Article first published 21 October 2014, Justinian
THE appointment of Magistrate Leanne O’Shea as Queensland’s Deputy Chief Magistrate in marks only the second woman to receive a judicial appointment since Campbell Newman was elected Premier in March 2012.
The percentage is less when it is considered that Deputy Chief Magistrate O’Shea was already a magistrate prior to her elevation as deputy.
This trend was raised by the President of the Court of Appeal of Queensland, Margaret McMurdo, in a speech delivered to women judicial officers and barristers early this year.
What followed in the media was a focus on the breach of a private discussion where the Attorney General and Minister for Justice, Jarrod Bleijie, made public that the president had privately raised with him the issue of the possibility of unconscious bias in judicial appointments.
In another speech to the Australian Association of Women Judges, Justice McMurdo again raised the issue of the absence of female judicial appointments.
There is good reason for her to be concerned about this issue.
The low number of female judicial appointments has meant that on average, by jurisdiction, only 27.7 percent of the judiciary are women, making Queensland one of the poorest performing states when it comes to judicial gender equity.
This is three to five percent better than the worst performing state (Tasmania), but a massive 25-27 percent from the best performing jurisdiction (ACT).
An ongoing decline in the number of female judicial appointments will likely impact on public confidence in the Queensland judicial system.
In 2004 Justice Michael McHugh of the High Court raised the issue of the need for courts to command public confidence through social and cultural homogeneity.
He pointed out that based on studies, female litigants and women before the courts did not have the same confidence in the fairness and impartiality of the justice system as men:
” … nothing breeds social unrest as quickly as a sense of injustice. The need to maintain public confidence in the legitimacy and impartiality of the justice system is to me an unanswerable argument for having a judiciary in which men and women are equally represented …”
As women become comparatively more numerous in the legal profession the justification for the smaller proportion of female judicial officers becomes less and less satisfactory.
This is all the more so when it is considered that:
• Across Australia, of all solicitors admitted in 2013, 61 percent were women and over the last ten years 58 percent were women;
• In Queensland, women holding practising certificates with the Queensland Law Society comprise 46.7 percent of all members, and the number of female practitioners in 2013-2014 increased by 6.7 percent.
• In Queensland, women holding practicing certificates with the Bar Association of Queensland (both in house and at the private bar) comprises about 20.8 percent.
“Unconscious bias” is a real phenomenon, supported by a large body of scientific and psychological studies – relating to a range of circumstances, including race, culture and religion.
Among these factors, the male-female gender divide is arguably the largest majority-minority group.
Studies in the US show that in considering appointees for different types of positions, where only gender was adjusted, the decision makers not only preferred the male applicants but justified their decision on perceived merit despite the applicants otherwise having the same merit factors on which to rely.
In 2014 in a study by the Law Council of Australia of almost 4,000 men and women it was reported that a number of female lawyers had experienced bias, including being passed over for promotion, lack of access to work opportunities to develop skills to enable promotion and adverse briefing practises preventing women from being involved in high profile or complex matters.
The Australian Public Service Commission has also cited studies that unchecked unconscious bias could result in a failure to recognise high-potential employees and that mandating interviewing of minority groups forces decision makers to cast a wider net for applicants.
The relative absence of women on the bench would inevitably result in a homogenous judiciary with less exposure to alternate views and where female advocates would be deprived of working with and appearing before female judicial officers.
The empirical evidence of 9.1 percent of overall judicial appointments is an indisputable indicator that there is a real problem.
Sadly, in Queensland, there looms the prospect of having a judiciary which exhibits a largely homogenous background and in whom, for that very reason, the community do not have confidence.
Justice McHugh warned about this a decade ago.
Unless those involved in the judicial appointment process acknowledge the lessons of the psychological studies, there will be no redress of inequality and no reduction to the risk that our judicial system is perceived as unjust.
Surely, it is time to take stock and reconsider the judicial appointment process.
Griffith Chambers, Brisbane
POSTSCRIPT from Kylie Hillard:
Since the posting of this article, two more women, Helen Bowskill QC and Suzanne Sheridan, have been appointed to the District Court. One would hope this article had some impact or influence on those appointments.
Taking into account these appointments, with the three other appointments that were made at the same time, the overall percentage of female judicial appointments since March 2012 is now 14.8 percent.
A step in the right direction but this figure is still an under-representative of women within the judiciary. We must remain mindful of the possible consequences of that under representation.