A Sydney man sought to have a female judge disqualified from hearing his court case on the basis of his suspicion that she was “a feminist with leftist leanings”. The Sydney Morning Herald has reported that Supreme Court Judge Justice Monika Schmidt was asked by a serial litigant Mr Mahmoud to step aside from hearing a preliminary matter on the basis that he “suspected that as a female judge, I was a feminist with leftist leanings, who would not give him a fair hearing”.
Justice Schmidt rejected his application and the assumptions upon which it was based. In her judgement she wrote “Nothing which Mr Mahmoud advanced provided a proper basis for the conclusion that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of his application.”
She highlighted that impartiality is an explicit obligation all judges are required to bring to bear by the oath of their office. I have no doubt it’s a professional obligation members of the judiciary seek to discharge honourably.
However, whether any person can ever be perfectly impartial is unclear. And it made me wonder, imagine if female litigants sought to have male judges disqualified on the basis of any inherent gender bias. Who would hear their cases?
According to the ABS in 2011 71% of commonwealth judges were males. In a speech to the New South Wales Women Lawyers earlier this year Justice Ruth McColl AO said females comprised 33.53% of the total number of judgeships in Australia. As McColl recognised this is a significant leap from the 8.77% of female judges that were presiding 18 years ago.
In a speech to the Melbourne Law School in August of 2003 Federal Court Judge Susan Kenny explored the issue of such a gender imbalance in the judiciary.
“If judges are seen to come from only one group, whether male or non-indigenous or non-Asian or non-Catholic or non-Jewish or non-government school, then those outside the group not unnaturally believe their perspectives are neglected,” Justice Kenny said. “This lessens community understanding and acceptance of judicial decision-making. The homogeneity of the bench promotes the idea that authority in Australian society is held because of a person’s sex, ethnicity, or socio-economic status, not because of merit.”
In that same speech Justice Kenny referred to the findings from a gender bias inquiry instigated by the Commonwealth Senate following some controversial comments made by a South Australian judge about rape and marriage. In 1994 the report included this finding:
The Committee considers that a significant number of the cases examined demonstrate the resilience in some jurisdictions of certain unconscious beliefs and stereotypes in cases of alleged sexual assault. The belief that women, for various reasons, concoct incidents of sexual assault, still seems to be common among some judges. By adhering to these traditional statements, the rationale for which other judges have questioned, judges are potentially influencing the outcome of cases.
The Committee concluded:
To the extent that an impression has been created that the publicised comments are in some way typical of overt prejudice on the part of the judiciary as a whole, it is a false impression, and the publicity that the comments themselves have attracted has been exaggerated. However, the evidence has led the Committee to conclude that a problem exists that is wider than a handful of isolated instances”.
Those findings were made in 1994 but, dispiritingly, 20 years later we are still a long way from gender parity in the judiciary. And it matters because as Justice Kenny argued, the implications of unconscious bias and stereotypes in a judiciary dominated by any single group has the ability to undermine the authority of the courts.
As two Canadian academics Isabel Grant and Lynn Smith observed in 1991:
“While the bench cannot be perfectly representative of every segment of society, it is especially important that it be reasonably representative of women….. Citizens who are women should be able to know that they are fairly represented in the judicial branch. To see the force of this argument consider the reaction if the present statistics were reversed, and the judiciary were 91.2% female.”
Fortunately we are no longer looking at numbers like that. But, in the New South Wales Supreme Court, where females hold 20% of the positions as judges, it’s difficult to accept a litigant’s argument that he will be disadvantaged by a female’s inherent bias. Isn’t that what female litigants have been accepting with males judges with little alternative all these years?