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.

Before making a recommendation to Cabinet, the Attorney usually consults a number of people or bodies. These may include the Chief Justice, the head of a division of a court to which the appointment may be made, and the presidents of the Bar and of the Law Society.

Except by inference from the result, it is impossible to know how much notice the Attorney, and ultimately the Cabinet, takes of the recommendations of any of those people or bodies.

But in this way it can be inferred that in recent years - in a number of cases within my knowledge - the Attorney or Cabinet, federal and state, have ignored the recommendations.

These examples show that the existence of a consultation process is pointless unless those who are qualified to be consulted can be confident that their advice has not been ignored. And they cannot be confident of this unless the government undertakes to appoint from a panel of names submitted by a committee of independent qualified consultants.

Unless that occurs - and especially when it also appears that an appointee has some close political or personal connection with the party in power, or some influential person in that party, or is plainly unqualified for the appointment - it is inevitable that reasonable people will suspect the appointment was made on personal or political grounds rather than merit.

It is the very real risk of political patronage in making judicial appointments and the consequent erosion in the standard and standing of the judiciary that is the main evil in the present Australian system.

In considering an independent appointments body, the first question is: how should the body be constituted? The second is: how should it go about assessing possible candidates, and the third is what should its powers be?

The number of members that an appointing body should have or the composition of its membership should not be affected by whether it is merely a recommending body or a body which itself appoints judicial officers.

But its composition may be affected by the kind of assessment which it is required to make. The established bodies of this kind vary in size from seven to as many as 23 members. I would favour a commission of, say, seven members.

A more important and difficult question is how it should be constituted - whether it should include lay members and, if so, what proportion of the total number they should be.

An important consideration in determining these questions is that professional qualities can be assessed only by professionals. A second consideration is that, if the body were to consist only of professionals, it might lead to a perception that future appointees would be chosen only from the narrow group from which they have come in the past.

And third is that lay members may bring a wider perspective to the assessment of personal qualities, one which is unaffected by any assessment of professional qualities.

These considerations may be adequately taken into account by having both professional and lay members on the body but ensuring that the professional members are marginally in the majority. That is the way in which most commissions have been constituted.

I would therefore suggest a panel consisting of the Chief Justice; either another Supreme Court judge appointed by the Chief Justice or, if the appointment is to the District Court, the Chief Judge of that court; the President of the Bar; the President of the Law Society; the head of a church in Queensland (to be rotated annually among the various churches); the editor of The Courier-Mail or The Australian, to be rotated annually; and the local president of Zonta.

In assessing candidates the body could take a “maximal” or “minimal” approach.

In the maximal approach, candidates would first be graded in terms of their professional qualifications, with the panel’s professional members generally being able to agree on who best combines the professional qualifications.

Next an assessment would be made whether the person with the highest professional qualification also had the necessary personal qualities to a sufficient degree. Only if a negative answer were given would the selecting body pass on to consider the second most professionally qualified applicant.

Governments generally adopted this approach in the past, seeking and accepting professional advice about the relative professional qualities of prospective appointees.

Over time, however, the process, in many jurisdictions in Australia, has become increasingly politicised, with professional advice not being sought or, if given, ignored. In this way the maximal approach has been gradually eroded.

In the minimal approach, the first task is to set a minimum professional standard: say, five years in practice as a barrister or solicitor or in work as an academic lawyer. Then all candidates who have achieved that standard are assessed on personal qualifications or, perhaps in some vague and unspecified way, on a combination of personal and professional qualifications.

This may be the approach currently favoured by government although, if that is so, the assessment, which is made in secret, is made by politicians.

Because such an approach does not seek to ascertain the person who is most highly qualified professionally, it is bound to result in a deterioration in the professional quality of the judiciary, and consequently in the quality of justice.

With one qualification, the appointing body should, in my opinion, adopt the maximal approach. That qualification is aimed at ensuring the appointment of more women.

On some occasions some compromise may be made between the need for sufficient relevant experience and the need to appoint more women. To reach that compromise in an informed away, it is necessary to understand what it involves and to approach it in a rational way.

One way of doing this may be, in each case, to follow the maximal approach and to see where the woman candidate who is professionally most highly qualified is ranked and the extent, if any, of the gap between the professionally most highly qualified candidate and that woman.

Other factors relevant to this question may be the existing proportion in the court of women judges and the recent proportional rate of appointment of women judges to that court. The compromise, if any, should then be made in the light of those, and perhaps other factors.

The powers of existing judicial appointment bodies range from a power to appoint through a power to recommend a panel from which the appointment must be made, to a power merely to recommend a panel from which the government must either select the appointee or explain why.

Having an independent commission which itself has power to appoint is, in my opinion, an ideal to be aimed at but not a realistic possibility in Australia in the foreseeable future.

But it may be possible to persuade government to establish a commission with the power to recommend a panel of names from which the government must choose - or at least one having that power to recommend, with an obligation on government to explain any failure to appoint from that panel.

One reason why that may be possible is the realistic possibility that such an independent body might be established, in any event, without government approval.

Though the establishment of such a body without government approval would be only a last resort if the government could not be persuaded to constitute an independent recommending commission, it nevertheless merits serious consideration.

A body having the constituent members referred to earlier could be formed by agreement among those members, and act in accordance with the principles I have outlined.

And it could, whenever a judicial vacancy arises, make a recommendation to government by submitting a panel of names of no less than three qualified candidates selected by the committee in accordance with those principles.

Importantly, the panel should also indicate to government that, in accordance with the principles by which it was constituted, if the government refused to appoint someone from that panel, the committee would publicise that fact.

The publication of that fact would be some indication to the public that the appointment was made for political reasons rather than because the appointee was the person most qualified for the appointment.

And it might be some incentive to government not to use judicial appointment as a means of political patronage.