High Court gender balance just one example of diversity

Justice Jayne Jagot’s appointment has not ‘actually altered the level of gender diversity on the High Court’. Picture: John Feder

The swearing-in last week of Justice Jayne Jagot gave prominence to the idea of diversity on the High Court. In welcoming the new judge, Attorney-General Mark Dreyfus said “diversity is a strength – on the bench, and in the law more generally”. It makes sense for the High Court to include excellent lawyers from a range of backgrounds, as better decisions can result from multiple viewpoints. It is a reason the High Court comprises seven judges, and not just one.

Jagot’s appointment has not actually altered the level of gender diversity on the High Court. Prior to her appointment the bench consisted of four people of one gender, and three of another. This remains the case with the only shift being to tilt the balance in favour of women. What was more significant is that women are now a majority on the bench for the first time in the court’s 121-year history.

It is remarkable how quickly this has occurred for a slow-moving institution like the High Court. Half of the last 12 appointments by both sides of politics have been female. By contrast, only one of the first 44 appointments was a woman. It was not so long ago, in 2005, that the court comprised only men. This was untenable given the obvious talent among women lawyers. Former High Court justice Michael McHugh provided a frank assessment that this posed “an ever-increasing risk in the society of today that the public support on which the legitimacy of the judiciary rests will erode”.

McHugh made it clear judicial appointments should not ignore meritorious people in a significant section of the community. These concerns were exacerbated by the High Court deciding cases with a profound impact on women. Matters included whether men should be immune from prosecution for rape in marriage and the damages a woman should receive after having a child due to her doctor’s negligence. The different life experience of men and women can affect how they view the law in these and other areas.

Gender is only one important marker of diversity, with the High Court faring less well on other measures. Despite the court laying down the law for all of Australia’s six states, no judge has ever been appointed from South Australia or Tasmania, despite suitable candidates. This reflects concern on the part of federal governments that judges from those states might favour states’ rights in legal battles over Australian federalism.

Cultural diversity is also important. The High Court resolves matters of profound importance to Indigenous Australians and yet the court has never had an Aboriginal or Torres Strait Islander judge. This exposes deeper problems in the legal system. Indigenous people have been provided with fewer opportunities over past decades to get a legal education, let alone to undertake the demanding and high-profile work that might lead to High Court appointment. The position is so poor that the nation’s first Indigenous senior counsel was appointed in 2015 and the first Indigenous person to a state Supreme Court only a few weeks ago, in June.

Another key aspect of diversity is the background and professional experience of judges. Past decades have seen all governments draw High Court judges from a narrow pool as compared with other top national courts. Appointments to our High Court have tended to be of people following a similar career path in which work as a barrister is followed by appointment to a lower court (usually the Federal Court) before being appointed to the High Court.

One obvious omission are eminent lawyers with experience in politics. The background of someone like George Brandis from the Coalition or Duncan Kerr from Labor could have been invaluable because so many High Court decisions impact the political process. In applying the law to the work of parliament and the executive, the court benefits from having at least one person with a deep understanding of how these institutions function.

The importance of political experience on the High Court has been recognised for most of its history. The court’s first five judges all served in politics, including chief justice Sir Samuel Griffith as premier of Queensland. Up until 1975, most High Court appointments (17 of 30) had some political experience, including 13 who had served in parliament. The last such appointment was the controversial selection of senator Lionel Murphy in 1975. This broke the mould, with none of the 26 appointments since then having served in parliament.

It is welcome that the High Court comprises a diverse membership of men and women with impeccable legal credentials. However, this should not divert us from the importance of having other perspectives and viewpoints on the court. There are many potential appointees to the High Court, and it is just as significant that excellent lawyers are selected from a variety of cultural, professional and other backgrounds.

George Williams is a deputy vice-chancellor and professor of law at the University of NSW.