Appointing judges judiciously

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.