As part of its Review of Judicial Impartiality the Australian Law Reform Commission is currently considering whether the process of appointing federal judges should be made more transparent. With the latest round of judicial appointments recently made by the Attorney-General to the Federal Circuit and Family Court of Australia, it is timely to consider how judges are appointed and what issues have been raised with the process.
The current processes for the appointment of judges in Australia
Section 72 of the Australian Constitution provides that the Governor-General in Council must appoint the judges of federal courts, the appointee being younger than 70 years of age. In practice this is done on the advice of the federal Cabinet. The relevant legislation adds that an appointee must have been a legal practitioner in Australia for not less than five years (see High Court of Australia Act 1979 (the HC Act) section 7; Federal Court of Australia Act 1976 subsection 6(2); and Federal Circuit and Family Court of Australia Act 2021 subsections 11(2) and 111(2)).
As noted by Justice Kiefel and Professor Saunders:
In practice the Commonwealth Attorney-General considers who might be a suitable appointment. The Attorney-General then writes to the Prime Minister (usually after asking the person whether he or she would accept appointment), seeking the approval of the Prime Minister and the Cabinet. If approved, the Attorney-General makes a recommendation to the Governor-General who considers the appointment through the Federal Executive Council process. (p. 6).
For appointments to the High Court, under section 6 of the HC Act, the Commonwealth Attorney-General is also required to consult with the Attorneys-General of the States.
As noted by the Australian Judicial Officers Association, the judicial appointments process in the states and territories involves judges being appointed by the Governor, having been selected by Cabinet on the advice of the Attorney-General. For example, in Queensland the Attorney-General makes a recommendation for the appointment of a judge or magistrate to the Cabinet and the Governor in Council, who by commission, may appoint a barrister or solicitor of the Supreme Court of at least five years standing as a judge (Constitution of Queensland 2001, section 59).
Issues with current processes
The recent appointment of Justice Jacqueline Gleeson to the High Court, only the sixth woman to be appointed to the Court’s bench, was said to be ‘an excellent choice’, however, some ‘question[ed] whether those choosing our top judges should look further afield’ at academics and politicians with appropriate skills.
At the 2006 Australian Bar Association Judicial Appointments Forum, Justice Ronald Sackville stated:
Under a system of unfettered executive decision-making, attention is necessarily focussed on those whose abilities can readily be observed by, or whose credentials, real or apparent, come to the attention of the Attorney-General or his or her colleagues or close political advisers. There is little incentive to encourage interest from those whose background is perhaps less orthodox or whose availability is not widely known, but who nonetheless may have much to contribute as judges or magistrates.
A recent research paper employing data on all High Court of Australia cases decided over the period 1995 to 2019 reportedly found evidence of a ’loyalty effect’, whereby Justices found in favour of the federal government more frequently when the Prime Minister who appointed them was in office.
Other criticisms have been made about ‘the lack of transparency in the appointments process, about patronage and political appointments, and regarding the limited gender and cultural diversity on the bench.’ (p. 1).
In its 2018 Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, the Australian Law Reform Commission found that Aboriginal and Torres Strait Islander people are much more likely to receive a sentence of imprisonment than non-Indigenous Australians. The ALRC stated in its recent background paper Judicial impartiality: cognitive and social biases in judicial-decision making that ‘these findings suggest that bias within the justice system has a role to play’ (p. 6–13).
In an effort to increase consistency and transparency, some states have introduced additional steps in the judicial appointments process.
In Victoria, there is an advertising process whereby expressions of interest are sought for appointments ranging from officers of the Victorian Supreme Court to Coroners. The candidates are referred to a ‘Framework of Judicial Abilities and Qualities for Victorian Judicial Officers’, introduced by the Judicial College of Victoria in 2008, that operates as selection criteria for potential appointees.
In 2002, the Tasmanian Department of Justice introduced a Protocol for Judicial Appointments. Under the protocol, the Attorney-General first invites expressions of interest and an assessment panel is formed to assess the expressions of interest against published selection criteria. In the case of a Supreme Court vacancy, the panel is to include a representative of a professional legal body chosen by the Attorney-General, the Secretary of the Department of Justice or their nominee, and the Attorney-General's nominee. In the case of a Magistrate's Court vacancy, the panel is made up of the Chief Magistrate or their nominee, the Secretary of the Department of Justice or their nominee, and the Attorney-General's nominee. The Assessment Panel makes inquiries of referees and makes recommendations, with a statement of reasons, to the Attorney-General.
In NSW, appointments to higher courts ‘continue to be made traditionally’, but the Attorney-General has a list of personal and professional criteria to be considered when selecting candidates. Also, vacancies for judges of the District Court and Local Court are advertised and candidates can submit an expression of interest at any time in relation to future potential vacancies.
The Australian Law Reform Commission (ALRC) Review
On 11 September 2020, the Attorney General referred an inquiry into impartiality and bias among the federal judiciary to the ALRC. One of the terms of reference for consideration is ‘whether the existing law about actual or apprehended bias relating to judicial decision-making remains appropriate and sufficient to maintain public confidence in the administration of justice’. The review was in part triggered by a case recently decided by the High Court relating to judicial impartiality and bias, Charisteas v Charisteas (2021) HCA 29.
A Consultation Paper was released by the ALRC in April 2021. In the accompanying background papers, the ALRC noted that one of the strategies suggested by researchers to address bias in judicial decision makers was ‘increasing diversity in social groups of appointments to judicial office to mitigate the effects of implicit social bias on particular groups’ (p. 6–22).
Consultation Proposal 14 asks whether the ‘Australian Government should commit to a more transparent process for appointing federal judicial officers that involves a call for expressions of interest, publication of criteria for appointment, and explicitly aims for a suitably-qualified pool of candidates who reflect the diversity of the community’ (p. 26).
Submissions to the ALRC review closed on 30 June 2021 and the final report is due in December 2021 (being two months from delivery of the High Court of Australia’s judgment in Charisteas).