Appointing judges judiciously

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.