Cody, Anna --- "Editorial: The importance of diversity in our profession" [2019] PrecedentAULA 51; (2019) 154 Precedent 2

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THE IMPORTANCE OF DIVERSITY IN OUR PROFESSION

By Professor Anna Cody

Our world is diverse, with people from culturally and linguistically diverse backgrounds, of different ages, genders and sexualities, and with varying abilities. If legal decision-making is to be just, the legal profession must ensure that our societal diversity is reflected in our membership and leadership.

Our cultural background, family, relationships and disability can influence how we make decisions, what we see as fair and what we prioritise. Our life experience can influence how we see the world, resolve conflict and deal with each other. Needham SC reflected on the diversity of barristers, stating ‘there is an inherent value in barristers reflecting the society in which they live, enabling those with a preference for a barrister with a greater understanding of the issues faced by particular groups in society to feel more represented and understood.’^[1]

Leadership in Australia is not diverse. Seventy-six per cent of leaders have an Anglo-Celtic background (as has every High Court judge); if we include those with European backgrounds, this figure increases to 95 per cent.^[2] Fifty-two per cent of solicitors are women,^[3] but women are not equally represented in leadership in the private sector. Only 1 per cent of solicitors are Aboriginal or Torres Strait Islander,^[4] a figure which has reduced rather than grown. While 20 per cent of law graduates are Asian Australian,^[5] only 8 per cent of partners at top tier law firms are Asian Australian. Law students have traditionally come from higher socioeconomic backgrounds; 15 per cent of the male judges in the Supreme Court of NSW come from one elite private boys’ school.^[6] Students with disability are participating at higher rates in legal education,^[7] but the legal profession is still a long way from reflecting our societal diversity.

We must encourage law students and lawyers to question their identities, privilege and power. It is not enough to argue that the law is ‘objective’ without analysing the ways in which it operates to benefit some and not others. The concept that in serious criminal cases those accused of crimes should be judged by a jury of their peers recognises that our diverse society plays a crucial role in legal decision-making. This should extend to ensuring there is full representation across our legal profession: among solicitors, barristers, policy makers, judges and members of tribunals.

Justice demands that all should be able to access the law, including those who have traditionally struggled to use the legal system because of its cost and inaccessibility. ‘Social justice’ entails the provision ‘of basic human needs ... equal enjoyment of human rights ... and some redistribution of resources to maximise the position of the worst-off.’^[8]

As lawyers we must have a deep and complex understanding of identity, including about concepts of intersectionality. These theories recognise that, for example, if a Lebanese Australian man is gay it does not mean that the man’s experience of discrimination is ‘being Lebanese Australian’ and ‘gay’ added together, but rather is distinct and complex. Further, a woman with an intellectual disability may experience specific issues relating to her gender and disability which the theory of intersectionality can help us to understand. These lived experiences of clients will then affect how they interact with the law. To be good lawyers we must be able to listen to and understand our diverse clients.

Thinking about some of the articles in this edition, we can identify how concepts of autonomy and independent decision-making are informed and enriched if we keep disadvantaged groups, such as older people and those with disability, at the front of our minds. In a similar way, if Indigenous people are at the centre of decision-making around how to deal with high rates of incarceration of Indigenous peoples, it can lead to the creation of new models such as Bourke’s successful justice reinvestment project. If we want to create a more just society, and have a legal system which truly reflects our social makeup, we must teach these concepts to our law students and ensure that our legal profession is diverse.

Professor Anna Cody is the Dean of the School of Law, Western Sydney University. EMAIL [e-mail].

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^[1] J Needham, ‘Tipping the scales: Equity and diversity at the bar’ [2015] Summer Bar News, 29.

^[2] AHRC, ‘Leading for Change: A blueprint for cultural diversity and inclusive leadership revisited’ (Report, April 2018).

^[3] UBRIS, 2018 National Profile of Solicitors (June 2019).

^[4] Ibid.

^[5] M Pelly, ‘Asian lawyers hit “bamboo ceiling”’, Australia Financial Review, 26 April 2019.

^[6] <https://www.sbs.com.au/news/the-feed/based-on-merit-17-per-cent-of-nsw-supreme-court-judges-went-to-one-exclusive-sydney-private-school>.

^[7] J Gregory, ‘Lawyers with disabilities: Ready, willing and able’, LIV, Vol. 86, May 2010.