The review – conducted by former Supreme Court of South Australia chief justice John Doyle; Aviation Australia director Julie-Anne Schafer; and barrister Michael Grant QC – recommended the government revert to independent panels for judicial selection.
This was the norm before 2012, the review noted, but the process changed after the election of the Country Liberal Party, with Mr Elferink assuming “a direct role in the initial assessment process”.
While a panel was convened to identify candidates for one judicial vacancy, Mr Elferink “did not seek any determination from the panel as to preferred candidate or candidates” it stated.
“The Attorney-General subsequently submitted a candidate to Cabinet for endorsement,” the review found.
In another case, Mr Elferink removed himself from the selection process because of an affiliation with one of the candidates for a magistrate’s position.
For a further magistrate’s appointment in July 2013, Mr Elferink submitted a name previously recommended by the selection committee for a different position to cabinet without further consultation.
The review suggested that a lack of clear process could create “confusion” around judicial appointments.
“The process for judicial appointments should be, to the extent practicable, uniform, public, and followed (or at least not departed from without that circumstance being made public and an explanation provided),” it stated.
It recommended the Northern Territory adopt a formal protocol for appointments, whereby an independent panel assesses candidates without the involvement of the attorney-general in initial stages.
The panel would consist of a retired superior court judge, the solicitor-general and the CEO of the department of the attorney-general.
“The identification of a person having the qualifications that merit appointment, without the direct involvement of the Attorney- General at that stage, has the benefit of providing an independent assessment to the Attorney-General and, ultimately, to Cabinet,” the review found.
Given the Northern Territory’s small size, the review recommended the panel being convened on an as-needs basis.
The review was called for after controversy surrounding magistrate Peter Maley, who was appointed in September 2013 and resigned following allegations he had accepted money in exchange for access to government documents.
The Law Society of the Northern Territory welcomed the outcome of the review.
“The Society supports the formal adoption of the recommendations as they will improve openness and transparency in the process of judicial appointments, public confidence in individual appointments and in turn public confidence in the justice system,” president Tass Liveris said.
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