Affirmative Action in Piercing the Bamboo Ceiling within the Australian Legal Profession — Utopian Ideal or Dystopian Nightmare?


  • K Abraham Thomas


This paper considers the phenomenon of the bamboo ceiling and whether affirmative action presents an adequate means of alleviating such deeply entrenched inequalities within the Australian legal profession. It is suggested that “The Medici Effect” presents an adequate means of overcoming the problem of the bamboo ceiling. It is concluded that “The Medici Effect”, bringing together different disciplines and finding their intersections, is a means of generating collaboration and invoking innovation through an influx of ideas bringing about the core notable benefit of “diversity of thought”.


A Articles/Books/Reports

Asian Australian Lawyers Association, ‘The Australian Legal Profession: A Snapshot of Asian Australian Diversity in 2015’ (Infographic, Asian Australian Lawyers Association, 2015)

Aulakh, Sundeep et al, ‘Mapping Advantages and Disadvantages: Diversity in the Legal Profession in England and Wales’ (Final Report for the Solicitors Regulation Authority, October 2017)

Australian Human Rights Commission, ‘Leading for Change: A Blueprint for Cultural Diversity and Inclusive Leadership’ (Working Group on Cultural Diversity and Inclusive Leadership, Australian Human Rights Commission, 2016)

Bartlett, Francesca, ‘Model Advocates or a Model for Change? The Model Equal Opportunity Briefing Policy as Affirmative Action’ (2008) 32 Melbourne University Law Review 373

Buckley, K, and L Schetzer, ‘The Ongoing Need for Affirmative Action in the Victoria Police Force, Brute Force II’ (1999) Police Issues Group, Federation of Community Legal Centres

Burton, Clare, ‘Merit and Gender: Organisations and the Mobilisation of Masculine Bias’ (1987) 22 Australian Journal of Social Issues 425

Diversity Council Australia, ‘Cracking the Cultural Ceiling: Future Proofing Your Business in the Asian Century’ (Research Report, Diversity Council Australia, 2014)

Dworkin, Ronald, A Matter of Principle (Harvard University Press, 1985)

Fiscus, Ronald F, ‘The Constitutional Logic of Affirmative Action’ (1992)

Goldman, Alan, Justice and Reverse Discrimination (Princeton University Press, 1979)

Goldstein, Joel, ‘Justice O'Connor's Twenty-Five Year Expectation: The Legitimacy of Durational Limits in Grutter’ (2006) 67 Ohio State Law Journal 83

Gwyneth Pitt, ‘Can Reverse Discrimination be Justified?’ in Bob Hepple and Erika M Szyszczak (eds), Discrimination: The Limits of the Law (1992) 281

Hobbes, Thomas, Leviathan, or The Matter, Forme & Power of a Common-wealth Ecclesiastical and Civill (Andrew Crooke, 1651)

Hyun, Jane, Breaking the Bamboo Ceiling: Career Strategies for Asians (HarperCollins, 2005)

Johansson, Frans, The Medici Effect (Harvard Business School Press, 2006)

Law Council of Australia, ‘National Model Gender Equitable Briefing Policy’ (Policy Paper, June 2016)

Liu, Adrian, ‘Affirmative Action & Negative Action: How Jian Li’s Case Can Benefit Asian Americans’ (2008) 13(2) Michigan Journal of Race & Law 407

MacLaury, Judson, ‘President Kennedy’s E O 10925: Seedbed of Affirmative Action’ (2010) Federal History Online 42

Malloch, Margaret, ‘One Step Forward: Two Steps Back? Women and Affirmative Action: A Case Study of the Victorian Teaching Service’ (Research Paper 33 1995-1996, Department of the Parliamentary Library)

< ry_Library/pubs/rp/RP9596/96rp33>

Nguyen, Tuah, and Reynah Tang, ‘Gender, Culture and the Legal Profession: A Traffic Jam at the Intersection’ (2017) Special Issue 2017 Griffith Journal of Law & Human Dignity 93

O’Brien, Julie, ‘Affirmative Action, Special Measures and the Sex Discrimination Act’ (2004) 27(3) University of New South Wales Law Journal 848

Thornton, Margaret, ‘Affirmative Action, Merit and Police Recruitment’ (2003) Alternative Law Journal 235

Urbis Pty Ltd, ‘2014 Report of the Solicitors of NSW’ (Final Report, The Law Society of New South Wales, March 2015)

Urbis Pty Ltd, ‘NSW Profile of Solicitors 2016’ (Final Report, The Law Society of New South Wales, 19 July 2017)

Victorian Equal Opportunity and Human Rights Commission, ‘Equitable Briefing Initiative’ (Aggregate Data Report – Period One (January–June 2016), July 2017)

Victorian Equal Opportunity and Human Rights Commission, ‘Equitable Briefing Initiative’ (Public Statement, July 2017)

Walpole, S, ‘Trends in Sexual Harassment Case Law’ in R Naughton (ed), Workplace Discrimination and the Law (1995)

Woods, Susan, ‘Thinking About Diversity of Thought’ (Working Paper, Workforce Diversity Network, 2008) <>

B Cases

Fisher v University of Texas 579 US ___ (2016)

Grutter v Bollinger 539 US 306 (2003)

Regents of the University of California v Bakke 438 US 265 (1978)

The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236

C Legislation

Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1996 (NT)

Anti-Discrimination Act 1998 (Tas)

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Discrimination Act 1991 (ACT)

Equal Opportunity Act 1984 (SA)

Equal Opportunity Act 1984 (WA)

Equal Opportunity Act 2010 (Vic)

D Other

ALF, AFL Multicultural Round (25 July 2015) <>

AFL Community, AFL Community Ambassadors (2017) <>

Australian Bureau of Statistics, Census of Population and Housing: Australia Revealed, 2016 (27 June 2017) <>

Burke, Liz, Australia’s Shameful Bamboo Ceiling: Australian of the Year David Morrison Pushing for More Asian People in Top Jobs (29 January 2016) <>

Chambers and Partners <>

Doyles (2018) <>

Fife-Yeomans, Janet, ‘Gender War in Sydney Legal Ranks over New Female Quota System’, The Daily Telegraph (online), 27 January 2017 <>

Hunt, Vivian, Dennis Layton and Sara Prince, Why Diversity Matters (2 February 2015) McKinsey & Company < insights/why-diversity-matters>

Kennedy, John F, ‘Statement by the President upon Signing Order Establishing the President’s Committee on Equal Opportunity Employment’ (Presidential Statement, 7 March 1961) <>

Kirby, Michael, (Speech delivered at the Asian Australian Lawyers Association launch in New South Wales, Sydney, 10 November 2015)

Kirby, Michael, ‘Women Lawyers Making a Difference’ (Speech delivered at the Women Lawyer’s Association of New South Wales, Sydney, 18 June 1997)<>

Law Institute of Victoria, Accredited Specialists <>

Martin, Wayne, ‘After Dinner Address’ (Speech delivered at the 10th Anniversary Conference of the Asia-Pacific Regional Arbitration Group, Melbourne, 27 March 2014)

Martin, Wayne, ‘Cultural Diversity and the Law Conference — Access to Justice in Multicultural Australia’ (Paper presented at Cultural Diversity and the Law Conference, Sydney, 13–14 March 2015)

New South Wales Bar, Find a Barrister <>

Phillips, Jeffrey, ‘Affirmative Action Creates Obstructions on the Level Playing Field’, The Australian (online), 24 March 2017 <>

Smith, Michael, ‘Australian Boards Need to Break Bamboo Ceiling’, Australian Financial Review (online), 4 October 2017 <>

Solicitors Regulation Authority <>

Soutphommasane, Tim, ‘Culture, Talent and Leadership’ (Speech delivered at the launch of Diversity Council Australia’s Cracking the Cultural Ceiling Report, Sydney, 11 August 2014) <>

Tadros, Edmund, ‘PwC Splits with Deloitte, EY and KPMG on Diversity Targets’, Australian Financial Review (online), 1 August 2017 <>

Tahmindjis, Phillip, ‘Affirmative Action in a Democratic Society’ (1997) 13 Queensland University of Technology Law Journal 204

Takahashi, Kaori, Australia’s ‘Bamboo Ceiling’ in the Spotlight (29 August 2016) Nikkei Asian Review <>

Victorian Bar, Find a Barrister <>

Victorian Legal Services Board + Commissioner, Lawyer Statistics (1 June 2018) <>

Warren, Marilyn, ‘Australia’s Place in the World’ (Speech delivered at the Law Society of Western Australia Summer School, Perth, 17 February 2017)

Warren, Marilyn, ‘Barristers, Solicitors, Law Officials and Others: On the Admission of Lawyers’ (Speech delivered at the Admission of Lawyers in the Supreme Court of Victoria, Melbourne, 19 September 2017) <>