Queenslanders have been subjected to a barrage of media coverage of state attorney-general Jarrod Bleijie going public with a private conversation he had with the President of the Court of Appeal, Margaret McMurdo. It was about potential judicial appointments and the breach of confidence was apparently triggered by a speech Justice McMurdo delivered at a function for women lawyers on March 21.
Snippets published in the Courier Mail the next day highlighted that only one woman has been among the Newman government’s 17 judicial appointments since coming to office two years ago.
Rather bizarrely, the media storm has largely starred men and focused on the breach. The issue of the government’s poor record on female appointments has been almost untouched.
In a letter to the Courier Mail, reported on the front page on March 25, the former solicitor-general, Walter Soffronoff QC (who recently resigned his post), described the breach of confidence as a “matter for public alarm”. He appropriately explained the necessity of both candour and confidence in such meetings, but no alarm was voiced about the number of women judges appointed.
Prominent Queensland barrister Tony Morris QC also entered the fray. Again his focus was the breach - but he supported the attorney-general. He argued that judges who “digress into the political fray” cannot “expect to be exempt from counter-attack”.
But a counter-attack assumes an attack; it is hard to conceive of Justice McMurdo’s measured “report card” in this vein. The statistic of one in 17 (6%) is clearly out of kilter with other states and the pattern in Queensland before the Liberal National Party won office.
Seeking answers to underrepresentation
Gender statistics published last month by the Australian Institute of Judicial Administration show that women comprise 28% of the judiciary across Australia. The ACT leads with 55% of women (out of 11 judicial officers), followed by Victoria with 38% (out of 226 judges) and the Commonwealth with 35% (156 judges). Queensland is equal fourth (with the Northern Territory) with 30% of 157 judges being women.
This is a decline since 2006 when women were just over 33% of the judiciary in Queensland. According to Justice McMurdo, Queensland has 304 women barristers and women comprise nearly 47% of the solicitors’ branch of the profession – over 4600. Many of these women are senior and well-respected. There is no dearth of choice or talent.
Justice McMurdo queried whether the Queensland situation could be a case of “unconscious bias”. Morris raised the temperature of the debate by suggesting she had implied that the government was “too stupid to be aware of their bias”.
Yet discussion and research about unintended and unconscious bias has been prevalent in Australia since the 1980s. It was famously named by Regina Graycar and Jenny Morgan in their 1990 book, The Hidden Gender of Law. The description is not about stupidity, but about the unwitting tendency of humans to see those who are like themselves and render invisible (or less relevant) those who are not.
Unconscious bias about matters such as gender, race, religion, class, sexuality and disability in selection processes is well recognised. Her Honour’s invocation of this scholarship was pertinent and unsurprising.
Making appointments fair and transparent
The prescient nature of Justice McMurdo’s speech was revealed only when it was published in full last Wednesday. Justice McMurdo had floated the idea of Queensland establishing a more transparent appointments process. Apart from making “suitably qualified women candidates” more visible, it may minimise the sense of secrecy that otherwise surrounds judicial appointments. It might have even avoided this public row.
Throughout Australia, the governor (or governor-general) appoints judicial officers on the advice of the Executive Council. In practice, attorneys-general make recommendations to the cabinet after consulting the relevant heads of jurisdiction, professional bodies and whomever else they wish.
Some states have begun to develop more open processes. For example, Tasmania has an advisory assessment panel comprising representatives of the profession, the Department of Justice and the attorney-general. Victoria and New South Wales both call for expressions of interest from potential candidates. NSW still follows the “old” conventions for the Supreme Court.
Not until Friday was the point of Justice McMurdo’s address revisited. A feature article in the Courier Mail quoted the Women Lawyers’ Association of Queensland, which said:
The appointment of more women … from the pool of the many skilled and talented female legal practitioners in Queensland would result in a more diverse and representative judiciary, which is to be encouraged.
In 2004, towards the end of his term on the High Court of Australia, a time when no women were on that bench, Justice Michael McHugh AC declared that:
… unless we redress the present gender balance in judicial appointments, there is an ever-increasing risk in the society of today that the public support on which the legitimacy of the judiciary rests will erode.
Public attention has focused on the leak instead of fostering discussion about the role of women judicial officers in enhancing the legitimacy of our courts and public confidence in our legal system. Governments around Australia should examine their processes for judicial appointment. They need to assure themselves and the community that women of merit are not being consciously or unconsciously overlooked for judicial office.