THE SYSTEM OF judicial appointment in NSW and federally is “shrouded in mystery”, a District Court judge has told an audience of senior legal professionals.
The current lack of a ‘system’ for appointments is one reason that the bench does not reflect the diversity of our community and is not uniformly excellent, said NSW District Court Judge Helen Murrell in a speech entitled ‘Diversity, Transparency and Quality’.
We need an appointment system that is transparent and which results in a bench of quality and diversity, she said at the seminar held by NSW Young Lawyers and the Women Lawyers Association of NSW.
The Chief Judge of the District Court, Justice Reg Blanch, has also observed that our system of judicial appointments was deficient by international standards, said Justice Murrell. He has said: “It is a system of appointment which is open to abuse and corruption through patronage of friends or political allies, and it is a system which does nothing to address the need for excellence in appointments.”
In NSW, there is no statutory requirement that the Attorney-General consult with anyone, said Justice Murrell. “The only statutory requirement for appointment to the District or Supreme Court is that the appointee be a legal practitioner of at least seven years’ standing,” she said.
“The Attorney usually consults the head of the relevant jurisdiction, and any lawyers with whom he is having a barbecue dinner, and then recommends a lawyer of at least seven years’ standing to Cabinet. However, I don’t know that”.
“Perhaps the Attorney’s personal assistant cuts the names of all lawyers of seven years standing from the law almanac and a name is then selected from a hat.”
Justice Murrell asked that if she, as a judge, did not even understand the appointment process, “how can the public have confidence in the process?”.
There is little difference in appointments into the federal courts, she said. “The only statutory requirement relates to the appointment of High Court judges. There, the Commonwealth Attorney-General must consult with the state Attorneys-General before an appointment is made,” she said.
We live in an age when the authority of our institutions is often questioned and is at times attacked, said Justice Murrell. She asked that in the absence of a transparent appointment process, which is designed to deliver a qualified and representative bench, “why wouldn’t judicial authority be questioned?”.
“After all, judges occupy powerful and privileged positions but are not accountable to the community, the legislature or the executive. We are only accountable to other judges on appeal. We are not elected and it is very difficult to remove us from office. Yet, as judges, we are able to imprison people, interfere with family relationships and make decisions which have enormous commercial ramifications,” she said.
While most have celebrated the appointment of Susan Crennan to the High Court of Australia, said Justice Murrell, it is difficult to believe that her appointment was based solely on ‘merit’, despite the claims of federal Attorney General Philip Ruddock.
Ruddock defines merit as “legal excellence, a capacity for industry and a temperament suited to the performance of the judicial function”, said Justice Murrell.
“However, most of us believe that Crennan’s appointment was particularly meritorious because of her gender. I am confident that more than 50 per cent of the population is of that view. Most women agree with Justice McHugh that “women lawyers will bring a different approach to legal problems”. Women want to see women at all levels of power. They want to know that their perspective is being represented.
She claimed, tongue in cheek, that Ruddock’s new portfolio offers the opportunity to heal community division, to nurture diversity and to value change — “in short, embrace your female side”.
“You are doing very well, Mr Ruddock. In NSW, since May 2001, there have been 14 appointments to the District Court, the largest trial court in the country, and not one of them a woman.”
But the argument for diversity is not an argument for political correctness, said Justice Murrell. “It is an argument for representation on the bench. It is an argument that a representative bench will reinforce public confidence in the judicial system.”
There should be a publicly available judicial appointments protocol that sets out the legal knowledge and experience, professional qualities and personal qualities required for office, as the Law Council of Australia has suggested in its Policy on the Process of Judicial Appointments.
“Under the protocol, before appointing any judge the relevant Attorney-General would consult specified officeholders (as well as anyone else whom he or she chose to consult). In NSW, the Attorney would consult the Chief Justice of the Supreme Court, the head of the relevant jurisdiction, the president of the Bar Association and the president of the Law Society. The Attorney might advertise for expressions of interest, but candidates would not be limited to those who responded to the advertisement,” she said.
But federal Attorney-General Philip Ruddock does not support such a protocol, which Justice Murrell said is predictable. Claiming that he doubts the consultation requirement would increase transparency, he argues that currently he consults in an appropriate way. “Why am I not surprised?” asked Justice Murrell. “I doubt that any Attorney will gladly embrace a system which curtails his or her unfettered discretion.”