Migrant swearing-in narratives at the Supreme Court of New South Wales

Abstract

While Australian swearing-in ceremonies have been analysed through feminist perspectives, there has been less of a focus on the swearing-in of racialised judges. In this article, I examine the swearing-in ceremonies of two migrant judges on the Supreme Court of New South Wales, Justice Dina Yehia and Justice Hament Dhanji. I find that both ceremonies involve migrant narratives which centre individualism and exceptionalism, perpetuating model minority myths and entrenching verticality between the judge and the judged.

On 4 July 2022 and 20 September 2021, Justice Dina Yehia and Justice Hament Dhanji were sworn in as judges of the Supreme Court of New South Wales (NSW). Justice Dina Yehia is a first-generation Greek/Egyptian migrant. Justice Hament Dhanji is a second-generation Indian migrant. They are the first Greek/Egyptian and Indian migrants to preside as Supreme Court judges in NSW. Their appointments take place against the ongoing underrepresentation of individuals from ethnically minoritised backgrounds in the Australian judiciary. ¹ To this day, no person of colour has ever been appointed to the High Court of Australia. ²

In this article, I analyse the swearing-in ceremonies of Yehia J and Dhanji J. ³ Australian swearing-in ceremonies have been used as texts for close readings through feminist perspectives, most notably by Roberts and Thornton. ⁴ The swearing-in ceremony is a dialogue. It begins with welcome speeches by the Attorney-General and leaders of the Australian legal community, which represent an opportunity for public justification of a decision to appoint a particular judge. ⁵ The ceremony ends with the judge’s response to their welcome. This dialogue ‘formulat[es] and fashion[s] the subject not only as an exemplary individual life but also as a subject that embodies the virtues of the judicial institution’. ⁶ Using a feminist lens, Thornton explains how the construction of merit in a masculinised institution such as the legal system requires the neutralisation of the feminine and the suppression of otherness. ⁷ Merit is also racialised, conceptualising whiteness as a credential. ⁸

By using the swearing-in ceremony as a text, I argue that the swearing-in ceremonies of Yehia J and Dhanji J demonstrate attempts to produce a subject of mimicry – ‘a subject of a difference that is almost the same, but not quite’. ⁹ By emphasising individualism and exceptionalism, the welcome speeches portray the ‘merit’ of Yehia J and Dhanji J as their ability to surmount otherness through work ethic. At the same time, the speeches rhetorically reproduce a hierarchical distinction between judges as legal agents and the judged as subjects – a distinction to be ‘overcome’ through traditional models of success and credentialism, which itself is a mode of othering. While the judges’ representations of themselves mitigate these characterisations, both ceremonies reinforce that institutional ascension is necessary to transcend subjecthood.

The welcome speeches

In an extra-curial address, Dhanji J refers to criminal cases involving allegations against Indian persons. ¹⁰ In his view, these cases exemplify ‘the obvious gap between those being judged and those doing the judging’. ¹¹ The divide between subjects and agents is an impediment to structural legitimacy: ‘the legitimacy of our liberal democracy is undermined if those subject to the laws are noticeably different from those making, enforcing and adjudicating with respect to those laws’. ¹² This divide is embedded in swearing-in narratives of migrant judges. The ascension of migrant judges is not a recognition that all persons are capable of legal agency. Instead, agency is still gatekept behind a construct of the ‘meritorious’ judge: as someone identified with the opportunity of the nation, credentialism and individual exceptionalism.

In the following analysis, I firstly argue that the welcome speeches in both ceremonies portray the appointments of Yehia J and Dhanji J as acts of crossing over from subjecthood into agency through work ethic and exceptionalism. These narratives uphold liberal narratives of success, while drawing less attention to structural barriers. I then consider the ways in which the welcome speeches prescribe institutional values.

Subjecthood and agency: An act of crossing

In Yehia J’s swearing-in ceremony, a dichotomy between subjecthood and agency is ascribed to competing constructs of nations. The chronology of Yehia J’s life begins with birth in Cairo and arrival in Australia. Australia is identified with family, home and settlement. The Attorney-General states that Yehia J’s family ‘originally intend[ed] to stay temporarily but your mother decided it was a good place to raise children so you settled in Five Dock’. ¹³ Egypt interjects the narrative non-linearly. The experience of Yehia J’s father ‘being suddenly and inexplicably detained for a few days in Egypt’ shapes her ‘sense of justice’. ¹⁴ This conceptualisation of Egypt as a memory of ‘injustice’ is posited as foundational to the ‘justice’ identified with Australia. An image of the nation as ideal is thus constructed in Australia’s relation to Egypt. Australia is a narrative of futurity and progress; Egypt is a narrative of retrospection and regression. Australia becomes the nation which enables transition into legal agency, as represented by entry into the legal profession.

Crossing the border is a transition between subjecthood and agency. That transition relies on the willingness of a subject to assume institutionally recognised narratives of mobility that enable the nation to ‘[construct] itself as ideal in its capacity to assimilate others into itself’. ¹⁵ Van der Plaat places significant emphasis on Yehia J’s ‘ability to journey, to navigate between worlds’. The ‘journeys’ include those of being ‘a young immigrant coming to Australia’, ‘a newly admitted lawyer crossing the great dividing range’ and ‘a woman of colour ascending to the bench’. To be ‘a woman of colour’ is to inherently be beyond a border of judicial office; the act of professional ascension is analogised to the act of migration. The geographical and spatial separation of the ‘immigrant’ from ‘Australia’ mirrors the separation between the otherness of being ‘a woman of colour’ and the manner of its end: assimilation into the faceless institution of ‘the bench’. It is an institution imbued with finality: a place to which the judge arrives but which is not implicated in the act of movement.

Conversely, the movement of the othered judge is required: while the ‘bench’ remains static, the othered judge must cross over. For both Yehia J and Dhanji J, that act of crossing is tied to labour. Yehia J’s welcome speeches refer to ‘years of dedication, perseverance, hard work’, ¹⁶ ‘devotion to the law’, ‘determination’, ¹⁷ and investments of ‘time and energy’. ¹⁸ Only brief reference is made to Yehia J’s ‘great natural ability’ ¹⁹ and ‘intelligence’. ²⁰ Description of Dhanji J is comparatively more emphatic, but also emphasises work ethic. Dhanji J ‘became known as a very talented and extremely scholarly lawyer and advocate’, ²¹ and is described as ‘having a brilliant mind’, ²² being ‘brilliant and insightful’, ²³ and ‘one of the State’s finest appellate advocates’. ²⁴ Nonetheless, he is also someone who ‘weathered all of the challenges, trials and tribulations of Legal Aid work’ ²⁵ and who ‘prepared tirelessly’ for cases. ²⁶ His appointment is an acknowledgment of ‘hard work, dedication and personal sacrifices’. ²⁷

These descriptions can be juxtaposed with swearing-in ceremonies which praise white judges for being ‘prodigious’, ‘exceptional’, ‘remarkable’, and ‘gifted’. ²⁸ Superlative emphasis on ‘prodigiousness’ and ‘giftedness’ reinforces the association between intellectual brilliance and the judiciary. That assumption is coloured by the gendered, raced and classed dimensions of brilliance. ²⁹ White judges are characterised as suitable for judicial office due to inherent ‘gifts’. Racialised judges are lauded not for their ‘gifts’ but for the ethic required to mimic what is already possessed by the white judge. Praise centres on the capacity for assimilation, the transition from legal subject to legal agent through institutional mechanisms.

One application of this emphasis on work ethic is the image of education constructed by the welcome speeches. In referring to Yehia J’s education, the Attorney-General acknowledges familial, religious and linguistic circumstances (‘[y]our family wasn’t Catholic and at the time you enrolled you did not speak English’) but then dismisses them as barriers (‘neither was an impediment to your education’). ³⁰ This language is distinct from framing which emphasises the act of ‘overcoming’ or success ‘in spite of’ a barrier; instead, it denies the existence of a barrier. This is subsequently justified by reference to the individual ability of Yehia J – as ‘a model student with excellent grades’. ³¹ But it is also an ability that emerges from the work ethic which conditions her act of crossing – Yehia J succeeds because she ‘paid heed’ to her parents telling her to ‘to study and study hard’. ³² This narrative of agency characterises religious and linguistic otherness as a lack (of ‘not’ being Catholic, or of ‘not’ speaking English). This encourages deidentification with an othered identity, while simultaneously elevating identification with otherness as a means of eradicating itself – as a stereotype of a work ethic which surmounts the lack. In contrast, in the swearing-in ceremony of Justice Beech-Jones, the Junior Vice-President of the Law Society of New South Wales is advised that Beech-Jones J ‘seemed to be blessed with not having to study hard, and always did well at school’. ³³ He acquires the requisite academic merit of judicial office innately, without there ever being a lack.

This image of education also extends to Dhanji J, despite his express rejections of that image. In his welcome speech for Dhanji J, the Attorney-General refers to a Year 11 English teacher’s surprise at Dhanji J saying that he ‘did not do very well at school’. The Attorney-General states: ‘She recalls marking your assignments, which were all very good’. ³⁴ This characterisation maintains an image of Dhanji J that coheres with the judiciary’s construction of merit and its emphasis on academic achievement. In his own response, Dhanji J says that ‘I did not do as well at school as I should have’. ³⁵ However, a normative pull toward ‘merit’ subsists through the imperative language of a standard that ‘should’ have been achieved.

Similar conceptions of exceptionalism are echoed in the Attorney-General’s treatment of the ‘firstness’ of both judges – as the ‘first’ NSW Supreme Court judges of Greek/Egyptian and Indian descent. The Attorney-General does not emphasise Yehia J’s firstness, although Yehia J states in her response: ‘I believe that I am the first person of Greek/Egyptian decent [sic] to sit on this Court’. ³⁶ The Attorney-General does refer to Dhanji J as ‘the first Australian of Indian descent to serve on [the] New South Wales Supreme Court bench’. ³⁷ However, the attribute of being ‘Australian’ has primacy; ‘descent’ qualifies it. In the same sentence, this emphasis on firstness is then transmuted to another kind of firstness: Dhanji J is also ‘the first with an encyclopaedic knowledge of obscure bands and rock music’. In this analogy, emphasis shifts; the Attorney-General does not linger on ‘descent’ and ‘firstness’ becomes a novelty. In these ceremonies, ‘firstness’ is either omitted or constructed as an individual attribute akin to ‘knowledge of obscure bands’. Even when the Attorney-General adverts to ‘firstness’, it is a characteristic of exceptionalism and not a reflection of injustice. Neither welcome speech expounds upon the structural dimensions of ‘firstness’, and its implications for the history of the judiciary. It does not, for example, consider the questions which firstness might raise about the existence of barriers to advancement. ³⁸

The prescriptivism of ascension

In addition to emphasising the act of crossing, the welcome speeches also orient that act toward the institution by identifying migrant judges with the West and with superior agency. In both ceremonies, this identification occurs intertemporally, as an outline of the influences which formed both judges in their pasts, and a projection of the judges that they will be.

In the educational context, the welcome speeches identify both judges with the Western canon. Yehia J ‘developed a love of English literature, in particular Jane Austen and Oscar Wilde’. ³⁹ Her inspiration for becoming a lawyer is ‘To Kill a Mockingbird’. ⁴⁰ Emphasis lies not only on comprehension of these works but also their inspirational quality – as a motivation to acquire legal agency. Dhanji J ‘stood out to [his Year 11 English teacher] for [his] appreciation of Jane Austen’ and ‘had an excellent understanding of the character of Emma’. ⁴¹ Literary references are then projected onto the personal narratives of both judges. In relation to Yehia J, the Attorney-General states: ‘Oscar Wilde famously said that one can never be overdressed or overeducated, your Honour is a testament to the truth of that statement’. ⁴² In relation to Dhanji J’s loss at a band competition, the Attorney-General states: ‘It was a truth universally acknowledged, at least by your friends, that you were ripped off’. Through these projections, both judges are portrayed as embodying the canon and as belonging to Western narratives. Work ethic and individual exceptionalism are coupled with an orientation – toward identification with Australian imaginaries, institutions and orthodoxies.

The welcome speeches also effect model minority myths by presenting judges as legal agents superior to other subjects. Model minoritisation creates a myth of monolithic success among a migrant community. ⁴³ Simultaneously, it perpetuates the subordinated position of other minority groups by minimising the structural dimensions of socioeconomic disparities. ⁴⁴ Here, the swearing-in ceremony reinforces the separation between the judiciary and other racialised subjects. In Yehia J’s swearing-in ceremony, an emphasis on the exceptionalism of Yehia J elevates a migrant judge as a legal agent, while reinforcing the position of First Nations peoples as legal subjects. The Attorney-General states that Yehia J ‘has been called the creative force and driver behind the Walama list’. ⁴⁵ This individualist emphasis characterises Yehia J as a legal agent over and above other contributors to the list. While praising Yehia J’s ‘deep respect for the autonomy and capacity of First Nations decision makers’, ⁴⁶ the Attorney-General’s emphasis nonetheless centres on the ‘respect’ that Yehia J personally possesses. Yehia J’s agency is also specifically framed as arising from the fact that Yehia J has ‘the relationships, the networks and the understanding of the law to help create a program that seeks to make a meaningful difference to Indigenous incarceration rates’. ⁴⁷ This is an exclusionary conception of agency, which suggests that material change is contingent on institutional connections.

The judges’ response

In their responses, both judges disrupt the narratives of the welcome speeches. One mode of disruption is a challenge to the inevitability and linearity of both judges’ success in the legal profession. Yehia J attaches a different affect to the act of migration, describing her family’s decision to leave Egypt as something she is ‘bewildered by’. ⁴⁸ She leaves ‘a very large and closeknit family’, and is ‘unable to speak or understand a word of English’. ⁴⁹ These comments introduce an element of regression into the act of migration, which the welcome speeches associate with progress. They also centralise the difficulties of migration and linguistic barriers – a contrast with the Attorney-General stating that such difficulties were not ‘impediments’. ⁵⁰ Similarly, Dhanji J also refers to the existence of a ‘right’ or conventional path, and his own divergence from it, stating: ‘it cannot be said that I was born into the right family or knew the right people to set me on a path to this position’. ⁵¹ He also rejects any representation of his appointment as a testament of broader progress. Compared to his time at Sydney University, he considers that ‘on ethnic diversity we are probably doing worse’. ⁵²

Another mode of disruption is a repudiation of individualism and an elevation of collective identification. Individualism is deprioritised in the structure of Yehia J’s remarks, which foregrounds gratitude in each paragraph: she thanks the Attorney, Ms Van Der Plaat, ⁵³ her mentors, ⁵⁴ Zahra J, ⁵⁵ the registry staff, ⁵⁶ her associate, ⁵⁷ supporters of the Walama list, ⁵⁸ her family, and her friends. ⁵⁹ In responding to the Attorney-General’s characterisation of the Walama list, Yehia J describes her own role differently – stating that she is ‘deeply grateful’ for the ‘significant privilege’ of presiding in the Walama list, and acknowledging that ‘[t]he Elders and members of the Aboriginal Service Unit are instrumental in implementing a holistic approach to sentencing that incorporates the cultural authority of our First Nations peoples’. ⁶⁰ This approach decentres Yehia J’s role in implementing the Walama list, in contrast to the Attorney-General’s description of Yehia J as ‘the creative force and driver’. ⁶¹ Yehia J also imperatively calls upon the profession to stand up ‘with’ First Nations peoples ‘to address the wrongs of the past and continuing injustices’. ⁶²

Dhanji J also rejects the individuation of his appointment, stating: ‘I do not accept that it is a personal achievement’. ⁶³ Separately, in an extra-curial speech, Dhanji J again refers to being a Supreme Court judge of an Indian ethnic background, but goes on to say that ‘it is surprising it has taken this long’. ⁶⁴ He then characterises cultural homogeneity as a product of colonialism and historical prohibitions on ethnic minorities practising law. ⁶⁵ Similarly, in an interview with Bar News, the ‘firstness’ of Dhanji J’s appointment is posed to him as a ‘significant milestone, or achievement in anyone’s estimation’. ⁶⁶ He responds: ‘I wouldn’t actually adopt the idea it is a significant achievement. It was going to happen to somebody, it just ended up being me’. ⁶⁷ These comments disentangle firstness and individual exceptionalism. They emphasise that ‘firstness’ is overdue, and emblematic more of the intentional deification of homogeneity than the brilliance of any individual person.

Simultaneously, in both swearing-in ceremonies, Yehia J and Dhanji J refer to a broader communal pride. Yehia J refers to a message received from a woman living in South Western Sydney, who tells her: ‘Your appointment means so much to our communities out here’. ⁶⁸ A barrister says: ‘I am sure I speak for many barristers and solicitors from non-English speaking backgrounds when I say we celebrate your Honour’s elevation’. ⁶⁹ For Dhanji J, that pride is also affective: ‘Since my appointment was announced I have felt the pride within the Indian community in this State and beyond’. ⁷⁰ These remarks possess a representational quality akin to political inaugural speeches by ethnic minority parliamentarians, which emphasise difference through narrating personal experiences of exclusion and articulating collective affinities. ⁷¹ They reflect an effort to reframe representation as a constituent part of impartiality, as echoed in Yehia J’s declaration that the strength and independence of institutions is reliant on a judiciary that ‘reflect[s] the community they represent’. ⁷²

However, the swearing-in ceremony diverges from the political speech in its relative silence on the faults of the institution of admission. While political speeches often emphasise experiences of exclusion and institutional failure, ⁷³ both swearing-in ceremonies avoid analogous criticism. The forum of the swearing-in ceremony tempers calls for changing the judiciary itself, or for a reconsideration of its core values. Yehia J considers that her appointment should give diverse people in the law ‘confidence that you do belong’. ⁷⁴ They offer to the profession ‘your lived experience, your capacity for hard work and your resilience’. ⁷⁵ Dhanji J considers that diverse lawyers will bring to the profession and the courts ‘a depth and an understanding’. ⁷⁶ In both instances, diverse lawyers become part of the profession. It is the profession itself that has legal agency; emerging from subjecthood is a process of entering into the profession. To this end, Dhanji J states that it is ‘meaningful’ to be ‘entrusted to administer the laws of this State, while wearing robes that reflect the white settlement of this country’. ⁷⁷ The object of pride is an assumption of institutional ‘robes’ and an affirmation of belonging: ‘it is confirmation that we have a place here’. ⁷⁸ This demonstrates that, at least in the context of the swearing-in ceremony, ⁷⁹ the co-production of a judge’s image centres on the narrative of their elevation. The underlying assumption of this narrative is that legal agency is a process of acquiring institutional power. The dichotomy of subjecthood and agency is undisturbed so far as access to agency is conditioned by the same constructions of meritocracy and credentialism which have historically attached to the legal profession.

This narrative also reinforces that ‘impartiality’ is a product of merit, even though ‘impartiality’ is constructed by a legal system which is ‘inherently suspicious of “otherness”’. ⁸⁰ Particularly, the legal system often ‘leaves no room for legal decision-making which seeks to recognise that racialisation and gender hierarchy impact upon people unequally’. ⁸¹ So long as legal agency is not recognised outside of the profession, the ‘impartiality’ required of judicial office will still be derived from a stratified, individuated separation of judges from the judged based on gendered, raced and classed constructions of merit. The alternative is a ‘structural impartiality’ – of preventing the dominion of any one perspective in judicial adjudication, ⁸² and of valuing the judge’s capacity to treat the judged as more than subordinated subjects.

Conclusion

The swearing-in ceremony is a ritualised site of production – a forum in which a judge is narrated and formed. For migrant judges, those narratives emphasise individualism and exceptionalism as a means of transcending legal subjecthood. Such narratives are refuted in part by those judges’ own responses, but nonetheless preserve verticality in the relationship between a judge and the judged, identifying judges as agents of the legal system and others as passive subjects.

Diversity in the legal profession is ‘not … a means to a pragmatic end’. ⁸³ It is not enough to aspire to the ‘numerical aestheticism’ of an appearance of diversity. The presence of difference should instead compel a reimagination of the judiciary. ⁸⁴ The elevation of some migrant judges to office is both significant and no salve for the enduring impact of racism on the legal profession. Progress will stagnate so long as our system believes that ‘impartiality’ derives from a biased conception of ‘merit’ rather than from a recognition that self-determination and agency are not contingent on institutional power.