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.