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Tankiang, Ervin --- "Asian Australians And the Judiciary: Does Cultural Diversity Matter?" [2020] UNSWLawJlStuS 30; (2020) UNSWLJ Student Series No 20-30


ASIAN AUSTRALIANS AND THE JUDICIARY: DOES CULTURAL DIVERSITY MATTER?

ERVIN TANKIANG

While Australian courts have made great strides in gender diversity, there remains very little cultural diversity within the judiciary, which is connected with low levels of diversity in the senior ranks of the legal profession. Research done by the Asian Australian Lawyers Association in 2015 estimated that Asian Australians accounted for 0.8% of the judiciary, 1.6% of barristers (with only 7 of 94 being senior counsel), and 3.1% of partners of medium and large firms, despite accounting for 9.6% of the population.[1] In addition, by all indications, no judge of a non-European background has ever sat on the High Court, despite non-Europeans making up approximately 24% of Australians.[2]

These statistics are similar in the United States, where far more detailed data better indicates the extent to which Asians are underrepresented. At the federal level, Asian Americans make up 2.6% of sitting judges and 4% of active judges,[3] while only making up 2% of state judges.[4] This is reflected in law firms, where only 3% of Asian Americans are partners despite making up 11.3% of associates and 7% of lawyers overall.[5] Asian Americans are also similarly underrepresented as clerks compared to the proportion of Asian law students, as well as in the public service and academia.[6]

Despite this underrepresentation, it is clear that Asian Americans are significantly better represented in the legal profession than Asian Australians, given that Asian Americans make up only 5.7% of the American population.[7] Academic literature examining cultural diversity generally and specifically to Asians is also far more prevalent in the American context and almost non-existent in Australia. The Asian American experience thus provides us a similar legal and socio-cultural context that allows us to consider whether greater Asian Australian representation in the judiciary actually matters and, if so, why Asian Australians are underrepresented and how this situation might be improved.

This paper will focus on arguments that judicial diversity leads to greater substantive fairness, looking specifically at whether the experience of Asian American judges has a meaningful impact on their reasoning and decision-making and asking whether that experience would remain significant for future generations. It will then examine Australian High Court jurisprudence and consider whether an Asian Australian experience could have contributed to reasoning and decisions made in High Court cases. Finally, the paper will turn to the challenges for greater judicial diversity and evaluate some of the ways forward.

I SUBSTANTIVE FAIRNESS

A Effect on Judicial Outcomes

One of the traditional arguments in favour of judicial diversity has been that it will lead to outcomes that are more favourable to people of diverse groups. This has been apparent in studies of female judicial behaviour, with a majority of studies purporting to show a clear correlation between gender and outcomes of gender based cases.[8] However, analysis of judicial outcomes has challenged the idea that diversity is inevitably so linked. In her analysis of empirical studies of female judicial behaviour, Dixon’s interpretation of the data suggests that these studies do not demonstrate the connections they claim to do, finding that the correlations were either irrelevant, insignificant, or based mostly on other factors.[9]

Hunter posits that the fundamental philosophies of common law judicial decision-making may be one factor in accounting for this lack of connection, with these norms overriding any impact that a judge’s background might have. In particular, she makes the point that reluctance to find in favour of progressive reforms or outcomes may come from the way those conflict with traditional legal rights and principles.[10]

Where a connection has been found, the argument is that it is experience that has the most relevance to outcomes favouring diversity. This is reflected in Dixon’s examination of the Canadian Supreme Court, in which she found that the older female justices, having been more affected by gender discrimination, more strongly supported feminist arguments compared to their younger peers.[11] Similarly, she found that the decisions of Justices O’Connor and Ginsburg in gender discrimination cases could be demonstrated to be a result of their own experiences with discrimination.[12]

B Asian American Judges

The leading study on the impact of Asian American judges on jurisprudence reflects concerns about the connection between diversity and judicial outcomes, with Hsu recognising that the behavioural model has never been positively affirmed in empirical studies.[13] He argues that the key problem in outcome-based analysis is that it attempts to isolate one characteristic, while disregarding the complexity of factors behind decisions made – in particular, that law and facts may constrain outcomes irrespective of what impact a judge’s background may have.[14]

Instead, Hsu attempts to analyse the effect of an Asian American background through a qualitative analysis that considers both judges’ explicit statements about whether there is such an effect and their judicial opinions, considering whether their background influences are implicit in their reasoning.[15] He found that judges routinely spoke about the impact of their background on their work, with Judge Tashima stating that the World War II Japanese internment shaped his skepticism towards the motives and power of the executive and legislature, and Judge Chen stating that his experience with discrimination made him more comprehensively consider and fairly evaluate litigants’ claims of discrimination.[16]

He also found it was arguable that their judicial opinions reflected their background. In considering a series of migration cases, he observed that Asian American judges tended to place great significance on the implications of deportation. Judge Chin condemned the government for inequitable and unjust treatment of one migrant, considering the grave consequences of deportation that would banish the person from his home and destroy everything he had worked for.[17] Meanwhile, across a number of cases, Judge Takasugi firmly rejected the majority conception of deportation as merely a procedural action resulting from lack of compliance, instead calling it a harsh sanction more severe than most criminal penalties that would wipe out all the work and efforts of a migrant.[18]

However, Hsu was unable to conclusively say that an Asian American background had an impact on judicial opinion. Any such conclusion would be complicated by the paucity of examples, with only six Asian American active judges at the time of Hsu’s study, and the lack of a comparative analysis involving non-Asian American judges.[19] It is interesting to note, however, that Hsu’s examples of implicit influences were all actually connected to the outcomes – all the judges in his examples found in favour of the immigrant parties favoured by their reasoning.

A form of comparative analysis came via a more recent study of ethnic minority judges on the Court of Appeals for the Ninth Circuit, which involved two Asian American judges in a broader study of four minority judges that compared non-minority panels to minority-majority panels. While also heavily qualitative through the use of phone interviews and secondary sources to determine the judges’ explicit positions, Avena’s case law analysis differed from Hsu’s in its primary focus on judicial outcomes, with significantly limited reference to the opinions themselves. Overall, her findings were that a judge’s ethnicity did not play a significant role in the outcomes of the equal protection cases studied,[20] which is a finding that is consistent with the aforementioned gender studies.

Hunter’s point about judicial ideology overriding background was a primary factor, with Avena stating that one of her most significant findings was that ‘while racial diversity matters, the law matters more’.[21] Through her interviews she found that minority judges considered that their duty to faithfully apply the law was paramount and a ‘tremendous obligation’.[22] In particular, Judge Nguyen emphasised that her judicial obligation was apply the law faithfully regardless of who the parties were,[23] and to defer appropriately to immigration courts and officials, even where that conflicted with her values and her experience as a Vietnamese refugee.[24] Avena also identified adherence to precedent and an awareness of its position below the US Supreme Court as factors that made minority judges reluctant to explicitly consider the impact of their backgrounds on their decisions.[25]

However, Avena’s analysis suffers from the same sample size limitations faced by Hsu, which prevents any definitive conclusions from being made. This is most apparent when directly comparing the two studies’ analysis of immigration cases, where Avena’s Asian American judge found against immigrants while Hsu’s two Asian American judges found in their favour. While both results make possible an interesting discussion about the potential of culture as a factor, their size and their apparent contradiction make the question entirely inconclusive.

Taking the two studies together, our common conclusion is that while an Asian American background has public and personal significance for a judge in determining their values and informing how they make decisions, there is no positive evidence that it has any impact on judicial outcomes. At its highest, background may impact judicial opinions; however, any such conclusion is complicated by the extreme difficulty of isolating culture as a factor.

C Other Substantive Considerations: Procedural Fairness and Structural Impartiality

Nevertheless, simple factors outside of judicial outcomes and opinions may also lead to more just outcomes. For example, Chen argues that a judge with an Asian background, like some other backgrounds, might be more sensitive to aspects of behaviour – such as a lack of eye contact, which is often considered a sign of respect in East Asian cultures – that might be considered adversely by judges without that understanding, and thus prevent bad outcomes that may come with a negative interpretation.[26] This was also highlighted by Judge Callahan, who said that the experiences of culturally diverse judges with discrimination can inform the analysis of whether a comment is offensive to a particular group.[27]

Such an argument might lead to the conclusion that justice for litigants of diverse cultural backgrounds rests heavily upon whether they are fortunate enough to appear before a judge of a corresponding background. However, the effect of judicial diversity is not only linked to specific cases – diverse judges may simply be able to improve substantive fairness by merely being a member of the judiciary. Hsu argues that greater representation leads to greater substantive fairness through the exposure of the broader judiciary to different perspectives, thereby encouraging deeper debate and reflection and thus greater cultural understanding.[28] Greater representation also allows judicial-decision making to include a better cross-section of community values and perspectives, which leads to improved structural impartiality.[29] This means that diverse judicial decision-making is better able to see all aspects of a situation,[30] which reduces the ability of bias to adversely affect this decision-making.[31]

These notions about structural impartiality are reflected more generally in extrajudicial comments – for example, Justice Edwards states that 'a deliberative process enhanced by collegiality and a broad range of perspectives necessarily results in better and more nuanced opinions'.[32] In Australia, Victorian Chief Judge Kidd argued that diversity enriches decision making by preventing the domination of a single set of values or views and developing greater cultural awareness through the collective knowledge of a more diverse judiciary.[33] Even former Supreme Court Justice Scalia acknowledged the role of his ideological opposite Justice Marshall in ensuring that race was a serious consideration in conferences when it arose.[34]

Ifill states that judicial impartiality arises through a combination of this structural impartiality and a judge’s own individual impartiality.[35] This dual notion of impartiality emphasises the important diversity role played minority judges in Avena’s study. The judges demonstrated individual impartiality by being able to make significant decisions against immigrants despite their harrowing backgrounds as migrants themselves; at the same time, these backgrounds provided them the diverse perspectives that enabled them to reduce the scope for bias and thus contribute to the court’s structural impartiality.[36] In this way, the judges in Avena’s study actually demonstrate the importance of judicial diversity just as much as those in Hsu’s study, despite this not being immediately apparent because of the differences in judicial decision-making.

D The Impact of the Asian Minority Experience

The importance of experience over background alone is supported in the analysis of Asian American judges, with Hsu’s analysis demonstrating that the impact of background is inextricably tied up with the judges’ personal experiences. Each of the Asian American judges he and Avena studied had foundational experiences with racial exclusion, either through their experiences with the Japanese internment in World War II or with migration and explicit rejection from aspects of American society. Cultural identity without the requisite experience would also hinder the ability of such judges to account for cultural factors or add to the collective knowledge of the judiciary.

As Asians become more naturalised and more prevalent in the legal profession, it is conceivable that their experiences with racism will become less significant, meaning that their background will have increasingly less impact on their values and, hence, any judicial decisions they make. However, racial discrimination may not be so easily overcome. While the egregious examples of racism experienced by current Asian American judges and Asian minorities as a whole in the past is far less prevalent in Western societies, exclusion and suspicion of Asian minorities continues to persist.

Racial and cultural scholarship has long argued that Western societies continue to consider Asian minorities as the ‘other’ – for example, Watkins has argued that this mindset has allowed subconscious attitudes about the appropriate position of Asian minorities in society to persist, leading to suspicion and hostility towards their success and ‘over-representation’ in the academic sphere.[37] As a result, Asian minorities in Western countries, despite the diversity of cultures and experiences within that identity, remain united by a common experience of racism and xenophobia,[38] which Matsuda argues forges a common path of resistance and survival.[39] Unfortunately, this has become particularly evident now given the fresh outbreaks of race-based hostility and violence towards Chinese and other Asian groups in Western countries in response to the COVID-19 pandemic, which demonstrate that racism and xenophobia remain fundamental parts of the Asian minority experience.

II CASE STUDIES OF THE HIGH COURT

The potential impact that Asian American backgrounds have had on judges in their interpretation of immigration cases inevitably leads us to examine whether similar cases in Australia would have benefited from a similar perspective. Cases relating to the aliens and immigration powers have been contentious throughout Australia’s history, both in terms of its difficult past of racial exclusion and discrimination and in terms of more recent restrictive formulations of the law that have proved challenging for people of precarious status. This section will consider two of these cases – Singh v Commonwealth[40] and Al-Kateb v Godwin[41] – to explore what potential impact Asian Australian judges could have upon the reasoning and outcomes of such cases by virtue of their background and experiences.

A Singh v Commonwealth

The case of Singh turned upon the definition of an alien, in a determination as to whether the daughter of Indian citizens was to be considered a non-alien because she was born in Australia. The court rejected 5:2 the plaintiff’s argument that the definition was fixed at Federation in a way that meant an Australian-born person could not be an alien, with the majority adopting two different lines of reasoning. The joint judgement of Gummow, Hayne and Heydon JJ proceeded on the basis that an alien was instead to be defined by their allegiance to a foreign state, meaning that by virtue of her Indian citizenship and lack of an Australian citizenship, Singh was an alien.[42] Meanwhile, Gleeson CJ and Kirby J, while also rejecting the plaintiff’s definition, chose not to supply their own but instead held that question of alienage was a matter within the power of Parliament to decide.[43]

By contrast, McHugh J, in dissent, proceeded on the negative basis that an alien was a person who did not owe permanent allegiance to Australia.[44] By this formulation, since an Australian born person did owe permanent allegiance to Australia, Singh was not an alien by virtue of her birth. McHugh and Callinan JJ found that there was a category of constitutional nationality, a form of citizenship that protected an Australian born person from the abrogation of such rights by Parliament.[45]

Much of the case turned on the divergence in interpretation of historical Convention materials and the British historical context of 1900. The majority found that the definition of an ‘alien’ was in flux due to imperial expansion, ‘complex racial circumstances’, and the resulting change in legal conceptions.[46] The minority instead held that the imperial context meant a clear assumption that birthright prevented alienage.[47]

Placing an Asian Australian judge into this context creates a number of variables. Firstly, the judge’s background would likely have some affinity with the plaintiff in this case. Such a judge would likely be a migrant themselves or a child of migrants, meaning that their lived experiences would enable them to understand more closely the position of the plaintiff and her family. Like Judges Chin and Takasugi, a judge in this position might also be conscious that an adverse result in this case would mean the family’s deportation, and thus consider the consequences to be grave. A consideration of the legal issues also inevitably gives rise to issues of Australian identity and belonging that would also weigh upon the mind of an Asian Australian judge. This would be compounded by the broader social context, given that the amendments giving rise to the situation were primarily motivated by fears that illegal immigrants were exploiting citizenship laws.[48]

As the contrasting judgments indicate, there is no definitive law or facts that would necessitate a particular outcome – one academic has even argued that Singh was decided contrary to established precedent.[49] It would thus be conceivable that an Asian Australian judge in this position could be influenced by their background in a way that supports the reasoning and outcome of the minority in this case. The idea of alienage based on allegiance to a foreign power would be less favourable to a judge whose immediate background might include one or more of those powers. The notion of a constitutional nationality would also be attractive as a more inclusive and enduring way of recognising and protecting a person’s fundamental ties to Australia in a way that is less centred on their foreignness. Finally, a judge who would consider deportation to be an ‘extreme sanction’ the way Judge Takasugi has may ultimately need far more compelling reasons to interpret the law in a way that allows such an action than a judge without that same background.

The High Court bench could also benefit overall from the background and experiences of an Asian Australian judge to broaden their perspectives and collective knowledge, allowing the other judges to examine the situation with greater objectivity in a way that may change or at least better inform their decisions. However, the procedural fairness benefits discussed above would not arise here or in Al-Kateb given that the formal absence of the appellant and the nature of the proceedings make such considerations irrelevant.

B Al-Kateb v Godwin

The case of Al-Kateb considered the highly controversial issue of mandatory immigration detention, in a situation where a stateless man appealed a decision to continue his detention after the government’s failure to find a place to deport him to. The questions before the court were whether the legislation could be constructed such that indefinite detention was permissible, and whether legislation that authorised indefinite immigration detention was an infringement of Ch III of the Constitution. The case was decided narrowly 4:3 against the appellant, with it ultimately being held that the legislation did authorise indefinite detention and that the legislation was within legislative power.

For an Asian Australian judge, the situation in Al-Kateb bears a number of similarities with Singh. Both cases deal with issues arising from migration that would have far reaching impacts for the migrant party if decided against them. As such, the experiences of an Asian Australian judge would have a similar impact fundamentally in allowing them to feel a greater affinity for the appellant and his situation and have a deeper consciousness of the grave consequences possible for the appellant. On the other hand, it is important to recognise the potential limitations of this argument, especially given the significant contrast between the background and experience of a stateless Middle Eastern refugee and a hypothetical average Asian Australian judge. A meaningful understanding of what it means to be in such a position would require specific similar circumstances – while these would be more likely for an Asian Australian judge, given the experiences of Southeast Asian refugees, they would still be far less likely to be part of the background of a person who would ordinarily be placed to obtain a High Court position.

In this case, the experience of Asian American judges is particularly informative and applicable, in a situation where the fundamental decision rests on whether or not the detention is found to be punitive. In rejecting the unconstitutionality argument, Hayne and McHugh JJ held that the detention was not punitive, based on the fact that it was not for an offence but for the purpose of excluding the person from the Australian community.[50] Such reasoning would likely have been rejected by Judges Chin and Takasugi for its insensitivity to the gravity and harshness of the consequences, in the same way they rejected the rationale that deportation was merely a procedural action. It is conceivable that an Asian Australian judge in that position could also find the majority’s interpretation of the Constitution disconcerting on that basis.

C Implications

One issue that arises from this analysis is that while it indicates that judges from different backgrounds may have something to contribute based on their experiences, it also shows that judges of the prevailing judicial demographics are capable of coming to similar conclusions. Conversely, our consideration of Asian American and other minority judges above shows that such a judge may not necessarily have sided with the minority party in either of these decisions. At most, we can say that it is distinctly possible for a judge of an Asian Australian background to be influenced by their experiences and interpret the law in a way that is more favourable towards people of diverse backgrounds.

However, if we take the experiences of Justices O’Connor and Ginsburg and compare them to gender and ethnically diverse judges in the lower courts, we could also argue that an Asian Australian judge on the High Court would be more likely to make decisions favouring migrants, refugees and culturally diverse people than their counterparts in the Federal Court and below. At the very least, they would not be encumbered as much by the need to defer to precedent and higher courts that was present amongst the minority judges in Avena’s study.

Furthermore, the opportunities available and the overseas examples at least demonstrate that there are legitimate advantages that Asian Australian judges could bring to the High Court’s jurisprudence and its ability to be more fully objective. While the above analysis has predominantly considered how an Asian Australian judge would change a decision, it is also important to remember that impartiality can be advanced by minority judges being able to make decisions contrary to their experiences and providing legitimacy to decisions, because they have enabled the court to have a fuller and more accurate perspective on a given situation.

Finally, considering the US Supreme Court again, it is also clear here that other judges on the bench were able to come to conclusions consistent with feminist interpretations of the law. However, Justices O’Connor and Ginsburg turned these positions into majority positions, fundamentally changing the landscape of American jurisprudence. In the same manner, Asian Australian judges could prove pivotal in determining the course of future High Court jurisprudence if they are given the opportunity to do so.

III CHALLENGES GOING FORWARD

A Obstacles

Underrepresentation of Asians in the legal profession has often been characterised as a pipeline issue, with there currently being an insufficient number of suitable candidates for higher positions. However, considering the trajectory of representation of Asian Americans and their continued problems with high-level representation, a critical mass of lawyers is clearly insufficient to address the problem of more adequate representation of Asian Australians in the higher levels of the judiciary. This poses a challenge to the argument that it merely requires more time for Asians to enter and rise through the ranks of the profession. Such a challenge is bolstered by the finding that Hispanic Americans are much more highly represented in the judiciary, despite their entrance into the profession at a similar time to Asian Americans.[51]

Connected to this is the argument that a ‘bamboo ceiling’ hinders the advancement of Asians to senior positions. The Diversity Council of Australia has argued the that lack of Asian representation in senior leadership roles comes down to a number of factors including negative cultural bias, bias favouring Western leadership models over contrasting traits, a lack of networks, and a lack of awareness of the importance of diversity.[52] Some of these are particularly relevant to the judiciary – in particular, the role of networking, given that personal networks appear to be critical in decisions about high level judicial appointments, and advancement in the profession being heavily based on relationships.

While the impact of these obstacles in Australia is unclear, these obstacles have been documented in the United States, where the greatest perceived barrier to career advancement by Asian American lawyers is inadequate access to mentors and projects, followed by a lack of formal leadership training programs.[53] Implicit bias has also been noted as a significant factor, with Asian Americans being seen as lacking the soft social skills required, and cultural stereotypes of foreignness and social awkwardness negatively impacting on their ability to access mentorship and networking opportunities.[54] These obstacles, along with lack of career satisfaction, have been connected to high attrition rates of lawyers in big firms and an over 40% decline in first year law enrolments by Asian American students since 2009.[55]

The persistence of these obstacles potentially creates significant problems for the legal profession to improve its diversity, given that such obstacles have had a profound impact on the desired career pathways for Asian minorities. This has been a specific problem for public service roles, with Asian Americans tending to gravitate towards business and commercial law over government, which has led to a dearth of Asian American prosecutors, attorneys, and inevitably, judges.[56]

B Improving Judicial Diversity

Some Australian judicial attention has been drawn to the importance of cultural diversity recently. There has been acknowledgement of this by judicial officers at the highest level across different jurisdictions. In addition to the comments by Kidd CJ referenced above, there has been McHugh J’s oft quoted statement that cultural homogeneity makes public confidence in judicial impartiality less likely.[57] In his capacity as Solicitor-General, Gageler J also stated that ethnicity should be a legitimate factor in appointments where capable people have been identified.[58]

However, it appears that the judicial diversity is currently not a forefront issue. This is most strongly exemplified by the Judicial Council on Cultural Diversity, which was an initiative formed in 2015 to better meet the needs of culturally diverse communities in the legal system.[59] Despite its laudable commitment to furthering the rights of culturally diverse participants, there is no mention of the potential role that a more diverse judiciary could play in furthering this aim. Additionally, the council itself appears to severely lack diversity of its own – while being strongly gender diverse with an overwhelming plurality of women on the board, there are only three persons out of nineteen who are of a culturally diverse background, none of which come from Asian backgrounds. While this paper has accepted that background is not determinative of positive outcomes for culturally diverse participants, the council's lack of cultural diversity is confusing given that it has considered diversity of gender and court level to be so important. In that context, comments made by its members favouring improved judicial diversity appear to mean little.[60]

To improve judicial diversity, particularly at the High Court level, some form of appointments reform is needed. The need for a more transparent and objective appointments process with a commission of people of diverse backgrounds has been acknowledged for some time now.[61] Models of these in common law jurisdictions have largely been based on the Cape Town Principles,[62] which provide for the establishment of a diverse commission that makes binding decisions on appointments based on evidence and objective criteria. An Australian model will need to be far more reaching than the earlier McClelland reforms which, while attempting to meet similar aims, fell short in its exclusion of diversity factors and its non-applicability to the High Court.[63] However, despite its potential benefits, it is important to note that such a model does not necessarily lead to greater diversity. In the United Kingdom, it was found that between 2017 and 2019 there was a stagnation in the appointment of cultural minority judges – despite increased applications, there was actually a decrease in those appointed to higher level benches.[64] With no apparent reason for this discrepancy,[65] it seems that a comprehensive solution to questions of cultural judicial diversity remains elusive.

IV CONCLUSION

The substantive effect of cultural diversity, and specifically Asian representation, on judicial outcomes and processes is difficult to isolate and hence difficult to prove – something which has become increasingly apparent across studies of judicial diversity in general. Nevertheless, this paper has identified several areas where it is conceivable that an Asian cultural background would have positive impacts on jurisprudence. This, combined with the other diversity arguments of equality of opportunity and increased institutional legitimacy, provides another base by which we can argue that cultural diversity is vital for justice. Providing more power for that argument requires much more research and statistical analysis, particularly in the Australian context.

Although the challenges to achieving this are significant, the impact of judicial appointments commissions based on the Cape Town model shows one potential way forward, albeit an uncertain one. The continued development of recent Asian Australian lawyers’ advocacy efforts will also be critical to maintain publicity and break cultural conceptions. While this paper has focused on Asian minorities, the general arguments made are universally applicable to all diverse groups. In the process of advancing the cause of Asian Australian judicial diversity, the challenge will be to ensure that these opportunities are not limited to a privileged few but to people across the range of socio-economic and cultural backgrounds.


[1] Asian Australian Lawyers Association, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015 (14 April 2014) 4.

[2] Australian Human Rights Commission, Leading for change: A blueprint for cultural diversity and inclusive leadership revisited (April 2018) 7.

[3] Center for American Progress, Building a More Inclusive Federal Judiciary (3 October 2019).

[4] Eric Chung et al, A Portrait of Asian Americans in the Law (2017) 25.

[5] Ibid 19.

[6] Ibid 12, 20-23, and 26.

[7] Center for American Progress (n 3).

[8] Rosalind Dixon, ‘Female Justices, Feminism and the Politics of Judicial Appointment: A Reexamination’ (Public Law & Legal Theory Working Paper No. 283, University of Chicago, 2009) 14.

[9] Ibid.

[10] Rosemary Hunter, ‘More Than Just a Different Face? Judicial Diversity and Decision-making’ (2015) 68(1) Current Legal Problems 119, 126.

[11] Dixon (n 8) 30.

[12] Dixon (n 8) 10.

[13] Josh Hsu, ‘Asian American Judges: Identity, Their Narratives, & Diversity on the Bench’ (2006) 11(1) Asian Pacific American Law Journal 92, 101.

[14] Ibid 102.

[15] Ibid 103.

[16] Ibid 105-6.

[17] Ibid 108.

[18] Ibid 110-11.

[19] Ibid 112.

[20] Kristine L. Avena, ‘Judges of Color: Examining the Impact of Judicial Diversity in the Equal Protection Jurisprudence of the United States Court of Appeals for the Ninth Circuit’ (2018) 46(1) Hastings Constitutional Law Quarterly 221, 243.

[21] Ibid 240.

[22] Ibid.

[23] Ibid 229.

[24] Ibid 238.

[25] Ibid 231.

[26] Edward M. Chen, ‘The Judiciary, Diversity, and Justice for All’ (2003) 10 Asian Law Journal 127, 135-6.

[27] Avena (n 19) 239.

[28] Hsu (n 12) 116.

[29] Sherrilyn A. Ifill, ‘Racial Diversity on the Bench: Beyond Role Models and Public Confidence’ (2000) 57 Washington & Lee Law Review 405, 411.

[30] Hsu (n 12) 114.

[31] Ifill (n 29) 411.

[32] Hsu (n 12) 117.

[33] Chief Judge Peter Kidd, ‘Cultural diversity and the law’ (Speech, Australian Intercultural Society, 13 May 2019) 8.

[34] Adam Liptak, ‘The Waves Minority Judges Always Make’, The New York Times (online, 30 May 2009) https://www.nytimes.com/2009/05/31/weekinreview/31liptak.html. (although it is unclear whether this actually had any impact on his jurisprudence, given the article’s subsequent discussion on Justice Marshall’s lack of an impact on Justice O’Connor despite comments she made similar to Justice Scalia’s)

[35] Ifill (n 29) 411.

[36] Avena (n 19) 239.

[37] Megan Watkins, ''We are all Asian here': multiculturalism, selective schooling and responses to Asian success' (2017) 43 Journal of Ethnic and Migration Studies 2300, 2305.

[38] Hsu (n 12) 95.

[39] Mari Matsuda, ‘Keynote Address at the annual Asian Law Caucus dinner (March 2000), in Planet Asian America’ (2001) 8 Asian Law Journal 169, 184.

[40] [2004] HCA 43; (2004) 222 CLR 322.

[41] [2004] HCA 37; (2004) 219 CLR 562.

[42] Singh (n 40) [400] (Gummow, Hayne and Heydon JJ).

[43] Ibid [341] (Gleeson CJ).

[44] Ibid [344] (McHugh J).

[45] Ibid [378] (McHugh J).

[46] Ibid [395] (Gummow, Hayne and Heydon JJ), [341] (Gleeson CJ).

[47] Ibid [350]-[351] (McHugh J).

[48] Peter Prince, ‘We are Australian – The Constitution and Deportation of Australian-born Children’ (Research Paper no. 3, Parliament of Australia, Law and Bills Digest Group, 24 November 2003).

[49] John Gava, ‘Losing our birthright: Singh v Commonwealth[2016] AdelLawRw 15; (2016) 37(2) Adelaide Law Review 369, 370.

[50] Al-Kateb (n 41) [650]-[651] (Hayne J) and [584] (McHugh J).

[51] Pat K. Chew and Luke T. Kelley-Chew ‘The Missing Minority Judges’ 14(1) Journal of Gender, Race & Justice 179, 184.

[52] Diversity Council of Australia, ‘Cracking the Cultural Ceiling’ (2014) https://www.dca.org.au/research/project/cracking-cultural-ceiling.

[53] Chung (n 4) 30.

[54] Ibid 38.

[55] Ibid 2-3.

[56] Ibid 39.

[57] Justice Michael McHugh, ‘Women Justices for the High Court’ (Speech, Western Australia Law Society, 27 October 2004)

[58] Stephen Gageler, ‘Judicial Appointment’ (2008) 30 Sydney Law Review 159, 160.

[59] Judicial Council on Cultural Diversity, http://www.jccd.org.au

[60] See Melissa Perry, ‘The Law, Equality and Inclusiveness in a Culturally and Linguistically Diverse Society’ [2019] AdelLawRw 24; (2019) 40(1) Adelaide Law Review 273, 282.

[61] See George Williams, ‘High Court Appointments: The Need for Reform’ (2008) 30 Sydney Law Review 163 and Simon Evans and John Williams ‘Appointing Australian Judges: A New Model’ 30(2) Sydney Law Review 295.

[62] Bingham Centre for the Rule of Law and Faculty of Law, University of Cape Town, ‘Cape Town Principles on the Role of Independent Commissions in the Selection and Appointment of Judges’ (February 2016)

[63] Elizabeth Handsley and Andrew Lynch, ‘Facing up to Diversity – Transparency and the Reform of Commonwealth Judicial Appointments 2008-13’ [2015] SydLawRw 10; (2015) 37 Sydney Law Review 187, 197 and 204.

[64] JUSTICE, Increasing Judicial Diversity: An Update (2020) 26.

[65] Ibid 30.


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