Page 3293 - Week 09 - Wednesday, 19 August 2009
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application. It might be said, therefore, that an open and public process might not yield the best qualified or experienced judiciary. Closed and confidential processes are said by others to politicise the process of judicial appointment, that a government will look after those of its own political persuasion and not take an impartial approach to the process of appointees. The result, it might be said, could be exactly the same as might occur in the open and public process. The difference is that there is a risk that people aspiring to the bench might find themselves needing to get in good with the government and ultimately find themselves somehow beholden to that government.
Of course, the results I have outlined are extremes. Nevertheless, the possibility is there. I would venture to suggest that the system in the UK, whilst perhaps initially having the potential to narrow the scope of potential candidates with the necessary qualifications and perhaps broaden the scope of potential candidates with insufficient qualifications, ultimately will swing to a process of healthy competition yielding the best candidates, because they will not want to miss the opportunity of the rewards that a judicial appointment might carry. So whichever way you cut it, the process of judicial appointment has its pros and cons. The bottom line is whether those appointments deliver the best possible outcomes for the people they serve.
But probably the most serious issue that any government needs is to avoid any allegation that appointments are politically motivated. Anything any jurisdiction can do to mitigate the possibility of such allegations can only be regarded as an improvement to the system. The UK has recognised this and implemented measures to address it in the most spectacular form. The US has a very public process, with the Senate holding confirmation hearings. The US and the UK are amongst the world’s greatest democracies, and clearly they are leading the way in the depoliticisation of judicial appointments. Australia, another of the world’s great democracies, has gone a tiny way along the track at the federal level by introducing a process of consultation with the states for appointments to the High Court. This was after recognising the importance of the decisions of the High Court—the highest court in the land—and the impact that those decisions have on our nation, regardless of the dotted lines on the map. It was recognised that a closed-shop approach to judicial appointments to the High Court does not yield the best result for the people of Australia.
My bill seeks to emulate that ideal—that is, to recognise the importance of the courts and their decisions to the ACT and, more importantly, to the people of the ACT. My bill seeks to add a simple step to the process of judicial appointments to dilute, if only a little, the risk of accusations of political appointments to these most important posts. My bill seeks to put an end to the behind-closed-door appointments that do not even appear in any kind of announcements, such as was the case earlier this year when the government appointed a third presidential member to ACAT without any fanfare and almost without announcement.
My bill seeks to add a layer of openness and accountability to the process, something about which the Stanhope-Gallagher government is willing to talk the talk, but not walk the walk. Indeed, in answering a question in the estimates hearings earlier this year about whether the Attorney-General would consult with the justice committee in relation to forthcoming appointments to the Magistrates Court, including the position of Chief Magistrate, the Attorney-General responded thus:
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