With concerns that the process of judicial appointments lacks transparency, it may be time to change club rules. Kate Gibbs reports
THE SHADOW Attorney-General this week slammed the “club-like” appearance of judicial appointments and called for a strong and continuing debate on the subject.
Speaking to the Judicial Conference of Australia (JCA) on Sunday, federal shadow A-G Nicola Roxon said the secrecy of the appointments process, “with its own special formalities and language”, feeds into an image of the system being “a club for which you are an outsider”.
She criticised the process for lacking transparency, and said it was dependent on “behind the scenes consultations”. Roxon called for a new process that induced variety in age, gender, cultural background and geographic origin. Highlighting what she termed “worrying signs”, she said Australia is now facing a turning point in the community’s perception of the courts and the legal system.
Roxon’s speech to the profession on Sunday followed a presentation at the same event given by both Professor John Williams, from the law school at the University of Adelaide and secretary of the JCA, and Dr Simon Evans, director of the Centre of Comparative Constitutional Studies at the law school of the University of Melbourne.
Williams and Evans offered a new protocol for judicial appointment, focusing on articulating what attributes a meritorious candidate and endorsing transparency of appointments. Roxon praised elements of the proposal, while not completely accepting it as the only option of the way ahead.
Williams and Evans proposed the introduction of a judicial appointments commission in Australia, which would make recommendations to the Attorney-General for judicial appointments. But Roxon called for further overhauls of the system, arguing it is time for a Joint Select Committee into the judiciary, which would consider a range of these structural matters in a “thorough and proper way”.
“It could help air some of these difficult issues and set up an appropriate mechanism for dialogue between Parliament, the courts, the profession and, importantly, the broader community. It would also build political awareness, if not necessarily support, for this sort of change,” Roxon said.
Claiming she was mystified by the criticism that her state colleagues have endured over the matter of a judicial commission, she added that in the general recruitment market this is a standard recruitment practice. Her state colleagues, she said, had made only modest reforms in this area, which included notifying positions available and calling for expressions of interest. “Within our current system this can only help increase the pool of talent considered, not restrict it,” Roxon said.
While criticising the old boy network and “mateship”, which she argued was present in the current system, she did endorse a political role in the proposal, “not least because it makes the proposal more politically viable”. At the Commonwealth level this would also make it possible, she said.
However, harping on the issue of nepotism, she said she was concerned even the proposal put forward by Williams and Evans encouraged an “insiders’ club” for those making up the commission. “I understand the attraction of using office holders and the security and independence that brings. But it is not only political prejudiced that we should hope to tackle if we were to introduce this new system — it is also to protect against any in-built biases that may exist within the judiciary and profession,” she said.
In terms of the political viability of the proposal, Roxon said she thinks politicians will not want to give up the power they hold. Citing history, she said there are those who wanted to maintain this power merely for their own ego, but that it is also possible that many attempted to control judicial decision making for the long term. “Less pessimistically, there is an argument to be made the political appointment process does no allow for some quicker responsiveness to the community’s needs,” she added.
With Williams and Evans, Roxon called for the development of selection criteria that would assess applicants. “The current process for judicial appointments reflects a lack of preparedness to talk about what skills are required for judicial officers, and a tendency to limit qualification to a narrow band of experience, traditionally associated with the Bar.
“The formulation and application of selection criteria against which applicants are judged will counter these tendencies — although I am not yet convinced that determining them must be entirely a job for the new commission as proposed [by Williams and Evans],” she said.
Roxon praised Williams and Evans’ suggestion that the new commission take into account that the selection criteria allow candidates to demonstrate their capacity to develop relevant skills over time rather that at the point of application. Noting that this would open the process of appointment to a wider pool of potential applicants, she said with some modest assistance they should be able to gain those skills.
Training was also a key point in Roxon’s speech. She called for more emphasis on training throughout a judicial career, which she said could vary from new areas of law, areas that a new appointee did not practise, courtroom management, technology, or techniques for handling certain categories of witness.
“Maybe this debate will provide a chance to discuss these long-term issues in a sensible way, without the immediate counter that this rather innocuous idea would somehow necessarily lead to political interference with judicial decision making.”