Shaw, JW --- "Judicial Appointments" [2000] ALRCRefJl 20; (2000) 77 Australian Law Reform Commission Reform Journal 6

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Reform Issue 77 Spring 2000

This article appeared on pages 6 - 7 & 88 of the original journal.

Judicial appointments

By JW Shaw QC*

Former New South Wales Attorney-General Jeff Shaw has experience in the appointment of judges in the NSW jurisdiction, including magistrates, District and Supreme Court judges and judges of other more specialist jurisdictions, as well as an involvement in the consultative process leading to the appointment of justices of the High Court of Australia. This article outlines his thoughts about how these appointments are made.

Anyone who supports an independent court structure, that is to say, the idea of judges and magistrates acting without control or influence from the executive government or the legislature, supports the security of tenure of judicial officers. That security is an utterly indispensable attribute of the separation of powers between the judicial arm of government and its other components, the legislature and the executive government.

In both NSW and federal Constitutions there are entrenched provisions protecting judges from arbitrary dismissal either by the parliament or the executive government. Unlike many other holders of statutory office, judges and magistrates can only be dismissed by an elaborate, open and difficult process, which requires the demonstration of proved misconduct or incapacity for office, and requires a majority vote of both houses of parliament to that effect. In NSW, there is another statutory precondition of the dismissal of a judicial officer, and that is that the matter must be the subject of a complaint to the Judicial Commission of New South Wales, which by its Conduct Division establishes an inquiry and makes appropriate recommendations to the parliament as to whether there is any basis for considering the dismissal of the judge or magistrate. In the absence of such a recommendation, the legislature cannot of its own motion initiate a process that would lead to the dismissal of a judicial officer.

In some American states, judges are directly elected by the people. This meets the argument that unelected judges are determining question of policy or exercising broad discretions contrary to democratic principles. But to the Australian legal mind, such a process would be unacceptable, involving as it necessarily does, judges making promises to the electorate as to how they will exercise their functions once appointed.

The better balance is provided by the system of the executive government, democratically elected, appointing the judges who thereafter have security of tenure and complete autonomy. If this traditional approach might seem to some to be too political, it can only be said that a sensible government and a sensible attorney-general will always seek an appropriate balance and avoid the crass or unmeritorious political appointment. That is not to say that participation in party politics or public life should be a disqualification for appointment to the bench, but it is to say that the appointments of a government, when seen over time, ought to be defensible as not excessively partisan and should be able to be characterised as balanced in terms of the appointment of people from differing political perspectives or none.

The appointment by executive government requires, however, extensive consultation, in particular with the head of jurisdiction whose views ought to always be given substantial weight by the attorney-general of the day. Likewise, the leaders of the profession, both the bar and the solicitors, ought to be consulted and their views taken into account. This process can occur quite informally, but it is crucial in alerting an attorney-general to an inappropriate appointment or signalling the appropriateness of appointing people who might otherwise not have been thought of. In relation to the appointment of justices to the High Court, a more formalised structure has been developed in accordance with the spirit and intention of the Judiciary Act 1903 (Cth). Under current Attorney-General Daryl Williams and his Labor Party predecessor Michael Lavarch, personal conversations were conducted with state attorneys-general and lists were forwarded for comment. It has been generally understood that a justice of the High Court would not be appointed whose name had not been informally and confidentially the subject of discussion with the attorneys-general of the states and territories. This seems to be an appropriate and sensible development. Irrespective of one’s views of the outcome of particular appointment processes, it is difficult to complain about the process that has been adopted. I would defend the ultimate right of the Commonwealth government to make the decision about the important appointment of a justice of the High Court, while taking on board the views of the other jurisdictions.

Should the judges be representative of the community? In one sense, this is impossible. Obviously judicial officers need to have superior intellectual and technical legal skills. These attributes are not shared uniformly throughout the Australian community. On the other hand, it is difficult to the point of impossibility to defend the gender imbalance in our courts, or the lack of people, at least in large numbers, from the diverse ethnic communities which make up our contemporary society, or the conspicuous lack of Indigenous Australians on our benches. Certainly, those making appointments to the bench need to apply the merit principle, but where there is equality of merit, or even reasonable comparability of merit, then it is entirely understandable that an attorney-general might choose somebody who is from a more diverse section of the community than has historically constituted the bench. If we confined our appointees to the upper echelons of the bar, then it would be an unsustainably long period before women, people from diverse and non-English speaking backgrounds and Aboriginal people attained a place on the bench.

I believe in NSW we have, over the past five years, successfully balanced the obvious need for the merit criterion to be applied against the need for a more diverse and representative bench to be constructed. So, particularly in the Local Courts, the percentage of women having been appointed has been extremely high and we have had notable appointments from socio-economic and ethnic groups that otherwise could legitimately have claimed to have not been represented in the courts of our nation.

The task is a delicate one, and must be undertaken without in any way undermining the strength or integrity of our judicial system. However, with sensitivity and care, I believe that substantial change to the composition of our benches can be effected consistently with appropriate democratic principles.

* The Hon Jeff Shaw QC is a New South Wales barrister. He was the Attorney-General of New South Wales from 1995-2000.