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Diversity: Shifting the balance

Diversity: Shifting the balance

By Molina Asthana

Access to Justice COVID-19 Diversity 

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Inclusion initiatives must not fall off the priority list during and post-COVID-19.

COVID-19 has impacted every industry, including the legal profession. Some developments have been positive – greater flexibility with working arrangements, international connectivity through online interaction and innovation in justice delivery.

But diversity and inclusion and associated initiatives have been put on the backburner. The Cultural Diversity Report by the Asian Australian Lawyers Association (AALA) in 20151 highlighted the lack of diversity in the senior ranks of the legal profession with Asians representing 5 per cent of senior roles. A 2019 poll of 11 of the large commercial firms found while 25 per cent of law graduates and non-partners had an Asian background, only 8 per cent of partners were Asian.

The bamboo ceiling is still in existence in 2020. Anecdotal evidence as well as experiences of lawyers of diverse backgrounds in leadership positions, including myself as national vice-president of AALA2 and others, confirms this.

The benefits of cultural diversity are well known but diverse thought leadership becomes even more imperative in the COVID-19 recovery. Inclusion initiatives must not fall off the priority list during and post-COVID. 

Just as a roadmap to recovery is needed for the economy, a roadmap for bringing cultural diversity to the forefront is equally important. Here’s what it might look like.

Grassroots not top down

The top down approach has not achieved cultural diversity. The decision makers come to the table infrequently and the discourse is always among the converted. It is unrealistic to expect change to a long-standing status quo that gives preference. Shifting the balance can be done by: 

  • connecting lawyers facing similar challenges to create visibility and a collective voice and also provide support to lawyers who may individually not be in a position to challenge the system. AALA has an online blackboard allowing members to connect and share resources and experiences. An extension of this would be diverse associations connecting similarly
  • seeing more role models and highlighting the great work they do. However, role modelling that recognises a select few that represent the “model minority” must be challenged. That perpetuates inequalities and reinforces that there are only a few who are capable, therefore justifying tokenism by the majority
  • building value proposition – lawyers of diverse backgrounds need to be confident and proud of their background and heritage, and to talk about the positives they bring to the table. Cultural diversity is a practical intersection of commercial value for organisations.

Access to justice 

Cultural diversity is not just about practitioners, it is equally about people trying to access the system. If people of multicultural backgrounds do not feel adequately represented or their issues understood because of language, cultural or socio-economic factors, or relief not granted due to these factors, then this is an issue of access to justice. 

It is of fundamental importance that not only must justice be done, it must also be seen to be done.3 Judicial appointments that foster diversity and borrowing on experiences of other countries, may alleviate access to justice concerns of the diverse community. 

Education

Education is important for bringing about systemic changes. Compulsory CPD on diversity and surrounding issues should be introduced as a standalone or as part of practice management requirements. Institutional unconscious bias makes it difficult for genuine inclusion to take place. Unconscious bias training is useful in breaking down stereotypes and bringing objectivity to decision making.

Targets

Quotas are often criticised. Merit should be the decider, the critics say. But that argument fails to take into account that people from diverse backgrounds often don’t come from the same playing field. To expect them to rise significantly in an inherently competitive profession without any support is almost impossible. They are often expected to work twice as hard to get the same recognition.

Targets may be a better approach. Without imposing mandatory requirements, targets may lead to changes in policies for longer term change, achieved more organically.

In the UK, it is mandatory in some industries to interview at least one person of black, Asian or minority ethnic background without making it obligatory to select one. This provides those candidates with the opportunity to prove their capabilities. 

This proposed roadmap, if implemented along with more tailored approaches by individual organisations and firms, may assist with not only putting diversity back on track but galloping ahead post-pandemic. ■


Molina Asthana is an LIV Council member and AALA vice-president.

  1. http://aala.org.au/cultural-diversity-report-2015.
  2. https://www.lawyersweekly.com.au/biglaw/29530-cultural-diversity-cannot-be-pushed-to-backburner?%20utm_source=LawyersWeekly&utm_campaign=25_09_20&utm_medium=email&utm_content=1&utm_emailID=804cb2b23aff22ade3ef0f28a2ded6044e9733c391738da367fb5e33deb59158.
  3. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233).

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