Appointing Australian Judges: A New Model

Abstract

The paper argues for reform in the process by which members of the Australian judiciary are selected. In advocating reform we do not suggest that the appointment process to date has failed. Measured in historical and international terms the Australian judiciary is acknowledged to be of outstanding quality which has enjoyed the public's confidence. Rather, we advocate reform in order to ensure two things. First, that the judiciary retains the independence that is essential for it to discharge its constitutional functions. And, second, that it reflects the society from which it is drawn and continues to enjoy the confidence of that society. We recommend that Australia adopt a process for judicial appointments that is based on the process recently established for England and Wales under the Constitution Reform Act 2005 (UK). Appointments would continue to be made by the executive. Judicial Appointments Commissions (consisting of three judicial members, three legal members and three non legal members - including the Chair) would recommend three names to the executive from which the appointment must be made. The Commissions' recommendations would be the culmination of an evidence-based process involving applications, references, interviews and in some cases practical assessment of relevant skills.