A recent report from the Australian Law Reform Commission (ALRC) recognised that judicial impartiality, diversity and transparency are foundational for a legal system aspiring to conform to the rule of law, it laid out recommendations to enhance Australia’s judicial system. 

The Australian judiciary is internationally respected for its integrity and its impartiality, and public confidence in the courts and the judiciary is generally high, the report noted, yet the administration of justice must be further strengthened.

The Honourable Mark Dreyfus KC MP spoke at the 2022 Seabrook Chambers Public Lecture and detailed how the government is responding to the report’s recommendations. 

The ALRC found that judicial impartiality must be underpinned by appropriate procedures, practices, and the right institutional structures, noted Mr Dreyfus, and it is “essential that our courts reflect the trust that has been placed in them by the Australian people”. 

The ALRC’s report noted a lack of diversity within the judiciary, including a lack of cultural diversity. 

The report outlined that each branch of government should be representative of the diversity within the Australian community. To promote this, recommendation seven called for selection to be based on criteria such as cultural awareness and the enhancement of diversity of both expertise and lived experience on the bench. 

The ALRC suggested that the Attorney-General collects and reports on statistics regarding diversity of the federal judiciary, with the view of increasing transparency of the extent to which judicial diversity exists and is being promoted.

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“Australians should be able to look to the parliament, executive, and judiciary, and see themselves reflected in it,” Mr Dreyfus recognised.  

“Improved data collection on judicial diversity will help identify potential barriers to appointment,” he posited. “It will also allow us to better understand the over or under-representation of particular groups of people within the judiciary.”

The report also recommended that the Australian government develop a more transparent process for appointing federal judicial officers, based on merit.

The ALRC’s report instructed the Attorney-General’s Department to fill current and emerging judicial vacancies in the federal courts using merit-based processes.

“A transparent, robust, and merit-based appointments process can be said to contribute a ‘preventative’ approach to safeguarding independence in the federal judiciary,” Mr Dreyfus recognised.

“Our public institutions must reflect the same integrity and strength of character required by the judicial officers entrusted with the administration of justice,” he maintained. 

“This government will ensure integrity is embedded in appointment processes.

“Who we appoint to our courts matters,” the A-G explained. “I consider judicial appointments to be one of the weightiest responsibilities of my role.” 

There is an unavoidably human element required in the administration of justice, Mr Dreyfus stated, pointing to a speech by former High Court justice Sir Gerard Brennan: “Being human institutions, continual vigilance is needed to ensure that they are isolated from impermissible influences, and strengthened by the pressure of a peer group devoted to impeccable standards of independence.”

“It is my intention to foster a return to the rigorous, accountable, and transparent appointments process, as first introduced by former attorney-general and now Deputy Chief Justice of the Federal Circuit and Family Court of Australia, Justice Robert McClelland,” Mr Dreyfus explained. 

The appointment process currently involves extensive consultation with the legal community to identify suitable candidates, Mr Dreyfus noted.

He detailed the process used in the appointment of Justice Jagot, which included extensive consultation with attorneys-general of other jurisdictions, the shadow attorney-general, the heads of jurisdiction of the federal courts and state and territory supreme courts.

He also consulted state and territory bar associations and law societies, National Legal Aid, Australian Women Lawyers, the National Association of Community Legal Centres, and deans of law schools.

“After candidates are identified,” he went on, “there is a merit-based assessment of nominated candidates by independent advisory selection panels”.

“For future appointments, I will consider additional features to ensure that integrity and transparency remain a cornerstone of the appointments process,” he outlined. “This may involve requiring vacancies to be advertised.”