No selection criteria, no transparency – how judges are appointed

System has been ‘created by and for men’ and excludes women: Dr Kcasey McLoughlin.

supreme court

Kcasey McLoughlin, University of Newcastle

As debate rages about sexual harassment in the legal profession, a key outstanding question is reforming the way judges are appointed.

Underscoring the response to these allegations has been the acknowledgement the legal system – created by and for men – has excluded women through its formal and informal structures.

One important and long overdue change is boosting the diversity of the judges, who sit at the top of the profession.

‘Pale, stale and male’
To borrow a phrase used by former chief justice of Western Australia Wayne Martin, Australia’s judiciary is overwhelmingly “pale, stale and male”.

Although it stands to reason the judiciary will not necessarily be representative in terms of age (given the importance of experience), no such justification can made in regard to other key characteristics.

Women’s historic formal exclusion from the profession has been well documented.

Women have since entered the law in significant numbers, and it was assumed they would then begin to occupy positions of power and authority within the profession.

This has not been borne out by the statistics.

Women today comprise 62 per cent ofAustralian law graduates, 52 per cent of NSW solicitors, and 23 per cent of NSW barristers. The number of barristers is significant, as judges tend to be chosen from leaders at the bar.

The legal profession is still male-dominated when it comes to barristers and judges. Glenn Hunt/AAP

Indeed, only 36 per cent of Commonwealth judges are women. The proportion of women judges and magistrates is between 31 and 37 per cent across at the state level, with the ACT (54 per cent), Victoria (42 per cent) and Tasmania (24 per cent) as outliers.

How are judges appointed?
Australia’s judges are appointed by state and federal governments. Particularly at the federal level, this is an opaque system that lacks transparency and genuine political accountability.

When it comes to High Court appointments, there is no formal application process, no formal system for the checking of references, and no requirement that candidates undertake interviews.

There is no formal application process for becoming a High Court judge. Lukas Coch/AAP

In practice, the appointment is made by the government of the day, with the attorney-general presenting a nominee to Cabinet, which then recommends the appointment to the governor-general.

The government is therefore largely unrestrained in making their appointments beyond a requirement they consult with state attorneys-general and the appointee meets the minimum qualifications of admission as a legal practitioner.

Certainly, there is nothing that legally compels those making judicial appointments to consider diversity.

Reluctance to implement formal reforms
Pressure to reform judicial appointment practices is not new.

There have been previous calls to improve not just diversity but also transparency and accountability.

Importantly, these criticisms have very rarely been personal (about the suitability of individual appointees). But about the potential for political or other concerns to influence the process.

In fact, some of these debates came to the fore in 2003, with the Howard government’s appointment of Dyson Heydon to the High Court.

The appointment raised concerns about what his appointment meant for the diversity of the bench, because he was replacing the first and, at that time, only woman member of the High Court, Mary Gaudron.

The lack of publicly available selection criteria speaks to the breadth of this discretion.

The ‘merit’ myth
Another issue here is the insistence these appointments are made solely on the basis of ‘merit’ – as though this imprecise concept, which has the potential to reproduce informal networks of power and privilege, is an adequate substitute for clearly articulated selection criteria.

As Australian National University professor Kim Rubenstein noted in response to Mr Heydon’s appointment:

when male politicians gaze at the available gene pool of potential High Court appointees, they only see reflections of themselves, and what they understand as depictions of merit.

Of course, what counts as meritorious is the eye of the beholder. It is notable that former prime minister John Howard stands by his appointed of Mr Heydon, observing this week he was an “excellent judge of the High Court of Australia”.

Previous reforms have not been enough, or stuck
In 2007, then attorney-general Robert McClelland instituted a number of reforms to the Federal Court judicial appointment process, during the early days of the Rudd government.

These included the introduction of publicly available selection criteria for appointments and the requirement that vacancies be advertised, as well as the use of advisory panels to make recommendations.

But these reforms (which did not extend to the High Court in any case) were abandoned in 2013, when the Coalition came to power.

Why the life experience of judges matters
Inevitably, questions have been raised about how Chief Justice Susan Kiefel’s gender shaped her response and leadership regarding the High Court inquiry into sexual harassment.

Would a male chief justice have responded in the same way?

Of course, we may never know the answer to this, but her apology to the young women in question and her words “their accounts … have been believed” are powerful and important and will form an important part of her legacy.

Former Family Court chief justice Diana Bryant has spoken about her experience with sexual harassment as a young lawyer. Julian Smith/AAP

Former Family Court chief justice Diana Bryant told the ABC “this kind of behaviour isn’t new” and said she had been sexually harassed by a former High Court judge as a young lawyer.

During that interview, she also described the changes she made once she had the power to do so on the Family Court – making clear that associates are not the personal employees of the judges they work with.

What next?
Addressing the lack of accountability and transparency in making these appointments is an obvious area of reform. We need to make selection criteria public and clear to create the political accountability that is currently lacking.

But more must also be done to explicitly value diversity in judicial appointments.

Some relatively straightforward changes could include involving women’s lawyer groups in judicial appointments, as well as quotas.

In the context of High Court appointments, Prof. Rubenstein has argued that at any given point in time, the High Court should be comprised of at least 40 per cent of either gender.

Of course, diversity is not a synonym for ‘women’, although their exclusion is especially visible. Moving away from “state, male and pale” has the important potential to address the law’s homogeneity on other fronts, including race.

Any changes must be formalised
Importantly, any reforms that reflect this commitment to judicial diversity must be formalised.

Formalising them would safeguard any gains, so that they are not at the whim of the politics of the day.

Who our judges are matters. It always has.

This moment of reckoning should be a catalyst for change in finally demanding long overdue reforms to the process by which these important appointments are made.The Conversation

Kcasey McLoughlin, Senior Lecturer in Law, University of Newcastle

This article is republished from The Conversation under a Creative Commons licence. Read the original article.

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    To make a comment, please register or login
    29th Jun 2020
    As for sexual harassment every profession and industry has someone who steps over a line, unfortunately for professions held in high esteem, some think they can get away with it.
    If someone has something over a person of importance, with power, and our latest accused was the judge in the Union Royal Commission, well you cannot help but ask why he was so lenient, when some of us know about the corruption in the Un ions and how they work and how they have forgotten the rank and file and how wealthy they are. Don't you think its worth holding another look at Unions.
    29th Jun 2020
    I am mystified about your comment that the Unions were treated leniently. I would also suggest that Unions are no more corrupt than business and politicians.
    29th Jun 2020
    Yes John, but only after we have had another look at our financial institutions (such as banks, superannuation and insurers), energy companies, telecommunication companies, the ABC, the concentration of media ownership in only a few organisations, mining companies and their pollution, why we sell our critical infrastructure (ie ports, airports, freeways, airlines etc) to overseas organisations, manipulation of the share-market, plus lots of other things I cannot think of right now. Should keep retired judges busy, and supplement their judicial pensions, for years to come.
    29th Jun 2020
    During the RC into Unions, and despite reams of evidence regarding Julia Gillard's involvement in the AWU/WRA scandal, Dyson Heydon promoted the idea of non-propensity for dishonesty on the part of Julia Gillard by stating, "People with a left-wing reputation are usually keen to preserve it by avoiding involvement in fraudulent conduct." At the time, that statement alone left many people appalled by his apparent bias and questioning his judicial independence in relation to potential Commission outcomes.

    As we all know, left-wing politicians are not particularly known for their honesty, a fact endorsed by current goings on in Labor circles.
    29th Jun 2020
    I had similar thoughts. I think we should use judges selected by popular vote and that anyone can stand. The legal profession is in a bubble and is focussed on process rather than justice.
    29th Jun 2020
    Transparency is obviously required as political appointments are too easily made. A criteria established to act as a guide to appointments would seem to be obvious as the "old boy's club" could, and probably does come into play.
    We must never go the the American path of electing judges for any level of court.
    29th Jun 2020
    The saying 'The price of liberty is eternal vigilance' is a vital truth, but in Australia we've forgotten and neglected the warning.. I worked in the law courts and witnessed APPALLINGLY unjust, wrong & politically-motivated findings & sentences. To me almost the entire system is corrupt - tragedy is, WHO cares enough, or has the guts enough, let alone the ability, to now change it? We've let the evil run until it now has almost total control. Australians aren't even aware of how bad it is. It is such a tragedy for it will bring our country to certain destruction. Honesty isn't recognised & blind eyes are turned to the most extreme crimes. It is very, very SICK.
    29th Jun 2020
    Maybe, and I have no information to support this, women SCs have better things to do than sit on the bench and listen to boring barristers, tell fabricated versions of the truth and listen people who plead for justice when if they got justice would really have something to complain about. At least in Nicola Gobbo I saw some hope that some in the legal profession had some decency but, as usual, the legal profession is trying to take her down to their level of ensuring that crime does pay, especially for themselves.
    29th Jun 2020
    Before any Judge is appointed to the HIGH COURT he should be he should be publicly investigated to see if there is anything in his/her background why they should not be appointed to the HIGH COURT.
    29th Jun 2020
    Is this another accusation against men, to boost the percentage of women in a particular field, looking at the statistics, it states that judges are generally drawn from the ranks of barristers, women make up 23% of barristers, yet they make up 36% of judges, if my math is correct then women have a higher representation making up judges from the rank of barristers. I remember quite a few years ago women’s groups claimed they were not represented on tv in journalistic roles, am I the only person that thinks women are over represented on tv nowadays. It would seem some women don’t want equality with men, they want total domination. Change takes time and sometimes moves to slowly for some people.
    Why is it that men don’t complain when women form the majority in some industries?
    29th Jun 2020
    "Pale, male and stale". How would all the squawking women of this world put their angry, self-obsessed bossy boots in if publicly described as, "Fat, forty and finished".

    One rule for women, another for men.

    I'll prefer men any day, in almost every field of endeavour.
    29th Jun 2020
    The judiciary and the court system have been overwhelmed by the arrogance and egotism of the employees of the system, be they judges, magistrates or other court staff. There are a few exceptions, but not so many. The women are every bit as bad as the men. Using the prism of sexism is not helpful, sexism is only one manifestation of ego. I have watched the decline of the system for 40 years, as the inhabitants get further and further away from any accountability. The problem largely lies in the selection process and the quality of the judges/magistrates/registrars/members. VCAT and AAT are even worse. Any chance of staying out of the hands of these people is now much reduced by the inroads of no win no fee lawyers. The best way to find yourself in their clutches is to be honest and work hard. Having assets makes you a target. The only likelihood of survival if you get caught up in it is to use companies/trusts and so on to have no assets. I know how the system should be reformed, but won't bother discussing it. There is more chance of me swimming to the moon than any real reform.
    1st Jul 2020
    I couldn't care less about magistrates or judges being male or female. What i do know is the "justice" system is slack. The system may practice the law but it does not practice justice. If a person can convict a criminal to the satisfaction of the victim then that is all that matters
    1st Jul 2020
    JUDICIAL SYSTEM WAY OUT OF TOUCH WITH PUBLIC EXPECTATION. TOO MANY BLEEDING HEARTS AND HANKY WRINGERS. Since women are the most emotional, suckers for a sob story, and the ones most in need of a hanky...I prefer they stay out of courtrooms. Unfortunately these positions are eternal, so get a bad one, or one who has particular political leanings being why that party elected them to the get today's judiciary.
    1st Jul 2020
    I am tired of the way criminals are not punished in the way the general public demand and expect.
    Take a drug or alcohol affected idiot who kills someone while driving a stolen car can get a minute sentence because he said I was not in charge of my faculties because I was drug affected or I had a bead upbringing and and other weak excuses.
    If someone uses the drug excuse there should be an initial 10 years gaol then the rest of the charges should be examined.
    The next problem is the youth issue.
    Anybody under 18 years old is supposed to be under adult supervision, If these gang members, graffiti so called artist, robbers of old people, shop lifters, drug users and pushers, are caught their parents or guardians should be charged for not controlling their children and not knowing their whereabouts and therefore their safety. Fine and charge parents of delinquents.
    Watch the parents of delinquents reply to this, you know who you are.
    The judges and courts do NOT live in the real world, they have no idea what suffering the victims go through or they do not care.
    As long as the do gooders reduce the sentences and the poor little crims get to go home with a slap on the wrist they are happy they have done something for the good of humanity.
    Life sentences should be just that, no bargaining, just life, and at least long terms in gaol as we expect.
    We are sick and tired of theses crims getting of on bail and continuing to murder and rape etc, same with parole, its a joke in 95% of cases.
    Give us some judges with guts enough to hand out the punishments deserved.
    More women is a start, any judge over the age of 65 should be retired.
    Fair Dinkum
    15th Jul 2020
    our judicial system at the moment is a disgrace the way they let bad criminals off with a slap on the wrist like the African gangs in Melbourne the Muslim terrorist with criminal history are not deported . The people that attach our police and emergency workers are usually given very soft sentences . This needs to be changed those who attach our police and emergency worker should get mandatory min 5 years jail. emigrants who comment serious crimes should be deported immediately not given the right to appeal. until this happens the crime wave will continue. We have to appoint judges that will enforce a get tough on criminals.

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