"Judges and Gender"

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More women graduate from Australian Law Schools than men and yet we still have fewer women represented in the upper echelons of legal firms, at the Bar and in the Judiciary.  And, according to a senior NSW Judge, this may get worse under the current government.

An article in the Sydney Morning Herald on 28 February 2014 (http://www.smh.com.au/federal-politics/political-news/judge-ruth-mccoll-warns-gains-on-gender-threatened-by-aboutface-on-diversity-20140227-33mfv.html) contains a report of comments made by Justice Ruth McColl of the NSW Court of Appeal at a recent speech in Sydney.  The Judge observes that there are “worrying signs” that this government is undoing measures put in place to promote and improve gender diversity on the bench.  The previous Labour government had introduced a process whereby Federal judicial appointments were advertised and interested parties could express interest in the opportunity.  An advisory panel would then consider the applicants and in due course, recommendations would be made to the Attorney General.

However, it appears that this initiative is no longer applicable.  The Attorney General’s website states “There are no current judicial appointment processes” for the Federal Courts (as of 3 March 2014, when I checked it out at http://www.ag.gov.au/LegalSystem/Courts/Pages/CurrentappointmentstotheFederalCircuitCourtofAustralia.aspx).

The Judge suggested that this statement could lead one to infer that the system for appointment of federal Judges had reverted to the “traditional” approach.  The Judge said “This could be a worrying sign…the adoption of a more formal process of judicial appointment…has been hard won.  Perhaps it is part of the reason the percentage of women on the bench grew from 8.77 per cent in 1996 to 33.53 per cent last year“.

The Judge also noted that the government was planning to change the gender reporting obligations for businesses – from those with 100 employees or more to those with 1000 employees.  The Judge described these changes as “worrying signs”.

Given the “traditional” approach to judicial appointments has been a process conducted behind closed doors of “informal consultation”, and about which there is no transparency, it will be harder to know the basis of appointments.  Can we have faith that talented and appropriately experienced women lawyers will be properly considered in such an “informal process”?  The under representation of women in the senior ranks of the Coalition government is not an encouraging indicator of this.

Di Simpson is a Partner at Dobinson Davey Clifford Simpson, 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600.

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