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Diversity in the Legal Profession - William Lee Address

Race Race Discrimination

I would like to acknowledge the Gadigal people of the Eora Nation as the traditional custodians of this place we now call Sydney.

I would like to thank the Asian Australian Lawyers Association for inviting me to speak today.  In particular, I would like to acknowledge and thank Wai Kaey Soon, the President of the NSW Branch of the Asian-Australian Lawyers Association and also Kingsley Liu, the national President of the Association.  I would also like to acknowledge King & Wood Mallesons, and Partner in Charge Katrina Rathie who is here tonight, for their ongoing commitment to facilitating conversations about human rights principles in their everyday business. 

I would also like to acknowledge the person who brings us all together tonight – William Jangsing Lee, who in 1938 became the first Australian of Chinese descent to be called to the bar in New South Wales.  I am sure William Jangsing Lee’s story is known to us all, it certainly reminds me of many of my friends and family members – he was a diligent student, a hard worker, family oriented, someone who looked out for his community by offering pro bono work, and someone who by 1942 had established a thriving private practice.

William Jangsing Lee’s work with the Australian branch of the Chinese Seamen’s Union gave him experience in immigration law practice, briefs in the Industrial Commission seeking equal pay for Chinese crew, defending Chinese seamen on criminal charges for desertion (instituted by shipping companies), defending Chinese who failed the dictation test (which resulted in a criminal charge and deportation) and later refugee deportation briefs.

When I look back on the work of William Jangsing Lee, I am humbled by the impact his work would have had on each and everyone of these sailors, on their families, and on their communities.

This is the type of impact that I am passionate about seeing in our community today.  As the Race Discrimination Commissioner at the Australian Human Rights Commission, I know that the work done by people like William Jangsing Lee was important in 1942 and remains important today.

The importance of cultural diversity in my work, in yours, and in our broader society is also of paramount importance.  A diverse workforce enables new and different ways of thinking, and attracts and retains a broader talent pool. This increases the depth of advice given and policy developed and allows a more thoughtful and tailored approach to client interactions and service delivery.  This has additional importance as Australia continues to have closer political and economic ties with Asia.

While the 2016 Census identified that 49 per cent of the population were born overseas or have a parent born overseas, the Commission’s Leading for Change report estimated that of those who occupy the most senior posts in Australia only 4.7 per cent have a non- European background and 0.4 per cent have an Indigenous background.

Put another way, about 95 per cent of senior leaders in Australia have an Anglo-Celtic or European background. Although those who have non-European and Indigenous backgrounds make up an estimated 24 per cent of the Australian population, such backgrounds account for only 5 per cent of senior leaders.

As you are probably all aware, the leadership figures for lawyers of Asian descent is even lower than the general leadership percentage.  While Asian Australians account for 9.6 per cent of the Australian population, only 3.1 per cent of partners in law firms are Asian Australian. Only 1.6 per cent of barristers are Asian Australian and only 0.8 per cent of the judiciary are of Asian descent.

This is a gross under representation of Asian Australians in the law and justice system.  And the impact of such under representation cannot be downplayed. Research shows that under representation impacts not only on the individual, but in areas such justice, it also has a community and systemic impact.

It is often said we can’t be what we can’t see.  And this has been proven time after time.  An example of the individual impact that role models can have – following the release of the Hunger Games films and the Pixar film Brave, the involvement of women in the sport of archery increased by 105 per cent and youth membership increased over 200 per cent in a two-year period.[1] 

When we see people that we identify with achieving goals or participating in some area of public life, we are more easily inspired and we can more easily see ourselves achieving the same goals.

At an organisational level, research from McKinsey, in both 2015[2] and 2018, shows a positive correlation between diversity and financial performance. The 2018 Delivering through Diversity report showed that companies with the most ethnically diverse executive teams - in both absolute representation and in ethnic mix - are 33 per cent more likely to outperform their peers on profitability. The report also revealed there is a penalty for not being ethnically diverse: those in the fourth quartile of ethnic diversity for their executive teams are 29 per cent more likely to underperform their peers on profitability.

So, we know the skills, qualifications and talents required for leadership exist in this room. What are the systemic barriers that may be impacting on lawyers with Asian descent from promotion?

While I was happy to hear that a Judicial Council on Cultural Diversity has been established to respond to Australia’s diversity, I was disappointed to see that it is only looking externally and not at the cultural diversity of the judiciary itself. 

As I mentioned earlier a diverse workforce enables new and different ways of thinking, and attracts and retains a broader talent pool. This increases the depth of cultural understanding allowing for a more thoughtful and tailored approach to the provision of legal services and the administration of the legal system.  More culturally diverse barristers and judges would demonstrate to culturally and linguistically diverse communities that they are recognised, valued and represented in the justice system.

More broadly, the Diversity Council Australia’s 2014 report, Cracking the Cultural Ceiling: Future Proofing your Business in the Asian Century, identified four key talent locks for leaders and emerging leaders with Asian cultural backgrounds. These are:

  1. Cultural Bias and stereotyping
  2. The Western Leadership Model
  3. A Lack of Relationship Capital, and
  4. The Case for cultural diversity is not fully understood or valued.

When we consider cultural bias and stereotyping, the theory of unconscious bias suggests that people are often unaware they are racially biased, despite recipients feeling and recognising behaviour as non-inclusive.  ANU research found that people with an Asian name will need to apply 68 per cent more times, than someone with an Anglo name to be invited to interview.  68 per cent is a huge difference and demonstrates that cultural bias exists in recruitment.

In regard to promotion, good cultural fit between employees and their organisations is frequently touted as leading practice in recruitment and talent management literature.[3]  Employers often seek candidates who are not only competent in their skill set but also culturally similar to themselves in terms of recreational pursuits, experiences, and presentation styles. 

Overcoming ‘cultural fit’ requires law firms to value ‘cultural diversity’ over ‘cultural homogeny’.  This requires active commitment by the legal community to recognising the value of diversity and to specifically recruiting and promoting people from diverse backgrounds. 

As the Australian Government’s Australia in the Asian Century White Paper identified, the Asian century is an Australian opportunity. Australia is located in the right place to support Australian businesses and exporters to develop new markets across the region.

In their paper, Leading in the Asian Century: A National Scorecard of Australia’s Workforce Asia Capability, the Diversity Council of Australia noted that for Australian businesses, one of the biggest impediments to realising the Asian opportunity is a lack of understanding about Asia Capabilities – in particular, which capabilities are critical to business success and how prevalent they are in the workforce.

Asian Australians have the capabilities and cultural knowledge to lead this work.  And it is up to organisations to value these skills and place an Asian Management lens on the retention and promotion of staff with these capabilities.

In terms of Western Leadership models, the Western style often over-values self-promotion and assertive direct communication, while undervaluing and misinterpreting quiet reserve, and deference and respect for seniority.  The expectation of conformity means that many Asian-Australian employees feel pressured to change to meet the workplace culture rather than organisations recognising that points of difference could be additional strengths for the organisation.

This is a mistake on the part of law firms.  It limits the skills and experience available in the toolbox of the firm.  It limits the opportunity for creative problem solving and innovation. It often requires your Asian Australian staff to bring something less than their authentic selves to work every day. Some must slough off or reshape their cultural identities and many must also subjugate their religious, racial and ethnic selves in order to ‘get ahead’.

This comes at a cost to the legal profession at large and to the individuals affected – it makes no sense from a human or a business perspective. A nation such as ours, situated in Asia, in the thick of its geo-political imperatives must leverage every opportunity it can. In my view, the vast untapped talent of Asian Australian lawyers is a key advantage we must optimise.  

I note that the number of Senior Counsels of Asian descent is slowly rising. 
I particularly note the 2018 appointments of William Lye SC and Cam Truong SC as the first barristers of Chinese descent to be appointed senior counsel.
 And the earlier appointments of Suresh Rajkumar Senathirajah SC and Minal Vohra SC. 

The road to equality is long and it is important to recognise the steps that have been taken.  But it is also a reminder that we must continue working together to break that bamboo ceiling.

Professor the Hon Gareth Evans, AC QC, the Chancellor of the Australian National University, in his speech at the Sir Edward “Weary” Dunlop Asia Lecture in March 2019 spoke directly and forcefully on this issue with an address titled, “Asian-Australians : Breaking the Bamboo Ceiling”. In that speech Professor Evans made an impassioned plea to recognise that “Asian-Australians have been under-appreciated and under-utilised in our listed companies and public institutions for far too long”. And that, “it’s time to move beyond rhetoric to action…” “aimed at both energising and implementing a new national commitment to both recognising and breaking through the bamboo ceiling in all key institutional areas where it presently exists”.

He also announced that Asialink, ANU and PwC  have agreed to co-convene an Asian-Australian Leadership Summit in September this year to identify ways to break through the bamboo ceiling. I wholeheartedly endorse and support this Summit and have commenced discussions with Asialink on how the Commission can play a contributing role in this Summit.

Professor Evans identified and advanced a number of factors that he saw as possible explanations why Asian-Australians remain under-represented in the public, civic and institutional realms. He also ventured to explore possible strategies to break through the bamboo ceiling.   

A good place to start the debate in seeking to break-through the Bamboo Ceiling is to consider the existence of the forces which I have called, the “Pull and Push” factors relevant to the issue. The “Push” factor represents the barriers and the pushbacks that militate against Asian-Australians’ entry into the desired leadership roles. And, the “Pull” factor may account as contributing reasons why some Asian-Australians find the costs and roles of leadership in their relevant sectors, somewhat, less desirable, appealing or attractive. They both need to be tackled.

 

While many Asian-Australians have the requisite skills, qualities and qualifications to make good leaders in their chosen fields, which together with their cultural attributes give rise to wonderful skills and abilities, nevertheless, like most skills and talents, they need to be developed. More often than not they must be matched or honed to their desired organisational roles. Lyndon B. Johnson said, “We must open the doors of opportunity. But we must equip our people to walk through those doors.”

I have had the honour and privilege to have served in relatively senior public leadership roles, both in my current role as the Race Discrimination Commission and in a previous role as the Head of a State Statutory Agency. In this regard I must, as an Asian-Australian, have done somethings right to have got there. Some may disagree and hasten to say that I simply got lucky. I like to think it was because of the former.

In my experience, the skills and qualities required to gain access through the doors of opportunities may not necessarily be the same or identical to those required to remain and stay in the room after you have entered. Once you have entered the door, you are a leader and your race or cultural background is but one of the many challenges that you need to confront, deal with and manage.

You realise, quickly, that you must, first and foremost be good in what you do (and in some instances, be twice as good) to have your place and say at the table. Then you need to be able to run and jostle as effectively with the rest of the leadership hierarchy and not be stampeded. These gladiatorial realities in the senior leadership arenas may or may not involve your cultural or racial background. When you are an Asian-Australian (or someone who is from a diverse cultural background) you bring to the leadership environment an additional asset that your leadership colleagues may not necessarily possess and you also bring with you a new challenge that may not be easily understood or appreciated by your colleagues or for that matter, by the culture of the workplace.

As a leader, the expectation is that you do not complain about race discrimination or racism when you are confronted with them but, rather, it is your job to deal with them.

An Asian-Australian leader who is fortunate enough to make it though the Bamboo ceiling is, in my view, a unique leader (and perhaps arguably, a better one) for the reason that he or she has to deal and cope with an extra dimension of leadership challenge which may not usually  apply to those in the leadership circle, namely his or her personal racial or cultural identity and experiences.

Events like tonight are an important opportunity to reflect, but again I say – we have the talented people, we have the firms like our host who recognise the importance of diversity – now we need the committed action.

Committed action that would include:

  • Law firms actively recruiting and promoting in a way that demonstrates their stated commitment to diversity.
  • Asian Australian lawyers actively stepping up as role models and leaders.
  • Programs like the AALA Mentoring Program Committee receiving active commitment from law firm partners to act as mentors.

Article 18 of the UN Declaration for Human Rights recognises the universal right to freedom of thought, conscience and religion; including the right of a person to manifest their religion or belief in teaching, practice, worship and observance.

As a member of a culturally and linguistically diverse community and as the Race Discrimination Commissioner, it is of great concern to me that a large proportion of our multicultural community feels unable to safely express their cultural and religious identity or feels they must reshape this identity to avoid conflict, humiliation and even violence.

I am leading a national conversation with the Muslim-Australian community about incidents of Islamophobia and hate speech.  My fellow Commissioner, the Human Rights Commissioner is leading interfaith conversations that will, in part, consider the balancing of the right to free speech with other human rights protections in Australia.

The Australian Human Rights Commission is undertaking a national consultation project which will make recommendations about the development of an Australian Human Rights Framework.

The threads of all this work will be drawn together by the Commission to give important voice to the concerns of communities and provide guidance about the way Australian can work to protect all its citizens’ human rights in the time ahead.

As I said earlier, the work done by people like William Jangsing Lee was important in 1942 and remains important today.  We need to build a society where diversity is seen in every facet of public life, but especially in the areas of law, politics and policy.  Representation ensures that our communities’ needs and aspirations are considered in the decision-making process, in the creation of legislation and legal precedent and in the administration of law and justice.

I am committed, and the Commission is committed, to create an environment and culture in Australia that values and utilises the contributions and attributes of people from across our cultural diversity. Nowhere is this mission more pressing and urgent than now in fostering and supporting the ambition and rights of Asian-Australians to achieve ascendancy in leadership roles in Australia.  

I urge you to remember that while William Jangsing Lee was the first Australian of Asian descent to become a barrister in New South Wales, he is not the last. You are his legacy and the future.

Thank you.

 


[1] Geena Davis Institute on Gender in Media, Hitting the Bullseye: Reel Girl Archers Inspire Real Girl Archers, 2015 https://seejane.org/wp-content/uploads/hitting-the-bullseye-reel-girl-archers-inspire-real-girl-archers-full.pdf

[2] McKinsey, Diversity Matters Report, 2015.

[3] G. Stahl, I. Björkman, E. Farndale, S.S. Morris, J. Paauwe, P. Stiles, J. Trevor and P. Wright, ‘Six Principles of Effective Global Talent Management,’ Sloan Management Review, vol. 53, no. 2, 2012, pp. 25-42.

 

Chin Tan

Chin Tan, Race Discrimination Commissioner

Area:
Race Race Discrimination