Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

My question is to the Minister representing the Attorney-General, Senator Ellison. Is the minister aware of a paper on an independent judicial appointments commission which was presented to last Sunday’s judicial conference of Australia by two senior Australian academics? Is the minister aware of the authors of that paper saying that it is ‘a notorious fact that judicial officers have been appointed whose character and intellectual and legal capacities have been doubted and whose appointments have been identified as instances of political patronage’? Is the minister aware that, like many other countries, the United Kingdom has introduced an independent judicial appointments commission that ensures the short list given to the government is transparently selected on merit. Will the Australian government even consider reviewing its judicial appointments process?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I am aware of the report that Senator Murray mentions, although I have not read it, and also that the shadow Attorney-General in Queensland said that a coalition government in Queensland would introduce new guidelines to ensure appointment on merit and also mandate consultation with certain office holders.

I think it is fair to say that the process for selecting judges at the Commonwealth level in Australia has produced a judiciary that is held in high regard both domestically and internationally. Of course the essential criterion for the appointment of a judge at the federal level will continue to be merit. Merit means legal excellence, a demonstrated capacity for industry and a temperament suited to the performance of the judicial function. Those three attributes are essential to any position of judicial office holding.

As well as that, I can tell the Senate that in any cabinet appointment of a judicial nature an extensive consultation process is engaged in by the Attorney-General. That can involve a number of bodies. For instance, from time to time the Attorney-General consults with legal professional bodies such as the Law Council, the Australian Bar Association and the relevant state and territory bar associations and law societies around the country.

The Attorney has also put on record that from time to time he has discussions with serving and former judges. That is an extensive process which has been followed under this government in relation to the appointment of judicial office holders. I understand that the United Kingdom has embarked upon a judicial appointments process change which involves the creation of a judicial appointments commission. While a judicial appointments commission may be appropriate for the United Kingdom, it is not a precedent which the government believes should be followed here in Australia. In the UK, there is one central government which is responsible for most appointments. In Australia, of course, we have a very different system. The make-up of our governments and our Federation are quite different.

The total number of federal judicial office holders in Australia, I am advised, is around 135. It would be unusual for the government to make more than 15 appointments in a year. In the UK, there are about 3,500 judicial office holders and the Lord Chancellor was responsible for an enormous number of appointments—far more than the Commonwealth Attorney-General would ever have to consider. With that number of appointments, it may well be that a judicial commission could have some benefit, and that is why the United Kingdom situation is quite different from what we have in Australia, where judicial appointments range across state, territory and Commonwealth jurisdictions. We believe the process that we have is transparent and has worked well, and that is evidenced by the fact that we have an excellent federal judiciary.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Mr President, I ask a supplementary question. I thank the minister for his answer. I comment in passing that I do not think the debate will go away, given that it has been put before the Judicial Conference of Australia. Minister, tied up with the question of appointments is the question of complaints. Is the Attorney-General considering the campaign by Senator Heffernan and others for a commission or a different process to manage complaints concerning the judiciary?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

As I understood the Attorney-General’s comments, he was considering that issue, although I think the preliminary comments have been that they would not favour a commission as such but that some aspect of accountability be looked at. That is the situation at the moment. The Attorney-General is certainly discussing this with a number of stakeholders—the judiciary and others. Senator Murray would be aware that this has been the subject of some estimates coverage, with Senator Heffernan asking a number of detailed questions in this regard. It has certainly been looked at by a number of state jurisdictions, and I think it is quite a topical issue in Australia today. I would agree with Senator Murray that both of these are issues which should be debated and are perhaps ones that you could fairly say will not go away. I include the judicial commission as one of them.