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Judicial Appointments

Judicial Appointments

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 03/2012 by Lenny Roth
Key issues for judicial appointments
Key issues to consider in relation to judicial appointment processes include:
    · Judicial independence;
    · Merit-based appointments;
    · Equality and diversity;
    · Transparency and accountability.

Models for judicial selection
In most major common law countries judges are appointed by the Executive. However, the selection process varies across jurisdictions, and even within jurisdictions. In broad terms, the models include:
    · Executive makes a selection after conducting a consultation process, which may be formal or informal;
    · Executive makes a selection after receiving advice from an advisory panel convened by the Executive;
    · Executive makes a selection after receiving recommendations from an independent appointments commission.

Most Australian jurisdictions (including NSW) apply the first two of these models. The third model has been adopted in the UK and, with qualifications, in Canada. Three other models that exist in the US are: Executive nomination and Legislature confirmation; election by the Legislature; and popular election. There is little, if any, support for adopting any of these US models in Australia.

Judicial appointments in NSW
Legislation provides for judges to be appointed by the Governor, acting upon the advice of the Executive Council. In practice, the Attorney-General makes recommendations to Cabinet, and then advises the Governor. Superior court appointments are made following consultation with the head of jurisdiction and legal professional bodies. There is a different selection process for District Court judges and Local Court magistrates (resulting, in part, from reforms in 2008). Vacancies for these positions are advertised, with calls for expressions of interest. In addition, selection panels provide advice to the Attorney-General. Selection criteria were published in 2008, and these are to be considered when selecting candidates for every judicial office. In terms of the gender balance, women comprise less than 20 percent of Supreme Court judges, around 25 percent of District Court judges, and about 40 percent of magistrates.

Appointments in other Australian jurisdictions
In all other Australian jurisdictions, appointments are also made by the Executive. In the case of High Court judges, appointments are made after a consultation process conducted by the Commonwealth Attorney-General. The process for appointments to other federal courts was revised in 2008, and includes consultation, advertising, and advisory panels. The judicial appointment process in other States appears very similar to NSW. It can be noted, however, that the Tasmanian Department of Justice has published a Protocol for Judicial Appointments and that, in Tasmania, advertising and assessment panels are also used for Supreme Court appointments.

Comments by academics, lawyers and judges
For decades, the processes for appointing judges in Australia have been subject to criticism by a number of academics, lawyers and judges. Criticisms have been made about the lack of transparency in the appointments process, about patronage and political appointments, and regarding the limited gender and cultural diversity on the bench. A number of critics (including eminent judges) have called for the establishment of an independent judicial appointments commission (or commissions) in Australia. On the other hand, some eminent judges have opposed, or expressed doubts about, such a proposal, instead favouring a more formal consultation process. The NSW Law Society has also not supported the establishment of a commission.

Recent papers and reports in Australia
In March 2008, the NSW Coalition released a policy paper which recommended the establishment of a Judicial Appointments Commission. Following the State election 2011, the new Attorney-General, Greg Smith, said that the Government was still looking at this proposal. At the federal level, in 2009, a Senate Committee published a report on Australia's judicial system. The Committee was not persuaded that the cost of establishing an appointments commission was currently warranted. Most recently, in July 2010, the Victorian Government published a discussion paper on the judicial appointment process.

Judicial appointments in the UK
The Executive is responsible for making judicial appointments but, as a result of reforms enacted in 2005, its role in the selection process has been curtailed. A Judicial Appointments Commission (JAC) now recommends candidates for most judicial offices in England and Wales (Scotland and Northern Ireland have their own commissions). The JAC is comprised of members from the judiciary and the profession, as well as lay members. The Executive can only reject a recommendation from the JAC on certain grounds. The JAC has been criticised for delays, and also regarding the type and quality of appointments. The UK Government recently published a consultation paper, with proposals to address some issues with the process and to respond to an Advisory Panel's report on judicial diversity. A House of Lords Committee has also recently published a report, which supported the existing model but proposed some changes.

Judicial appointments in Canada
For appointments to the Supreme Court of Canada, the Executive identifies a list of qualified candidates and this list is reviewed by a selection panel comprised of five Members of Parliament. The panel provides an unranked list of six candidates to the Executive for its consideration. A different process applies for appointments to other federal courts and to provincial superior courts. The Commissioner for Federal Judicial Affairs administers part of this process on behalf of the Minister, and a key feature of the process is the role of Judicial Advisory Committees. These Committees are made up of eight representatives from the judiciary, the profession, the public, the government and the law enforcement community, and they provide the Minister with an assessment of candidates (except candidates that are judges).