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