Appointing Australian Judges: A New Model

Abstract

The article argues for reform in the process by which members of the Australian judiciary are selected. Such reform is needed in order to ensure two things. First, that the judiciary retains the independence that is essential for it to discharge its constitutional functions. And, second, that it reflects the society from which it is drawn and continues to enjoy the confidence of that society. We recommend that Australia adopt a process for judicial appointments that is based on the process recently established for England and Wales under the Constitution Reform Act 2005 (UK). Appointments would continue to be made by the executive. Judicial Appointments Commissions (consisting of three judicial members, three legal members and six non-legal members including the Chair) would recommend to the executive the names of three persons from among whom the appointment must be made. The Commissions' recommendations would be the culmination of an evidence-based process involving applications, references, interviews and in some cases practical assessment of relevant skills.

Entering the Australian Judiciary: Gender and Court Hierarchy

“…Considerable attention has been given to improving judicial selection processes (Ministry of Justice (UK) 2010; Evans and Williams 2008; Hurwitz and Lanier 2008; Kenney 2008a; Malleson and Russell 2006; Rackley 2006; Feenan 2005; Thomas 2005; Malleson 2003b). Until recently, however, there has been relatively little attention to asking why women (or men) might be attracted to judicial office, particularly where entry into the judiciary comes after a career in the legal profession (Genn 2008; Williams 2008, 2006; Feenan 2005; cf.…”

“…In most Australian jurisdictions, there is no legally required process of inviting applications or measuring candidates against formal criteria or statements of competencies though governments sometimes call for expressions of interest which describe desirable qualities. 2 Judicial appointments result from a secretive process leading to an invitation to become a judge (Evans and Williams 2008;Williams 2008;Handsley 2006) often called a "tap on the shoulder" (Handsley 2006, 135). This closed process contributes to the limited number of women in judicial roles (Evans and Williams 2008;Roach Anleu and Mack 2005a;Davis and Williams 2003a).…”

“…There is widespread commitment to the principle that appointment should be on merit (Evans and Williams 2008; Roach Anleu and Mack 2005a), but the formal legal rules and processes for appointment do not implement this goal in a transparent way in Australia (Williams 2008; Handsley 2006; Sackville 2005; Davis and Williams 2003a; Wood 1999). There is no legally binding or generally accepted statement of what constitutes merit for judicial appointment.…”

“…This closed process contributes to the limited number of women in judicial roles (Evans and Williams 2008; Roach Anleu and Mack 2005a; Davis and Williams 2003a). Most of those in a position to identify suitable candidates, such as the attorneys general or the heads of the courts, are male.…”

“…The need for greater diversity within the judiciary, and specifically the appointment of more women, rests on varied grounds. Some assert difference between women and men, while sameness is also stressed, particularly adherence to judicial norms (Bazelon 2009; Lithwick 2009; Evans and Williams 2008; Feenan 2008; Hunter 2008; Kohen 2008; Malleson 2006a; Davis and Williams 2003b; Menkel‐Meadow 1995; Neave 1995; Cooney 1993; Resnik 1988). Earlier arguments for including women within a previously all‐male judiciary raised the possibility that women might incorporate a different voice into the exercise of judicial authority (Neave 1995; Davis 1992; Wilson 1990) or bring different perspectives, based on different life experiences, perhaps including greater empathy or compassion (Lithwick 2009; Menkel‐Meadow 1995; Neave 1995; Douglas and Laster 1991; Martin 1990; Resnik 1988).…”