Appointing judges judiciously

About two years ago, prompted by some recent appointments in Queensland and elsewhere which might be thought to have been based on political patronage, I called publicly for reform of the way in which judges are appointed.

My proposal was, in short, that the appointment of judges should no longer be left entirely in the hands of politicians but made by an independent body; or that such a body would recommend a panel of names from which the government was obliged to select, or explain publicly why it had not.

My proposal was by no means a novel one. Not long before, the Lord Chancellor of Britain, who had responsibility for appointing judges in England and Wales, had said: "In a modern democratic society, it is no longer acceptable for judicial appointments to be left entirely in the hands of a government minister."

True to his word, the Lord Chancellor has since introduced legislation, now in force, which takes the appointment process entirely out of the hands of a government minister and of the government.

Moreover the Lord Chancellor was no pioneer, but merely following in the footsteps of Ireland, Scotland, Northern Ireland, Canada, South Africa, Israel, and many states in the US.

Judicial appointment commissions also exist in France, Germany, Italy, the Netherlands, Portugal and Spain, and one is being considered in New Zealand.

Notwithstanding all of this, it was unsurprising that the Queensland Government strongly opposed my proposal. No government happily surrenders power, and some may see the appointment of judges as a means of rewarding loyal party supporters or friends, or at least of having their own views expressed by like-minded judges.

More surprising was the hostility which my remarks engendered in some judges, not least some recently appointed ones. Some saw my remarks as a criticism of the appointment of women judges.

A combination of government opposition and judicial hostility ensured the failure of my proposal. Now Australia is almost alone in the common law world in not having any such system.

Although the proposal I now make is directed at Queensland, it could easily be adapted for other states and the Commonwealth.

In practice, the systems adopted by the Commonwealth and by most of the states for appointing judges are similar. When a vacancy occurs, the Attorney-General recommends to Cabinet who should be appointed to fill the vacancy. The Attorney may recommend one or a panel of names, and the appointment is then made by the Governor in Council (effectively by Cabinet).

The processes by which the Attorney and Cabinet make their selection are secret.