Key issues for judicial appointments
Key issues to consider in relation to judicial appointment processes
include:
· Judicial independence;
· Merit-based appointments;
· Equality and diversity;
· Transparency and accountability.
Models for judicial selection
In most major common law countries judges are appointed by the Executive.
However, the selection process varies across jurisdictions, and even within
jurisdictions. In broad terms, the models include:
· Executive makes a selection after conducting a consultation process,
which may be formal or informal;
· Executive makes a selection after receiving advice from an advisory panel
convened by the Executive;
· Executive makes a selection after receiving recommendations from an
independent appointments commission.
Most Australian jurisdictions (including NSW) apply the first two of these
models. The third model has been adopted in the UK and, with qualifications, in
Canada. Three other models that exist in the US are: Executive nomination and
Legislature confirmation; election by the Legislature; and popular election.
There is little, if any, support for adopting any of these US models in
Australia.
Judicial appointments in NSW
Legislation provides for judges to be appointed by the Governor, acting upon
the advice of the Executive Council. In practice, the Attorney-General makes
recommendations to Cabinet, and then advises the Governor.
Superior
court appointments are made following consultation with the head of
jurisdiction and legal professional bodies. There is a different selection
process for District Court judges and Local Court magistrates (resulting, in
part, from reforms in 2008). Vacancies for these positions are advertised,
with calls for expressions of interest. In addition, selection panels provide
advice to the Attorney-General. Selection criteria were published in 2008, and
these are to be considered when selecting candidates for every judicial office.
In terms of the gender balance, women comprise less than 20 percent of Supreme
Court judges, around 25 percent of District Court judges, and about 40 percent
of magistrates.
Appointments in other Australian jurisdictions
In all other Australian jurisdictions, appointments are also made by the
Executive. In the case of High Court judges, appointments are made after a
consultation process conducted by the Commonwealth Attorney-General. The
process for appointments to other federal courts was revised in 2008, and
includes consultation, advertising, and advisory panels. The judicial
appointment process in other States appears very similar to NSW. It can be
noted, however, that the Tasmanian Department of Justice has published a
Protocol for Judicial Appointments and that, in Tasmania, advertising
and assessment panels are also used for Supreme Court appointments.
Comments by academics, lawyers and judges
For decades, the processes for appointing judges in Australia have been subject
to criticism by a number of academics, lawyers and judges. Criticisms have been
made about the lack of transparency in the appointments process, about
patronage and political appointments, and regarding the limited gender and
cultural diversity on the bench. A number of critics (including eminent judges)
have called for the establishment of an independent judicial appointments
commission (or commissions) in Australia. On the other hand, some eminent
judges have opposed, or expressed doubts about, such a proposal, instead
favouring a more formal consultation process. The NSW Law Society has also not
supported the establishment of a commission.
Recent papers and reports in Australia
In March 2008, the NSW Coalition released a policy paper which recommended the
establishment of a Judicial Appointments Commission. Following the State
election 2011, the new Attorney-General, Greg Smith, said that the Government
was still looking at this proposal. At the federal level, in 2009, a Senate
Committee published a report on Australia's judicial system. The Committee was
not persuaded that the cost of establishing an appointments commission was
currently warranted. Most recently, in July 2010, the Victorian Government
published a discussion paper on the judicial appointment process.
Judicial appointments in the UK
The Executive is responsible for making judicial appointments but, as a result
of reforms enacted in 2005, its role in the selection process has been
curtailed. A Judicial Appointments Commission (JAC) now recommends candidates
for most judicial offices in England and Wales (Scotland and Northern Ireland
have their own commissions). The JAC is comprised of members from the judiciary
and the profession, as well as lay members. The Executive can only reject a
recommendation from the JAC on certain grounds. The JAC has been criticised
for delays, and also regarding the type and quality of appointments. The UK
Government recently published a consultation paper, with proposals to address
some issues with the process and to respond to an Advisory Panel's report on
judicial diversity. A House of Lords Committee has also recently published a
report, which supported the existing model but proposed some changes.
Judicial appointments in Canada
For appointments to the Supreme Court of Canada, the Executive identifies a
list of qualified candidates and this list is reviewed by a selection panel
comprised of five Members of Parliament. The panel provides an unranked list of
six candidates to the Executive for its consideration. A different process
applies for appointments to other federal courts and to provincial superior
courts. The Commissioner for Federal Judicial Affairs administers part of this
process on behalf of the Minister, and a key feature of the process is the role
of Judicial Advisory Committees. These Committees are made up of eight
representatives from the judiciary, the profession, the public, the government
and the law enforcement community, and they provide the Minister with an
assessment of candidates (except candidates that are judges).
