Unlike the nation as a whole, Australia’s judiciary is predominantly pale and male … Composition of courts unrepresentative of the people they serve … The barristers’ pool culturally homogenous … Coalition’s poor record of diverse cultural and gender Federal Court appointments … Joseph Friedman calls for change 

Our justices respect long-standing precedents. They seek to defer to our legislators when reasonable. Most reassuringly, they elect not to vote in an ultra-conservative block intent on sending us back to the dark ages. 

But unlike the nine who sit on America’s highest court, our seven justices, and most of their friends down at the Federal Court and state Supreme Courts, remain overwhelmingly white and male. 

Compare that to the bench of our highest court, which is, and always has been, exclusively white. It is a court unrepresentative of the country. A country that – according to the results of the 2021 census – is increasingly multicultural and diverse. 

The census showed that almost half of us have at least one parent born overseas. Almost a quarter of us speak a language other than English at home, and strikingly, more than 27 percent of Australians are immigrants, with many coming from India, China, and other non-English speaking countries. 

Reasonable minds no longer differ on the principle that representation matters. 

In a column for the AFR late last year, Labor MP Andrew Leigh wrote: 

“In 120 years, no judge of colour has ever been appointed to the High Court of Australia … the demography of the bench will never perfectly match the nation, but people should be able to see themselves in the faces of those chosen to dispense justice.” 

Courts that make decisions affecting individuals’ lives and livelihoods should, as much as possible, look like those individuals. In a country where many people come from far-flung places and speak different languages, a reasonable proportion of judges should too. 

At present they do not. Of the 54 judges on the Federal Court of Australia, just 17 are women. All are white. Of the 54 permanent judgers on the Supreme Court of NSW, remarkably only 13 are women and 51 are white. 

Of the 47 permanent judges on the Supreme Court of Victoria, 19 are women, and all are white. 

Some of these judges come from Greek, Polish, Italian and Russian heritage, but the judicial branch appears decades away from reflecting the cultural diversity of the wider community. 

In some ways, courts will always be playing catch up to changing demographic trends. Judges are not plucked from thin air. They are almost exclusively appointed from those who sit at the top of the bar, most of whom signed the roll 10-20 years prior. 

The bench, therefore, is more likely to look like those who began as junior barristers two decades ago, rather than today. 

Yet today’s baby barristers remain sorely lacking in diversity. While many mid-to-top-tier law firms have begun to set racial and diversity targets, and today’s law graduates are majority female and increasingly culturally diverse, the bar’s class of 2022 is predominantly white and male. 

According to the departing President of the Victorian Court of Appeal, Chris Maxwell, who pressed the need for diversity as he welcomed in new lawyers in an admission ceremony last month, “we’re much more diverse than we were 30 years ago, but we’ve got a long way to go”. 

NSW Attorney-General Mark Speakman has taken notice. His recent appointments of District Court Judge Dina Yehia SC (of Greek and Egyptian descent) and barrister Dr Nicholas Chen SC to the Supreme Court, both prodigiously qualified, immediately increases the level of cultural diversity on the Court, which previously included only one “culturally diverse” person. 

This follows the recent push by the NSW Government to increase the gender diversity of the Court, having appointed 10 women and nine men since November 2013. 

During the same period – which constitutes the time since the then Coalition government first took office – a mere 11 of the 33 Federal Court appointments were women. 

In the Court’s Victorian registry, the federal government appointed nine men and no women between 2014-2020. Over at the Supreme Court, nine women were appointed to the bench in the same period. 

Whether the federal and state governments’ differing approaches to diversity of judicial appointments continues will become clear fairly soon. 

A suite of Federal Court judges are due to retire in the next few years, and notably, two High Court justices will shortly be joining them (including Patrick Keane AC in October this year). 

Attorney-General Mark Dreyfus and friends will soon decide how our nation’s highest court looks for decades to come.