THE CONTROVERSIAL topic of judicial appointments was a central focus of the Bar Association of Queensland’s Annual Conference on the weekend, with federal Attorney General Robert McClelland calling for greater transparency and consultation.
In his speech, McClelland described the current system, under which judicial appointments are left solely to the discretion of the executive, as an “ad hoc” process surrounded by mystery.
“[Under the current system], the public has to take it on trust that appointments have been made on merit and suitability rather than personal or political affiliation and that consultation beyond a small circle of insiders has occurred,” he said.
According to McClelland, enormous responsibility rests on the heads of those in charge of judicial selection.
“The role of the executive, in choosing who will be responsible for ensuring the administration of justice according to our law, impacts directly on public confidence in the courts and their decisions,” he said.
He believes that public dissatisfaction with the current system could lead to a diminution of the status of the judiciary, and more broadly, a reduction in public confidence in the courts and the judicial system.
McClelland spoke about the newly introduced system in the Federal Magistrates Court as an example of the ways in which transparency can be increased. For upcoming appointments in five states, the public will have the opportunity to submit nominations which will then be assessed by a selection panel who will prepare a shortlist. Shortlisted candidates will have the opportunity to meet personally with the panel to put forward their case, and the panel will then recommend a small number of candidates for each position to McClelland. McClelland in turn will propose appointments to the government.
He made it clear, however, that while a process incorporating face-to-face meetings might be suitable for the Federal Magistrates Court, where candidates tend to be less well known, it wouldn’t be suitable for High Court appointments where candidates are likely to be serving judges, well known to the government, the judiciary and the public.
“I am firmly committed to undertaking extensive consultation on High Court appointments,” he said. “[But] I have previously made clear my view that face-to-face meetings with candidates are inappropriate for appointments to the High Court.”
McClelland also touched on another alternative; to adopt a process in Australia similar to that which has been recently implemented in the UK. Under the UK system, an independent Judicial Appointments Commission prepares a list of recommended candidates and the Lord Chancellor is required to make an appointment from the list.
While not expressing his own views on the appropriateness of such a system in Australia, he said the response from the UK to date has been mixed.
“There have been criticisms that it is overly bureaucratic and the whole process is unreasonably intrusive as well as taking too long. As a result, concerns have arisen that the best candidates have not put themselves forward that there have been delay with the appointment of judges,” he said.
“Naturally, setting up a whole new government agency for the purposes of assisting with judicial appointments would not be a step taken lightly. There may well be as much controversy associated with selecting the selectors as with the judicial appointments themselves.”