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Justice Keane says judiciary diversity ‘not happening fast enough’
The Asian Australian Lawyers Association Queensland branch recently hosted an event with Justice Patrick Keane, former justice of the Australian High Court, who reflected on diversity within the now-majority-female High Court and what more needs to be done.
Lauren Croft
In 1987, the High Court’s first female justice was appointed. Chief Justice Susan Kiefel was the 33rd justice of the High Courts over the first 95 years. However, in September, Justice Jayne Jagot was appointed to the High Court.
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This is a “historic moment” for Australia’s legal profession and breaks a glass ceiling. However, there are still a number of steps towards diversity the Australian legal profession needs to take — breaking the bamboo ceiling.
Reflecting on the appointment resulting in the High Court being majority female for the first time, Justice Keane said it was a significant milestone.
“Milestones happen because things weren’t great before,” His Honour said.
“The milestone is an indication that things are getting better. It’s confirmation that things have gotten better. I think it probably also reflects the proportions of men and women at our law schools.”
According to the 2021 annual National Profile of Solicitors report, there are now 44,581 women in law in Australia and 39,052 men. Two-thirds of those entering the profession have been female, with only 26 per cent of lawyers entering the profession have been men.
Despite these numbers, positions of leadership within the profession continue to be male-dominated — and as Justice Kiefel stated in a keynote address in August, the High Court still needs to do more to ensure greater diversity on the bench.
Whilst His Honour maintained that the High Court is “not a representative institution”, diversity is still important, particularly when dealing with members of the public.
“The only source of the court’s legitimacy is the confidence that it commands amongst the public. And the public needs to see a court that looks like it. That’s an aspect of having confidence in the court. That’s an aspect of knowing that the court isn’t some strange institution that operates as the social control exercised by some occupying power. That it’s our court, that the judges are our judges. That’s why the judges have to look like the society within which they operate,” Keane J continued.
“The judges here, all of them, I’m sure, would agree that the absolutely worst thing in sentencing young Aboriginal men is that you feel like you’re the occupying power. And that’s certainly how they see it. And you can’t say that they’re wrong.”
Federal Attorney-General Mark Dreyfus echoed a similar sentiment last week — and not only committed to promoting judicial diversity in Australia’s courts but also committed to upholding and strengthening integrity in the appointment process.
Despite change being slow, however, change is still happening, Keane J continued.
“How do we do it better? I really don’t know. But I can say that the organic development of a more diverse judiciary is certainly happening. It’s probably not happening fast enough, for those who think it should be happening faster and have good reason to think so. [But] it will happen organically, even if it’s not given a nudge,” His Honour added.
“In the last six years, I had two Chinese-Australian associates, one Bangladeshi-Australian associate, one Sri Lankan Tamil associate, and one Pakistani-Danish-Australian associate. And each of them, apart from being a lovely person, each of them got the job because they were the outstanding law students of their years. So, it is going to happen. It is inevitable that these people are going to lead the profession.”
In terms of what kind of role a chief justice should play in shaping diversity in the judiciary and the legal profession, Justice Keane said it could often be hard to secure funding for programs and initiatives to ensure greater diversity and equity on the bench.
“Most of your time that’s not spent with your judges or in hearing cases is spent fighting with governments about money. And fighting with the finance department is not like fighting with an opponent who is honourable and fair and decent. It’s really awful. And they’re terrible people. Certainly, if you can get the money to run the programs, you can get people who can help,” His Honour said.
“But getting the money to do to fund those programs when you’re trying to maintain the number of judges you’ve got, or indeed to increase the number of judges you’ve got, and in fact, to ensure that you’re not obliged to lose registrar’s who do the mediation work and a lot of the administrative work of the court can’t function without is the great constraint on the ability of chief justices to take any sort of effective lead with those kinds of programs.”
Finally, when asked if, as a High Court judge, he had been faced with challenging a precedent he doesn’t agree with, Keane J said that it takes conviction, rather than courage, not to follow it.
“Courage is a virtue that I think is probably necessary for judges who are confronted with litigants at first instance. Not having a constituency means that we don’t worry about whether we’re disappointing constituents or not. We don’t see ourselves as heroes. And it’s just as well we don’t because we’re not heroic.
“In civil cases and even constitutional cases, we might make a decision that’s relatively controversial — but doesn’t require courage. The people that we have dinner with on Saturday night, they’re going to be the sort of people who agree with us. They’re not going to not talk to us. We’re not going to be ostracised by the social groups within which we move. It’s conviction that matters more in disregarding precedent, I think, than courage.”
