Diversity merited in High Court

Sydney Morning Herald
May 2 2005

The next judge appointed should be a woman, writes Simon Evans.

In just under six months, Justice Michael McHugh turns 70 and leaves the High Court, with speculation under way about who the Government will appoint to fill his place. Last November, McHugh argued strongly that the Government should appoint a woman. He was right to do so.

The High Court has had only one woman judge, Mary Gaudron, and since her retirement in February 2003 the court has consisted of seven men. Comparable courts in Canada, New Zealand, the US and Britain have at least one woman judge. Canada has four, including the Chief Justice; New Zealand's Chief Justice is also a woman. The all-male membership of Australia's top court should end now.

Popular confidence in public institutions requires that they reflect the composition of the wider society. As the British Department for Constitutional Affairs wrote last year: "If the make-up of the judiciary as a whole is not reflective of the diversity of the nation, people may question whether judges are able fully to appreciate the circumstances in which people of different backgrounds find themselves."

Saying that the High Court should reflect the make-up of society does not mean that the court or any of its judges must represent particular sections of the community. Judges do not and should not have a mandate or a constituency. Their duty is to do justice to all people according to law.

And one woman - or two women or seven women - cannot represent the diverse experiences of all Australian women.

But a High Court that consists of seven men simply isn't the court that is best able to maintain the public confidence necessary to ensure that justice is both done and seen to be done. A national court consisting of seven Victorians would be problematic; we should equally recognise that a court consisting of seven men is problematic.

Suggesting that the court should incorporate an element of diversity is not new or radical. After all, we have a High Court of seven members, not one. The seven judges often deliver separate judgements and not a single lowest-common denominator judgement.

Diversity is especially important in a top court such as the High Court. The law does not always provide a single clear answer to the cases the court hears. Individual values and life experience make a difference in difficult cases.

How, then, should we respond to McHugh's challenge?

First, we should recognise the problems in saying that the sole criterion for appointment will be merit. And, second, we should ensure that the procedure identifies the widest range of qualified candidates.

As McHugh said, "merit" has been defined and understood by a male-dominated profession. In the absence of concrete criteria, the background of those appointed to the High Court has been predictably homogenous. The candidates traditionally seen as the most "meritorious" have almost exclusively been white male barristers.

This has resulted not only in a judiciary which does not reflect the make-up of society, but which fails to acknowledge the many talented and eminently qualified women within the legal profession.

We should take a broader view of "merit", and cast a wider net in evaluating the qualifications and experience necessary to serve as a judge. We should look for candidates outside the bar, which remains male-dominated, and look, as well, to areas where women lawyers play an increasingly prominent role - for example, among solicitors and academics.

We should also extend the process the Attorney-General is required to engage in before deciding whom the Government appoints. The Attorney-General must consult his state colleagues; in practice he consults judges and senior practitioners. Neither will necessarily bring to his attention those who are suitably qualified but who have not followed a traditional career path.

Countries such as Britain, Canada, and New Zealand are either establishing or considering judicial-appointments commissions to identify candidates and advise those with the power to make appointments. In Australia, such a commission should have a mandate to seek out candidates and set more detailed guidelines for the criteria and processes by which appointments are made.

The chairman of the Judicial Conference of Australia, the Federal Court judge Ronald Sackville, has suggested that this might help to attract a "broader range of qualified people" so that appointment to the courts is "not the exclusive province of the bar".

At the very least, an appointments commission could ensure that a less restrictive approach is taken in assessing the "merit" of potential candidates and that broader questions of diversity play a more prominent role.

Simon Evans is director of the Centre for Comparative Constitutional Studies at Melbourne Law School.



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