Abstract
AbstractThere is a growing international emphasis on the importance of diversity in the judiciary and the impact of the individual in decision-making. However, it can be a challenge to gain insight into the individuals who sit on the bench. For instance, there is limited official information about the individuals who sit on the High Court of Australia. One of the rare glimpses provided by the justices themselves is their judicial swearing-in speech. Drawing on a case-study of the swearing-in speeches of High Court justices sitting between 2008 and 2016, this paper illustrates how these speeches can illuminate key demographic information about the judiciary, as well as facets of the individual rarely explored in studies of judicial diversity: personality and values. This study demonstrates how swearing-in speeches can assist with filling information gaps about judicial diversity, and so extend debates about judicial selection.
Highlights
[O]nce one acknowledges that the law does not exist as a preformed set of rules which judges discover and apply to the facts at hand, and that on occasions the judge must form her or his own view as to what should happen, it follows that who the judge is matters
These arguments in favour of judicial diversity have frequently focused on quantifiable demographic variables, such as gender and ethnicity (Hale, 2005; Douglas and Bartlett, 2016)
It is my firm conviction that the Australian judiciary is, as a matter of social history, a truer reflection of our people and their values and aspirations than has been the case with judges in previous times and in other places. ... the suggestions that one occasionally sees in the media to the effect that our judges are some sort of remote elite are quite wrong
Summary
[O]nce one acknowledges that the law does not exist as a preformed set of rules which judges discover and apply to the facts at hand, and that on occasions the judge must form her or his own view as to what should happen, it follows that who the judge is matters. Recent increases in judicial (auto)biography (Josev, 2017), interviews, and intellectual histories (French & Carrick, 2017; Martin, 2017) have offered some insights into individual judges, but these are published at the end of a judicial career Against this background, judicial swearing-in ceremonies are the rare occasions when the Executive must publicly defend an appointment (Roberts, 2017), and the legal community endorses a judge’s suitability for office. Welcome speeches at a judicial swearing-in ceremony are made by the Attorneys-General and Presidents of representative legal bodies (such as the Bar Associations or Law Council of Australia) These speeches provide insights into the demographic profile of judges, their educational and professional backgrounds. We seek to offer a new perspective on judicial identity, one which has previously been overlooked in discussions of diversity framed around demographics
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