Should women make up half of all judges?

Female participation in the workforce is an issue that bubbles to the surface again and again in Australia, with state and federal governments trying to tackle the question of how to boost the number of women performing in key roles across business and government sectors.

The issue is also prominent in the legal profession, particularly in the court system where there are far fewer women in the judiciary than men.

In Victoria, the state government has decided to redress this gap by imposing quotas on the number of women who must serve in the judiciary, as well as on government boards.

Under the new rules, women must now make up 50% of new judicial appointments across all Victorian courts, and 50% of paid government board positions.

Premier Daniel Andrews said that female participation on boards in particular had fallen from 40 to 35% in the past few years, creating a situation in which “many of the boardrooms of our public bodies are lacking a balance of skills, a balance of views, a balance of experiences and a balance of knowledge.”

So how bad is the gender imbalance in the judiciary?

The Victorian Government certainly believes that there’s a lack of women in the judicial system, otherwise it would not see the need for mandated quotas.

There has been much media commentary about this issue over the years.

In 2011, Ainslie van Onselen, lawyer and a former elected representative of the WA Legal Society, wrote in The Australian newspaper that the High Court of Australia was leading the charge in gender equality with 43% of its judges being female.

But across the country, the average was just 23.4%. Some courts were particularly low, with the District Court of South Australia at 13.6% and the NSW Supreme Court at 15.8%.

She wrote that while almost half of the legal profession was female at that time, the situation changed markedly in the highest ranks – just one in five senior barristers and judges were women.

It seems that little changed between 2011 and 2014, when figures from the Australian Institute of Judicial Administration showed that women make up 28% of the judiciary across Australia.

Griffith University senior law lecturer Zoe Rathus wrote in The Conversation that not even one third of court appointments were female. She noted that in Queensland there was a decline in female appointments from 33% in 2006 to 30% in 2014.

Where do the problems begin?

There are almost equal numbers of males and females in the junior ranks of the legal profession. The question is, why does female participation decline as legal careers progress?

In 2013, the Law Council of Australia released a report that investigated the levels of attrition of women from the legal profession in Australia.

Among the findings were that levels of dissatisfaction amongst female practitioners were strongest for the following reasons:

• Not enough mentors to support career development.
• Limited opportunities for promotion and advancement.
• Poor work/life balance.

When it came to remaining in the legal profession, the biggest hurdle was family responsibility, including maternity leave and part-time work arrangements.

But it seems that it’s not just family responsibilities that create issues.

Van Onselen wrote that “sexist briefing practices (whether conscious or unconscious), Bar culture, quality of briefs, and inherent bias must all take their share of the blame.”

And so it seems that these issues create more difficulties for females than males in the legal profession, all resulting in just a few women being able to break through and rise to the top.

Rathus also notes that the imbalance may be in some degree due to an unconscious bias, an “unwitting tendency of humans to see those who are like themselves and render invisible (or less relevant) those who are not.”

Why do female judges make a difference?

If all judges are meant to be unbiased and objective, it may well be asked why it is so important to have female judges. After all, there are plenty of male judges that demonstrate those qualities.

But without adequate numbers of women in the judiciary, there can be no balance of skills, knowledge and views, because the life experiences of women are inevitably different from those of men.

Rathus commented that without women on the bench, there would be a gradual decline in public support and confidence in the judicial system. After all, if women play such an important role across all areas of society, then women should be properly represented at the highest ranks of the legal system.

The contrary argument, of course, is that the best candidate should be appointed and that there should not be an undue emphasis on factors such as gender, race or religion.

Are mandated quotas the best way?

Whether mandated quotas are a reasonable way to achieve gender equality has been long debated in many industries and political arenas.

As stated, those against usually argue that appointments should be based on qualifications, experience and worthiness. In other words, the best person for the job should get the job.

For judicial appointments, some suggestions have been made that academics should be considered as well as barristers and solicitors. Another suggestion is that the appointment process should be made more transparent.

Commentators and lawyers alike suggest that there are plenty of women in the legal profession who are worthy of consideration for judicial appointments, and that being the case, maybe the best person for the job would indeed win the job with a little help from a mandated quota of female judicial officers.