The creation of formal processes governing the appointment of judges has been a notable element in the broader project of constitutional reform in the United Kingdom over the last 16 years. As is frequently acknowledged, the changes introduced by the Constitutional Reform Act 2005 were that rare thing – an instance of the executive relinquishing power. But the legislation also appeared to stimulate much more debate about the selection and composition of the judiciary than it resolved. Enactment is more typically seen as the culmination of public discussion about the desirability and design of a reform. What has been fascinating – at least from the perspective of external observers – is the way the significant measures implemented in 2005 have remained under the microscope, being the subject of sustained academic commentary, government and parliamentary review and then fine-tuning through passage of the Crime and Courts Act 2013. The announcement in April that, even after all this, the Labour opposition was open to the use of quotas to hasten the diversification of the United Kingdom judiciary signaled that the whole matter of appointments remains extremely contentious.

Participating in unremitting constitutional debates can undoubtedly prove rather fatiguing, but spare a thought for those of us in jurisdictions where reform is not just both slower and more modest, but is then later reversed. Australia’s recent experience in judicial appointments reform has followed this disappointing trajectory. This is despite political rhetoric in this country consistently echoing the United Kingdom’s fidelity to ‘merit alone’ as the basis for selection albeit accompanied by recognition of the need to enhance judicial diversity. In this post I describe these developments before identifying some features of the short-lived reforms which offer an interesting contrast with the United Kingdom approach. Specifically, the provision of a shortlist of suitable candidates to the Commonwealth Attorney-General was seen as entirely uncontroversial. It arguably affirmed a more inclusive understanding of ‘merit’ in this jurisdiction, under which the preservation of ultimate executive discretion was appreciated as a legitimate means for the achievement of greater diversity.

The traditional approach of the Commonwealth of Australia to judicial appointment was one purely of executive discretion lacking any stipulated criteria and any formal or open process. Beyond an eligibility threshold of judicial service or enrolment as a legal practitioner for not less than 5 years (and in the case of appointment to the Family Court of Australia, a requirement that a person shall not be appointed unless ‘by reason of training, experience and personality, the person is a suitable person to deal with matters of family law’), there is no statutory guidance offered as to the necessary attributes of a candidate. The only procedural requirement applies exclusively to vacancies on nation’s final court – the High Court of Australia. This is merely an obligation that the Commonwealth Attorney-General will ‘consult’ with his or her State counterparts before filling a vacancy on that Court.

Shortly after coming to office in late 2007, the Attorney-General in the Labor government, Robert McClelland, announced that he would be introducing more formal processes for appointing individuals to the ranks of the federal judiciary. The catalyst for his doing so undoubtedly included, but was not limited to, developments in the United Kingdom. But additionally, there had been reform in some of the states in the Australian federation, as well as attention to the issue in both New Zealand and Canada.

McClelland’s objectives in unveiling the reforms were later repeated in the government’s 2010 publication Judicial Appointments – Ensuring a strong, independent and diverse judiciary through a transparent process. Their purpose was to ensure:

• greater transparency, so that the public can have confidence that the Government is making the best possible judicial appointments
• that all appointments are based on merit, and
• that everyone who has the qualities for appointment as a judge or magistrate is fairly and properly considered

That document also stated:

The Government is pursuing the evolution of the federal judiciary into one that better reflects the rich diversity of the Australian community. To this end, the Government seeks to increase the diversity of the federal judiciary in relation to:

• gender

• residential location

• professional background and experience, and

• cultural background.

The three pillars of McClelland’s reforms may be succinctly identified as: (1) the articulation of publically available criteria; (2) the advertisement of vacancies and call for nominations; and (3) the use of an Advisory Panel (comprising the head of the relevant court or their nominee, a retired judge or senior member of the Federal or State judiciary, and a senior member of the Attorney-General’s Department) to assess potential candidates, possibly through interviewing them, before making a report to the Attorney-General listing those found to be ‘highly suitable for appointment’.

While the stated criteria had much in common with those used in the United Kingdom, the similarities between the two jurisdictional approaches do not extend much further. First, and most fundamentally, the changes were not legislated. Second, no Judicial Appointments Commission was created. Although McClelland initially professed an open mind on the need for such a body, at the same time he expressed concern that the United Kingdom’s JAC was ‘overly bureaucratic and the whole appointments process is unreasonably intrusive as well as taking too long’. This led to suspicions that ‘the best candidates have not put themselves forward’. McClelland’s negative assessment of the JAC was probably unfair given the size of the task that lay before the organisation upon its establishment and how little time had yet passed. More recent assessments from United Kingdom commentators portray the factors raised by the Commonwealth Attorney-General as teething problems since resolved.

Third, the Advisory Panel was, at just three members, small and contained no lay representatives. Fourth, the Panel was able to recommend a number of names to the Attorney-General for consideration, leaving him or her to make the final selection. This stands in stark contrast to the requirement in the United Kingdom that the JAC or, in the case of appointments to the Supreme Court, a specially-convened commission, furnish only one name recommended for appointment. Fifth, whereas the United Kingdom acknowledged the special status of its final court through adoption of a distinct process, the High Court of Australia (along with the appointment of heads of the other three federal courts) was simply exempt from the McClelland reforms on the basis of its ‘different status’. Nominations were not called for and nor was an Advisory Panel of any sort convened, although the Attorney-General undertook to consult with a number of stakeholders beyond the mandated State Attorneys. It was unclear what weight, if any, was accorded to the explicit criteria in respect of such appointments.

The basic features of the new system received the bipartisan endorsement of the Senate Legal and Constitutional Affairs Committee in its 2009 inquiry into the Australian Judiciary. McClelland’s two Labor successors as Attorney-General made judicial appointments in accordance with the reforms. However, the Attorney-General in the new Coalition government, Senator George Brandis QC, appears to have entirely discontinued those measures and reverted to the traditional approach of unfettered executive discretion. With neither fanfare nor warning, all trace of the processes initiated by McClelland slipped from the departmental website. On the topic of court appointments, the Attorney-General’s Department now simply advises that, ‘As the nation’s first law officer, the Attorney-General is responsible for recommending judicial appointments to the Australian Government.’ On 14 April 2014, the Attorney-General issued a media release announcing his first appointment to the federal judiciary. The vacancy on the bench of the Federal Court of Australia had not been advertised on the website, nor was there anything in the media release suggesting that the appointment was the outcome of any particular process.

The revival of smog-like opacity around federal judicial appointment processes has not gone unremarked, with concerns voiced about the consequences for efforts to improve judicial diversity. Justice Ruth McColl of the New South Wales Court of Appeal has said of the reversion that ‘any move that strips away progress towards greater equality of judicial appointment is, at the very least, highly problematic’.

The McClelland reforms were obviously relatively modest when compared to those of the United Kingdom. But they were certainly an advance on the customary practice. Brandis’ rejection of them is curious not only because the new process hardly constrained his power of selection to an intolerable degree, but also because he had participated in the 2009 Senate inquiry which gave its approval to the reforms. Indeed, that committee urged greater transparency upon the Attorney-General at the time – including ‘making public the number of nominations and applications received for each vacancy and, if a short-list of candidates is part of the process, to make public the number of people on the short-list’ (Recommendation 3).

While readers in the United Kingdom might sympathise with the view that this retreat from transparency and process is to be lamented, some may, nevertheless, be doubtful about the capacity of the measures introduced by McClelland to promote judicial diversity. After all, in 2012, the House of Lords Select Committee on the Constitution was emphatic in rejecting the view of a number of witnesses who appeared before it to submit that shortlists would facilitate a swifter diversification of the judiciary. The Committee did so because, as it said, ‘unless a Lord Chancellor is committed to the promotion of diversity, the use of shortlists could have the reverse effect of reducing the diversity of the judiciary.’ That outcome is obviously possible but perhaps questionable, given broad political acknowledgment of the need for the judiciary to be more representative. Certainly it seems just as likely that diversity might be thwarted by giving serving judges too much influence over appointments, risking the self-perpetuation of the judicial class in its own image, as highlighted by Professor Alan Paterson and Chris Paterson in their report Guarding the guardians?.

Professor Kate Malleson wrote on this blog in 2012, the use of a shortlist ‘would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit’. That appears to have been exactly how the use of shortlists worked in Australia for appointments to the federal courts other than the High Court. The government described the Attorney-General’s role in the process as ‘identifying a preferred candidate’ from the names forwarded to him or her by the Advisory Panel. While the Senate Committee agreed that the final decision was appropriately left with the executive, it was searching in respect of how that determination was made:

If the Attorney-General identifies the most suitable person based on their assessment against the selection criteria then it is desirable for this to be articulated. On the other hand, if the Attorney-General is not willing to state that selection is directly based on the selection criteria then this should also be articulated.

While the government was apparently not prepared to risk the political danger of divorcing itself from the rhetoric of making appointments ‘solely on merit’, if everyone on the shortlist has been judged sufficiently meritorious by the Advisory Panel then clearly some other factor is the ultimate determinant. In light of the government’s stated commitment to enhancing the diversity of the federal judiciary it is not hard to imagine that the candidates’ other attributes entered the equation. Some explicit support for this conclusion is discernible from an examination of some of the announcements of new appointments made under the reformed system – with the individual’s contribution to the diversification of the bench being occasionally acknowledged by the Attorney-General.

While judicial appointments reform in Australia has gone backwards, perhaps some aspects of it offer a useful perspective on live questions in the United Kingdom debate. In particular, the way in which ‘merit’ is generally conceived is startlingly different. The House of Lords declared that shortlists were basically antithetical to the principle of appointment on merit – a view not taken by members of the Australian upper house nor voiced in a single submission from the judiciary, legal professional associations or academics to that chamber’s inquiry.

The recent amendment to the Constitutional Reform Act providing that diversity considerations may be used to determine which name goes forward ‘where two persons are of equal merit’ has been welcomed but there are concerns as to the difference it will make in practice. To Australian eyes that scepticism appears well-founded since the ‘equal merit’ provision still reflects an insistence not only that the quality of potential candidates may be objectively measured, but that this enables persons to be ranked with some exactitude. Accordingly, a dead-heat must be anticipated as unlikely – and the statute simply does not countenance merit as something that might relevantly be possessed more widely than just two individuals.

Contrast this with the candid remarks in 2008 of Stephen Gageler SC, then Solicitor-General of the Commonwealth and since appointed to the High Court of Australia:

… [A]t any time there would be fifty people in Australia quite capable of performing the role of a High Court justice. My perception is that the pool gets proportionately wider the further down the judicial hierarchy you go… The notion that appointment can only validly be based on ‘merit’ is naïve.

McClelland’s reform of judicial appointments in Australia did not reject the rhetoric of ‘merit’ as the ultimate justification for selection of individuals to serve in the federal courts. But the design of those processes effectively signalled that while merit was essential, it was not the exclusive consideration. Although those reforms have now been undone, it is to be hoped that as a result of their five years’ operation, the government cannot completely retreat behind ‘naïve’ explanations as to why one individual is chosen for judicial appointment from amongst others possessing equivalent qualifications, expertise, and professional skills.

 

Andrew Lynch is a professor and Director of the Judiciary Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales, Australia.

(Suggested citation: A. Lynch, ‘Judicial Appointments in Australia – Reform in Retreat’ U.K. Const. L. Blog (26th May 2014) (available at https://ukconstitutionallaw.org/).