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

I move:

That the Senate take note of the answer given by the Minister for Justice and Customs (Senator Ellison) to a question without notice asked by Senator Murray today relating to the appointment of judicial officers.

The question related to a paper presented to last Sunday’s judicial conference of Australia by two Australian legal academics concerning the desirability of an independent judicial appointments commission. I have long been an advocate for appointments on merit, Mr Deputy President, as probably you and other senators present would remember. On over 30 occasions in this parliament in the last 10 years I have put the proposition that appointments to various boards, authorities and otherwise should be made on merit and on over 30 occasions the coalition government have voted them down, against the principle of appointments on merit as established through a proper criteria process.

The answer today reflected a similar attitude. But they cannot get away from this issue. They just cannot escape it. It is no accident that in Britain and in other countries appointments on merit have become a major issue, stretching as far back as 1995 when Lord Nolan, with his commission, introduced the principle of appointments on merit to British statutory agencies and others. Now of course, under the Blair government, from 2005 they have introduced a judicial appointments commission—which they initiated in 2003—which satisfies two criteria of appointments on merit. One is that the selection and recruitment process should be transparent and the second is that appointments which are entirely predicated on merit should be recommended to the government. The government are not going to be able to run away from this. It is no accident that this issue has been put before the recent Australian judicial conference. In 1998 Felicity Maher and I put a joint paper in the Alternative Law Journal covering this issue. We were not the first and we will not be the last.

The paper presented by the two legal academics—Simon Evans and John Williams—argues for reform in the process by which members of the Australian judiciary are selected. In advocating reform they do not suggest the appointment process to date has failed. Measured in historical and international terms, the Australian judiciary is acknowledged to be of outstanding quality and to have enjoyed the public’s confidence. Rather, they advocate reform in order to ensure two things: firstly, that the judiciary retains the independence that is essential for it to discharge its constitutional functions; and, secondly, that it reflects the society from which it is drawn and continues to enjoy the confidence of that society.

The two legal academics 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, where appointments, although they would continue to be made by the executive, would be short-listed from a judicial appointments commission consisting of three judicial members, three legal members and three non-legal members, including the chair, and they recommend to the executive three names from which the appointment is made. There would be a culmination of an evidence based process involving applications, references, interviews and, in some cases, a practical assessment of relevant skills. That paper was covered by the Financial Review journalist Marcus Priest in a front-page item on Tuesday, 10 October 2006. He quoted from the paper. The article said that the authors of the paper had said 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’. Today, in matters of public interest, I discussed these very matters.

I note that in the follow-up article in the Australian Financial Review former Chief Justice of the High Court Anthony Mason gave support to it, as did former Victorian Supreme Court Judge Stephen Charles and Federal Court Judge Ronald Sackville, who said that Mr Ruddock’s resistance to these ideas would not be the end of the matter. It is one of those things, I am afraid, where support is building within the legal community for this particular area to be resolved. (Time expired)

Question agreed to.