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Quiet Reform - Selecting Australia’s Judges

Quiet Reform - Selecting Australia’s Judges. Elizabeth Handsley Professor of Law Flinders University. Outline. Recent reforms + outcomes Questioning assumptions and fundamental concepts Matters (so far) overlooked Recent appointments can shed light on process

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Quiet Reform - Selecting Australia’s Judges

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  1. Quiet Reform - Selecting Australia’s Judges Elizabeth Handsley Professor of Law Flinders University

  2. Outline Recent reforms + outcomes Questioning assumptions and fundamental concepts Matters (so far) overlooked Recent appointments can shed light on process Focus on High Court (in spite of myself)

  3. What is at stake? Murphy, Mabo/Wik, gender bias Black letter lawyers / judicial activists State of origin Accountability for use of public power Political influence / judges bringing politics to bench ‘Representation’ Lack of transparency - clubbiness and patronage

  4. Organising principles • Transparency (of process) • Steps to identify candidates • Criteria applied • Diversity (of outcomes)

  5. Transparency • Sunlight a good disinfectant • Raises (grounds for) confidence in process • Tension with confidentiality • Whose confidence?

  6. Whose confidence? Potential candidates’? The legal community’s? The broader public’s? Emphasise the net-casting aspect

  7. Diversity Not for own sake, but to achieve … Representation vs representativeness Which groups should expect to be ‘represented’? (even in statistical sense) Which characteristics are relevant to the job of judging?

  8. Other myths and misconceptions Predicting judicial outcomes based on political affiliations (etc) Clear division between ‘black letter lawyers’ and ‘judicial activists’ Diversity in tension with merit

  9. McClelland changes 2008 Federal Court of Australia; Family Court of Australia; Federal Magistrates Court Description of process (≠ full transparency) Panel and possible interviews List of selection criteria ‘Overriding principles’ inc. diversity subject to merit

  10. Different for High Court - why? Belief the new processes are less dignified? Increased diversity more important and more justified for higher courts?

  11. Roxon’s ‘cage-rattling’ What I want is that people don’t think they can only nominate a commercial barrister from Sydney - who’s a man. … The point is that I want Australians to be able to look at our courts and say, ‘Oh, you know, there’s people from my part of the world’.

  12. And out of the ‘cage’ come …

  13. What can these appointments tell us about the process? • The ‘wide net’ doesn’t seem to have made much difference • Legal community’s lack of imagination? • Reference to not-so-visible considerations?BUT • The criteria may have done so • Consider recent FCA appointments • Woman solicitor, Tasmanian former politician

  14. State of origin • Who counts as South Australian? • Lawyers’ mobility (esp early in career) • What is the point of geographical diversity?

  15. Geographical diversity Distinct perspective? ‘People from my part of the world’? Bigger and smaller states?

  16. Content of merit Brilliance (varieties of) Willingness to explain and defend judgments (included) Collaboration? Intellectual leadership?

  17. Other aspects of process Whether to open up vacancy Appointment of panel members Balance of expertise

  18. Thanks! Elizabeth.Handsley@flinders.edu.au

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