‘Diversity and merit not mutually exclusive’: WA chief law officer backs some gender-based hiring of judges

WA’s Solicitor-General has backed gender-based hiring of judges, arguing that a diverse bench is vital to the administration of justice.

Western Australia’s Solicitor-General has hit out at critics who condemn gender-based hiring of judges, arguing that a ­diverse bench is vital in establishing the public’s faith in the courts.

Joshua Thomson, SC, speaking at a legal conference on Sunday, said the conservative argument that hiring based on gender disregards a candidate’s merit was “flawed” and a danger to the proper administration of justice.

Instead, he said, hiring bodies should establish a pool of candidates who have the relevant capabilities for appointment, and then use diversity measures to distinguish between successful and unsuccessful applicants.

“It cannot be assumed that there will be one candidate who will necessarily be more meritorious than all the others,” he said.

“Several candidates will likely reach a threshold level of merit, in which case there must be a means of selecting the most appropriate candidate between them. This will depend on various factors including whether the candidate’s ­appointment would increase the diversity of the court.”

The “merit argument” had been weaponised to “perpetuate the status quo in terms of the composition of courts, without recognising the importance of gender diversity in ensuring public confidence in the legal system”.

Mr Thomson said it was “fundamental” for the judiciary to be representative of a diverse society in order to solidify public trust in the justice system, and eventually increase the talent pool.

“It is fundamental to the ­administration of justice that the public, and the legal profession, should have trust and confidence in the judiciary,” he said.

“That means it is necessary to ensure that the judiciary reflects the diversity of society. Without that, trust and confidence in the operation of the judicial system is diminished. As well, when judges are selected from a diverse background, the pool of candidates available for selection increases.”

Mr Thomson said gender ­diversity in the Australian judiciary had “improved significantly” since the appointment of the first female judge, Roma Mitchell, in 1965.

In 2017, Susan Kiefel became the first female chief justice of the High Court, and with the appointment of Jayne Jagot to the High Court last year, the court for the first time obtained a female majority. Additionally, Debra Mortimer in March became the first female Chief Justice of the Federal Court.

Australian Institute of Judicial Administration statistics reveal that as of June last year, 43.1 per cent of Australian judicial officers were women, including 39.3 per cent in superior courts.

However, Mr Thomson said more needed to be done to ensure women weren’t looked over for their male counterparts who had not experienced the same “career interruptions”.

“Greater diversity means that the accepted wisdom from one segment of society may be challenged and exposed for analysis more readily, by a judge who has come from a different segment of society,” he said.