OPINION: Retired judge Kenneth Hayne recently told a conference audience that he had no warning of his appointment to the High Court in 1997. The federal attorney-general simply telephoned one afternoon to offer him the position, confirmed the appointment half an hour later, and it was publicly announced 20 minutes after that.
Sometimes the process has been different – but it is typically mysterious. Apart from a statutory need to “consult” their state counterparts for High Court appointments, the attorney-general has unlimited discretion in selecting who joins the federal judiciary.
Occasionally, the attorney-general’s choice may be rolled by cabinet’s preference for another candidate. The last occasion on which we know that this occurred was the Howard government’s appointment of Ian Callinan, QC, instead of Attorney-General Daryl Williams' recommendation of John von Doussa, QC, to the High Court in 1998.
Either way, the public justification is invariably that the individual has been selected on “merit” alone. But that rarely makes clear why one talented and brilliant lawyer is appointed over others at any particular time.
Just how much longer can Australia’s method of appointing judges remain so opaque and informal?
Restoring public confidence
Public confidence in the courts as independent from the political arms of government is vital in a society that respects the rule of law. How persons are selected for appointment to the bench is an important way in which that confidence may be affected.
It is no criticism of Australia’s judiciary to say that it would be preferable, both for them and the public, if they took office after a more transparent process.
The crisis into which the Queensland legal system was plunged by the appointment of Tim Carmody as chief justice highlights the deficiencies of the old method of executive discretion. While that controversy appears to have been resolved with Carmody’s resignation in June, the lesson is that a more independent and considered process has a lot to recommend it.
Generally, all states and territories have reformed their judicial appointments practices in some way over recent years. The Carmody affair perhaps reflects that Queensland has hardly been in the vanguard.
But, at the Commonwealth level, things are actually in reverse. Attorney-General George Brandis dismantled reforms initiated in 2008 by the previous Labor government. He has never explained why selection criteria, advertising judicial vacancies and the use of advisory panels to assess potential candidates had to go.
The Commonwealth’s method of appointing persons to the federal judiciary is now seriously behind domestic and international trends. In April, the Judicial Conference of Australia released a comparison of all Australian jurisdictions. Confronted with an almost total dearth of information to report about current Commonwealth practice, the JCA resorted to describing the abandoned Labor system.
At the same time, it detailed various approaches of other Australian governments. Most have publicly available criteria identifying the qualities that make up “merit”. Many advertise vacancies and use advisory or selection panels, at least for lower courts. Some even interview prospective judges.
What can Australian learn from overseas?
The JCA report was essentially descriptive. But the Bingham Rule of Law Centre’s vast survey of practice across the Commonwealth group of nations goes much further. Published in July, the report identifies “best practice” against a set of principles agreed upon by law ministers and endorsed by the Commonwealth Heads of Government Meeting (CHOGM) in 2003.
Those principles provide that judicial appointments should be made:
… on the basis of clearly defined criteria and by a publicly declared process.
Australia obviously falls at this first, very basic hurdle. So, there is no way it can demonstrate satisfaction of the further requirements agreed upon by CHOGM.
These are that the “process” of appointing judges should:
… ensure equality of opportunity for all who are eligible for judicial office; appointment on merit; and that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination.
We know where things stand in Australia on the last point. Before the 2013 election, Brandis was dismissive of taking any deliberate steps to improve judicial diversity.
The Bingham report reveals that Australia is in a minority. The executive still has sole responsibility for making appointments to superior courts in just 18.7%, or nine out of 48, independent Commonwealth jurisdictions. In the rest, either a judicial appointments commission or the legislature has some say in selection.
The presence of Canada and New Zealand among this minority gives little comfort. As the Judicial Conference of Australia report details, they both use selection criteria and have more transparent processes in place.
Additionally, both countries are actively debating, and experimenting with, further reform. In Canada, this has included establishing ad hoc parliamentary committees to draw up shortlists of potential appointees.
Australia’s federal government remains attached to an opaque system of appointments that is in retreat within the country and throughout the Commonwealth. The process is inadequate, indefensible and does a disservice to the individuals who are appointed under it.
Andrew Lynch is a Professor of Law at the Gilbert + Tobin Centre of Public Law at UNSW.
This opinion piece was first published in The Conversation.