VICTORIA’S SHADOW attorney-general, Robert Clark, has attacked the latest round of judicial appointments, saying the Labor government is stacking the bench.
“A significant number of Rob Hulls’ appointments appear to owe their appointments more to their political connections or political activism than to their qualifications or merits,” Clark said.
“I think the current system is being abused and I think the attorney-general of the day needs to be accountable for his or her decisions on appointments and certainly I believe Rob Hulls is exposed to justifiable criticism for a number for appointments to the Victorian bench,” he said.
Among those appointed to the bench last week were high-profile Melbourne barrister and human rights advocate Lex Lasry who will sit on the Victorian Supreme Court and former ACTU assistant secretary and Labor Party member Iain Ross to the County Court. Clark said he had no doubt as to the suitability of Lex Lasry as a judge, although one newspaper claimed his appointment had ruffled feathers within the Labor Party over the appointment of another “unilateral civil libertarian”. Indeed, Lasry is the fourth former president of civil rights group Liberty Victoria to be appointed to the bench.
However, Clark was less than impressed with the appointment of Ross.
“Mr Ross has very little practical experience. He appears to have practised barely 20 months as a solicitor; prior to that his career was as an assistant secretary of the ACTU and then as a member and vice-president of the Industrial Relations Commission. The Victorian County Court has negligible industrial relations practice and Mr Ross appears to have negligible experience of general court practice in Victoria,” Clark said.
A spokeswoman for Hulls dismissed Clark’s criticism saying “that’s just a nonsense and we appoint the best people for these positions”.
Judicial appointments in all Australian jurisdictions are often subject to allegations of political favouritism. Eyebrows were raised last year when NSW Attorney-General Bob Debus appointed his adviser Jacqueline Trad to the Federal Magistrates Court, two months after being admitted as a solicitor. Similarly, when federal Attorney-General Philip Ruddock appointed John O’Sullivan a federal magistrate, there were claims of bias. O’Sullivan was the former adviser to Kevin Andrews when he was Minister for Employment and Workplace Relations, and had just three years’ practical legal experience.
George Williams, of the Gilbert + Tobin Centre for Public Law, said the current judicial appointment process — whereby politicians make the decision unfettered by any advisory body — make appointees easy targets for accusations of political bias.
“All governments appoint judges who they think reflect what sort of court they want — it’s a very political process, judicial appointments. It’s no different from the Howard Government following a similar line with some of their High Court appointments. And it’s not surprising that governments of all persuasions have done this for as long as we’ve had judicial appointments because they are unfettered as to their selection. And so it’s no surprise they will consider these sorts of factors in making them.
“I think the lack of a process that’s more independent and more credible means that these sorts of appointments are questioned as opposed to being buttressed by a proper selection process,” Williams said.
However, others within the legal profession deny there is any problem with the credibility of the appointment process. One such lawyer who supports the existing process is current president of Liberty Victoria, Julian Burnside.
“I don’t think the process lacks credibility. This idea of stacking the bench proceeds on a few misunderstandings. I think it’s understandable that a government of any political persuasion is likely to appoint to the bench people who broadly speaking share their own philosophical position. It would be very surprising if it was otherwise. But I think it’s difficult to find many cases in the last 20—30 years where you would say with some confidence that an inferior candidate was chosen over others that were available, that they were chosen because of political allegiance. I just don’t think that’s happening,” he said.
Australia is one of the few common law countries that do not have an independent selection or recommendation process for judicial candidates. Williams believes it’s time Australia looked to reforming the process in order to protect the integrity of the process.
“There ought to be a commission or other body that makes recommendations to the attorney that broadens the pool of people that can be considered, and that also provides a more expert assessment of candidates. I think if we did that it would restore confidence in the judicial process and over time we would improve the quality of judges by improving the way we select them.
However, Burnside said the real problem with judicial appointments, was that the bench was not necessarily an attractive option for the best candidates.
“I think one of the problems with appointments to the bench, to the extent that there is any problem is that a lot of people of quality are unwilling to accept an appointment to the bench because governments tend to treat them so badly. Their pay is not great, conditions are not great, they get attacked by the press and some corners of politics, and to be candid I think that makes for a pretty unappealing work environment,” he said.