A spokesman for Senator Michaelia Cash, who replaced Christian Porter as Attorney-General this week in a ministerial reshuffle, told Lawyerly the Morrison government had a strong record of appointing a “high number” of qualified women to senior judicial positions across all commonwealth courts, and said gender balance would be a “constant consideration”.

He noted that Cash, as Minister for Women in 2016, committed the Coalition to a 50 per cent representation target across all Australian Government boards. But the spokesman declined to respond to direct questions about what Cash would do in her new role as first law officer to address the gender imbalance in the judiciary, including whether she would commit to choosing women to fill both Federal Court vacancies created by the recent High Court appointments of Justices Jacqueline Gleeson and Simon Steward.

Such a commitment would not put much of dent in the numbers, anyway. Since the Coalition has been in government, every one of the nine appointments to the Federal Court’s Victoria registry — including Justice Steward in 2018 — has been a man. Male Federal Court judges now outnumber female judges 15 to three in Melbourne.

As of June 30, 2020, women made up just 27 per cent of the bench across the Federal Court’s registries, and just 37 per cent of judges across all commonwealth courts were women, according to statistics compiled by the Australasian Institute of Judicial Administration.

Cash’s spokesman said there had been an increase in female representation on the courts under the Coalition since 2013, although it is not statistically significant. Women now account for 14 of the 52 judges on the Federal Court, up from eleven under the previous Labor government. The Coalition has increased by two the number of women on the Federal Circuit Court, so that female judges now have 26 of the 68 seats on that bench.

“Improving diversity in appointments is, of course, an on-going process. As it has done since it came to Government, the Coalition will continue to work to increase diversity, including the representation of women, on all federal courts,” the spokesman said.

‘No room for complacency’

The Women Barristers Association, the peak independent body for women barristers in Victoria, told Lawyerly it “readily agreed” that Cash should, as a start, install two women to replace Justices Gleeson and Steward.

“The Attorney General needs to actively commit to gender diversity as a relevant judicial appointment metric, and then apply it,” said WBA policy officer Astrid Haban Beer.

“There is also a really opaque issue of who advises the Attorney-General in each Federal registry, and what considerations actually are taken into account. We would hope that the new Attorney-General would welcome any and all moves to improve gender equality within the legal profession, more broadly.”

Haban Beer said while judicial appointments need to be looked at through a broader lens and context than numerical parity, the percentage of woman across the commonwealth courts was disappointing, “especially when distilled to even fewer numbers of women appointed to the senior Federal courts”.

Professor Andrew Lynch, Head of School and Deputy Dean of UNSW Law said there was “no room for complacency” about the gender gap in the federal judiciary.

“Judicial appointments by the Commonwealth are within what is called ‘the gift of the executive’ – and Australia is now quite an international outlier in not having developed a more sophisticated system with some greater independence or constraint upon the government of the day. But that does mean that the Attorney-General has the direct ability to affect the gender imbalance. There are precedents for this at the state level where governments have made a concerted drive to increase gender diversity on the courts,” Lynch said.

The Victorian courts have made the greatest gains in representation of women, according to the AIJA, with women now making up 45.1 per cent of judges in the Supreme Court, County Court and Magistrates Court as of June 30 last year. This is an increase of 2.7 per cent on the previous year, and beats the national percentage of 38.8 per cent women judges.

Lynch said while the role of judges was not to be representatives of any section of the community, there are benefits to the courts being a “fair reflection” of the community.

“First, a judiciary that more closely resembles the community is likely to inspire greater public confidence, and second, judicial diversity (in all its forms) brings different perspectives to the work of the courts and this is particularly consistent with the use of multimember courts at the appellate level,” he said.

Dr Joe McIntyre of the University of South Australia said Australia should aim for a judiciary that is 50 per cent women, a percentage that is reflective of the country’s broader demographics.

“The last two months have forcefully shown the need to ensure that women’s voices are heard, valued and respected, and how far short of this ideal many of our social institutions remain,” McIntyre said, referring to the scandals that have erupted in Morrison’s cabinet, including rape accusations against Porter.

“As has been explicitly acknowledged by the Prime Minister, men continue to have a very different lived experience to women – and too many men are only now just appreciating how excluded, marginalised, and unsafe many women feel far too often. Diversity on the bench helps to ensure that we have a diversity of views and experiences- that we are not blinkers by subconscious bias. The very idea of a “women’s filter” is an explicit recognition of this issue in the political arena. The exact same reasoning extends to the judicial arena.”

Addressing ‘cancerous’ gender distortion at the bar

To achieve the 50 per cent target and address historical distortions, Cash would need to ensure that more women than men were appointed to the bench in the short term, McIntyre said.

But long term gender parity could not be achieved without addressing what McIntyre referred to as the “cancerous” gender distortion at the bar, from where the vast majority of judicial appointments are drawn.

While more women than men have been entering the legal profession for the past decade there was still an unacceptable gender disparity at the bar, particularly at the senior counsel level, McIntrye said.

“More than 50 per cent of all solicitors are female. More females graduate law school than males. Yet systemic distortions are continuing to operate to exclude females from properly populating the senior bar. Given that the judiciary in this country is almost exclusively drawn from that pool, this effectively distorts the judicial appointments process to seriously bias males,” he said.

“If the Attorney-General is serious about addressing this issue of ensuring a balanced judiciary, it is imperative that she help drive an active national conversation about addressing the gender inequalities at the bar. As many of the issues are structural, it is beyond the capacity of individual barristers to address, and the Attorney General is well placed to advance a strategic approach.”

President of the Australian Bar Association Matthew Howard SC said there was a “wealth of talent” among women at the Bar and the ABA was working actively to address and remove barriers that could prevent barristers fulfilling their potential.

“The ABA believes that it’s important that the judiciary reflects, and is seen to reflect, the communities in which our judicial system operates. It can only be a good thing that disputes and proceedings are resolved by calling on a collective wisdom drawn from different personalities, gender and experiences. This underpins the legitimacy of our nation’s institutions,” Howard said.

The WBA, which is not currently consulted by the Attorney-General’s Office in what has been criticised as a secretive appointments process, said it encouraged consultation with it and other women lawyers organisations.

“WBA welcomes the opportunity to provide recommendations of potential candidates. This would at least in part, address the issue of potentially myopic advice that might be given in each registry. Consulting and making the appointment process more transparent is genuinely valuable,” Haban Beer said.

While women in the legal profession had the talent, seniority and merit to be appointed to the bench, “they aren’t the people being appointed”, she said.

“This applies also for senior, talented lawyers from culturally and linguistically diverse backgrounds. A diverse judiciary would serve the administration of justice and the wider public. Representation is important, because although ‘justice’ is administered by applying the law – it is humans with their diverse experience who are tasked with that administration.”

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