High Court chief justice Murray Gleeson told Shaun Drummond formal ongoing education is one of the best ways to ensure that measures to broaden judicial experience are successful
In his last state of the judicature address before he retires next year, High Court Chief Justice Murray Gleeson sees the professional education of judges as one of the most important recent developments and a vital part of efforts to broaden the experience and origins of judges.
“I regard ... professional training and continual development as an issue that will continue to be important and will have to be addressed until well after I have gone,” he told Lawyers Weekly prior to his speech given this week at the Australian Legal Convention in Sydney.
“It is only in relatively recent times that governments and the judiciary itself have recognised the need to provide new judges and new magistrates with training and facilities for ongoing professional development.”
He points out institutions to oversee judicial professional development have only relatively recently been established — the latest being the National Judicial College in 2002 — and regards their creation as two of the most important developments affecting the judiciary in the past 30 years. The other is the creation of an independent magistracy, which he feels is important in dealing with the increasing length and number of cases the courts face.
Prior to the introduction of the new educational institutions, “the idea was that you took an experienced advocate and threw him or her in at the deep end on the assumption that an experienced practitioner has all the training they need to be a judge. Once you became a judge, it was up to you to keep yourself up to date”, he said.
In his speech, he said governments have come to realise that if they “want to be taken seriously” when they say they want judicial appointment to be open to a wider class, “there must be educational arrangements that make that a practical possibility”.
On what some also see as a factor affecting the worldliness and independence of judges — how judges are appointed — Gleeson is cautious about being seen to give an opinion on whether there is a need for any changes to the present system of appointment by the government of the day.
But he is critical of a system that would require a person to actively seek out a judicial appointment. “In the case of the High Court, appointments are made only once every three years or so and most potential appointees are already serving judges. They do not apply for promotion, and it is to be hoped they never will,” he told the Convention.
“If judicial promotion were to become the outcome of a competitive process, the implications for independence would be obvious. It is one thing to permit, or invite, people to apply for judicial office; it is something altogether different to require them to make an application.”
If there needed to be a choice made between competing applicants, he added, to ensure full transparency the identity of each applicant would have to be publicly known beforehand.
“Responsibility for making a bad or unpopular selection lies where the power lies: with the political arm of government,” he said. “Whether that power ought to be shared, or its exercise controlled by a formal inclusion in the decision making process of people outside government is a political question. If that were to occur, the involvement of the judiciary itself in that process would become an issue.”
One of the main arguments for taking the appointment of judges out of the hands of politicians is to ensure independence. However, Gleeson is clear that High Court judges, at least, do not follow their appointers’ politics.
“Since I have been on the High Court, there is only one case in which the court has divided along the lines of the political colour of the government that appointed the members of the court. That was a case about the liability of local councils for not repairing roads — not a hot political issue,” he said.
“We’ve dealt with a lot of hot political issues since I have been on the Court and we have never once divided along the lines of the governments who appointed us. We divide often, but never along those lines.”
Although the Bar remains the primary source of judges, Justice Gleeson said there is a growing diversity in the judiciary, with appointees now coming from the ranks of solicitors and also academia, although he said most of them have had some practical experience practising law.
“I think for the foreseeable future, the Bar will continue to be the major source of supply of judges, especially to superior courts, but I think it is a good thing that people with different professional backgrounds can enter the judiciary. I don’t think the judiciary ought to be regarded as a closed shop,” he said.
He rejects the view, however, that one reason to widen where judges are sourced should be to improve their connection to the everyday world. “I am always surprised at suggestions that the judiciary are removed from the mainstream of life. If you took the ordinary daily work of a Family Court judge or of a magistrate, those people would see more of life than the average suburban citizen, I can guarantee you that.”