WILL GREATER JUDICIAL DIVERSITY CONTRIBUTE TO A CONFUSING ARRAY OF DECISIONS THAT CAUSE SIGNIFICANT UNCERTAINTY IN THE COMMON LAW?

                                                                         By Kelsey McGowan

I. INTRODUCTION

Judicial diversity became significant as a result of the legal realist movement. Legal realism is the idea that the common law system is inherently influenced by policy and values, and not merely legal principle. Judicial diversity is significant then, because of the diversity of the society in which the system serves. If a judiciary lacks in diversity and only produces a specific type of judge or justice, then those values which come through in judicial decisions will be limited, and perhaps biased. Conversely, if there is an array of decisions yielded from different judges it may lead to uncertainty in the common law. This paper will explore this tension and examine whether greater judicial diversity in the common law system will lead to significant uncertainty or a fairer and more just system. 

Much of the literature speaks about gender diversity within the judicial system, but there is little on other elements of identity, such as class, sexuality, race/ethnicity or disability[1]. These elements are all important factors of a judges identity and play a role in the way they see the world and interpret judicial matters[2]. In Australia in 2020, approximately 32% of justices and judges were women, with the Commonwealth justices and judges comprising of 37% women[3]. At present, three of the seven High Court Justices are women, leading to a total of six female justices of the High Court out of the 54 Australia has had[4]. There has only been one openly gay High Court Justice and no Indigenous ones[5].

This paper will begin by exploring the issue of diversity (or lack thereof), looking at the problems involved in not having a diverse judiciary; if and how a judges’ identity matters and the role of judicial activism in causing uncertainty in the law. I will then go on to observe the legal concerns relating to judicial diversity including policy in the law, the doctrine of separation of powers and the doctrine of precedent. The role of judicial activism in the law and the process of becoming a judge in Australia is examined. Lastly, I will analyse the arguments for and against judicial diversity, looking specifically at the notion of merit, uncertainty, representation and public confidence in the judiciary, and finally the significance of varying perspectives as a result of diversity. Ultimately, it is argued that a more diverse judiciary will not result in a more confusing array or decisions within the common law, but will in fact add greater strength and value to it.

II THE PROBLEM WITH NOT ENOUGH DIVERSITY AND TOO MUCH DIVERSITY 

A. A Lack of Diversity

The common law system, mirroring the rest of society, is inherently patriarchal. The image of the judge in most Australian’s minds would be that of an older, white, heterosexual, able-bodied, middle class man.[6]This image places anyone who is not characterised by those features as ‘the other’. This creates significant challenges for other prospective judges who possess different identities to make their way up in the judicial system. Whilst there is no legal obligation for governments to consider diversity in making judicial appointments, arguments for the support of increased diversity in judicial roles include the principle of equity which requires women [and other minority groups] have equal opportunity in legal decision making bodies.[7]The argument of ‘merit’ is often used to counteract claims of inequity.[8] It is argued though, that the concept of merit is masculinised.[9] Merit had been determined in the context of power and privilege. This creates the concern that even when merit is the most important feature of a judicial appointment, those making the appointment will see merit in people who possess similar qualities and characteristics to themselves and of those who came before.[10] Kirby J explains that a profession for which hundreds of years has been overwhelmingly male, is going to have embedded attitudes which are uninviting to different people, like women, Aboriginal lawyers, culturally diverse or gay and lesbian lawyers[11]. Thus, we see a judicial system which maintains patriarchal norms and reinforces inequality within society.

B. Who a Judge is Matters

In interpreting the law, judges bring with them their background, experiences and values. It has been generally accepted within modern times that judges have values (and biases) which shape their expressions and understandings of the law.[12] Whilst the role of the judge is not to be representative,[13] a homogenous judicial system could ultimately lead to narrower understandings and interpretations of the law. In Masciantonio v The Queen, the reference to what the likely reaction of an “ordinary person” would be in determining provocation was considered.[14] McHugh J went beyond the usual characteristic of age in determining the actions of an ‘ordinary person’ and looked to race, culture and background also. Martin J argued that the stereotype of the ‘ordinary person’ being attributed to that of a middle class Anglo-Saxon-Celtic Australian, can lead to inequality before the law, as standards and values reflect the dominant society[15].

Many feminist scholars in particular highlight the gender perspectives that female judges can bring to a case that their male counterpart may lack.[16] Justice L’Heureux-Debé is well known for her dissenting opinions in Canada.[17] In R v Ewanchuck, Justice L’Heureux-Debé overturned an acquittal of a man who sexually assaulted a young girl, on the defence of implied consent.[18] In this matter, Justice L’Heureux-Debé highlighted the imposed sexual stereotypes about women and men from the trial judge which enabled and justified the assault.[19] In the Australian context, Justice Betty King regularly adopted feminist understandings of domestic violence in her sentencing, noting consistently the pattern of violence leading up to a victims death, which historically was not always prominent in similar judgments.[20] These examples importantly highlight the varied perspectives that diverse judges can bring.

C. Uncertainty and Judicial Activism

Some argue that with greater diversity, there may be greater disagreement and dissent within judicial opinions[21]. Dissenting opinions hold strength in the common law,[22] however there is still concern that diversity in decision making may result in confusion and unfair outcomes[23]. For example, in the case of an appellate from a diverse cultural background, a judge of the same cultural background may interpret the law differently to one of a different cultural identity. This is the value of diversity though, as issues are perceived through a different lens, which may result in a more just outcome.[24] The issue then becomes less so about the if there should or shouldn’t be diversity within the judicial system, but more so about the desire to diminish dissent and difference of opinion. Lady Hale claims that judges often face choices between various conclusions which could all be possible through legal reasoning[25]. Therefore diversity isn’t necessarily the cause of uncertainty in the common law, as it has already been established that each judge brings their own individual perspectives. If the concern lies with disagreement and dissent, this may be an issue of judicial activism rather than judicial diversity in itself.

III THE SIGNIFICANCE OF THE LAW IN JUDICIAL ACTIVISM AND DIVERSITY

A. Separation of Powers, Policy and Stare Decisis

The separation of powers doctrine within the common law ensures that the various branches of government exercise different powers and responsibilities. This doctrine dictates judicial restraint in order to inhibit judgments based on politics. Over the years, Australia has begun to move away from this strict notion and acknowledge the significance of policy in judicial decisions.[26] In Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad, Stephen J acknowledged the role of policy in judicial definitions of liability and entitlement in new areas of law.[27] He asserted that this process must result in definitions of rights and duties which can be applied to subsequent cases with relative certainty - formulating and applying principles from policy - rather than directly applying generalised policy.[28] Conversely, in Woods v Multi-Sport Holdings Pty Ltd, Callinan J claims that “judges are not free to apply their own views and to make their own inquiries of social ethics, psychology, politics and history without requiring evidence or other proof.”[29] Ipp argues though that in cases where major changes to the law have been made, judges have referred to policy factors and values not founded in evidence[30]. Although the role of the judiciary is distinct from that of the legislature, public policy has always been significant in the development of the common law.[31] Hayne J in Cattanach v Melchior says views which reject public policy in judicial decisions deny the broad roles of judges in developing the common law.[32]

Stare decisis is the doctrine of precedent which binds courts to the decisions of preceding cases of similarity. The notion of precedent therefore displays the role judges have in advancing the law. New legal authority often comes from the judges perceptions of injustice in the law.[33] Whilst each judge brings to the table their own values and biases, central to the common law judiciary is objectivity, neutrality and impartiality.[34] We see in this, that creativity by the judiciary is possible but it is limited by the functions of the system.[35]More so, judicial creativity is not only possible, but it is necessary in order for the law to adapt with society.[36]Dworkin describes this using the Chain Novel metaphor: a judgment forms part of a long story which judges must interpret and then continue on to produce the best outcome.[37]

B. Judicial Activism

Whilst judges vary on the spectrum of conservatism to activism, it is contended that every common law judge advances the law in one way or another.[38] The legal realism movement ignited the notion of policy in judicial decisions.[39] Judicial activism builds on the role of policy in judgments and considers broader social implication in its decisions. Mabo v Queensland (No 2) was a significant case of judicial activism in Australian history. The High Court has been criticised for overstepping the separation of powers and acting legislatively rather than judicially in this matter.[40] It is maintained that this case is important in overturning discriminatory doctrine and creating a precedent for Native Title. Whilst there is arguments surrounding how much judicial activism should be allowed within the common law, others stress that the process of judicial activism is rational and controlled by its very nature, in which people bring the causes of action to the common law system.[41]

C. The Path to the Judiciary

The common law system is patriarchal and difficult for someone outside of the norm to break into. It is evident through this discussion of policy and activism in the common law how differences can appear in judicial decisions. There is flexibility in the ways in which a judge interprets the law. Judges creating law is a contested yet key feature of the common law system. It is clear then how there are concerns over how a more diverse judiciary could lead to uncertainty and confusion in judicial decisions. Noting though that the common law is inherently masculine, it raises the question of how much diversity is actually possible within the existing system.

Evidence shows the Australian judiciary as overwhelmingly male, white and from a narrow social and educational background.[42] The Australian Constitution states that “The Justices of the High Court and of other courts… shall be appointed by the Governor-General in Council”.[43] When appointing a judge, nominations are submitted, followed by an assessment of these nominees by an advisory panel. The panel then reports to the Attorney General their recommended persons. From there, the Attorney-General formally recommends that appointment to the Governor-General.[44] There is little in Australian law surrounding the requirements of judicial appointments, however many have proposed models for selection.[45] Section 7 of the High Court of Australia Act however, requires “appointees be a judge of the federal or state court or have been enrolled as a legal practitioner in Australia for not less than five years”. The appointment on the basis of merit is central to this decision.

IV ANALYSING THE ADVANTAGES AND DISADVANTAGES OF JUDICIAL DIVERSITY

A. Merit

The main argument against judicial diversity is that judges should be appointed solely on the basis of merit. Merit has been defined differently by various legal scholars.[46] In one study on the concerns of judicial officials, one participant stated “who asks if their surgeon or engineer comes from a diverse background? Or is law no longer a learned profession?”.[47] Additionally, much of the response to the push for a more diverse judiciary has been undermined by assertions of needless political correctness.[48] This perspective is valid as it is critical that those in positions of such power are well equipped to make fair and just decisions and judicial appointments are not tokenistic.

The context in which merit is produced is to be considered as just as important. The idea of merit is born out of one framework of the ‘norm’, meaning merit may be characterised differently by different communities. In a patriarchal system, certain characteristics are attributed to different types of people. If we are to assume authority is a feature of merit, then it is important to note how features like a particular physical presence or tone of voice (which may be more closely ascribed to men) influence our understandings of authority.[49] Similarly, people with particular social backgrounds or who dress, speak or present in a particular way may be more closely linked with perceptions of intelligence or ability.[50] It is this reason that many legal academics argue for a recharacterisation of what it means for someone to have merit.

Merit disadvantages certain groups. It is implied that when a man is appointed in the Australian judiciary it is on the basis of merit.[51] Whereas woman often have to prove their appointment is based on merit, as opposed to any other possible factor. The concept is only used when analysing an appointment outside of the norm.[52] In the swearing in speeches for Justice Carolyn Simpson, two speakers distinguished her as a “woman of merit”.[53] In fact, women are often made to conform to avoid their merit and validity as a judge.[54]Thornton speaks to “objectivity of merit” as being exposed when examining the diversity of the Australian judiciary over the past century. Again, it is highlighted that the notion of merit inherently favours (and thus excludes) certain types of people.

Merit and diversity are not distinct from one another. The argument for merit or diversity is counterproductive. Redefining merit to include diversity would ensure the judicial system maintains its meritocracy while incidentally offering a more diverse array of judges and justices. A judiciary which is diverse in its experiences, skills and knowledge is a better judiciary.[55] We are seeing a clearer understanding of what makes a judge ‘good’, acknowledging they require much more than just the skills they have displayed in prior court cases.[56] A judgment is stronger if it is built from diverse experiences and perspectives.[57] In a system that is non-homogenous, there is a greater chance of understanding and responding to the various experiences of those who come into contact with Australia’s legal system.

B. Uncertainty

The common law system doctrine of precedent requires decisions in similar cases to be treated alike, so a system which fails to do this, fails to do justice.[58] Despite this, it is well established that there is room for policy and creativity in judicial decision making. The argument of uncertainty is defused by Kirby J, noting that even the boldest of judicial activism is contained by opportunity, need, inclination and the judicial method.[59]Kirby J also asserts that even the most traditional and conservative judges will occasionally come across a topic in which their sense of justice sways them toward a more activist decision.[60] This capacity for legal reform is central to the common law system. Although the argument for less diversity claims consistency, uniformity and predictability in judicial decisions[61], this is not equivalent to more just judicial decisions. Kirby J maintains that judges must not sacrifice truth, independence and conscience for the sake of clarity or certainty in the law.[62]

There is little evidence to support that greater diversity leads to greater uncertainty in the common law. Some studies have shown that non-traditional judges are actually more likely to distance themselves from anything which may highlight a difference, in order to establish their authority amongst peers.[63] Many female judges have been said to adopt the persona of their male counterpart to distinguish themselves as making any kind of different to the norm. It has also been identified that in examples given by Australian judges relating to feminist judging have fallen within specific categories (i.e. domestic voice, sexual assault, issues relating to motherhood, marriage and children) therefore the chance of vastly different judgments because of judicial diversity is not as prominent as perceived.[64] Kirby J contends that dissenting is dependent on various things, including the judicial hierarchy and whom they are dissenting from[65], implying that even with increased diversity there may not be an increase in dissent.

C. Representation and Public Confidence in the Judiciary

One of the more contested arguments for judicial diversity is the need for justices which reflect society. Section 11 of the High Court of Australia Act states that the duty of the judges is to “do right to all manner of people according to the law without fear or favour, affection or ill-will”. This indicates the importance of judges being impartial, as opposed to being representative of any group. This independence is the right of people, not judges.[66] For some who argue that a judiciary should be representative of society, it is believed that a more inclusive criteria for appointment will inherently result in better representation.[67]

Whilst it is true that people in power should reflect the society that they serve, it would be impossible to reflect all people and identities. Even with more female judges, a white, well-educated, middle class woman still could not reflect the knowledge and experiences of an Aboriginal woman or a transgender woman.[68]Melchior v Cattanach is an example of how values are reflected in court, when Hayne J says “they explicitly or implicitly invoke values which it is said are society’s values”[69] when discussing whether or not damages should be allowed for the cost of raising a child born out of negligent treatment by a doctor. Values relating to family relationships and birth often differ across culture and gender, therefore the claim of ‘reflecting society’s values’ displays a bias to a particular mentality.

Whilst the judges role isn’t necessarily to represent their people, it is still critical for society to have confidence in their judiciary. Like the executive and legislative branches of government whom are democratically elected by the community, the judiciary needs to somewhat reflect the values of its society.[70]A judiciary in this regard is more accountable to its people.[71] Whilst not inherently political, the selection of judges and justices is made by the executive, so it could be argued there is an element of political influence.[72] If citizens have confidence in the judiciary, they will have greater trust in the law and those who enforce it. One study showed that 44.8% of Australian believe that the High Court favours some groups over others.[73]Additionally judges of different backgrounds may help to encourage involvement in the legal profession by other people.[74]

D. Offering a Different Perspective

A more diverse judiciary may mean a more just judiciary. Despite concerns of too many opinions, the potential for different lenses to perceive the law may create enhanced decision making. If the purpose of the justice system is to ensure justice for all, people need to be equal before the law. In order for this to happen, courts must avoid unconscious biases.[75] If it is accepted that judges, like any human, will have their own innate values and prejudices, then the most fair chance a person has when coming into contact with the justice system, is a judiciary which reflects varied values and perspectives, as opposed to that of one archetype. Under the principles of common law, a justice which makes a substantive decision based on their indepth understanding of a particular issue, can set a precedent which leads to a more just outcome for subsequent cases. Justice King’s understanding of domestic violence showed in her sentencings of domestic homicide cases.[76] In the case of R v Hudson, in which an Aboriginal woman killed her abusive partner, King J acknowledged the institutional structures which fail to protect Aboriginal woman from violence and abuse.[77]Without this understanding and empathy towards family violence, a different judge could have decided on a larger sentencing and reinforced cyclical disadvantage. In an Anglo-centric judiciary, Aboriginal communities (and other minorities) can be disadvantaged and white people privileged by a non-Indigenous judiciary.[78]While critiques may claim this as too political or activist, Lady Hales’ words are elevated: “a point of view is not that same as an agenda.”[79]

Despite the immense knowledge and experience a judge may possess, it will always be limited by the nature of who they are. Therefore, it is essential that there are an array of backgrounds and perspectives in a judiciary in order to provide informed and qualified judgments. As more non-traditional judges write judgments their decisions and reasonings will become part of broader precedent in which other judges can draw their knowledge from.[80] This will not necessarily lead to uncertainty in the law, as a judge is still limited by the rules of the court. One magistrate expressed frustrations in some domestic violence and rape cases as the often lack of evidence means it is a lot harder to get a conviction.[81]

The idea that all High Court justices should be strong generalists in law is inadequate, as an overrepresentation of one type of judge (for example, criminal law experts) may see a weakening in public law cases.[82] Judges may influence each other’s decisions as they expand their knowledge and understanding in learning from one another.[83] One judicial official in divergence from the notion of a diverse judiciary stated, that it was more important for individual judges to possess balance in their decision making, rather than collective balance across the court.[84] This is a strong argument, however through knowledge sharing and precedent developed from diverse judges, an individual judge is able to increase their capacity for understanding and broaden that balance of perspectives. 

V. CONCLUSION

The notion of judicial diversity is not a new concept. Research into gender differences within Australia’s common law system has existed for quite some time, however can be equally applied to other diverse identities, such as people with a disability, Aboriginal people, queer people and culturally and linguistically diverse people. This paper has established that a judge’s background and experiences will inevitably influence their interpretation and perceptions of the law. It was considered how these differences could lead to confusion and uncertainty in judicial decision making, however it was suspected whether this was really a problem of diversity or, of what may be perceived as too much activism or policy in the judiciary system. After acknowledging that policy does have significance in the common law system, we saw how the system that exists inherently advantages the stereotype of the white, masculine, educationally elite man. This again was reflected in the concept of merit, which contended is a critical element of judicial appoints, however needs to be recharacterized. Additionally, whilst the role of the judge is not necessarily to be representative of the broader community, it can help to increase public confidence in the law. Lastly, more diverse perspectives may contribute to a more just outcome for people of different lived experiences as the law is perceived through a different lens. Thus, whilst there is potential for a more diverse judiciary to lead to new perspectives in the law, this is not necessarily a negative thing. A diverse judiciary is one that will be stronger and fulfil its purpose of ensuring justice for all.



[1] See, eg, Kcasey McLoughlin and Hannah Stenstrom, ‘Justice Carolyn Simpson and Women’s Changing Place in the Legal Profession: “Yes You Can!”’ (2020) 45(4) Alternative Law Journal 276 (‘Justice Carolyn Simpson’); Erika Rackley, ‘Making the Argument for Judicial Diversity’ in Women, Judging and the Judiciary: From Difference to Diversity (Routledge, 2013) 165; Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68(1) Current Legal Problems 119; Leslie J Moran, ‘Judicial Diversity and the Challenge of Sexuality: Some Preliminary Findings’ (2006) 28(4) Sydney Law Review 565 (‘Judicial Diversity and the Challenge of Sexuality’).

[2] See Rackley (n 1).

[3] Australian Bureau of Statistics, ‘Democracy, Governance and Citizenship’, Gender Indicators, Australia (Webpage, 15 December 2020) <https://www.abs.gov.au/statistics/people/people-and-communities/gender-indicators-australia/latest-release#democracy-governance-and-citizenship>.

[4] High Court of Australia, ‘Former Justices’ Justices (Webpage, 2020) <https://www.hcourt.gov.au/justices/former-justices/page-4>.

[5] Margaret Thornton, ‘“Otherness” on the Bench: How Merit Is Gendered’ (2007) 29(3) Sydney Law Review 391.

[6] Ibid 394.

[7] Kcasey McLoughlin, ‘The Politics of Gender Diversity on the High Court of Australia’ (2015) 40(3) Alternative Law Journal 166, 167.

[8] See George Williams and Rachel Davis, ‘Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ (2003) 27(3) Melbourne University Law Review 819; Handsley Elizabeth and Lynch Andrew, ‘Facing up to Diversity? Transparency and the Reform of Commonwealth Judicial Appointments 2008-13’ (2015) 37 Sydney Law Review 187.

[9] McLoughlin (n 7) 167; See also McLoughlin and Stenstrom (n 1) 278.

[10] Simon Evans and John Williams, ‘Appointing Australian Judges: A New Model’ (2008) 30(2) Sydney Law Review 295, 298; Thornton (n 5) 404. 

[11] Chief Justice Michael Kirby, ‘Women Lawyers Making a Difference’ (Speech, Women’s Lawyers Association of NSW 18 June 1997) [29].

[12] See Michael Kirby, ‘Dissent and the Importance of Judicial Diversity’ (Speech, Equality and Diversity in Our Community, Institute of Judicial Studies of New Zealand, 18 August 2005) (‘Dissent and Judicial Diversity’); Rackley (n 1); See also Barbara Hamilton, ‘Criteria for Judicial Appointment and “Merit”’ (1999) 15 Queensland University of Technology Law Journal 10.

[13] Evans and Williams (n 10) 300.

[14] Masciantonio v The Queen (1995) 183 CLR 58, 67.

[15] Chief Justice Wayne Martin, ‘Access to Justice in Multicultural Australia’ (Speech, Cultural Diversity and Law Conference Sydney, 13 March 2015) [11-12].

[16]See, eg, Rosemary Hunter and Danielle Tyson, ‘Justice Betty King: A Study of Feminist Judging in Action’ (2017) 40(2) University of New South Wales Law Journal 778; Hunter (n 1).

[17]Hunter (n 1) 138.

[18] R v Ewanchuck [1999] 1 SCR 330.

[19] Ibid 336.

[20] Hunter and Tyson (n 16) 805.

[21] See, eg, Richard A Posner, How Judges Think (Harvard University Press, 2008) 85, 256 .

[22] But see Lynch Andrew, ‘“The Intelligence of a Future Day”: The Vindication of Constitutional Dissent in the High Court Australia - 1981-2003’ (2007) 29 Sydney Law Review 195.

[23] Hunter (n 1) 137.

[24] See also Ibid; Andrew Lynch, ‘Review Essay: Courts and Teamwork: What It Means for Judicial Diversity’ (2015) 38(4) University of New South Wales Law Journal 1421.

[25] Baroness Hale, ‘A Minority Opinion?’ (Lecture, The British Academy, 13 November 2007) 320.

[26] Michael Kirby, ‘In Defence of Mabo’ (1994) 1 James Cook University Law Review 51 (‘In Defence of Mabo’) 65.

[27] Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, 567.

[28] Ibid.

[29] Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 [165].

[30] David Andrew Ipp, ‘Policy and the Swing of the Negligence Pendulum’ (2003) 77(11) Australian Law Journal 732, 746.

[31] Cattanach v Melchior (2003) 215 CLR 1 (‘Cattanach’) [223].

[32] Ibid [226-227].

[33] Michael Kirby, ‘Judicial Activism’ (1997) 27 Western Australian Law Review 1 (‘Judicial Activism’) 17.

[34] Ibid 19.

[35] Ibid 18.

[36] See, eg, Kirby, ‘In defence of Mabo’ (n 26).

[37]Ronald Dworkin, ‘Integrity in Law’ in Law’s Empire (Hart, 1998) 225, 228.

[38]Kirby, ‘Judicial Activism’ (n 33) 17.

[39]Lawrence Baum, ‘Thinking About Judicial Behavior’ in The Puzzle of Judicial Behavior (University of Michigan Press, 1997) 1 <www.jstor.org/stable/10.3998/mpub.14435>.

[40] Kirby, ‘In Defence of Mabo’ (n 26).

[41] Ibid citing (1996) 71 NYUL Rev 591, 593.

[42] Moran (n 1)

[43] Australian Constitution s 72(i).

[44] Davis and Williams (n 8) ; Handsley and Andrew (n 8).

[45] See, eg, Anthony Peter Clarke, ‘Selecting Judges: Merit, Moral Courage, Judgment and Diversity’ (2009) 5(2) High Court Quarterly Review 49; Evans and Williams (n 10); Davis and Williams (n 8).

[46] E.g. Rackley (n 1); Evans and Williams (n 10).

[47] Appleby Gabrielle et al, ‘Contemporary Challenges Facing the Australian Judiciary: An Empirical Interruption’ (2019) 42 Melbourne University Law Review 299, 319.

[48] McLoughlin and Stenstrom (n1) 277.

[49] Rackley (n 1) 192.

[50] Ibid.

[51] See also McLoughlin (n 7).

[52] Davis and Williams (n 8) 832.

[53] McLoughlin and Stenstrom (n1) 283.

[54] Hunter (n 1) 127.

[55] Ibid 137; Kirby, ‘Dissent and Judicial Diversity’ (n 12) 1.

[56] Hamilton (n 12) 13.

[57] Clarke (n 45) 63[34].

[58] Rackley (n 1) 168.

[59] See Baum (n 39).

[60] Kirby ‘Judicial Activism’ (n 33) 17.

[61] Rackley (n 1) 169.

[62] Kirby, ‘Dissent and Judicial Diversity’ (n 12) 5.

[63] Hunter (n 1) 127.

[64] Ibid 136.

[65] Kirby, ‘In Defence of Mabo’ (n 12) 5.

[66] Murray Gleeson, ‘Public Confidence in the Judiciary’ (2002) 76(9) Australian Law Journal 558, 562.

[67] Hamilton (n 12) 11.

[68] Regina Graycar, ‘Telling Tales: Legal Stories about Violence against Women’ (1996) 8 Cardozo Studies in Law and Literature 297.

[69] Cattanach (n 31) 245.

[70] Clarke (n 45) 62 [34].

[71] Moran (n 1).

[72] Evans and Williams (n 10) 300.

[73] Krebs Shiri, Nielsen Ingrid and Smyth Russell, ‘What Determines the Institutional Legitimacy of the High Court of Australia?’ (2019) 43 Melbourne University Law Review 605, 632.

[74] Evans and Williams (n 10) 301; Hunter (n 1) 123.

[75] Chief Judge Peter Kidd, ‘Cultural Diversity and the Law’ (Speech, Australian Intercultural Society, 13 May 2019) <http://www.intercultural.org.au/wp-content/uploads/2019/06/2019-05-13-Cultural-Diversity-and-the-Law-Speech-to-the-Australian-Intercultural-Society-Chief-Judge-Kidd.pdf>, 8.

[76] See generally Hunter and Tyson (n 16).

[77] R v Hudson [2013] VSC 184, [31-37].

[78] See Vanessa Cavanagh and Elena Marchetti, ‘Judicial Indigenous Cross-Cultural Training: What Is Available, How Good Is It and Can It Be Improved?’ (2015) 19(2) Australian Indigenous Law Review 45.

[79] Hale (n 25) 320.

[80] Rackley (n 1) 178.

[81] Hunter (n 1) 133.

[82] Williams and Davis (n 80).

[83] Ibid 203.

[84] Appleby (n 47) 318.