find the latest legal job
Senior Associate - Competition, Policy & Regulatory
Category: Other | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Work with a well regarded Partner · Sydney CBD
View details
Commercial Litigation Senior Associate
Category: Litigation and Dispute Resolution | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Lawyers Weekly Australia Partner of the Year 2016, Insolvency
View details
MULTIPLEX Regional Legal Counsel (Vic) | 7 to 10 years + PQE
Category: Generalists - In House | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Career defining in-house role · Tier One international contractor
View details
Junior Lawyer - Personal Injury Law
Category: Personal Injury Law | Location: Parramatta & Western Suburbs Sydney NSW
· Highly specialized practice · Challenging role with great opportunities
View details
IR Advisor/Member Advocate
Category: Industrial Relations and Employment Law | Location: St Leonards NSW 2065
· Permanent (0.8-1.0 FTE) role in a developing team
View details
Roxon slams old boys’ club appointments

Roxon slams old boys’ club appointments

THE CURRENT PROCESS for selecting judges to the High Court has a “clubby” feel, which gives the impression it is about who you know more than anything else, the shadow federal…

THE CURRENT PROCESS for selecting judges to the High Court has a “clubby” feel, which gives the impression it is about who you know more than anything else, the shadow federal Attorney-General claimed last week.

Nicola Roxon has urged the Government to consider gender, geography and philosophy when filling the looming vacancy in the High Court, which will need to be filled when Justice Michael McHugh retires in November this year.

In a speech to the ACT Women Lawyers’ Association, 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 the state counterparts in relation to appointment, 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.

“With no disrespect to the current Court, this sense of clubbiness cannot help but be confirmed when you note that all seven judges are men, five of them are from NSW, four graduated from Sydney University and three of them have been presidents of bar associations. It creates an impression that the pool for judicial appointments is small and closed,” Roxon said.

There should be a national discussion about improving the selection process, Roxon argued. “Pointing to America in horror is not a sufficient reason to cling to the status quo. There are plenty of models that would provide more transparency and merit protection without the intense, and often unfair scrutiny that occurs in the United States,” she said.

The diversity of High Court judges needs to be broadened, Roxon claimed. She reminded her audience of Justice McHugh’s warning late last year that “when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution”. She said it would be a fitting for the Government to take this concern on board when picking Justice McHugh’s replacement.

She condemned the argument that only merit should determine the next appointment, adding that “it would be scandalous chauvinism to suggest that no woman would rank in the top seven of our legal minds”. This is what is suggested, she said, when merit is used to deny their appointment.

“The next appointment to the High Court must be a woman. It is almost beyond belief that in 2005 Australia does not have a woman on its highest appellate and constitutional court. As you would all be aware, the High Court has only had one female judge in its entire 102 year history, Mary Gaudron,” Roxon said.

She rejected the argument that “the pool of qualified women is just too small”. While this argument recognises that more women should be on the High Court, it attributes the problem to sexism in the lower levels of the legal profession which acts as a barrier to women gaining the experience necessary to become a judge, she said.

But, she said, it can be assumed that the vacancy should be filled by a current judge from the Federal Court, a state or territory supreme court or court of appeal. “This is a logical starting point as most High Court judges, including six of the current seven, have been recruited from those courts.

“There are currently 33 female judges in this pool. These are 33 women who are already considered suitable for high judicial office in this country. There is doubtless one — and surely many more — who would be suitable to serve on the High Court.”

It is essential that the Government appoints a woman to fill the upcoming vacancy, Roxon argued. “I must say that I take no pleasure in having to call for a woman to be appointed to the bench in 2005. It would not be have been necessary if the Howard Government had managed to appoint female candidates in one or two of the last four appointments they have made. We have already gone two years with an all-male bench and it will be at least another two if this opportunity is missed.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Roxon slams old boys’ club appointments
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Two businessman, growth
Sep 19 2017
Aus catching up on international arbitration front
Australia is starting to see a spike in international arbitration with this set to continue over the...
Prison
Sep 19 2017
Manson family killer suffered ‘miscarriage of justice’: former lawyer
A retired Australian barrister has published a book on the Manson Family murders of 1969 and called ...
Belinda Lonsdale, WA
Sep 18 2017
New judicial appointments welcomed in WA
The Law Society of Western Australia has congratulated Belinda Lonsdale on her appointment to the di...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...