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This is a subject of constitutional significance. I address it from that viewpoint. Nothing I say refers to any particular judge or group of judges. The process for appointing judges is unstructured and the criteria for making appointments are not defined. To quote a discussion paper issued in 1993 by the Attorney-General's Department[1]–
“Little is known publicly about the appointment process and no established internal rules for selecting judges have been developed. The appointment process has varied according to the personal preferences of individual Attorneys-General.”
If we are to review the process of selecting judges, we should understand why we appoint judges and the functions which they are appointed to perform. Then we can consider the qualities of the women and men who should fill the judicial offices of the Commonwealth and the best means of selecting them.
Donald Horne said that the first of the civic values which most Australians would share is maintenance of the rule of law. It protects peace, order and progress. It is the basic underpinning of a free society. It is a value which is never questioned and, in the political arena, it is sometimes invoked to justify particular measures. But what is meant by “the rule of law”? It means that the state, by its institutions, gives effect to the legal rights and duties, powers and immunities which affect relationships between people and with government. Implementing the rule of law requires a definition of those rights and duties, powers and immunities and a coercive mechanism to give effect to the law in particular circumstances.
In a democratic society, it is the function of the judiciary, separated from the political branches of government, to define the legal rights and duties, powers and immunities to which effect is given. In the familiar words of Chief Justice Marshall in Marbury v Madison[2], “It is emphatically the province and duty of the judicial department to say what the law is.” In a democracy which respects the separation of powers, the courts are the responsible institution to enforce the law as defined in concrete situations. In totalitarian societies, on the other hand, the legislature might retain the power to interpret its laws, the repositories of state executive power are authorized to enforce the law as they see it without judicial supervision and the judiciary is directed to decide cases in accordance with state policy. Experience elsewhere and our own history have shown that that kind of self-regulation is incompatible with the rule of law. The rule of law means that the law as defined by independent and impartial courts is applied by the judiciary or under judicial supervision.
We should be clear about how judges implement the rule of law. The rule of law is not the same as rule by law. It may be that Nazi Germany was ruled by law, many of Hitler's heinous policies being implemented by courts which applied laws framed in accordance with the prevailing ideology. The rule of law, on the other hand, seeks to do justice according to law. The judge is not a juridical robot. He or she may have to make value judgments in which common sense and an appreciation of community standards play a part: was the defendant negligent? Was the conduct dishonest? What is in the best interests of a child? What is the appropriate sentence to impose? Sometimes, particularly in the higher courts, a judgment has to be made on more technical or complicated issues: do the facts attract one rule of law or another? What is the meaning of an ambiguous statute? Should an earlier precedent be distinguished in the present circumstances? How should I exercise my discretion? A judge's active participation in the process is an integral element in, an essential characteristic of, the rule of law. In a secure democracy, public confidence in the judiciary is critical to the rule of law. That is, confidence in the selection of the best judges available and confidence in their competent and impartial application of the law. Both the public and the existing judiciary have a vital interest in the process and the outcome of selecting judges.
What do judges do to maintain the rule of law and what are the qualities that are needed to do it? First, the duty of defining the law applicable to particular circumstances means that judges must be legally competent. The law is a complex discipline and the complexity of contemporary society is reflected in the complexity of the law, whether the law is found in statute, regulation or case law. To avoid the wastefulness, if not the scandal, of useless litigation, the judges need to be well versed in the law, especially the law to be applied in their particular court. And they need to have the ability to apply the law to the proceedings as they unfold before them. They must have an ability to listen but also to control effectively the conduct of the litigation. Litigants and the public purse cannot afford the judge who does not have the knowledge or experience to distinguish between material that is relevant and helpful and material that is irrelevant and time wasting. Such a judge, lacking the ability that gives authority, is not only inefficient in the conduct of the litigation; the emerging judgment is likely to be woolly, confusing or just plain wrong. An analytical ability is required to determine the relevance of facts and to define with the necessary precision the applicable rule of law. Then, after hearing whatever the parties may have to say, the judge alone must reason to a conclusion and to articulate those reasons in judgment. These elements of judging must be performed carefully and that often takes time. So an inclination to industry is needed.
As judgments resolve contests and as the reasons for judgment are sometimes contested by those whose interests are apt to be affected, a judge must have and exhibit a resolute strength of mind. When Sir Frank Kitto gave advice to his colleagues, he wrote[3]:
"Every Judge worthy of the name recognises that he must take each man's censure; he knows full well that as a Judge he is born to censure as the sparks fly upwards; but neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn. He will reply to neither; he will defend himself not at all."
There are qualities of character and disposition to be desired in all judges. The supreme judicial virtue is impartiality[4]. Both partiality and the appearance of partiality are incompatible with the proper exercise of judicial authority. The one poisons the stream of justice at its source; the other dries it up. Lord Devlin commented[5] that –
"The Judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails."
To be, and to appear to be, entirely impartial in the resolution of a dispute, a judge must be independent of external influences. That has been recognized since the Act of Settlement three centuries ago which provided for security of judicial tenure and undiminished remuneration during a judge's tenure of office. An American Bar Association Commission's Report on Separation of Powers and Judicial Independence noted that "Judicial independence is not an end in itself but is a means to promote impartial decision-making and to preserve the supreme law of the land". Chief Justice Lamer of Canada acknowledges[6] that the fundamental purpose of judicial independence is the maintenance of the rule of law but, he observes –
"There is an unfortunate tendency on the part of some to characterize judicial independence as a principle that enures primarily if not exclusively to the benefit of the judiciary itself. While it would be disingenuous to deny that the judiciary benefits from security of tenure and financial security, it must be emphasized that the primary beneficiary of the principle of judicial independence is society as a whole."
The process for selecting judges should not impair the safeguards on judicial independence. An aspirant to judicial office and, even more, an aspirant to judicial promotion, should have no incentive to speak or act in any way that might advance the aspiration except by the resolutely professional discharge of his or her professional duties. In other words, the ideal process is one where the only relevant consideration is whether the candidate has, and has demonstrated, the professional ability and the independence and impartiality of mind that is required for the performance of the judicial duties in question.
A judge must be not only able, but willing – once the judicial gown is donned – to shed any predilections that might affect either the conduct of the litigation or the judgment to be delivered. And a judge must remember that judicial impartiality or the appearance of judicial impartiality can be affected by inappropriate conduct or associations even outside professional life. The very authority of the court depends upon the demonstrated impartiality of its judges as well as on their competence.
Criticisms of the present process
Now if men and women with these capacities are the judges whom we would wish to see appointed to our courts, how well suited is the present process of selection to discover and to appoint them? In this country we adopted without much reflection the process which, over the years, had been adopted in England for the appointment of judges. We entrusted judicial appointments to the uncontrolled and unreviewable discretion of the Executive Government. True it is that, in general, the power has been wisely exercised and Australia has been privileged to have judges who, with very few exceptions, have been competent judges possessed of the judicial virtues I have mentioned. The respectful aura with which the judiciary has been traditionally surrounded encouraged the public to expect, and governments overall to satisfy the expectation, that judges would be appointed “on merit”. But in reality, there have always been exceptions. And, recently, there has been an increase in the number of anecdotal reports of unmeritorious appointments.
The time has passed when it is possible to have any confidence in the system to discover and evaluate the abilities and the character of prospective appointees to Commonwealth courts. In earlier times, when the only Commonwealth courts were the High Court, the Bankruptcy Court and the Industrial Court, when the Attorney General of the day was an experienced and distinguished senior legal practitioner and when the judiciary was drawn from a Bar much smaller than it is today, it was possible for the Attorney perhaps to know personally and certainly to ascertain and to form adequately an appreciation of the relative merits of possible appointees. That is no longer the case. Certainly an Attorney, government minister or an Attorney General's department can take soundings from their friends and acquaintances as well as canvassing the views of serving judges, Bar Associations and Law Societies. However, a professionally inexperienced Attorney, or an Attorney's ministerial colleague or a government department is unlikely to have an appreciation of the actual functioning of the particular court or to be able to examine critically the respective merits of all possible appointees. The number of Commonwealth Judges has increased greatly in the last thirty years and candidates for judicial appointment can now be drawn from fields other than the practising Bar. The jurisdiction of the Commonwealth courts has expanded into new fields of law.
Commonwealth appointments are no longer restricted to the High Court or to what are known as the superior Commonwealth courts – the Federal Court[7] and the Family Court. In 1999, the Commonwealth Magistrates' Court was created[8] with a jurisdiction that is both extensive and important. Appointments to that Court are likely to attract less attention than appointments to the higher Commonwealth courts even though appointees will be exercising the judicial power of the Commonwealth in diverse areas including family law, bankruptcy, migration and industrial matters – issues which affect the vital interests of individuals.
It is impossible for the Executive Government to form a view of the comparative suitability of candidates for judicial appointment without extensive and relevant consultation and informed advice. That should be structured. The public interest is not served by appointments made upon advice, at least some of which may come from secret sources.
The need for a better method of selection
Thirty years ago, Sir Garfield Barwick, then Chief Justice of Australia, saw the problem clearly, even though there were fewer judges on only three courts to be selected from a smaller pool of possible appointees. In the first State of the Judicature Address he said[9]:
“In my view, the time has arrived in the development of this community and of its institutions when the privilege of the Executive Government in this area should at least be curtailed. One can understand the reluctance of a government to forgo the element of patronage which may inhere in the appointment of a judge. Yet I think that long term considerations in the administration of justice call for some binding restraint of the exercise of this privilege. I make bold to suggest that, in all the systems of Australia where appointments to judicial office may be made by Executive Government, there should be what is known in some systems as a judicial commission – but the nomenclature is unimportant – a body saddled with the responsibility of advising the Executive Government of the names of persons who, by reason of their training, knowledge, experience, character and disposition, are suitable for appointment to a particular office under consideration. Such a body should have amongst its personnel judges, practising lawyers, academic lawyers and, indeed, laymen likely to be knowledgeable in the achievements of possible appointees. Such a body is more likely to have an adequate knowledge of the qualities of possible appointees than any Minister of State is likely to have.”
I respectfully agree with Sir Garfield and the reasons he advances for the creation of a judicial commission to advise Government on the appointment of judges. Similarly, in the United Kingdom, the Lord Chancellor (Lord Falconer), in a paper issued by the Department for Constitutional Affairs, wrote[10]:
“...in a modern democratic society it is no longer acceptable for judicial appointments to be entirely in the hands of a Government Minister. For example the judiciary is often involved in adjudicating on the lawfulness of actions of the Executive. And so the appointments system must be, and must be seen to be, independent of Government. It must be transparent. It must be accountable. And it must inspire public confidence.'
In 1995, in his book “A Radical Tory”, Sir Garfield Barwick pointed out the real risk of the present system in politicising judicial appointments:
“Left to politicians, the appointments are not always made exclusively upon the professional standing, character and competence of the appointee. At times, political party affiliation, or at least an expected affinity in judgment to the philosophies of the party, form some of the criteria for choice. Sometimes party-political considerations are the dominant reason for it, even to the point of choosing the appointee merely to resolve a possible threat to the leadership.”[11]
When experience of judicial work in a particular court is limited and there is an inability to form an adequate opinion about the comparative merits of particular candidates, there is a greater likelihood of favouring those with political or personal connections, irrespective of their experience or ability. In 1999, Justice Bruce McPherson, then chairman of the Judicial Conference of Australia, contended[12] that –
“There is growing evidence that the power of making judicial appointments is coming to be regarded by governments ... as a form of patronage and a source of influence that can be used to serve their short-term political interests.”
The Hon. Geoffrey Davies, speaking with the experience of a State Solicitor General, leading advocate and sometime Judge of the Queensland Court of Appeal, notes that the traditional practice of consultation about judicial appointments with a view to appointing the most suitable candidate has changed[13]. “This is what has changed”, he said:
“Attorneys do not always consult with those professionally able to assess the professional qualities of candidates. When they do, they do not always disclose the names of possible appointees whom they have in mind. And they do not always accept the advice of professionals that a person they have in mind is not professionally qualified for the specific judicial position.”
He observes “an increased politicisation of judicial appointments” because “politicians appear to have come to believe that there are only two kinds of judges; those who are on their side and those who are on the other side.” If there be any doubt about the accuracy of this observation, the recent statement of the present Commonwealth Attorney must have dispelled it. The Hon Philip Ruddock, M.P., with insouciant disregard of recent history, is reported to have said[14] that “[t]he most noticeable feature of the current approach for appointing judges is its accountability”. He praises the existing practice in order to counter any proposal for a judicial commission – a proposal which, in the Attorney's eyes, “is the [judicial] activists' last frontier: they see that the numbers of ‘conscious judicial innovators' is drying up, so want more of a say in picking future judges.”
Those comments may come as a surprise to the bipartisan members of the Senate Standing Committee on Legal and Constitutional Affairs in 1994 who, noting the “element of mystery” attending judicial selection, made these recommendations[15]:
- “that criteria should be established and made publicly available to assist in evaluating the suitability of candidates for judicial appointment;
- that the Attorney-General for the Commonwealth should establish a committee which would advise him or her on prospective appointees to the Commonwealth judiciary. That committee should include representatives of the judiciary, the legal profession and the non-legal community; and
- that the Attorney-General for the Commonwealth should urge the Attorney-Generals of the States and Territories to establish a similar advisory committee in their respective jurisdictions.”
As Geoffrey Davies observed, things have changed. We have heard that recently prospective judicial appointees have been interviewed by the Attorney General. We do not have access to any record of these interviews but are left to speculate on what may have transpired. Public questioning of a nominee, as in the United States, may be unacceptable but secret private questioning of potential appointees is a denial of transparency in the process, especially in light of Sir Garfield Barwick's warning about political criteria in the making of appointments. We saw the ambition to exercise raw political power when Mr Tim Fischer called for a “Capital-C Conservative” to be appointed to the High Court. What a disservice was thus done to the High Court. Politics becomes the dominant consideration in judicial appointments when governments seek to wrest court judgments to their own purposes or when patronage is to be conferred on friends or the party faithful. It is high time that politics, which need not be taken out of consideration entirely, is subordinated to the requirements of merit, competently assessed. Unless that is achieved, the reputation and authority of appointees will be questioned and public confidence in the impartiality of the judiciary will be diminished.
There is a further justification for reviewing the present method of selecting judges for Commonwealth courts. Apart from the exercise of a court's jurisdiction, some judges are called on to exercise non-judicial functions, especially under modern legislation which often enlists judges as personae designatae to perform what are essentially executive functions. The most traditional of these functions is probably the issue of search warrants in aid of criminal prosecutions or warrants for the arrest of persons accused of arrestable offences. The exercise of these powers is governed by well-established law and is subject to judicial review. In more recent times, however, judicial personae designatae have been enlisted to exercise novel executive powers. We are now familiar with the Administrative Appeals Tribunal where the powers, albeit executive in nature, are exercised in a judicial manner and are subject on appeal to judicial control. The AAT case load relates, in the main, to an entitlement or disentitlement to a right or privilege available under a statute (licences and pensions, for example) or to the assessment of statutory imposts (customs duties and taxes, for example). These powers do not generally infringe or override the rights and immunities protected by the common law. With the passage of anti-terrorism legislation, however, the persona designata arrangements have been significantly extended.
Judicial officers, serving or retired, are now enlisted to issue warrants for detention and questioning, to make orders extending the periods of detention or questioning and to preside at and supervise the conduct of questioning sessions. Moreover, these powers are not now reposed in all members of a Court or Tribunal – they are conferred only on those judicial officers selected by the Attorney General or by regulation[16]. Judicial control of the exercise of these powers is difficult, if not impossible, to invoke even though the involvement of judicial officers is intended to give an assurance of balance in the circumstances of each case. This gives a new relevance to the question of the appointment of judges. The Attorney General is the minister charged with the administration of the anti-terrorism laws, having power to authorize applications for warrants to the judicial personae designatae. He has the authority to select the judges on whom “anti-terrorism powers” are conferred. Does not this arrangement open the way to the appointment of at least some judges who might favour too readily the exercise of the anti-terrorism powers, at the expense of personal liberty? The arrangement appears to saddle an Attorney with at least a reasonable suspicion of conflict of interest. It tends against continuing to allow an Attorney General a non-transparent, non-accountable role in selecting judges.
Overseas practices
Australia is one of the few nations whose national government has repelled a proposal for more transparency in the process of selecting judges. The United Kingdom Parliament enacted the Constitutional Reform Act in 2005 which set up a Judicial Appointments Commission. The Act addresses the two aspects of judicial selection that affect transparency and objectivity: the constitution of the authority to make a selection and the criteria to be used in the process.
The Act provides a mechanism for selecting a candidate for appointment to judicial office. Selection Commissions are created to select a President, Deputy President or a member of the Supreme Court (the reconstituted Appeals Committee of the House of Lords). Their selection is advised to the Lord Chancellor who notifies the Prime Minister who must recommend the person selected to Her Majesty for appointment. Selection Committees are prescribed for each of the other senior judicial offices and the Judicial Appointments Commission is authorized to prescribe a selection procedure for puisne judges of the High Court and other prescribed office holders. Once the Commission has selected an appointee to a given office, the Lord Chancellor has only a limited power to reject or to require reconsideration of the selection. Ultimately the Lord Chancellor must accept a person who has been selected, but the selection may subsequently be disregarded if the person selected declines appointment or is unavailable or fails a health test.
The Act provides[17] that selection of judges is to be “solely on merit” and the Commission must be satisfied that the appointee “is of good character” but, subject to these requirements, the Commission “must have regard to the need to encourage diversity” of candidates[18]. Of course, those are rather broad criteria. Much depends on what is included in the notion of “merit”[19] and what blemishes are consistent with the retention of “good character”.
The Commission has developed five “core qualities and abilities” which are required for judicial office. They are:
- Intellectual capacity
- Personal qualities
- An ability to understand and to deal fairly
- Authority and communication skills
- Efficiency
Each of these is a heading which embraces particular qualities. For example, “intellectual capacity” includes –
- High level of expertise in a chosen area or profession
- Ability quickly to absorb and analyse information
- Appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary.
In Canada, although the Government retains a discretion in the appointment of judges, an Advisory Committee on Judicial Appointments has been established in each province and territory[20]. The Committees assess candidates on the basis of three categories – "recommended", "highly recommended" or "unable to recommend" for appointment. One of the tasks of such an Advisory Committee is to give a measure of objectivity to the concept of merit and that has been done by prescribing criteria for appointment[21]. The Office of the Commissioner for Federal Judicial Affairs reports[22] that –
“Independent judicial advisory committees constitute the heart of the appointments process. The committees are responsible for assessing the qualifications for appointment of the lawyers who apply. There is at least one committee in each province and territory; because of their larger population, Ontario has three regionally based committees and Quebec has two. Candidates are assessed by the regional committee established for the judicial district of their practice or occupation, or by the committee judged most appropriate by the Commissioner.”
The South African Constitution provides that the President appoints the Chief Justice, Deputy Chief Justice, President and Vice President of the Supreme Court of Appeal after consulting the Judicial Service Commission. In the case of the Chief Justice and Deputy Chief Justice he also consults the leaders of parties represented in the National Assembly. Other judges of the Constitutional Court are appointed after consulting the Chief Justice and leaders of parties represented in the National Assembly “in accordance with the following procedure:
- “The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
- The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
- The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.”
In New Zealand, the Attorney General retains the responsibility of advising on the appointment of judges. The Ministry of Justice website[23] on judicial appointments, however, advises that –
“Although judicial appointments are made by the Executive, it is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the Attorney-General acts independently of party political considerations. Judges are appointed according to their qualifications, personal qualities, and relevant experience.”
I do not understand that that convention applies to the Executive of the Commonwealth. In 2004, the Ministry of Justice issued a discussion paper in which it reiterated the qualities which are looked for in making a judicial appointment. They are grouped under four headings:
- Legal Ability
- Qualities of character
- Personal technical skills
- Reflection of society
These headings are expanded into criteria for appointment. The criteria and the procedures followed in making an appointment are set out on a Ministry of Justice website[24] and were issued in booklet form in 2003.
In Israel Judges are appointed by the President on the nomination of a Judges' Nominations Committee, consisting of –
- three judges (the President of the Supreme Court and two Supreme Court justices)
- two members of the Knesset (Israel's Parliament)
- two Ministers (one of them being the Minister of Justice, who chairs the Committee)
- two representatives of the Israel Bar Association.
Vacancies are advertised, candidates are interviewed by a sub-committee and a decision on appointment is taken by secret ballot.
The systems in vogue in the United States are well known but, as neither direct election (which is incompatible with s 72 of the Constitution) nor public examination of a candidate by a Senate Judiciary Committee seems to be attractive to most Australians[25], I do not comment on the arguments for or against them.
Possible models for Australia
The experience of other jurisdictions is informative. Most common law countries have been conscious of the need to make the appointment of judges more structured and objective in order to achieve three principal objectives: building and maintaining public confidence in the judiciary; removing political influences that might impair the selection of the most qualified candidates judged on merit; and, subject to the necessity of appointing candidates on merit, expanding the categories from which judges have hitherto been appointed. I should not have thought that an improvement in the process to achieve these objectives would be undesirable in Australia. The principal disadvantage in the eyes of some would be the elimination of political patronage, a price that none of the main political parties has thus far been willing to pay. But there is little integrity in paying lipservice to the rule of law while we cloak in secrecy both the criteria and the procedure for appointing the judges to whom the task of enforcing the rule of law is entrusted.
Of course, any reform of the present practice must conform with s72(i) of the Constitution. It provides that “[t]he Justices of the High Court and of the other courts created by the Parliament...[s]hall be appointed by the Governor-General in Council”. This provision precludes any system which would allow any authority other than the Executive Government the power to make a federal judicial appointment. However, academic opinion seems to favour the view that s72(i) merely identifies the appointing authority and that a law prescribing a process of nomination by a Judicial Appointments Commission would be valid.[26] Certainly no constitutional doubt has attended the enactment of sections 7[27] and 8[28] of the High Court of Australia Act 1979 which govern the appointment of High Court Justices.
Assuming the validity of a law which would regulate the process of appointing federal Judges, the proposals of the Senate Committee earlier cited may be taken as a starting point.
First, “that criteria should be established and made publicly available to assist in evaluating the suitability of candidates for judicial appointment”. This has been done in the United Kingdom, Canada and New Zealand; it can be done here. Criteria have two advantages: they provide a public assurance of the quality of judicial appointments and they focus attention of referees and members of any selecting authority on qualities that are relevant to the selection they are to make. As in England, the development of the criteria should be the function of a Judicial Appointments Commission. The criteria relating to legal ability would reflect the jurisdiction of the respective courts. This is of particular significance in the selection of Justices of the High Court. Although popular comment and governmental interest might emphasise the legal ability of a candidate in public law, a large proportion of the High Court's work is in private law – not least in dealing with the burden of special leave applications. This part of the Court's work attracts little attention but Justices with broad experience are needed to assist in the massive and varied case load.
Next, the Senate Committee recommended “that the Attorney-General for the Commonwealth should establish a committee which would advise him or her on prospective appointees to the Commonwealth judiciary” and “[t]hat committee should include representatives of the judiciary, the legal profession and the non-legal community.” A Judicial Appointments Commission would give structure to the process of selection and, with satisfactory drafting of the legislation, would restrain Executive Governments from the making of unmeritorious appointments for political or personal reasons. Differently constituted Selection Committees of the Commission would be needed for each of the Commonwealth Courts, reflecting their respective jurisdictions and administrations.
The third recommendation “[t]hat that the Attorney-General for the Commonwealth should urge the Attorney-Generals of the States and Territories to establish a similar advisory committee in their respective jurisdictions” lies outside the scope of this paper, though the considerations which warrant a Commonwealth commission would have much force in the States.
While preference for different models of a Judicial Appointments Commission will vary[29], one model could be based on the general framework of the United Kingdom Act with the necessary adaptations and some variations. In 2006, two distinguished academic lawyers – Professors Simon Evans and John Williams – presented a well-researched paper to the Judicial Conference of Australia.[30] The authors proposed a Judicial Appointments Commission based on the English model but with some variations. I agree with the basis of their proposals, but I would prefer a model with different variations from the English template. I suggest –
- While the United Kingdom Act provides that the Chief Justice of a court should preside on a selection committee for her or his Court, a Chief Justice of a Commonwealth Court might find the relationship with an incoming judge more difficult if the Chief has participated in the selection process – especially if it became known that the appointee was not the candidate favoured by the Chief Justice. I should prefer to allow the Chief Justice to appoint a nominee to the selection committee if she or he so chooses.
A Selection Committee for the High Court might be composed of –
- The Chief Justice or her/his nominee
- The Attorney-General of the Commonwealth or her/his nominee
- The President of the Australian Bar Association or her/his nominee
- The President of the Law Council of Australia or her/his nominee
- 2 non-legal members appointed by Government who are familiar with the work of the Court
- A person of distinction chosen jointly by the Chief Justice and the Attorney-General.
It should be mandatory for the Selection Committee to consult the Attorneys-General of the States and Territories, each of whom should be entitled to submit one or two names which the Selection Committee would be bound to consider in settling the list of nominees for submission to Government.
A Selection Committee for a Court other than the High Court should be differently composed. As each of the Judges of those Courts is based in a State or Territory and discharges a majority of her/his duties in that State or Territory, it would be preferable to include the local rather than the National Presidents of the professional bodies in the Selection Committees.
- The United Kingdom Act strips the Prime Minister and the Lord Chancellor of any ultimate power to decline to accept a selection. In Australian conditions, and with an eye to the provisions of s72(i), it is preferable to leave the ultimate choice to the Executive Government but not without some restraint designed to ensure that merit is the prime consideration. The Selection Committee should submit a list of, say, three names from which the Government is invited to make the appointment. If the Government wishes to consider another person who is not listed, the Attorney-General should refer the name of that person to the Committee with a request to reconsider the list. The Committee would then either include the name in a new list of three or inform the Attorney in writing why the listed names are preferred. If Government nevertheless proposes to appoint the person who is not listed, the Attorney-General should inform the Committee in writing of the Government's reasons for appointing outside the list. This is not a coercive sanction but it provides a sufficient incentive not to appoint an unlisted candidate for dubious reasons.
- As appointments to the High Court are usually made from the ranks of serving judges, it would be invidious to publish communications between the Selection Committee and the Attorney-General about the relative merits of candidates. The same view could be taken about appointments to other Courts but for less cogent reasons.
Conclusion
Governments no longer have the means of making an informed judgment about the comparative merits of possible judicial appointees. A more structured and informed process is needed – a process which allows for the views of an informed public to be taken into account and which yields appointments measurable against stated criteria. The efficiency of the courts is enhanced by the appointment of the most competent and impartial judges available to serve. Thus public confidence in the courts is maintained and the rule of law protected.