Page 4497 - Week 12 - Wednesday, 14 October 2009
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I think that point is worth emphasising. We have this process in all sorts of other areas in the Assembly. This is a standard process that is applied to board appointments under statute by the government. It has not caused any great controversy to date. From time to time committees will raise concerns about particular appointments and they will bring this to the attention of the executive. From my experience on committees, that is a relatively rare occurrence. In fact, most of the time on committees, when we did raise concerns, in my experience, it was in relation to the process and ensuring that committees were given sufficient time to consider these judicial appointments. It is a relatively rare thing for any of these appointments to be questioned, although there are from time to time comments, as there should be, because that is the reason for the process. It is to shed some light on it, it is to ensure that the government justifies its decision making, and indeed it is so that there can be some form of scrutiny.
In the end, the government can still make the decision; the executive can still make the decision. But by rejecting this proposal we will have less scrutiny of the appointment of judicial officers than we do of board appointments and other appointments in the territory.
I have not heard a justification put from either Mr Corbell or Mr Rattenbury as to why there should be that disparity—why, if we are going to shed light on the process, we should not do it in the same way that we do for other statutory appointments. The arguments that have been put forward around a US-style appointments process are ridiculous because the way in which the bill is framed simply does not allow that. It is not a veto or a confirmation process; it is simply a process of advice, as is given now. No-one has ever made the case that we have US-style appointments for other statutory appointments, so that is a fairly hollow argument that has been put forward. What we will be getting in the end is simply a lesser form of scrutiny than we have for other statutory appointments.
There has been a push, particularly in the legal community in recent years, for more openness on this issue. I certainly do not agree with all of the positions put forward by various lawyers associations on this, but the idea that there should be some greater scrutiny, openness and transparency certainly has merit. In a speech to the Australian Bar Association by Caroline Kirton, the immediate past president of Australian Women Lawyers, in 2006, she stated:
The present system is shrouded in secrecy and rife with gossip. No matter what political spin or rhetoric is used to support the current system, the inescapable fact is that the process of selecting and appointing judges in Australia is a secret. This should be a matter of concern to all lawyers …
The Law Council’s ‘Policy on the Process of Judicial Appointments’ supports the development of Judicial Appointment Protocols that acknowledge that “… the Attorney-General may consult such other persons as the Attorney-General thinks fit and state that wide consultation is encouraged”.
She went on to say that the Law Council of Australia have supported reform and have talked about some of the ways of bringing that about. It is interesting that the ACT Law Society have written to Mrs Dunne in relation to this issue and note that whilst
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