SOME OF New South Wales’ top legal eagles last week gathered together to establish a potential system of appointments to the bench, appropriate to the modern justice system.
In a seminar organised by the Women Lawyers Association of NSW (WLANSW) and NSW Young Lawyers, judges and other senior members of the profession, including representatives from the NSW Law Society and NSW Bar Association, discussed ways to improve the appointment system.
There should be a judiciary in keeping with 21st century expectations, which are reflected in our evolving Westminster system of open government and executive decision making, said organisers.
The WLANSW said there should be greater diversity in appointments in keeping with judges being reflective and representatives of a modern, diverse society. There should be greater transparency in judicial appointments, which would improve the community’s trust in the judiciary’s decisions, it said. “It’s true to say that such un-elected law makers have power and influence in our society,” WLANSW said.
The current “no system” is not a good idea, said Justice Gay Murrell SC of the NSW District Court. She said that no “attorney general need consult with anyone” under the current regime.
Considering other jurisdictions’ methods of selection and appointment, the group last week noted that England and Wales has a proposal that all appointments be made through a judicial appointment commission, which comprises not only judicial members but also other members of the legal profession. It was noted also that the Law Council of Australia has made suggestions to update the “mystical” appointment system. The WLANSW said it did not advocate the US politicisation of the judiciary by election of judges.
Shadow Attorney-General Nicola Roxon earlier this year urged the Federal Government to consider gender, geography and philosophy when filling vacancies in the High Court. Speaking before Federal Court judge Susan Crennan was selected to fill the vacancy created when Justice Michael McHugh retires in November this year, Roxon called for a debate on reforming Australia’s “informal” and “secretive” processes for judicial selection.
“Our High Court judges are selected on the say so of the Governor-General, acting on a recommendation of Cabinet. The High Court Act requires the Attorney-General to consult with state counterparts in relation to appointments, but other than that there are no rules governing the process. The current Attorney-General has said he will consult with the Chief Justice, professional associations and possibly other judges. But these consultations are all informal and secretive,” Roxon said.
“I have a number of concerns with this opaque process — first and foremost, it has a clubby feeling to it. It generates a sense that selection to our most important bench is based more on who you know than any objective criteria.”
Another advocate for more females on the bench, High Court Judge Justice Michael McHugh, won himself some female fans within the profession recently by announcing that he too wanted a woman to succeed him when he retires.
Justice McHugh claimed prior to Justice Crennan’s appointment that there are 10 females who would make “first class” High Court judges.
“There is nothing in the work of a High Court justice that cannot be done by a first class woman lawyer who has the energy to cope with the workload. Mary Gaudron proved that beyond a doubt and there are many women practising law today who are capable of doing the work of a justice of the High Court in accordance with the standards that the community expects,” he said.