While not all state and territory jurisdictions in Australia collect data on diversity in its various forms of the profession, Ms Marrone and Ms Sabapathy noted, existing data does demonstrate that greater efforts are needed to recognise the achievements of people from diverse backgrounds and to support their career progression.
A lack of judicial diversity – or, as some media outlets have described it, a “pale, male and stale” makeup on the benches – is perhaps somewhat due to the extraordinary gender gap at the bar.
In NSW, three in four (75.44 per cent) of the state’s 2,439 barristers are male, and men make up even more of the state’s senior counsel (i.e., QC or SC), with 85.53 per cent of the 401 such silks.
These figures mirror that of the Sunshine State: in Queensland, men make up 74.5 per cent of the state’s 1,391 barristers, according to the Queensland Bar Association’s latest annual report. It should be noted, however, that in the 2020-21 financial year, 44.9 per cent of the new practising barristers in Queensland were women, hinting at incremental progress towards parity.
In private practice, a 2019 survey of nearly 5,000 staff members of Australia’s largest 11 law firms – the Law Firm Cultural Survey, which was an initiative of the Managing Partners Forum and conducted in collaboration with AALA – identified that while one in four law graduates was of an Asian background, just 8 per cent of partners in those firms have Asian heritage.
More than one media outlet has described this as a “bamboo ceiling”.
Elsewhere, and as detailed in the fifth National Profile of Solicitors Report, which was published in July of last year, the number of Aboriginal and Torres Strait Islander legal professionals has not increased since 2014, having remained stagnant at 0.8 per cent of the entire cohort of lawyers in Australia. This, of course, is not proportionate to the number of Indigenous Australians as part of the entire national population.
Trawlwoolway (Palawa) woman Leah Cameron – who is the founder and principal of Marrawah Law and winner of the Indigenous Lawyer of the Year and Excellence Award categories at the 2020 Women in Law Awards – said that, to date, no person of colour had been appointed to Australia’s High Court.
“In a country with the world’s oldest living culture and a culture built on immigration, this is a real gap,” she observed.
“Ideally, a nation’s High Court should reflect its population, in particular the diversity of its population in terms of race and gender. As the High Court draws from the Australian legal sector, it is to be expected that there are significant gaps in both cultural and gender diversity,” Ms Cameron outlined.
“This lack of diversity is evident across Australia’s justice system.”
The community must have trust in the law and the legal system for it to work effectively, Ms Cameron espoused.
“The law has to be exercised in a way that reflects understanding of the community in which it exists. If judges, magistrates, and senior practitioners in our legal system do not share the diverse lived experience of the community, it’s difficult, if not impossible, to create that fundamental trust and mutual understanding,” she said.
Greater diversity will improve the judiciary’s institutional capacity for openness to alternative views, Ms Cameron mused.
Not because, she advised, judges of any given race “will ‘represent’ a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities”.