The Government's boast that it is carrying out "the biggest reform in the way judges are chosen for appointment in a quarter of a century" is a little rich, given that the two main parties in the coalition have alternated power for the past 25 years and for that entire period did nothing to fix a system whose glaring deficiencies were well-known from the day of its introduction. The current Judicial Appointments Advisory Board is a fig-leaf that applies a veneer of rigour and independence to an opaque system that is controlled by a small group of Cabinet members and their advisers. It is in spite of the way judges have been chosen, rather than because of it, that the judiciary has managed to retain public trust.
At last, then, the Government has published a new Bill to reform this discredited system. If enacted, it will result in a fairer, more transparent and serious way of selecting judges. The Bill includes some improvements on the general scheme published in 2020. For example, the new Judicial Appointments Commission will recommend three people instead of five for each vacancy; only those recommended by the commission will be nominated by Government; and any nominee, including a judge seeking promotion, must first be interviewed by the commission. The commission will be required to work to improve diversity in the judiciary.
The Bill could have gone further. The commission will comprise four judges (including the chair), four lay people and the attorney general. Even though the attorney will not have a vote, this means there will be a built-in majority of lawyers, which seems excessive. Minister for Justice Helen McEntee resisted calls for the three names going to Government to be ranked by the commission, saying this would mean the appointments were in effect being made by the commission rather than by Government, as is required under the Constitution. That’s not convincing: the Government could always reject the commission’s ranking (but would have to explain why), and McEntee has elsewhere accepted the principle of constraints on Government’s prerogative by stating that Cabinet cannot choose candidates who have not been recommended by the commission.
The need to ensure the judiciary reflects society is abundantly clear, but simply telling the commission to produce a “diversity statement” is not going to make much difference. The pipeline of future judges is controlled by the two branches of the legal profession, where the senior ranks are marked by their social/ethnic homogeneity and where progress through the junior ranks is too often contingent on connections and independent sources of income. A more radical shake-up of the profession would be required to effect real change, but governments have shown even less appetite for taking on that task than they have for fixing a broken judicial appointments system.