Judiical Appointments
Judicial Appointments Review
By email: judicialappointmentsreview@justice.qld.gov.au
The Queensland Council for Civil Liberties recognises that while the current system of judicial appointments has generally worked well, it is by good luck more than good management.
The process is completely opaque, even to those at its centre. In essence, the only people formally consulted are the heads of the two branches of the legal professional and the relevant judiciary. None of these persons is accountable to the public.
They are in effect asked to put forward their nominations without regard to written criteria and with no accountability. The Attorney-General then choses someone, perhaps someone not even consulted on or suggested by the consultees. Some appointments have been more or less controversial than others but experience has shown that appointees grow into their jobs and the degree of controversy often has little to do with the generally held perceptions of the abilities judicial officers within a few years.
The Council finds it nonsense to suggest appointment based solely on merit by this process is possible.
Nor does the Council think that the public is best served by continuing to portray the notion that there is an idealised standard for a Judge and there is always a clear front-runner for the role. The Council is certain that for any position there are a considerable number of choices who would be more than capable of performing the role well. Society’s main interest is that the appointee is one of those capable of performing the role well. To that end it must be beyond doubt that the appointment was neither arbitrary nor political. That is what it is at the moment.
Almost as bad would be the suggestion that appointments were made on the whim of the unrepresentative bodies consulted. The recent reactions to the appointment of the former Chief Justice led the public to think that the legal profession and judges had some role beyond being consulted. They do not. It would be worse if they did. The process is inherently a political appointment because it is carried out by the Executive unfettered by any need to justify or explain their idea of merit.
Whatever appointment process is used, once the appointment is made it should have to be accepted by all. To that end, a thoroughly transparent and open process in which politicians play no role until the end is the only acceptable arrangement.
It should also be that while the judiciary and legal profession might play a vital role in shaping the selection criteria generally or the balance favoured for a particular role at a particular time, they need not have the decisive role in deciding who meets those criteria. Indeed their involvement is more likely to actually or ostensibly result in the appointment of people they know well rather than those they do not. This inherently limits the diversity of appointments and would assist to ensure that the judiciary remains dominated by the same sorts of people as are being replaced.
Half of all female judicial officers currently serving were originally appointed to the bench by one Attorney-General in just one term in office. The next seven Attorneys over the next 14 years appointed the other half. The number of female judges is now half that of the women in the Queensland population despite their being quite literally dozens of suitable candidates.
Question 1: Should there be a formal, and publicly available, procedure for the appointment of judicial officers in Queensland?
Yes.
Question 2: If so, should the procedure take the form of Guidelines or a Protocol approved by the Attorney-General (as in New South Wales and Tasmania), or a more formal Determination (as currently operates in the Australian Capital Territory for appointments to the Supreme and Magistrates Courts)?
Neither. It should be a JAC or same process as is used for selecting other important public servants.
Question 3: Should a statutory body similar in purpose and form to the JAC in England and Wales be established? If favoured, the following issues would need to be considered:
This would be a valid alternative to copying more general appointment processes. It must not be dominated by lawyers and in particular judges. The chair should be an academic with legal qualifications from the major universities chosen for a term of 1 or 2 years. The Attorney’s office should be the secretariat.
· How such a commission would be established
By Act of Parliament.
· Whether the body would be permanently established, with panels being created ad hoc asrequired (as per the model in England and Wales)
The ad hoc UK model should be followed.
· How the membership of the commission would be constituted, and particularly the balance between judicial, legal professional, and lay members
The members of the Commission should be:
a. A distinguished legal academic to be appointed for 1 year or 2 years on rotation from the major universities so that no person serves more often than 1 term every 10 years. Such persons should be the chair and are likely to be the only panel members with actual experience in the running of a selection process.
b. The head of the court to which the appointment will be made – ex officio.
c. The Presidents of QLS and BAQ – ex officio.
d. A non-legal person.
The Executive should not be represented on the panel.
· Whether the commission would play a role in the advertisement of judicial vacancies, and the selection of candidates
Yes. It would run the entire exercise with an ad hoc secretariat.
· What selection criteria and assessment processes the commission would adopt
The selection criteria, weighted according to the role filled, should be those found in Attachment 8.
The process should be as used by the JAC.
The panel should provide a list of six names with comments on the strengths and weaknesses of each as assessed against the selection criteria.
· How the commission would report to the Attorney-General, whether through a general report covering all candidates, or a report that recommends a certain number of candidates for consideration
The commission would give the Attorney a number of names and the Attorney would take one name to Cabinet.
· The Attorney-General’s powers on receipt of the commission’s recommendation/s.
The Attorney-General would be able to ask the panel to reconsider up to 3 times as per the UK model.
Question 4: If a statutory body like the JAC in the United Kingdom is not favoured, what elements should be included in the judicial appointments procedure? For example:
· Selection criteria for appointment: the required skills, attributes and qualities (both personal, and professional)
The selection criteria, weighted according to the role filled, should be those found in Attachment 8.
· Methods for the identification of prospective appointees (including consultation and advertising)
The method for the identification of candidates should be their own written application.
· Whether an advisory panel should be used for shortlisting and making recommendations of suitable candidates to the Attorney-General
Yes but the Attorney-General can make the appointment of any shortlisted candidate or request the process to start again. They cannot appoint outside the shortlisted group.
· The composition and selection method for any advisory panel
The members of the Commission should be:
a. A distinguished legal academic to be appointed for 1 year or 2 years on rotation from the major universities so that no person serves more often than 1 term every 10 years. Such persons should be the chair and are likely to be the only panel members with actual experience in the running of a selection process.
b. The head of the court to which the appointment will be made – ex officio.
c. The Presidents of QLS and BAQ – ex officio.
d. A non-legal person.
· The selection process for candidates
Advertising, written applications, shortlisting based solely on written applications, written applications are to include references from persons addressing the candidates’ suitability against the selection criteria, interviews, referee checks.
· The process to be followed if the Attorney-General does not accept the recommendation.
The Attorney-General’s power would be to ask the panel to reconsider up to 3 times as per the UK model including persons nominated by the Attorney-General. With a choice of up to 6 each time it is unlikely that the Attorney could have any reason for not being able to make a choice from them.
Consideration of the following further questions may assist in formulating responses to the previous questions:
Advertising - How should prospective appointees be identified?
o Should judicial vacancies be publicly advertised, and a call made for submissions of expression of interest (in the newspaper, or on a Government website)? If so, should advertising be undertaken for judicial positions at all court levels, or only for vacancies in the Magistrates Court?
Advertising on the Attorney-General’s website and newspaper advertisements and in the professional bodies newsletters and websites.
o Should expressions of interest be able to be submitted at any time, or only in response to advertised vacancies?
Only for advertised vacancies. All previous applicants would have to reapply for each vacancy.
Selection criteria - Please consider Attachment 8 which compares the criteria for appointment proposed by the AIJA with the criteria proposed by the Law Council of Australia in its Policy Statement, as well as with existing selection criteria that is in place in New South Wales, Victoria, Tasmania and the Australian Capital Territory.
o Should selection criteria be in place to guide the assessment of candidates for judicial appointments?
Yes
o If so, what form should the criteria take? Should it be contained within the relevant courts legislation, or within a subordinate legislative instrument, or available on a government website?
It should be in the relevant Act for each Court.
o Should the selection criteria differ according to the court?
No. However the selection panel could give different weights to reflect different Courts needs and depending on whether the role was a head or deputy and the needs for the particular vacancy.
o Is there a need for the criteria to be flexible to meet changing societal and professional demands?
No. They haven’t changed in hundreds of years. If they were in the Act they could still be amended fairly readily. The balance between the criteria should be considered by the panel.
o What qualities should the criteria cover? Professional qualities and requirements, or personal qualities and requirements, or both?
Both.
o Assuming that ‘merit’ is to be included as an overarching qualification for nomination, how is merit to be defined?
Merit should be a ground of assessment of the candidates rather than their nomination. Anyone who is eligible should be entitled to apply.
The QCCL takes the view that a large number of candidates would have more than sufficient merit to warrant appointment for what are a relatively small number of positions arising infrequently. It is spurious to suggest that any system, particularly the current totally opaque system has managed to choose the one and one only best candidate each time. It has nonetheless demonstrated that regardless of the relative merit of candidates, almost every appointment has served Queensland well.
The minimum requirement for appointment is 5 years standing as a barrister or solicitor. There are literally hundreds of such persons. There would be many good candidates for any position where unbiased assessors about which had the most ‘merit’ would vary and where the public would be advantaged by different views of ‘merit’ being in favour at any time.
o Should the criteria include a diversity statement, which reflects the equality of employment opportunity principles with the aim of encouraging a broad range of applicants?
Yes.
o What material should be submitted in support of an expression of interest? (For example, a curriculum vitae, examples of written work, contact details for professional and/or personal referees).
This should be up to each panel to decide but at a minimum, CV and letter addressing the selection criteria.
o If specified material should be submitted in support of an expression of interest, should applicants for specified judicial offices be exempt from this requirement?
No.
Advisory panels - Should advisory panels play a role in the selection of judicial appointees?
o If so, for appointments at all levels, or only for particular courts?
Yes. All Courts.
o How should the role of an advisory panel in the appointments process be documented and authorised?
Under that Court’s Act.
o Should the panel be a standing commission, or convened on an ad hoc basis as vacancies arise?
Ad hoc. Simply on the basis that there might be lengthy periods where it was not required to do anything.
o How should membership of the panel be determined, and who should comprise the panel membership?
The membership should be set out in the Act. Some flexibility can be introduced by making some panel members ex officio or the nominee of the current office holders.
o What should be the assessment process undertaken by the panel? For example, should there be statutory procedures and requirements in place to guide the decision-making of the panel?
If it is the JAC model it should follow that arrangement. If it is a selection panel it should follow the same procedures for other senior government appointments of similar gravity.
o How many candidates should the panel be able to recommend to the Attorney-General?
Six. The idea is to ensure that a range of candidates is put forward where any one of them would be suitable and the final balance or what is ‘merit’ for that particular position would be a matter for the Attorney to decide.
o What discretion should the Attorney-General retain over the judicial appointments process? For example, should the Attorney-General be bound by the recommendations of the panel or have to publish reasons if not accepting a panel’s recommendation for appointment?
The UK model should be followed. It would be counterproductive for reasons to be required or published or for the names of applicants or shortlisted candidates to become public.
Interviews
o Should prospective judicial candidates be interviewed?
That is up to the panel but it would be expected normally.
o If so, who should conduct the interview process (for example, an advisory panel)?
That is up to the panel but it would be expected normally that all members would interview a shortlist.
o What form should the interview and related assessment take (for example, a presentation, role play, a panel interview)?
That is up to the panel.
Consultation
o At what points during the process should consultation be undertaken with key stakeholders (for example, nomination of candidates, and/or in settling recommendations)?
They should not be consulted at all about individual candidates. They will have their say in the assessment of candidates against the criteria.
o Who should be consulted (for example, heads of jurisdiction, senior judges, the legal professional associations)?
There is no harm and considerable merit in consulting anyone with firsthand knowledge of the applicant’s strengths and weaknesses. A form assessing them against the selection criteria would be the best method. Given the need for confidentiality, there should be considerable discretion exercised by the panel in approaching consultees.