Appointing judges judiciously

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.