Controversial Aussie judicial appointment: Should NZ take note?

A controversial judicial appointment in Australia has stirred up the legal community there and led to calls for an overthrow of the “archaic” selection process: Should NZ follow suit?

A controversial judicial appointment in Australia has stirred up the legal community there and led to calls for a change to the “archaic” selection process – but how does our method fare in New Zealand?

In Queensland, Australia, the latest appointment of the Chief Justice has seen many of the legal community there from judges to senior and well-known judicial figures make the rare move of speaking frankly and publicly about the appointment.

Many of them dissented and expressed serious concern about the announcement that Tim Carmody QC DCJ will be Queensland’s next Chief Justice.

The announcement was made by the Attorney General and Minister for Justice Jarrod Bleijie and came despite public figures, including Queensland’s former Solicitor-General Walter Sofronoff, warning against the appointment.

Reasons for concern included Carmody’s perceived too-close-for-comfort relationship with politics and issues with confidentiality within the selection process, which included the leaking of details of private consultations with judicial representatives about the candidates.   

Since news of the scandal broke last month, Queensland’s legal community still stand divided with some speaking out in favour of the judge, and others – like the president of the Bar Association of Queensland - resigning in protest.

There are those in the community, including the senior lecturer at the Queensland University of Technology School of Justice, Dr Mark Lauchs, who are urging the Australian Government to consider using the controversy to change the judicial appointment process presently in place.

Lauchs’ told NZ Lawyer’s sister publication Australasian Lawyer that the current system, which is similar to that of New Zealand, is “archaic” and should be changed to sit more in line with that of the UK.
This new judicial appointment process would see an independent panel of representatives - including judges, those from the legal sector and community leaders - create a short list of candidates for the Attorney General to choose from.

“Most changes happen because of a scandal. I’m fairly certain that [Carmody] is not going to resign, but it may be sufficient for the government to say, ‘well, we need a new system’ - It’s natural,” Lauchs says. “The process that they have used here is a system that has literally been in place since the 1200s. This is a medieval process, and we’re a democracy.”

Back in our homeland, and New Zealand also is no stranger to debates about our judicial appointment process: The same issue has been raised periodically in the media.

And although our system has undergone a series of changes and tweaks over the years, in 2012 Attorney-General Chris Finlayson spoke against a move to an independent commission like that in the UK.

“I do not agree creating an independent commission to appoint judges is the right approach. Judicial selection is not about ticking boxes. It requires weighing up numerous factors including but not limited to the requirements of the bench and the community, experience in different kinds of law, geographical location, and more,” he said. “English colleagues tell me their Commission [has] not succeeded in achieving its stated aims. Meanwhile, the judiciary in New Zealand has grown more diverse and more representative, while maintaining the traditionally high standards of our Courts.”

In the same year, the Law Commission conducted a review of the 115-year old Judicature Act and recommended that the laws governing the act be rewritten and consolidated into a single act for clarity.

This recommendation came in response to public criticism that members of the legal community were confused about how to apply for the role of High Court judge.

The Law Commission also said that any Attorney General should publicly publish the process that he or she is following when they make a recommendation to the Governor General.

This would clarify the criteria for appointments, including personal character and legal abilities, it said.

And then earlier this year the Protocol setting out the process for appointment was updated. 

As it stands, anyone interested in being considered for appointment can forward an Expression of Interest to the Judicial Appointments Unit at any time - they do not have to wait until it is advertised.

Nominations are currently underway with applications closing 30 August 2013.

The guiding principles for the procedures are:
  1. Clear and publicly identified processes for selection and appointment.
  2. Clear and publicly identified criteria against which persons considered are assessed.
  3. Clear and publicly identified opportunities for expressing an interest in appointment.
  4. A commitment to actively promoting diversity in the judiciary without compromising the principle of merit selection.
  5. Advertising for expressions of interest, recognising that selection should not always be limited to those who have expressed interest.
  6. Maintaining, on a confidential database, a register of persons interested in appointment.
A spokesperson for Attorney-General Chris Finlayson told NZ Lawyer that there are no further plans to reform judicial appointments in New Zealand.

“The Attorney-General regards the existing process, as set out in the judicial appointments protocol, as transparent and effective,” the spokesperson says.

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