Page 3292 - Week 09 - Wednesday, 19 August 2009

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MRS DUNNE (Ginninderra) (10.03): I move:

That this bill be agreed to in principle.

The Courts and Tribunal (Appointments) Amendment Bill 2009 amends the ACT Civil and Administrative Tribunal Act, the Magistrates Court Act and the Supreme Court Act. Its essence is to improve the transparency of government appointments of judicial officers in the territory.

In February last year, my colleague Mr Seselja introduced a similar bill. In his presentation speech, Mr Seselja said:

Decisions around the appointment of judges and magistrates are amongst the most important decisions made by governments. The community invests significant trust in judicial officers, and their decisions in turn affect the community in a profound way. It is therefore crucial that we look at ways of making the process for their appointment as open and transparent as possible.

There are a number of ways in which judicial officers can be appointed. We know that in the United States it is on the nomination of the President ratified by the Senate after an interviewing process which is done in public. Judges in some states in the United States are appointed by popular election. In some European countries the judging profession is a career, pursued through the court hierarchy. In South Africa a widely based committee prepares a list of nominations from which the government chooses.

In Australia appointments to the High Court are decided by the Governor-General in Council. In practice, this would be on the recommendation of the Prime Minister and may involve the cabinet. These days, appointments of judges to the High Court require consultation with the state Attorneys-General. Appointments of judges to state-based courts generally follow a similar process to that of the commonwealth—that is, the appointments are made by the Governor in Council, usually on the advice of the Premier, who may in turn seek the input of cabinet. In the ACT the process, of course, omits the direct involvement of the Crown, with appointments made directly by the executive.

The UK probably has the most progressive, open and transparent process of all, brought into being with the establishment of the Judicial Appointments Commission under the Constitutional Reform Act 2005. Under that system, judges are appointed by the Queen on the advice of the Prime Minister and the Lord Chancellor but on the recommendation of the Judicial Appointments Commission. The selection process is a fully open competition, including a process of consultation with the Lord Chief Justice and other persons who have held that post or have relevant experience. Even twelve of the fifteen commissioners are appointed by fully open competition, with only the remaining three appointed by the Judges Council. Thus, the establishment of the commission has removed the appointment of judges from the political arena.

Each of these methods has advantages and disadvantages, which can be summarised thus: open and public processes are said by some to restrict the range of people who might consider an approach for appointment or who might consider submitting an


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