A Blessing of Unicorns - Address to the Asian Australia Lawyers Association Lunar New Year Dinner 2022 - By The Honourable Justice Jenni Hill Supreme Court of Western Australia 18 February 2022

The Honourable Justice Jenni Hill at the Australia Lawyers Association Lunar New Year Dinner 2022

Thank you for the very kind invitation to speak at the AALA Lunar New Year dinner on a topic very close to my heart – the importance of diversity and inclusion. I would like to begin by acknowledging the Whadjuk people of the Noongar nation, the Traditional Custodians of the land on which we gather tonight and pay my respects to their Elders past and present. I extend that respect to any Aboriginal and Torres Strait Islander peoples here today.

As has been observed by two of my judicial brothers at their recent welcome ceremonies, this acknowledgement of country is important because words, and the language that we use, matter. This is particularly the case when it comes to issues of diversity and the often unintended impact of the words we choose.

In speaking tonight, I make the same acknowledgement that I did at my welcome ceremony, namely that gender is the only aspect of diversity that I have brought to my workplaces, including the Supreme Court, and is but only one measure of diversity.

Over the last 10 years, much has been written about the importance of not only diversity, but true inclusion for workplaces. So, what do these terms mean, and why are they important? Like every good lawyer, it is important to start with a definition. In defining ‘diversity’ and ‘inclusion’, I have used the definitions of the Diversity Council of Australia, which are: 1

Diversity is the mix of people in your organisation. This includes all the differences between people in how they identify in relation to their social identity, including their cultural background, disability, faith, gender, and sexual orientation, and their professional identity including their profession, education, and organisational role. Inclusion is getting the mix of people in your team to work. It occurs when diverse people feel respected, connected and have the ability to progress in and contribute to their organisation.

Diversity and inclusion are seen as having two primary benefits. First, there is a strong business case for diversity and inclusion due to its correlation with stronger financial performance. Second, it recognises the value of differences in people and positively embraces these differences.

Since 2015, McKinsey and Co have undertaken global research on diversity and inclusion and published a series of reports on diversity, 2 which I recommend to you. There are a few points from these reports that I want to specifically comment on.

First, there is now longitudinal data showing that companies in the top quartile for gender, racial and ethnic diversity are more likely to have financial returns above the median for their industry sector and outperform the bottom quartile by 25%. Ethnic diversity had a particularly strong impact on financial performance, with companies in the top quartile of ethnic diversity performing on average 33-35%

above those companies in the bottom quartile. 3 A possible explanation as to why ethnic diversity is having a greater impact is that companies have been focussed on gender diversity for a longer period and some gains have been made, although there remains much work to be done on that front. While it is important to recognise that correlation does not equate to causation, it does show the benefit and impact that where commitment to diversity occurs, a business is likely to be more successful. Several reasons have been advanced for this proposition: diverse workplaces are more likely to win the war on talent, they have higher employee satisfaction and diversity within a team leads to better decision making and less risk of group think.

Second, the reports stress the continuing lack of diversity in executive teams, particularly when it comes to ethnic and cultural diversity and women of colour who suffer from what they term ‘the double burden of bias’. Put another way, it has been the subject of growing commentary that the primary beneficiaries of the increasing focus on diversity are people like myself: white, private school educated, middle or upper class, heterosexual females.

In their most recent paper, the authors looked at five factors: 4 the representation in executive teams; leadership accountability for diversity and inclusion (both of which are evidence of a systematic approach); equality; openness; and belonging. All of these factors are core components of inclusion. Notably, while overall sentiment

on diversity was relatively positive, sentiment on inclusion was markedly worse. This shows that hiring diverse talent is not enough—it is the workplace experience that shapes whether people remain in the workplace and thrive. On the three indicators of inclusion—equality, openness, and belonging—a critical factor was fairness and equality of opportunity.

These studies show that companies that are diversity leaders take a systematic approach to promote a diverse workplace and take active steps to strengthen inclusion within it. This requires a strategy to work out which forms of diversity to prioritise and for datadriven targets to be set. So, why does data matter? Apart from the inherent beauty in maths and numbers, data matters because it enables us to measure performance and in any business what matters gets measured.

A particular challenge in measuring and reporting on workforce cultural diversity has been how to implement this. A new report from the Diversity Council of Australia and the University of Sydney Business School has developed a standardised approach for defining, measuring, and reporting on workforce cultural diversity in a respectful, accurate and inclusive way. 5 As Lisa Annese, the CEO of the Diversity Council, notes in her forword to the report, until now, we haven’t had a meaningful and contemporary way to measure and benchmark cultural diversity in Australian organisations or more accurately, the lack thereof. 6 Being able to effectively ‘count culture’ in businesses will help us better reflect the diversity of Australia and help us to build inclusion by better understanding our workforces.

One of the matters the report talks about is the importance of listening to those with lived experience. This is critical because those of us who come from a position of privilege, whether due to our race, gender, education, upbringing, physical ability or sexuality, simply have not been subject to or had the same experiences as those who do not.

I will give one recent example that highlighted this for me. Not that long after my own appointment, I read of the appointment of Judge Raffia Arshad as a deputy district judge in the United Kingdom. Judge Arshad is the first UK judge to wear a hijab, which I believe is an advance on Australia where the current total is zero. Judge Arshad spoke of her experience appearing in court as a barrister when an usher asked her whether she was an interpreter. When she said no, the usher asked whether she was “here on work experience,” to which she replied: “No,

I’m actually the barrister”. Her published reflections on the incident were that she had nothing against the usher who made the comment, but it reflected that as a society, even for somebody who works in the courts, there is still this prejudicial view that professionals at the top end do not look like her.

While I have been asked by security whether I am an associate, this pales into insignificance with the experience of her Honour Judge Arshad. Her experience is not something I have experienced, nor am I likely to. In this regard, it is important to emphasise that being able to empathise is not the same as having a lived experience.

The importance of experience was noted by Oliver Wendell Holmes, the great American jurist, who observed that ‘The life of the law has not been logic: it has been experience’. 7

So, what is the current experience in the Australian legal system? As was noted in an opinion piece by Andrew Leigh in the Australian Financial Review in December last year, in 120 years, no Asian Australian or judge of colour has ever been appointed to the High Court. 8 Estimates from AALA are that only approximately 1% of Australian judges are Asian-Australian, despite Asian Australians comprising 10% of the Australian population. 9

Diversity and inclusion matter because we need to ensure that everyone in the profession can look ahead, see there is a pathway, see someone who looks like them, and feel that they belong. As others have noted, ‘you can’t be, what you can’t see’.

If this is not your experience, and you are feeling alone, I want to draw your attention to two things. First, the important role that sponsors, mentors and allies can have. For those who have not heard me explain what I mean by these terms, sponsors are those people who have actively championed me and leant down to help lift me up to the next level in my career. Mentors are the senior people who have given up their time to impart wisdom and provide guidance. Allies are those people in my life with whom I can have an honest conversation, who won’t judge me for that honest disclosure and who have been there to support me through the various challenges I have faced. Each of these can play an important role in finding a pathway and assisting you to feel that you belong.

The second is an article by Susan Dunlap of the Women’s Leadership Forum entitled ‘There are Herds of Unicorns in Law Firms’. 10 The article, which was specifically aimed at women lawyers, discussed how many women who practice law feel unique,

different, alone, and sometimes abnormal. I pause to observe that these feelings are not restricted to women but are felt by many in the profession, particularly those who do not feel that they look like those who are more senior to them. The article talks of the importance of story-telling, something that is important in all cultures. If we want to change our profession for the better, we need to share our stories, including stories of lived experiences of racism, stereotypes and assumptions. On that note, I was delighted to see that the AALA has launched a newsletter entitled “To Aus, with Law” 11 to share the stories of foreign qualified lawyers. As was noted by the editor in her LinkedIn post, ‘Stories matter’. In this year of the Tiger, I ask you to have the courage and bravery to share your stories. In sharing your experiences and stories, you may realise that you are not in fact alone.

From Susan Dunlap’s article, I learnt that the collective noun for a group of unicorns is a ‘blessing’. This is on the basis that seeing a single unicorn is believed to bring good luck and fortune, but to see more than one is truly remarkable. I encourage all of you to share your stories, to work towards a more diverse and inclusive profession and to find other unicorns – this will indeed be a blessing.