PROPONENTS FOR and against a judicial appointments commission lined up to trade blows at a forum in Sydney last Friday, with issues of diversity, accountability and transparency hotly contested.
Meeting at the Sheraton on the Park, politicians, academics, judges and others in the profession debated the merits of a commission, in part a reaction to the attention the media has given the issue recently.
The case for a commission was presented by the Hon Geoff Davies AO, judge of the Court of Appeal in Queensland, arguing such a commission could be established whether the Attorney-General liked it or not.
“A judicial appointments commission will restore the high standard and standing of the judiciary and, consequently, of the justice system,” Justice Davies said.
“Australia is now almost alone in the common law world, indeed in the Western world, in failing to have an independent body which either selects or recommends judicial appointments,” he said. “No satisfactory explanation has ever been given for this failure.”
Recommending a commission manned by those from the profession and lay people, who would pass on a shortlist of candidates to the Attorney-General for selection, Justice Davies said only this system could result in the choice of an individual with the requisite professional and personal qualities, “from which the Government must choose its appointee or explain publicly why it has not”.
He finished with an ultimatum of sorts, that “if governments are not prepared to introduce some independence into this process, others should”.
Shadow Attorney-General Nicola Roxon proposed a joint select committee on the judiciary at the forum, as part of “a number of issues [that] require urgent attention — an appropriate appointments process, the need for professional development and training opportunities for judges and more satisfactory complaints handling processes, amongst others”.
“In my view, any reform of Australia’s judicial appointments process would need to tackle the current lack of transparency, articulate more thoroughly what attributes a meritorious candidate should have, and increase the variety of candidates under consideration,” she said.
“We particularly need to open up the process of appointment to a wider pool of potential candidates, reflecting not just the diversity of experience within the legal profession, but also the diversity of our community. Considerations of gender, cultural background and geographic origin all require greater attention,” Roxon said.
Yet Attorney-General Philip Ruddock believes that the current system is working well.
“Few would disagree that the system of appointments — made by different political parties over a long period of time — has been robust enough to deliver a highly creditable outcome for the Australian people,” he told the forum.
“If there is criticism of appointments, it is the popularly elected representatives who should answer for it at the ballot box. No one has made a compelling argument that the system is broken,” he said. “I can see no reason to fix it.”
Ruddock also believes the argument that a commission would enhance transparency is an interesting one.
“I can think of few propositions less attractive to the public than a self-appointing judicial elite,” he said.
Disputing the need for any form of “insular, self-selecting commission,” Professor James Allan of the University of Queensland told Lawyers Weekly that “when you listen to these proposals, the idea of democratic accountability is wholly gone. And the response to that is that it’s not all that accountable now. But the fact is that it’s a lot more accountable now than it would be under [the proposed models]”.
“[Do] you know what diversity means as far as I can tell [from Friday’s discussion],” he asked. “[It’s] whether you’re a woman, or whether you’re from a minority group. But what I would want, in terms of diversity, is people with different views on how you interpret constitutions, and different views on how you interpret statues … and the degree of deference to be shown to the elected legislature.
“I don’t know what is at all objectionable about a political party that wins an election saying … John Heydon and Michael Kirby are both eminently appointable, but we prefer one over the other.
“The pretence that an appointments commission isn’t going to consider those sorts of small ‘p’ political concerns is just fatuous to my way of thinking,” he said. “Of course they are going to consider them.”