DOES AUSTRALIAN JUDICIARY REFLECT THE AUSTRALIAN COMMUNITY AND ITS

CORE VALUES?

I. INTRODUCTION

Australia has a unique history, that has influenced its cultural diversity, which helps

us understand Australian values and attitudes. Australia is one of the most multicultural

countries with more than 270 different ancestries. Australia comprises of many different

races and more than 500 different cultures. This cultural diversity is one of our greatest

strengths and it is the central key to our national identity. Australian values are based on

freedom, respect, fairness, and equality of opportunity, and this reflects the Australian

communities.1 This helps by creating an unbiased society by valuing certain individuals and

groups in a manner free from prejudice and by encouraging an equal and mutually

respected environment for them. This essay will be exploring how the Australian judiciary

reflects the Australian community and its attitudes and values and discusses the advantages

and disadvantages of diversity in the Judicial system.

II. SHOULD THE AUSTRALIAN JUDICIARY BETTER REFLECT THE AUSTRALIAN

COMMUNITY?

The judiciary system is there in place to enforce the law which is created by the

parliament. The judiciary system is one of the three constitutional pillars of our democracy

1
Freedom from fear magazine, Diversity: an impediment within the justice system? ( Web page)
< http://f3magazine.unicri.it/?p=1391>.
and has the power to determine crucial matters in a person’s life, for instance in the

removal of children; evection from home; deprivation of liberty; access to education and

employment; immigration status; criminal sentencing and welfare benefits. 2 Thus, the

Australian Judiciary should better reflect the Australian community, if it wants to better

serve its people and understand the lives of people it hears and it depends upon. 3

Therefore, to better reflect the Australian community, a more representative bench is

required, which can only be achieved through diversity in its bench.

III. DOES THE AUSTRALIAN JUDICIARY REFLECT THE DIVERSE SOCIETY?

A. Gender diversity

From the start, the judiciary system has been dominated by upper class older white

men, with barely any female or ethnic minorities. After the first members being appointed

in 1903, no female members were appointed in the high court till Mary Gaudron’s

appointment in 1987.4 Since then, only four more judges appointed were female. According

to the 2020 AIJA (Australian Institute of Judicial Administration) Judicial Gender statistics,

only 37% of Commonwealth Judicial officers are females.5 This includes 3 female officers out

of 7 from the high court, and 14 female officers out of 52 in the Federal court. 6 This means

that even though there are about 42% female officers in the highest court of law, there are

2
Young Legal Aid Lawyers, Does judicial diversity matter? (Web page)
<http://www.younglegalaidlawyers.org/does-judicial-diversity-matter>.
3
Ibid.
4
Crikey, Despite progress, Australian Judges are pale, male and stale (Web page, 09 November 2018)
<https://www.crikey.com.au/2018/11/09/judges-australia-white-men/#:~:text=In%20the%2030%20years
%20since,female%20judges%20have%20been%20appointed.&text=But%20the%20numbers%20across
%20other,43%20are%20men%20(76%25).>.
5
AIJA Judicial Gender Statistics, Number and percentage of women judges and magistrates at 30 June
2020(Web page)
<https://aija.org.au/wp-content/uploads/2020/07/2020-JUDICIAL-GENDER-STATISTICS-v3.pdf>.
6
Ibid.
still only 27% female judicial officers in the federal court. 7 This shows us that the court that

handles the most important cases for our local communities is still dominated by male

officers.8 Even though there is an 0.7% general increase in the female officers from 2019, the

total number of females is very low.9 This does not accurately reflect the diverse community

of Australia as the total number of females in Australia is 51%.

In Western Australia, there are only a total of 37 female judicial officers out of a total

of 95 officers.10 This shows that Western Australia has only a little bit more female officers

compare to the Commonwealth. Unlike the High court, there are only 4 female officers out

of a total of 21 officers, which is around 19%.11 This is terrible and needs change soon

because it does not reflect the community of Western Australia and thus is subjected to

more cases being biased. But the district court and magistrate court have 43% and 45% of

female officers respectably. Which is a bit more accurate reflection of the community. But

there is a general overall increase of 4.9% more females from 2019, which is very good and

thus a more accurate reflection of the Australian community. 12

B. Racial

According to the 2016 Census question, more than 75% of Australians identifies with

an ancestry other than Australian. 13 Around 26% of the population is born overseas, with

major countries being England, New Zealand, and China. Around 19% of the overseas
7
Ibid.
8
Ibid.
9
Ibid.
10
Ibid.
11
Ibid.
12
Ibid.
13
Racism No Way, Australia’s cultural diversity (Web page)
<https://racismnoway.com.au/about-racism/australias-cultural-diversity/#:~:text=More%20than
%2075%25%20of%20Australians,parent%20who%20has%20born%20overseas.>.
population comes from a non-English speaking nation.14 Most of the judges in Australia

appear to be from white, Anglo, English speaking backgrounds. 15 All of the High court Judges

in Australia, past and present, are from a white background. Similarly, most of the current

Federal Court judges are white, with Darryl Rangiah a South African judge and Mordy

Bromberg an Israeli judge as exceptions. Both of these judges are from a non-English

speaking background. But this still does not accurately reflect the community of Australia as

there are a lot more different nations in Australia.16

According to the 2015 analysis from the Asian Australian Lawyers’ Association, Asian

Australians make up approximately 10% of the population yet, they are only accounted for

less than 1% of the judiciary, 2% of the barristers and 3% of the partners. This tells us only

6% of the Asian Australians are a part of the legal system, which does not accurately reflect

the Australian Community. Even though this analysis is quite old it is very reliable. 17

IV. ADVANTAGES AND DISADVANTAGES OF DIVERSITY IN THE JUDICARY

A. Advantages of diversity in judiciary

1. Builds public confidence

14
Ibid.
15
See n4.
16
Ibid.
17
Ibid.
 A diverse judiciary system is essential to maintain Australian values and attitudes and

to make a fair and unbiased decision. Diversity allows people with different backgrounds,

experiences, and heritages to bring different perspectives that impacts the decision-making

process of the Australian Judicial system.18 Judicial diversity is very essential because it

builds the community’s trust in our legal system and increases public support from the

community.19 Community is more comfortable and happy with the judicial system, if they

are being properly represented in court and if the judicial system shares a similar

background. If the judicial system were more diverse, there would be a higher chance of

minorities being in appeal courts and higher courts which will in return result in a more fair

and unbiased trial. An increase in the confidence of the public will allow the trial to be more

thorough and actively focused between the judges. A minority group is more likely to

support the judicial system if they receive a fair and unbiased trial. Confidence in courts and

the legal system is considered significant for effective democratic governance. When the

public has confidence in the judicial system, this means they feel like not only they are being

represented but also heard and understood by the government. Which assures them that

they are being looked after by the government, this inclusivity expands the different values

that that judicial system holds.

2. Provides different perspectives

Everyone in Australia has a different perspective to one another, which is shaped by

their personal experiences and their values. Everyone has different values based on their

18
See n1.
19
different culture, citizenship, gender, and age. If the judicial system is more diverse that

would mean that a lot more perspective is there which would allow for a fair and unjust

trial. This means that there would be more skills and experience for judges to gain from

passing judgement as they would gather more perspective from a minority when providing

them with a fair judgement. A more diverse judicial system would allow judges to better

comprehend different cultural links brought up by minorities. This would also allow there to

be more judgements made without bias. For example, in the 2015 rape case in the UK, the

male senior judge, branded the victim of a sexual assault as ‘foolish’ for getting too drunk

before the attack. 20 This shows a biased and regressive perspective of an old man, which

caused him to be later criticised for it. If this exact case was handled in 2021 by a female

judge, the outcome could be entirely different since a female judge could better understand

the perspective of the 20-year-old victim. This shows that a more diverse judiciary system

would better understand and make better judgement calls for our diverse community.

According to an analysis done by the Guardian in 2011 of more than 1 million cases,

coloured offenders were 44% more likely to be sentenced to prison for driving offences

compared to white offenders. Coloured offenders were 38% more likely to be imprisoned

for public disorder or possession of a weapon, and 27% more likely to be imprisoned for

drug possession. This shows us that racism is a big part of the judicial system and having a

more diverse judiciary would allow the judicial system to be fairer and more unbiased.

20
Daily Mail, Judge slams 'foolish' sex assault victim for drinking so much before she woke up in flat with two men and was

pounced on by Kuwaiti attacker as she tried to find her way home ( Web page)

<https://www.dailymail.co.uk/news/article-3993286/Leading-judge-brands-sex-assault-victim-FOOLISH-drinking-

attack.html>.
Similarly, if there is a coloured judge, he is to be more likely to be fair and understanding

towards victims of colour as he has a similar perspective.

3. Acts as a role model

By increasing the diversity in the judicial system, there would be an increase in

women and ethnic minorities. This would inspire different groups of people to join the legal

profession and the become judges. After seeing how diverse the judicial system is, many

minorities would think they have a better chance to get a job in the legal department and

thus they would study law-related courses. This will eventually benefit and make it easier to

get a job in the legal department as there would be a bigger and more diverse pool to select

students from and thus it would much better reflection of the Australian communities.

B. Disadvantages of diversity in judiciary

Diversity of the judiciary comes with its shortcomings, such as misinterpretations of

the context due to different perspectives or miscommunications. There is a higher chance

of a case being interpreted wrong due to a different context or perspective. Even though

diversity allows more cases to be used to represent the multicultural community, in some

cases there could be major disputes for the judge with different believes due to the

diversity. In some cases, it could be insensitive, example a male judge, in a case of rape or

sexual assault, would be insensitive as they might have opposing views on the matter.

Similarly, it could cause some minority groups to be patronized as they could feel they are

being undervalued for their skill and capabilities. Another disadvantage of diversity could be
miscommunications between the judge and victim. If there is more diversity in the judiciary,

it is more likely that there might be a miscommunication due to different cultures. Different

cultures have a different meaning of words, behaviours, or gestures. This could lead to

misunderstanding which could cause huge problems. The Australian judiciary has been

successfully running for a long time and therefore any huge changes in its fundamentals

such as excessive changes in the bench with more diversity could possibly cause conflicts

and thus could risk more cases being misinterpreted or being miscommunicated and end up

not receiving justice.

V. CONCLUSION

The Australian Judicial system reflects a part of Australian communities and its core

values and attitudes but not all. To better reflect and understand the Australian community,

a more representative bench is required, which can only be achieved through the diversity

of its bench. Diversity allows people with different background and perspective to better

express themselves, build public confidence, proved a different perspective on the case and

act as a role model for young people. This will thus give a more accurate, fair, and unbiased

trial to the community. Even though there are some disadvantages to the diversity of the

judicial system such as misinterpretation and miscommunication, diversity will only further

help the community by giving a better reflection of the society and thus more cases being

tried fairly and accurately.

 BIBLIOGRAPHY

E Other

Freedom from fear magazine, Diversity: an impediment within the justice system? ( Web page)
< http://f3magazine.unicri.it/?p=1391>

Young Legal Aid Lawyers, Does judicial diversity matter? (Web page)
<http://www.younglegalaidlawyers.org/does-judicial-diversity-matter>

Crikey, Despite progress, Australian Judges are pale, male and stale (Web page, 09 November 2018)
<https://www.crikey.com.au/2018/11/09/judges-australia-white-men/#:~:text=In%20the

%2030%20years%20since,female%20judges%20have%20been%20appointed.&text=But%20the

%20numbers%20across%20other,43%20are%20men%20(76%25).>

AIJA Judicial Gender Statistics, Number and percentage of women judges and magistrates at 30 June
2020(Web page)
<https://aija.org.au/wp-content/uploads/2020/07/2020-JUDICIAL-GENDER-STATISTICS-v3.pdf>