Building Up The Bench

Editorial - Canberra Times

Murray Gleeson, the Australian Chief Justice, was in a somewhat cynical mood addressing judges in Darwin on the weekend when he contrasted the high interest in how judges are appointed with the relative lack of interest in judicial training. Yet, as he pointed out, the two topics are very closely related. If we are to widen the pool from which judges are selected, particularly to stop drawing so heavily from the senior (and largely male) bar, much more attention has to be given to induction training for new judges and, probably, to continuing education for them. Experienced barristers are generally very familiar with courtroom procedures, the rules of evidence and, generally, the art of disinterested judgment. As a result, in the Australian and British system, which has relied primarily on judicial appointments from the ranks of advocates, not much money has had to be invested in training. If we are to have, as we should, more legal academics, solicitors, bureaucratic lawyers, even legally trained politicians as judges - in the process making it easier to get the best talents of women, migrants and other talents on the Bench - much more effort has to go into training. Alas, as Justice Gleeson commented, professional development for judges is without electoral sex appeal, even among those full of theories about how we ought to increase ethnic, gender, geographical or other diversity on the Bench.

Proposals to change methods of judicial appointment appealed to voters, he commented. Judicial vacancies were now being advertised in some states, and expressions of interest in appointment were being solicited. It might only be a matter of time before it became necessary for people who wanted to be considered to have to appear before selection panels to display their professional and ideological credentials. But since the appointment of judges was regarded as being an important part of executive power, one could then expect that governments would take as much care in selecting members of those panels as they took now in appointing judges.

The Chief Justice gave no indication of his personal opinion about such panels, and did not even make the obvious remark that, before the last High Court appointment, Attorney-General Daryl Williams took the extraordinary step of interviewing people under consideration. As it happened, as has happened with each of Mr Williams' opportunities for nomination, the results of such interviews were irrelevant anyway, with Prime Minister John Howard personally taking charge to install the person he wanted, whether or not the Attorney agreed. Be that as it may, it may be rather more attractive to have interviews by a panel (or, as is the American practice, a stud-book system of certification of the appointability of different lawyers by an outside body such as the American Bar Association) than a process of plaintive job supplication made to a person or group of persons likely to be a frequent party before the court. Interestingly, Justice Gleeson's comments about the need for judges to have training, or a long background of active advocacy in the courts over which they will preside, applies far more strongly at the lower level of courts, where the emphasis is on trial work, often with juries. There, judges have to be quick-witted to deal with procedural points arising all the time and the risk of error is far greater. At the more rarefied levels of appellate courts and the High Court itself, intimate familiarity with procedure is by no means as essential - it is character and command of principle, as well as the capacity to make decisions and explain them, which is most important. Academic, government or business lawyers, or solicitors, have little difficulty coping, assuming they have ability. Moreover there are now, probably, many more opportunities to demonstrate the essential abilities, given the numbers of conferences, academic journals and publications which provide opportunities to bring oneself to notice without feeling that one is touting for a job. The consequence is that diversity could be achieved more quickly in the senior judiciary than at the workhorse level.

Diversity, of course, is not an end in itself. Judges are not representatives or agents of particular interests, sexes, creeds, regions or ethnic backgrounds, or whatever. There are often good reasons why legal talents will be concentrated in particular places. At the same time, however, the law, like business and government, benefits enormously from different perspectives, different ways of approaching problems and different experiences. Those who want the best talents will cast as widely as possible.