Evans, Simon; Williams, John --- "Appointing Australian Judges: A New Model" [2008] SydLawRw 16; (2008) 30(2) Sydney Law Review 295
[∗] Associate Professor and Deputy Dean, Melbourne Law School, University of Melbourne. The research for this paper was supported by the Judicial Conference of Australia. An earlier version of this article was presented at the JCA Colloquium, 7–9 October 2006. This paper does not reflect the views of the JCA. We acknowledge the research assistance of Rayner Thwaites, Anna Hood, Jess Moir, Christopher Tran and Tessa Setiadi, and the valuable comments of Justices Sackville, Debelle, Basten, Hasluck and Chesterman.
∗
[+] Professor, School of Law, University of Adelaide.
[1] For some developments since federation, see, for example, James Crawford & Brian Opeskin, Australian Courts of Law (4th ed, 2004) at 127; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45.
[2] Enid Campbell & H P Lee, The Australian Judiciary (2001) at 77, 101–11.
[3] See, for example, James Douglas, ‘Sir Charles Powers’ in Michael White & Aladin Rahemtula (eds), Queensland Judges on the High Court (2003) at 171.
[4] See, for example, Chris Merritt, ‘Selection Mystery’ ‘Prejudice’, The Australian (9 March 2007) at 23 (identifying five recent appointments as raising issues of inexperience and political connections).
[5] Lionel Murphy, ‘Address to the National Press Club’ in Tony Maniaty (ed), The Power of Speech (1989) at 97.
[6] Commonwealth Attorney-General Michael Lavarch, Discussion Paper: Judicial Appointments — Procedure and Criteria (1993) 6–9 at 16–19; Greta Bird, ‘Power, Politics and the Location of “the Other” in Multicultural Australia’ in The Criminal Justice System in a Multicultural Society, Australian Institute of Criminology Conference Proceedings, Melbourne, 4–6 May 1993, <http://www.aic.gov.au/conferences/multiculturalism/> accessed 22 September 2006 (copy at <http://www.webcitation.org/5XYnVwD4Q> accessed 9 May 2008); Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) at 29, 33–4; Elizabeth Handsley, ‘“The judicial whisper goes around”: appointment of judicial officers in Australia’ in Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006) at 122.
[7] See generally Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006).
[8] See, for example, ibid.
[9] Philip Ruddock, ‘Selection and Appointment of Judges’, (Speech delivered at the University of Sydney, 2 May 2005) at [21].
[10] Constitutional Reform Act 2005 (UK) c 4, s 63(2) (‘Selection must be solely on merit’). Section 63(2) provides that the selecting body must be satisfied that appointees are of good character.
[11] Geoffrey Davies, ‘Appointment of Judges’, (Speech delivered at the QUT Faculty of Law — Free Lecture Series, Banco Court, Brisbane, 31 August 2006) <http://www.law.qut.edu.au/about/AppointmentofJudges.pdf> 5 accessed 22 September 2006 (copy at <http://www.webcitation.org/5Xg5ok9jv> accessed 9 May 2008).
[12]Sharyn Roach Anleu & Kathy Mack ‘Judicial Appointment and the Skills for Judicial Office’ (2005) 15(1) Journal of Judicial Administration 37 at 38.
[13] Ruth McColl, ‘Women in the Law’ (Speech delivered at the Anglo-Australian Society of Law, Court of Appeal, Supreme Court of New South Wales, 3 May 2006) <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mccoll030506> accessed 22 September 2006 (copy at <http://www.webcitation.org/5XYnlLXDI> accessed 4 May 2008), (quoting the Chief Justice of Canada, Beverley McLachlin PC).
[14] Roach Anleu & Mack, above n12 at 38.
[15] Ronald Sackville, ‘Judicial Appointments: A Discussion Paper’ (2005) 14(3) Journal of Judicial Administration 117 at 140.
[16] Roach Anleu & Mack, above n12 at 47, quoting Claire Burton, Redefining Merit (1988) at 10.
[17] Roach Anleu & Mack, above n12 at 47.
[18] Sackville, above n15 at 140.
[19] Ruddock, above n9 at [22].
[20] Lavarch, above n6 at [2.2.1]–[2.13.4]; Sir Anthony Mason ‘The Appointment and Removal of Judges’ in Judicial Commission of New South Wales, A Fragile Bastion: Judicial Independence in the Nineties and Beyond (1997) at 10–11. See also Law Council of Australia, Policy on the Process of Judicial Appointments (2000) <http://www.lawcouncil.asn.au/get/policies/1957352833/0.pdf> accessed 22 September 2006 (copy at <http://www.webcitation.org/5XY nooqLH> accessed 9 May 2008).
[21] Department of Constitutional Affairs, ‘Competency Frameworks’ in Judicial Appointments in England and Wales: Policies and Procedures (2005) <http://www.dca.gov.uk/judicial/appointments/jappinfr.htm> accessed 22 September 2006 (copy at <http://www.webcitation.org/5Xg1nuyn1> accessed 9 May 2008); Department of Constitutional Affairs, ‘Changes from 3 April 2006’ in Judicial Appointments in England and Wales: Policies and Procedures <http://www.dca.gov.uk/judicial/process.htm#3rdaprilchanges> accessed 22 September 2006 (copy at <http://www.webcitation.org/5Xg236fKq> accessed 9 May 2008).
[22] See Sackville, above n15 at 129 (referring to the selection criteria adopted by the Tasmanian Department of Justice), 133 (summarising the criteria for judicial appointment in England and Wales).
[23] Id at 139.
[24] Roach Anleu & Mack, above n12 at 39.
[25] Which requires that federal judges be appointed by the Governor-General on the advice of Ministers.
[26] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 376–77; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 82.
[27] High Court of Australia Act 1979 (Cth) s 11, sched.
[28] Department of Constitutional Affairs, Constitutional Reform: A New Way of Appointing Judges (2003) at 3, 19–20. See also The Commission for Judicial Appointments, Annual Report 2002 at [8.3] and Mason, above n20 at 7.
[29] Michael McHugh, ‘Women Justices for the High Court’ (Speech delivered at the High Court dinner hosted by the West Australian Law Society, 27 October 2004) <http://www.hcourt.gov.au/speeches/mchughj/mchughj_27oct04.html> accessed 11 September 2006 (copy at <http://www.webcitation.org/5Xg2Ccy9D> accessed 9 May 2008).
[30] Terence Higgins, ‘Women in Law: Past Achievements and Future Directions’ (Speech delivered at the Sir Richard Blackburn Lecture, Pilgrim House, Canberra, 16 May 2006), <http://www.courts.act.gov.au/supreme/content/pdfs/Blackburn%20Lecture%202006.pdf> accessed 23 April 2008 at 7–8 (copy at <http://www.webcitation.org/5Xg2NtnSw> accessed 9 May 2008).
[31] Annual Report 2002, above n28 at [8.3].
[32] Alan Paterson, ‘The Scottish Judicial Appointments Board: New Wine in Old Bottles?’ in Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006) 13 at 26–31. We place no weight on what Paterson identifies as the third consideration in his survey — that a wider range of appointments would change and perhaps improve judicial decision-making. As Paterson’s survey demonstrates, opinions are widely divided on the evidence for this consideration: at 29–31. See also Cheryl Thomas, The Commission for Judicial Appointments, Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies and Practices (2005) at 57–60 <http://www.cja.gov.uk/files/Judicial_Diversity_Review_Report_PDF.pdf> accessed 11 September 2006 (archived <http://web.archive.org/web/*/http://www.cja.gov.uk/files/Judicial_Diversity_ Review_Report_PDF.pdf> accessed 9 May 2008).
[33] Paterson, above n32 at 26.
[34] Beverley McLachlin, ‘Promoting Gender Equality in the Judiciary’, Seminar to the Association of Women Barristers, House of Commons (Canada) (2 July 2003) at 6, quoted in Paterson, above n32 at 31.
[35] Baroness Usha Prashar, ‘Speech at the Annual ILEX Luncheon’ (Clothworkers’ Hall, London, 17 May 2006) at [10].
[36] Daryl Williams, ‘The Role of the Attorney-General’ (2002) 13 Public Law Review 252 at 261–62.
[37] James Allan, ‘Judicial Appointments in New Zealand: If it were done when ’tis done, then ’twere well it were done openly and directly’ in Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006) 103 at 115.
[38] Id at 116.
[39] See, for example, Administrative Review Council, What Decisions Should be Subject to Merits Review? (1999) at 20–22 (factors that may exclude merits review: decisions to appoint a person to undertake a specified function, recommendations to ultimate decision-makers, decisions where there is no appropriate remedy); Administrative Review Council, The Scope of Judicial Review (2006) at 57–58 (in most cases, limits on judicial review are justified for decisions where there is neither a right to a benefit nor a duty on the decision maker to consider conferring a benefit; sometimes, limits on judicial review are justified for decisions where there is a particular need for certainty or decisions about policy).
[40] Some measure of retrospective accountability is also appropriate. We discuss this below.
[41] Critics of appointments commissions also highlight the value of transparency. F L Morton recently argued that, as power cannot be depoliticised (a point with which we agree), ‘[t]he best one can do is to make the exercise of power as transparent as possible, and then create effective checks and balances’: Frederick Morton, ‘Judicial Appointments in Post-Charter Canada: A System in Transition’ in Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006) 56 at 75. He agrees with James Allan that the best achievable system would be one in which ‘the judges of the highest courts are appointed ‘“openly and directly by the elected government of the day”’, with opportunity for opposition parties to question appointees (not, it seems, prospective appointees) on their legal and constitutional outlook: ibid. He concludes: ‘The government will still get the judge it wants, but it can be held accountable for — or get credit for — its appointments at the next election’: ibid. Plainly, Morton’s concern is with the highest courts, particularly those exercising powers of judicial review on substantive rights issues. But even in relation to these courts his proposal is for a very diffuse form of accountability that (in Australia, at least) would lead to a novel overt politicisation of the courts.
[42] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 13, 41.
[43] Commonwealth Constitution s 72.
[44] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 77-8; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 at 65-6.
[45] Commission for Judicial Appointments, The Commissioners’ Review of the High Court 2005 Competition: Report to the Lord Chancellor (2006) [2.13]. See also the comments on judicial input in Chapter 6.
[46] See Judicature Act 1908 (NZ) ss 4(2) and 57(2) and Supreme Court Act 2003 (NZ) s 17. There are a few exceptions to this statement. Allan, above n37 at fn5.
[47] Ministry of Justice, Judicial Appointments: Office of the High Court Judge (2003) <http://www.justice.govt.nz/pubs/other/pamphlets/2003/judicial-appointments/high-court-judge.html#Criteria%20for%20appointment> accessed 14 September 2006 (copy at <http://www.webcitation.org/5Xg32G4p7> accessed 9 May 2008).
[48] Judicial Appointments, Courts of New Zealand <http://www.courtsofnz.govt.nz/about/judges/appointments.html> accessed 14 September 2006 (copy at <http://www.webcitation.org/5Xg3FMZxO> accessed 9 May 2008).
[49] Allan, above n37 at 115.
[50] Morton, above n41 at 67–68.
[51] See, for example, Minister of Justice (Canada), Proposal to Reform the Supreme Court of Canada Appointments Process (April 2005) <http://canada.justice.gc.ca/eng/dept-min/pub/scc-csc/scc-csc.pdf> accessed 14 September 2006 (copy at <http://www.webcitation.org/5XhtKbB4H> accessed 9 May 2008).
[52] See Department of Justice (Canada), Report Of The Interim Ad Hoc Committee On The Appointment Of Supreme Court Judges (August 2004) <http://canada.justice.gc.ca/eng/dept-min/pub/scj2-jcs2/annexa.html> accessed 14 September 2006 (copy at <http://www.webcitation.org/5Xg3rlPdH> accessed 9 May 2008).
[53] Minister of Justice (Canada), above n51.
[54] Peter Hogg, ‘Judicial Interview Process. Opening Remarks to Ad Hoc Committee on Supreme Court Appointment’ (Speech delivered at the Ad Hoc Committee on Supreme Court Appointment’, Canada, 27 February 2006) <http://www.justice.gc.ca/eng/dept-min/pub/scc-csc/sp-dis.html> accessed 6 April 2008. (copy at <http://www.webcitation.org/5Xg3w8b3S> accessed at 9 May 2008).
[55] Ibid.
[56] The process is somewhat different for heads of division, the Court of Appeal and the Supreme Court.
[57] Constitutional Reform Act 2005 (UK) c 4, sched 12.
[58] The Chair of the appointing panel (who cannot be a practising lawyer or judge, a Commissioner or an MP) is appointed by agreement of the Lord Chancellor and Lord Chief Justice; the remaining members are the Lord Chief Justice, the Chair of the Judicial Appointments Commission (if he or she has been appointed) and a person nominated by the Chair of the appointing panel. See Constitutional Reform Act 2005 (UK) c 4, sched 12. The panel must consider the views of the Bar and Law Society in selecting the professional members of the Commission.
[59] Constitutional Reform Act 2005 (UK) c 4, sched 12.
[60] See generally the Judicial Appointments Commission’s website, <www.judicialappointments. gov.uk> accessed 9 May 2008.
[61] Constitutional Reform Act 2005 (UK) c 4, s 63(2)-(3).
[62] Constitutional Reform Act 2005 (UK) c 4, s 64(1).
[63] Constitutional Reform Act 2005 (UK) c 4, s 65(1).
[64] Constitutional Reform Act 2005 (UK) c 4, s 66(1).
[65] See for example, Constitutional Reform Act 2005 (UK) c 4, s 70(2).
[66] Judicial Appointments Commission <http://www.judicialappointments.gov.uk/select/qualities.htm> accessed 5 April 2008 (copy at <http://www.webcitation.org/5Xg4Bm00p> accessed 9 May 2008).
[67] Good character being a statutory requirement for selection: see Constitutional Reform Act 2005 (UK) c 4, s 63(3). The guidance was published at the end of 2007: see Judicial Appointments Commission <http://www.judicialappointments.gov.uk/docs/Judicial_Appointments_Commission_ Good_Character_Guidance.pdf> accessed 5 April 2008 (copy at <http://www. webcitation.org/5Xg4IQWjv> accessed 9 May 2008).
[68] Baroness Usha Prashar, above n35.
[69] Ibid; see also Judicial Appointments Commission <http://www.judicialappointments.gov.uk/select/step.htm> accessed 5 April 2008 (copy at <http://www.webcitation.org/5Xg4QZTQ6> accessed 9 May 2008).
[70] See Judicial Appointments Commission <http://www.judicialappointments.gov.uk/select/widening.htm> at 5 April 2008 (copy at <http://www.webcitation.org/5Xg4fgjFR> accessed 9 May 2008).
[71] The selection process is outlined on the JAC’s website: see Judicial Appointments Commission <http://www.judicialappointments.gov.uk/select/step.htm> accessed 5 April 2008 (copy at <http://www.webcitation.org/5Xg52crKo> accessed at 9 May 2008).
[72] This is a statutory requirement: see Constitutional Reform Act 2005 (UK) c 4, ss 88(3), 94(3).
[73] Constitutional Reform Act 2005 (UK) c 4, s 96.
[74] Constitutional Reform Act 2005 (UK) c 4, ss 99-102.
[75] The system operating in Scotland is assessed in Paterson, above n32. A somewhat different system operates in Northern Ireland: see Sackville, above n15 at 136. We are not the first to propose a judicial appointments commission for Australia. Other proposals include:
• The Hon Geoffrey Davies recently proposed a Queensland commission consisting of seven members, ‘the Chief Justice; either another Supreme Court judge appointed by the Chief Justice or, if the appointment is to the District Court, the Chief Judge of that Court; the President of the Bar; the President of the Law Society; the head of a church in Queensland (to be rotated annually among the various churches); the editor of The Courier Mail or The Australian, to be rotated annually; the local President of Zonta’: Davies, above n11. (Zonta is ‘a global service organization of executives and professionals working together to advance the status of women worldwide through service and advocacy’: Zonta International <http://www.zonta.org> accessed 26 September 2006.)
• Sir Anthony Mason recommended a commission of ‘not more than nine members of whom at least five should be judges and practising lawyers’, perhaps ‘two judges, a nominee of the relevant Bar Association, a nominee of the relevant Law Council or Society and a nominee of the Council of Law Deans, one or two nominees of government and two lay persons who should be selected having regard to their capacity to represent the community’: Mason, above n20 at 10–11.
• Sir Garfield Barwick suggested that there be some restraint on the executive in judicial appointments, including possibly a judicial appointments commission (including ‘judges, practising lawyers, academic lawyers, and, indeed, laymen likely to be knowledgeable in the achievements of possible appointees’): Sir Garfield Barwick, ‘The State of the Australian Judicature’ (1977) 51 Australian Law Journal 480 at 494.
• The Attorney General’s Discussion Paper: Judicial Appointments Procedure and Criteria: Attorney General Discussion Paper (1993) at 24-26 summarises the composition of then existing and recommended appointments commissions in comparable jurisdictions (which include judges, practising and academic lawyers, community representatives, Attorneys-General, retired judges and politicians, serving politicians and media representatives).
• George Winterton’s 1987 proposal differed from ours in insisting that the legal members not be representatives of their professional bodies ‘so that they represent nothing but the public interest’: George Winterton, ‘Appointment of Federal Judges in Australia’ (1987) 16 Melbourne University Law Review 185 at 210–11.
For general discussion and more general proposals, see also Sir Gerard Brennan, ‘The Selection of Judges for Commonwealth Courts’ (2008) 48 Papers on Parliament 1; Amber Augustin, ‘Federalism and the High Court: Fixing the appointment process’ (2006) IPA Review 22; Sackville, above n15 at142–43; Handsley, above n6 at 136–37; George Williams & Rachel Davis, ‘Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ [2003] MelbULawRw 32; (2003) 27 Melbourne University Law Review 819 at 859–863.
[76] Kate Malleson, ‘The New Judicial Appointments Commission in England and Wales: New Wine in New Bottles?’ in Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006) 39 at 51.
[77] Ruddock, above n9 at [62]–[64].
[78] Malleson, above n77 at 48. We do not consider the process for appointing tribunal members in Australia. There is obviously a case for an independent appointments process for independent merits review tribunals like the AAT.
[79] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45.
[80] As noted below we do consider the establishment of State and Territory judicial appointment commissions. Whether there will be a national body is itself an issue for consideration.
[81] Where the Attorney-General proposes to make more than one appointment to the same registry of the same court, the judicial appointment commission would provide two more names than the proposed number of appointments.
[82] The Commissioners’ Review of the High Court 2005 Competition, above n45 at [4.3].
[83] While there is broad agreement on the main sub-criteria of the concept of merit, and perhaps these could be spelt out in statute, the concept of merit will need to be spelt out in different ways for different courts and will evolve over time. This flexibility is best achieved by leaving it to the Commission to specify the sub-criteria. It will be accountable for its specifications through their publication in the course of each selection exercise and in its annual reports.
[84] Murray Gleeson, ’Judicial Selection and Training: Two Sides of the One Coin‘ (Speech delivered at Judicial Conference of Australia, Colloquium – Darwin, 31st May 2003) <http://www.hcourt.gov.au/speeches/cj/cj_judicialselection.htm> accessed 18 September 2006 (copy at <http://www.webcitation.org/5Xg5Ys727> accessed 9 May 2008).
[85] Davies, above n11.
[86] See Thomas, above n32 (discussing the need for reform of educational and professional structures in the UK to ensure that there is a diverse pool of candidates qualified for appointment to the judiciary).
[87] Compare James Crawford. Australian Courts of Law (1st ed, 1982) at 53 quoted in George Winterton, ‘Federal Judicial Appointments in Australia’ [1987] MelbULawRw 17; (1987) 16 Melbourne University Law Review 185 at 208.
[88] Malleson, above n76 at 43.
[89] To avoid the irritation of unsolicited letters individuals will be able to opt out from being contacted by the judicial appointments commission.
[90] When several appointments are made at the one time or in very short succession, it may be possible to make recommendations based on information gathered during the one selection process, rather than undertaking separate selection exercises.
[91] Famously Sir Garfield Barwick was critical of the degree of consultation that Mr Whitlam accorded him when selecting Justice Lionel Murphy. Reportedly Whitlam met with Barwick to discuss possible replacements for the vacancy left by the sudden death of Sir Douglas Menzies. Murphy’s name ‘was not mentioned’. When Whitlam next contacted Barwick he announced that ‘Murphy has agreed to accept the appointment’. Garfield Barwick, A Radical Tory (1995) at 232–33.
[92] The latter point is put forcefully by the UK Judges’ Council response to the consultation papers on constitutional reform, available at <www.dca.gov.uk/judicial/pdfs/jcresp.pdf> at [71] (archived <http://web.archive.org/web/*/www.dca.gov.uk/judicial/pdfs/jcresp.pdf> accessed 9 May 2008).
[93] In considering the use to be made of judicial panel members’ personal knowledge of candidates, it was recently been stressed by the Commission for Judicial Appointments in the UK that use can be made of such knowledge subject to the all-important caveat that it is ‘clearly evidence-based’: The Commissioners’ Review of the High Court 2005 Competition, above n45 at [8.51]. See also at [8.18]–[8.28].
[94] The detrimental effects of a deferential approach to intervention by the senior judiciary is discussed in Commission for Judicial Appointments, The Commissioners’ Review of the Recorder 2004/05 Competition (Midland Circuit): Report to the Lord Chancellor (2005) at [3.37].
[95] On the need to determine whether rumours adverse to a candidate’s selection are substantiated when they first emerge, rather than later in the practitioner’s career see id at [3.37] (recommendation 11).
[96] Mason, above n20 at 10.
[97] Thomas, above n32 at section 1.3. See also The Commissioners’ Review of the High Court 2005 Competition, above n45. For empirical findings attesting to suspicions in the pool of potential judicial applicants relating to the use of secret soundings in the judicial appointment process: see Centre for Research in Equality and Diversity, Assessment Centres for Judicial Appointments and Diversity: Research Report for the Department of Constitutional Affairs (2006) 11 at 58, 62–3.
[98] Report of the Commissioners’ Review of the Circuit Judge 2005/2006 Competition at [4.23].
[99] The Commissioners’ Review of the Recorder Competition 2004/05 Competition (Midland Circuit), above n94 at [3.37] (recommendation 12).
[100] These concerns were identified in the UK: see, Commission for Judicial Appointments, Report of the Commissioners’ Review of the Circuit Judge 2005/2006 Competition (2006) at [4.17]–[4.23]. These comments were addressed to observations of senior judicial intervention late in the appointments process.
[101] For a recent allegation of inappropriate probing of the political views of candidates for the judiciary see Misha Ketchell, ‘Is This How the Australian Government Selects its Top Judges?’ (3 July 2006), copy on file with the authors. For an expansion on related points on the potential for political patronage in the current process: see Davies, above n11 at 3–4.
[102] Morris Graham, ‘Piddington’ in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001) at 534.
[103] The Commissioners’ Review of the High Court 2005 Competition, above n45 at [6.5].
[104] Sackville, above n15 at 142. See to the same effect the recommendations of The Commissioners’ Review of the High Court 2005 Competition, above n45 at [8.49].
[105] Sackville, above n15 at 142.
[106] See, for example, Constitutional Reform Act 2005 (UK) c 4, ss 79–80.
[107] Ronald Sackville, ‘The Judicial Appointments Process in Australia: Towards Independence and Accountability’, (Paper given at the Australian Bar Association Judicial Appointments Forum, 27 October 2006) at 16–20.
[108] Id at 21.
[109] Ibid.
[110] We do not recommend that the Attorney-General be permitted to appoint a candidate not recommended by the Commission: cf Williams and Davis, above n75 at 858–59.
[111] Commonwealth Constitution s 72.
[112] Tony Blackshield and George Williams, Australian Constitutional Law and Theory (3rd ed, 2002) at 520; George Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis (1983) at 95; Leslie Zines, The High Court and the Constitution (4th ed, 1997) at 262-63.
[113] A national body could consist of the members of the State, Territory and Commonwealth Commissions. The constituent bodies would continue to be responsible for recommending appointments in their respective jurisdictions. The national body would be too large and too disparate to function effectively as an appointing body. (Of course, it is consistent with the abstract principles of federalism for a national body to appoint state judges: see, for example, the Canadian system. And in principle a small and workable national Commission could be established to make State appointments. However, this would be a substantial departure from the Australian federal judicial model and would not be consistent with the Australian federal system, whatever its attractions in (say) Canada might be.) The national body on our model would therefore be a body with no formal functions other than supervision of the shared secretariat (through an executive council), and monitoring and policy development at a national level.
[114] Perhaps sharing a national secretariat: see part I below.
[115] We outline the process of choosing these academic and lay members below.
[116]For a brief survey of the literature, see Ryan A Smith, ‘Race, Gender, And Authority in the Workplace: Theory And Research’ (2002) 28 Annual Review of Sociology 509 at 521–22.
[117] With some modification in the case of federal judicial officers to ensure that the appointment is consistent with the persona designata principle.
[118] Once the Chair of the Commission (one of the lay members) is appointed, he or she should be a member of the panel appointing the other lay members and the legal academic.
[119] If a jurisdiction adopted an independent evidence-based process for appointment to statutory offices and government bodies, appointments to the Commission in that jurisdiction should be brought within that framework, rather than remain the responsibility of the Commission itself.
[120] Allan, above n37 at 114–15; and generally Morton, above n41.
[121] Nicola Roxon, ‘Comment on Proposal for Judicial Appointments Commission’ paper given at the Judicial Conference of Australia, Colloquium 2006 Canberra, 8 October 2006 at <http://www.jca.asn.au/content/attachments/2006-williams_evans_comments.pdf> accessed 4 April 2007 (copy at <http://www.webcitation.org/5NrSWASKx> accessed 9 May 2008).
[122] Ibid.
[123] Robert McClelland, ‘Judicial Appointments’, (Speech delivered at the Judicial Appointments Forum, Bar Association of Queensland Annual Conference, Gold Coast, 17 February 2008) <http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/Speeches_2008_18February2008-JudicialAppointmentsForum> accessed 4 May 2008 (copy at <http://www.webcitation.org/5XYnHgO8c> accessed 9 May 2008).