Time to bench judicial appointment proposal

Outsourcing the judicial appointment process to an independent body is not a panacea for judicial bias. By Amanda Stoker.

Last week, High Court Justice Stephen Gageler delivered an address on the intersection of law and politics in the context of examining the Australian Law Reform Commission’s report into judicial impartiality and the law on bias. His honour said, “What is needed for judicial legitimacy is a judiciary that truly is and is seen to be competent and impartial.”

His honour is quite right. It’s worth observing that only three recommendations of the ALRC’s report were directed at the federal government: the rest were sensible suggestions for courts and judges to improve their practices in the interests of Australians.

Predictably, Labor Attorney-General Mark Dreyfus KC tried to spin the ALRC’s report into a criticism of the former Coalition government’s judicial appointments processes. It is worth observing that there was nothing new about the Coalition’s processes: they were the same ministerial appointment processes that have served our democracy well for almost the entire period since Federation.

Proposals to outsource the judicial appointments process to an independent body – as though politics is the problem – are wrong-headed. Removing politicians from the process sounds attractive in a time when no one likes them, but at least they can be held accountable every few years at an election if their work is unsatisfactory.

Yet “independent” bodies have their own politics and given most are career public servants from deep in the Canberra bubble, it’s not hard to establish which way they lean.

What the public gets in this model are the same political influences, but none of the transparency, and no chance to hold those bureaucrats accountable should they get it wrong.

There is a world of difference between interfering with the work of the judiciary, and ensuring that potential future appointees are suitable in their intellect and work ethic and in the beliefs about the nature of judicial decision-making that they bring to the task. Whether, for example, a potential appointee is inclined to respect the intentions of the drafters of our Constitution, as opposed to dipping into political decision-making themselves via judicial activism, matters considerably. Australians deserve transparency around these matters before an appointee is seated at the bench.

It’s similarly difficult to take lectures on the importance of independence from Labor when last week its South Australian government appointed a royal commissioner into early childhood education policy with clear partisan policy leanings: former prime minister Julia Gillard. Royal commissioners, with their extraordinary powers, are appointments that must be strictly non-partisan. That is vital to public trust in the institution. Ms Gillard is deserving of enormous respect, to be sure, but she is anything but apolitical.

The same Labor party that spent the last four years complaining about what it said was political partisanship in the Administrative Appeals Tribunal now wants it to have the power to issue warrants for the proposed National Integrity Commission – including to tap telephones and conduct covert surveillance – on politicians and arising from political issues. It is not new for the AAT to deal with warrants, but if Mr Dreyfus’ criticism was well-founded, to give it a hand in the conduct of investigations of a political nature would be madness.

Labor cannot have it both ways.

The Samuel Griffith Society was the only published submitter to the ALRC process which did not support a change in the judicial appointments process – although the Menzies Research Centre made a submission it was withheld by the ALRC from publication, apparently because it had been critical of certain judges’ activism from the bench. That there are so few people willing to defend the strengths of our traditional institution is reflective of two dynamics.

The first is that it is generally left-leaning academics and think tanks that have the time and inclination to contribute to these consultations.

Second, many in the legal profession must appear before the bench regularly. To speak up on matters contrary to the zeitgeist – and potentially earn the wrath of judges in disagreement – risks prejudice to client interests should the bench take unkindly to criticism. Further, as the bench ultimately appoints King’s Counsel, being forthright can be a career-limiting move for an ambitious member of the Bar.

Over and over, I hear lawyers express frustration not only at being so confined, but also that the result of that confinement is that only one political perspective gets heard in policymaking processes, including on the issue of how judicial appointments should be made.

But this issue is a simple one: what could possibly be improper about endeavouring to understand the decision-making methodology used by those people who, upon appointment, assume the power to make decisions with implications that resonate across commerce, individual rights and the role of government, along with tenure to do so until age 70?

Far from being party-political, such an inquiry cares little about how a person votes, but takes great interest in the way they would go about doing the job for which they are being considered.

In the commercial world, a decision of this nature would be accompanied by rigorous due diligence, particularly given there is no avenue to remove a “bad hire” if they aren’t working out. No business would ever deliberately avoid looking into matters vital to the capacity of an employee to meet the needs of the enterprise.

Yet, to try to select judges whose legal decision-making methodology reflects the best of Australian jurisprudence draws accusations of political interference.

It can only be explained by a sense of entitlement from the legal profession to not just be granted the protection of tenure upon appointment, but also to get a broader immunity from scrutiny.

Amanda Stoker is a Distinguished Fellow of the Menzies Research Centre and a former senator for Queensland. This article first appeared in The Australian Financial Review.