Hugh Selby appears to lay the blame for the present mysterious system of Supreme Court appointments at the feet of those who have been appointed (“Let’s put our new judges and magistrates on trial”, January 1, p11), whereas Alan Towill (Letters, January 3) defends the interests of appointees who are unable to defend themselves.
The real issue, however, is not who is appointed for once it is done, it is done but how that appointment process is conducted.
The vacancies on the ACT Supreme Court were advertised, it is true, but any real consultation ended there.
In appointing judges, as the University of NSW’s Professor George Williams has pointed out, there are three broad options.
The first is to elect judges, just as we elect politicians.
This has some popular appeal given that judges make decisions about the law for the community, but judges should be independent and non-partisan.
They must do justice according to the law and not according to who has voted them in.
Second, governments could nominate someone to be a judge, with that person to be confirmed by a vote of parliament. This would allow for public scrutiny and could place a democratic check on government.
However, it could still lead to political appointments, as the United States has shown with heated confirmation battles over appointments to the US Supreme Court. Given Australia’s rigid party system, it could also increase partisanship in judicial selection.
The third option is to create a judicial appointments commission to assist the Government.
Other countries already do this.
Commissions tend to be fairer, produce judges of high quality, can result in a greater diversity of appointments, and increase public confidence in the appointment process. Commissions should include men and women from legal and non-legal backgrounds.
Some lawyers would argue against non-lawyers serving on such a body, but lawyers should not have a monopoly on who becomes a judge, and judges should be chosen to reflect the fact that they ultimately serve the people.