Appointment of Judges

1. Appointment of Judges G. L. Davies

2. Introduction • my proposal two-years ago: establishment of a body to appoint or recommend appointment • not novel: the Lord Chancellor; and many other countries • opposition by Government: surrender of power; and of the opportunity to reward supporters and friends

3. The System in Australia • some consultation; but except by inference it is impossible to say how much notice governments take of recommendations • numerous examples of the governments apparently ignoring recommendations • the process of selection is secretive • the opportunity and sometimes the reality of political patronage

4. Why this is unacceptable in a modern democracy • the power of judges to declare legislation invalid or interpret it favourably or unfavourably to government • increasing involvement of government as a party to litigation • the consequent perception and sometimes reality of political patronage • with a consequent decline in quality and in public confidence in the system

5. What should replace the existing system • appointment by or on the recommendation of an independent body capable of assessing relevant qualities • how to secure independence from government • what are the criteria for assessment? • who should be the members of the body? • how should they make their assessment? • what should be their powers?

6. The independence of the body • the choice of members cannot be left to government; perpetuates the existing system • appointment of members only by reference to representative position in non government bodies • not difficult for legal members: Chief Justice, President of Bar, President of Law Society • similar process for any nonlegal members

7. The criteria for appointment • merit and some uncontroversial criteria • maximal and minimal approaches to professional qualities • the meaning and importance of relevant experience • the call for greater diversity; more solicitors and academics, more women, persons from minority groups, more social and cultural diversity

8. Some uncontroversial criteria • merit definable only in terms of criteria • the need to define those criteria concisely • the need to separate professional and personal qualities • professional qualities: intellectual capacity, legal knowledge and relevant experience • personal qualities: integrity, impartiality, industry, sense of fairness, courtesy

9. The maximal and minimal approaches to professional qualities • maximal approach accepts that all are not equal in professional qualities and grades them: appointment then made of best provided he or she has necessary personal qualities • minimal approach accepts a minimal prima facie standard for professional qualities thereby opening up a wider field • but this compromises professional quality

10. The meaning and importance of relevant experience • means sufficient experience in the kind of things that judges do • decide questions of law, evidence and procedure promptly during a trial; and give reasoned judgments promptly at the end • the only way of gaining this experience is by practice • the kind of work that barristers do

11. The call for greater diversity • desirable that judges be drawn from a wider social, cultural and economic base: the risk to professional excellence • diversity generally means more solicitors and academics; more women; persons from minority groups; and persons from a wider social and cultural base • different considerations apply to each of these; the need to consider them separately

12. More solicitors and academics • most lack experience in doing the kinds of things that judges do • academics less likely to be relevantly experienced than solicitors • solicitors tend to work in teams; therefore difficult to assess the work of any one

13. More women • the paucity of women with relevant experience • some simple statistics: over half of law graduates are women; but only 17% of the bar; 11% of those over 10 years; 6% of those over 15 years; 3% of those over 20 years; of 86 Senior Counsel only one is a woman • increasing the proportion of women judges involves compromising both relevant experience and professional quality • if done, must be only on a rational basis

14. Appointment from minority groups or from a wider social and cultural base • very few persons from minority groups in the legal profession; even fewer who are experienced • it is desirable to appoint from a wider social and cultural base: public confidence in the system • that is already occurring; but it should not be achieved by appointing unqualified people

15. Whether the uncontroversial criteria should be expanded • what I have said shows no justification for doing so • there may be justification for qualifying relevant experience, from time to time, to enable the appointment of more women • but that must be done on a rational basis not, as governments sometimes seem to do, on an irrational basis

16. Membership of the appointments body • the number should not be so large as to be unwieldy • the composition should reflect: - that professional qualities can be assessed only by professional peers - and that assessment of personal qualities should be made by persons including nonlawyers

17. How it should assess • that depends on whether it applies the maximal or the minimal approach to professional qualifications • the dangers of applying the minimal approach: • -it compromises professional quality • -and it is uncertain how those who attain the minimal qualification are assessed • qualifying the maximal approach to enable the appointment of more women from time to time

18. What its powers should be • unrealistic to expect the establishment of an independent commission with powers to appoint • should have power to recommend a panel of names from which government must choose or explain its failure to do so • if government will not appoint such a body it can and should be established without government approval

19. Conclusion • Australia now almost alone in the common law world in failing to have an independent recommending body • no rational explanation for this failure • the present system is unacceptable in a modern democracy because judges increasingly have to decide between a citizen and the government; with the consequent possibility and the perception of appointment for political reasons