federal Court has achieved such a milestone – there is still a way to go across the board.

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As noted by Australian Women Lawyers president Leah Marrone and board member Jessica Sabapathy, while there has been some diversity in appointments in recent years, the judiciary in Australia is a “long way off of reflecting the cultural diversity of the community”.

Lessons from Justice Jackson’s confirmation

It is with “great excitement”, Law Society of NSW president Joanne van der Plaat said, that Ketanji Brown Jackson be confirmed to the US Supreme Court, given, as she noted, less than 2 per cent of all US judges have ever been black women.

“Moments like these are catalysts for opportunity – they inspire us to act and to encourage greater diversity at the decision-making table,” she declared.

Law Institute of Victoria president-elect and Asian Australian Lawyers Association (AALA) national president Molina Asthana agreed that the confirmation is a “landmark development” for diversity in the judiciary and is something that Australia should “also emulate”.

“We know that the lack of diversity in the senior ranks of the legal profession, including the bench, is a major issue in Australia, not only for practitioners but the litigants,” she said.

“Though we have full faith that judges dispense justice impartially and uphold the rule of law, however ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’. This is a central feature of the administration of justice under the common law. Where litigants do not feel confident that their issues and nuances are understood because of the lack of diversity on the bench, it perpetuates the perception that there has been a miscarriage of justice.”

While the Australian legal profession has worked to boost cultural diversity in recent years, Ms van der Plaat reflected, more work is required to ensure cultural diversity in legal workplaces and to ensure that the legal profession, across the board, is one where difference is valued and celebrated.

“Creating an environment where every person, regardless of their background, has opportunities and support to reach their professional potential provides better outcomes for both the wider community and the profession itself,” she surmised.

The judiciary, Ms Marrone and Ms Sabapathy said, should be representative of the community.

“Judges are expected to make their decisions with the attitudes and expectations of the community in mind so it is important to have people with diverse experiences of life on the bench to ensure that the judiciary is truly reflective of the community it serves,” they submitted.

Where Australia is falling short

While not all state and territory jurisdictions in Australia collect data on diversity in its various forms of the profession, Ms Marrone and Ms Sabapathy noted, existing data does demonstrate that greater efforts are needed to recognise the achievements of people from diverse backgrounds and to support their career progression.

A lack of judicial diversity – or, as some media outlets have described it, a “pale, male and stale” makeup on the benches – is perhaps somewhat due to the extraordinary gender gap at the bar.

In NSW, three in four (75.44 per cent) of the state’s 2,439 barristers are male, and men make up even more of the state’s senior counsel (i.e., QC or SC), with 85.53 per cent of the 401 such silks.

These figures mirror that of the Sunshine State: in Queensland, men make up 74.5 per cent of the state’s 1,391 barristers, according to the Queensland Bar Association’s latest annual report. It should be noted, however, that in the 2020-21 financial year, 44.9 per cent of the new practising barristers in Queensland were women, hinting at incremental progress towards parity.

In private practice, a 2019 survey of nearly 5,000 staff members of Australia’s largest 11 law firms – the Law Firm Cultural Survey, which was an initiative of the Managing Partners Forum and conducted in collaboration with AALA – identified that while one in four law graduates was of an Asian background, just 8 per cent of partners in those firms have Asian heritage.

More than one media outlet has described this as a “bamboo ceiling”.

Elsewhere, and as detailed in the fifth National Profile of Solicitors Report, which was published in July of last year, the number of Aboriginal and Torres Strait Islander legal professionals has not increased since 2014, having remained stagnant at 0.8 per cent of the entire cohort of lawyers in Australia. This, of course, is not proportionate to the number of Indigenous Australians as part of the entire national population.

Trawlwoolway (Palawa) woman Leah Cameron – who is the founder and principal of Marrawah Law and winner of the Indigenous Lawyer of the Year and Excellence Award categories at the 2020 Women in Law Awards – said that, to date, no person of colour had been appointed to Australia’s High Court.

“In a country with the world’s oldest living culture and a culture built on immigration, this is a real gap,” she observed.

“Ideally, a nation’s High Court should reflect its population, in particular the diversity of its population in terms of race and gender. As the High Court draws from the Australian legal sector, it is to be expected that there are significant gaps in both cultural and gender diversity,” Ms Cameron outlined.

“This lack of diversity is evident across Australia’s justice system.”

The community must have trust in the law and the legal system for it to work effectively, Ms Cameron espoused.

“The law has to be exercised in a way that reflects understanding of the community in which it exists. If judges, magistrates, and senior practitioners in our legal system do not share the diverse lived experience of the community, it’s difficult, if not impossible, to create that fundamental trust and mutual understanding,” she said.

Greater diversity will improve the judiciary’s institutional capacity for openness to alternative views, Ms Cameron mused.

Not because, she advised, judges of any given race “will ‘represent’ a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities”.

What more can be done

There can and should also, Ms Cameron suggested, be changes to the ways that judicial appointments are made.

“In Australia, judges in all courts across the legal system are chosen by governments. Given a range of factors, including unconscious bias, these majority of judges especially in the higher courts are white men,” she said.

In the UK, however, the Judicial Appointments Commission is responsible for selecting candidates for judicial office, Ms Cameron pointed out.

“The commission’s selection process is based on the premise that the judiciary should reflect the society it serves. It aims to attract diverse applicants from a wide field, working closely with a range of organisations to promote vacancies to all those who are eligible,” she said.

Law Council of Australia (LCA) president Tass Liveris noted that – in its submission to the Australian Law Reform Commission’s Judicial Impartiality Consultation Paper – LCA argued that ensuring transparency and promoting greater judicial diversity is an “essential part” of supporting judicial impartiality, as well as public and litigant confidence in the administration of justice and, particularly, in judges’ ability to make responsive and well-informed decisions.

“Diversity in the judiciary has a clear flow-on effect for a person’s experience in a courtroom, and could be considered a necessary part of enjoying comprehensive access to justice,” he posited.

LCA believes, Mr Liveris continued, that greater diversity in the judiciary through a meritorious appointment process will “assist public confidence and is an essential feature in ensuring a responsive and well-informed judiciary”.

“Further, in the experience of the Law Council’s members, there may be advantages to a judge having direct knowledge of certain matters in a case, including cultural identities and backgrounds, provided these factors are balanced against potential bias issues,” he said.

The Law Council’s Policy on the Process of Judicial Appointments, Mr Liveris said, recommends establishing a selection panel to advise the Commonwealth government on judicial appointments, as Ms Cameron argues for.

“It proposes that the independent body or panel should give thorough and regular consideration as to how diversity can best be achieved in the judiciary while ensuring meritorious appointments,” he explained.

“This may involve identification and consideration of the proportion of judicial officers belonging to a particular dominant social, cultural or other group, whether in a specific jurisdiction or nationwide.”

An objective of the Law Council’s Strategic Plan 2021-2026, Mr Liveris said, is to support increased diversity and inclusion within the Australian legal profession to reflect the Australian community.

Author’s note: The Society of African Australian Lawyers and the African Australian Legal Network were both contacted for comment but did not respond by the time of filing this story.