Appointment of Judges G. L. Davies

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

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

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

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?

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

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

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

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

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

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

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

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

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

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

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

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

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

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