The upper echelons of Australia’s judiciary are overwhelmingly dominated by the products of private education and sandstone universities, data shows.
Analysis of the educational background of judges across the nation’s top courts points to a profound lack of educational diversity on the bench, putting these powerful and cloistered institutions out of touch with the demographic realities of modern Australia.
The old boys’ network
Where someone went to school does not, by any means, paint a complete picture of their relative privilege, or class background. Nevertheless, the number of top judges who went to a private schools is notable, since it sits in stark contrast with the broader population. According to the most recent census data, 65% of Australian students are enrolled in public schools. However, only two of the seven High Court judges were publicly educated.
Crikey was able to access schooling information for 37 of the 47 Federal Court judges. Of that number, 20 went to a private school. Of the 13 judges on the Court of Appeal of the NSW Supreme Court, at least nine were educated at private schools. Notably, the Court has three alumni of the prestigious St Ignatius College Riverview, former Prime Minister Tony Abbott’s alma mater. The Victorian Court of Appeal, meanwhile, has two judges from Scotch College.
Importantly, the educational elitism among the nation’s highest courts is also historical. Since federation, 53 judges have served on the High Court, of which just 12 completed their education at public schools. More than half that number (seven) attended Sydney Grammar School.
The Sandstone Club
The homogeneity of the courts is even starker when tertiary education is taken into account.
Appellate courts are largely run by graduates of Group of Eight (Go8) universities. It should, however, be noted that the Go8 law schools are generally the oldest and most established in the country, and until the late 1980s, many smaller, newer universities did not even have law programs.
The Go8 hold over Australia’s highest courts is therefore historical, with these universities counting almost every past or present High Court judge amongst their alumni, the most prominent exception being current Chief Justice Susan Kiefel, a high school dropout who later completed her legal education through the Queensland Barristers’ Admission Board. Even within the Go8, certain universities have always dominated — almost 60% of High Court judges since Federation were educated at Sydney or Melbourne Law Schools.
This trend is replicated on other appellate courts. All but two of the 47 judges on the federal Court attended a Go8 university. Similarly, every Court of Appeal judge in NSW, Queensland and Victoria attended a Go8 institution.
Finally, judges are increasingly likely to hold a postgraduate degree from a top foreign university, usually “Oxbridge” in the UK or one of the US Ivy League schools. Currently, a majority of the High Court have a postgraduate degree from Oxford or Cambridge universities. Another, Stephen Gageler, went to Harvard. Twelve judges on the Federal Court did further study at an elite foreign university.
‘The impartiality of the institution’
The similarity of so many judges’ educational backgrounds could have implications for the quality of justice in Australia.
Australia’s most powerful courts have a hugely important role in interpreting, creating and reshaping the law. Their decisions have profoundly impacted contemporary Australian life, touching on everything from Indigenous land rights and freedom of political communication to the question of eligibility for parliament.
Back in 2004, then-High Court judge Michael McHugh said in a speech at the Western Australian law society that “when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution”.
Over a decade later, while the courts have made incremental change in other areas of diversity — more women, for example, now sit on the High Court than at any point in its history — McHugh’s words remain a prescient warning for the judiciary. So long as the courts remain socially and culturally homogeneous bastions of educational elitism, they will struggle to retain the confidence of the people.
Although I fail to see what the private/public schooling ratio today has to do with people who were in secondary high school education 40 years ago. Any evidence that judgements have been impaired by this outrageous defiance or is it just, you know, the vibe?
This analysis is hopelessly superficial. The fact is that appointments to the higher courts in Australia have been overwhelmingly characterised by the a selection of the very best legal minds, regardless of where each appointee went to school. It is crucial to the sound administration of justice that quality lawyers are so appointed to the various higher court benches.
In criminal matters, the quality of judges is paramount to balance the rights of the accused with the massive power of the state.
However, I suggest that it is not the quality of legal minds in benches that is a substantial problem. Rather, it is the dominant norm that appointees are almost invariably selected from senior counsel who have exclusively acted for big corporations in commercial matters for a long period before appointment. That experience imbues those appointees with a rigid reverence to the doctrines of contract law that assumes equal bargaining power, which in the real world is demonstrably a fiction. And it that reverence for the certainty of contract that has become the most brutal instrument of oppression of those that do not have equal bargaining power with their respective counter-parties, which is invariably the case in reality. And of course that arises out of the sacred heart of Capitalism, the reverence for private property.
A necessary reform that is constantly suppressed is the need for the law to alter the ridiculous assumption of equality of bargaining power. In my view (not a view held by many lawyers I confess), it is time to enumerate a list of oppressive and draconian contract provisions, that have become depressingly common, that are prohibited in any contract, much like the prohibited oppressive contract provisions set out in the Consumer Law in schedule 2 of the Competition and Consumer Act.
We do not need more ‘working-class’ judges, we need laws that make all contracts fairer and more balanced for a fairer society.
That assertion about judges having acted for large corporations is simply not true in general. It’s true of judges with a commercial law background, but what else would you expect? Commercial litigants are mostly corporations, and mostly large. And that applies to both plaintiffs and defendants.
Otherwise there are judges with criminal or common law backgrounds. Criminal judges are just as often ex-prosecutors as ex-defence lawyers. And common law judges are just as commonly former barristers who acted for plaintiffs as defendants (insurers).
Surely the title of this piece is rhetorical. IMHO there is plenty of law in this country but bugger all justice. Going to court is for politicans, the wealthy and companies. I have had several times in my life when I have been told by a lawyer -“yes it is wrong, yes it is unfair, but if you cannot afford to sue bad luck”. I am quite sure that this is the experience of many people of modest means, and god help you if you are poor.
I just might get some respect for the legal profession if most, or at least some, of the people who appeared before the royal commission into banking and finance get gaol terms – they knowingly stole other peoples’ money, and my understanding is that stealing is a crime – why should they be treated any differently from a person who has committed social security fraud?
Of course the judges come from Group of 8 universities. They mostly graduated when the G of 8 were the only universities offering law courses.
Most of us are more interested in the quality of the decisions than old school ties and of course law degrees weren’t two bob a dozen like now 40 years ago.
It might be more worthwhile to ponder whether we really need more lawyers and legal and quasi legal process gumming up the works nowadays.
At least the author managed not to lecture us on white privilege or gender so bonus points there.