Modernising Merit: It’s time to Rethink Judicial Appointments

Aug 13, 2020

Pale, Male, and Stale; such is the criticism levelled at our judiciary by detractors, rightly arguing it is too white, male dominated, and out of touch to represent and deliver just outcomes for an increasingly diverse Australia.

Credit – Unsplash

Indeed, research by the Asian-Australian Lawyers Association in 2015, for example, has found that Asian-Australians make up only 0.8% of judges, despite making up 12.5% percent of the wider population

.Defenders of how the system stands point to the sole criterion of judicial selection, meritocratic principle, as being the foundation on which any credible judiciary is built. Unequivocally, it is most ideal to have the best people in the job. But what, exactly, is “merit”? Inquiring into how merit is defined illuminates how the back-slapping Old Boys club retain their grip on the Australian judiciary; there is no working definition of judicial merit to be found.

The opacity in defining “merit” in Australia allows the bench to remain the last bastion of the old guard against diverse candidate representation; as pointed out by Lord McNally while reviewing the UK’s appointments process, “(merit-based selection) is often deployed by people who, when you scratch the surface, are really talking about “chaps like us””. Research out of the ANU seemingly confirms Lord McNally’s suspicions; Australians with a Chinese or Middle Eastern name, for example, were submitting over 60% more resumes than their Anglo-Australian counterparts before being offered interviews.

To establish there is a place for diversity in defining merit, however, we first must establish the benefits of a diverse judiciary. It goes beyond, for example, just breaking down the so-called “bamboo ceiling” that prevents an Asian-Australian from succeeding in the field. The benefits of a diverse judiciary are felt most not by the individuals promoted to judicial positions, but by the culturally and linguistically diverse (“CALD”) communities from which they are drawn.

To understand why, we need not look further than the words of former High Court Justice Michael McHugh; “when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution”. A judiciary that is not cognizant of the needs, practices, and contexts of CALD Australians should have no place in our multicultural society.

McHugh J is not a lone soldier. Former CJ of the High Court Robert French has committed to the push for greater understanding of the links between cultural diversity and justice, noting that there is a significant “unconscious influence on a judge of underlying assumptions or attitudes based on race, religion, ideology, gender, or lifestyle which are irrelevant to the case which the judge is hearing”.

French points to examples of different cultural practices that may prejudice judges who lack an understanding of cultural diversity. He explains how in many cultures, eye contact is a sign of rudeness, whereas before a judge with traditionally Anglo values, refusing to make eye contact may appear evasive, or suspicious. Naturally, assumptions made by the ill-informed judges will affect the credibility and treatment of the CALD Australians involved in the justice system, whether they be plaintiffs, defendants, accuseds or witnesses.

This insight is a feature of the Supreme Court Equal Treatment Benchbook in Queensland; however, benchbooks are only as useful as the dedication of the judge in reading them. Entrenching understanding of these principles into what we deem “meritorious”, as precondition for a judicial appointment would go a long way to breaking down the unconscious bias CALD Australians face in the justice system, and ensure they receive equal justice outcomes to Anglo-Australians.

So, we have a problem. Further, we have an urgent need for reform. But how do we fix it? Simon Evans and John Williams give us a workable answer to the merit problem in the Sydney Law Review, in research which, tragically, has fallen by the wayside while governments continue to beat the drum of law and order and trumpet an absurd, draconian tough-on-crime approach to the justice system.

Their recommendation is the adoption of a Judicial Appointments Commission, much like that of the UK. The irony of the country with land-owning Lords having the more progressive system for nominating judges serves a stark reminder of how flawed our system truly is. The adoption of a JAC is accompanied by a clear, published, transparent criteria as to how merit is assessed, that includes an understanding of the diversity of the community which the court serves. This ensures the public confidence in the impartiality of appointments themselves, and in the abilities of appointed judges.

So, what is the JAC? The JAC is comprised of twelve members – three judges, presidents of the jurisdiction’s Bar Association and Solicitors Association, an expert in legal academia, and to go with them, six suitable non lawyers chosen by the Commission’s other members. Their goal, still, is ensuring every judicial appointment is made based on applicant merit. As we have discussed, however, an expansion and codification of the previously murky concept of merit must be a key cog in the Commission’s machinery.

The judges on the Commission can assess the legal side of candidate’s merit. However, if we were to solely compromise the JAC of judges, we risk the “chaps like us” appointment policy so apparent to Lord McNally. The academic on the panel uses their jurisprudential nous (legal theory) to take a long view on legal scholarship, education, and trends, and provide their input accordingly.

By balancing out the JAC’s six members from a legal background with six non-lawyers, it ensures it will not fall victim to becoming an insider’s lounge. Similarly, politicians should not be featured on the JAC, and it should draw its Chair from one of the six non-legal members.

Upon vacancies to the bench, the JAC gives the Attorney-General a group of three nominees for the position. If they do not accept any, the JAC can give the Attorney-General three more; they must draw from those six. The UK sets out a list of five key areas to be considered under “merit”; intellectual capacity, personal qualities, an ability to understand and deal fairly, authority and communication skills, and leadership and management skills. Each of these has further criteria to meet the merit requirement of the area. Our JAC could borrow these five criteria.

But what of the diversity requirement? This falls into the criteria of understanding and fair dealing of matters. A candidate who demonstrates an awareness and understanding of the diverse communities the court represents, and is committed to fair treatment of all Australians, meets this criterion under the JAC.

Without needing to impose a quota-style system, a JAC brings increased potential for outsiders to the country club – including culturally and linguistically diverse Australians – to be given a fair consideration for judicial roles. It ensures that all judges of all backgrounds will have the knowledge and skills required to ensure justice for all Australians, and that all Australians can have the necessary faith in the system to ensure its credibility.

Fifteen years ago, a man named Rabinder wrote to the Guardian as to why it’s unfair to prejudge Asians based on their appearance. Today, he goes by the name of the Right Honourable Lord Justice Singh, and sits on the English Court of Appeal.

James Morgan is studying Law and Economics at The University of Sydney, and is a paralegal with the People’s Solicitors. Find out more about his plans for furthering the access to justice in Australia on Twitter at @JLMJustice

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