The Marcus Einfeld affair has gone momentarily quiet while the police, in the fulness of time, investigate the scent of perjury. What we have in the wake of this scandal is a fresh bone to pick with the method of judicial appointment. While Einfeld arguably lacked judicial depth, in recent memory there have been spectacular failures arising from drunkenness, slowness and drowsiness on the bench. The matter takes on even greater importance as the federal courts assume the task of judicially determining the politically charged issues of terrorism and industrial relations. The appointment last July of John O’Sullivan after three years in the office of Kevin Andrews, the Workplace Relations Minister, shows that the government is not shy about getting its “boys on the bench”. That was rubbed home even more flagrantly because of O’Sullivan’s limited experience as a practising lawyer. Political appointments to the bench are nothing new. There’s one on the NSW District Court at the moment that was made at the suggestion of the party mates, much to everyone’s subsequent regret, including the Attorney-General who made the appointment. Attorney-General Ruddock has been cranking out appointments to the Federal Court and the Federal Magistrates Court at a brisk rate. Some we know as highly competent lawyers: Chris Jessup, John Middleton and Dick Tracey in Melbourne were all recently anointed. Tracey was a frequent recipient of government briefs and most memorably he took away the winner’s cup for the Treasury in the High Court FOI case. Jessup had a large industrial practice and was on the shortlist for Michael McHugh’s vacancy on the High Court while Middleton was an administrative and commercial law sort of fellow. Toni Lucev, another industrial and employment barrister who served as counsel assisting the Royal Commission into the Building Industry, last month took up an appointment as a Perth federal magistrate. Two other industrial lawyers were appointed to the federal magistracy this month: Adrian Dangerfield from South Australia, who has been an industrial relations commissioner, and Frank Turner from the Victorian Bar. Robert Buchanan, another employment and industrial advocate from the NSW bar, has just gone to the Federal Court. There can be little doubt that the government is reinforcing the industrial credentials of the federal bench. Without taking one jot from worth of those appointments, the fact remains that the sifting and assessment process is the remit of the Attorney-General and no one else. Various mysterious tappings and private nods and winks are used to refine the choices. If notions of a truly independent judiciary are to survive, the system has to change. An increasing body of legal opinion is now suggesting that the process should be less opaque and subject to more stringent due diligence. The Brits have set up an independent Judicial Appointments Commission to do the weighing and probing. The final decision about appointments remains in the hands of the government, but at least those on the list have all been ticked off by an independent body. What on earth could possibly be wrong with that? Nothing at all if you listen to the Australian Law Reform Commission, Justice Ron Sackville from the Judicial Conference of Australia and Justice Ruth McColl from the NSW Court of Appeal, among others. Judicial appointment commissions also exist in Scotland, Northern Ireland, Ireland, Canada, South Africa, Israel, France, Germany, Italy, the Netherlands, Portugal, Spain and in numerous states of the USA. Now the Australian Bar Association is staging a forum next month to ventilate the issues. I notice that some opinion writers have delved into Who’s Who and discovered the civil rights heritage of Justice Chris Maxwell, who sat on the Jack Thomas appeal. In some oblique way this was used to bash him and his decision around the head. It’s comforting to know that Justice Dyson Heydon’s outrageous “High Court job application” speech at a Quadrant dinner, with its sneers about the Mason court and other judges, is not trotted out by the same writers so that we might be better informed about the antecedents to his judicial thinking.
There must be a better way to appoint judges
The Marcus Einfeld affair has gone momentarily quiet while the police, in the fullness of time, investigate just how strong is the scent of perjury. What we have in the wake of this scandal is a fresh bone to pick with the method of judicial appointment.