Reviewing. judicial. the. appointments process. in Victoria

Transcription

1 Reviewing the judicial appointments process in Victoria Discussion Paper July 2010

2 DEPARTMENT OF JUSTICE VICTORIA 2 Published by the Victorian Government Department of Justice, Melbourne, Victoria, Australia. July 2010 Copyright State of Victoria, Department of Justice, 2010 ISBN: This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth). Authorised by the Victorian Government 121 Exhibition Street Melbourne This document may also be downloaded from the following website: newcourtsact. If you would like to receive this publication in an accessible format, such as large print or audio, please us at accessibility@justice.vic.gov.au

3 Foreword Victoria is served by a strong, skilled and independent judiciary. Its leadership and capacity to embrace change has been crucial in the ongoing modernisation of the legal system, Victoria s position at the helm of judicial education and professional development being but one example. Just as the law maintains its strength while continuing to evolve, then, so must the conventions which surround its administration the processes and mechanisms which form and support the judiciary and, in doing so, cement both its independence and the confidence of the community. Accordingly, this year the Government will introduce legislation to establish the Judicial Commission of Victoria a new and independent body which will deal with, amongst other things, concerns regarding the conduct of individual judicial officers. The next step, however, is consideration of the way in which judicial officers are appointed, as well as the way in which the best possible appointments can be ensured. I have had the privilege of making recommendations for 180 appointments to Victoria s three non-specialist courts since 1999, and am confident in the high quality of Victoria s judiciary. I also know, however, the challenges involved in identifying, selecting and encouraging the best people for the job. This means that, while changes have already been made to improve the transparency of the appointment process and to broaden the pool from which appointments are made, it is time to consider whether further reforms are required. Put simply, the demands of the 21st century legal environment exceed the traditional expectation that a judicial officer possess high level legal and technical skills alone. An effective contemporary court now requires officers with a broader range of skills including the ability to communicate effectively with a variety of court users, to control proceedings, to apply appropriate dispute resolution strategies, to adapt to change and to continually extend personal knowledge. We owe it to future generations of court users to ensure that those administering the law can meet these multiple requirements, which is why this discussion paper explores the advantages and disadvantages of various models for appointing judicial officers. I invite readers views on whether changes should be made to improve the transparency, quality and diversity of appointments and, in doing so, to strengthen the confidence of the community and the judiciary alike. Rob Hulls MP Attorney-General Judicial appointments process in Victoria Discussion Paper July

4 DEPARTMENT OF JUSTICE VICTORIA Contents 4

5 Foreword 3 Part 1 Overview & consultation process Purpose of review Overview of appointments process in Victoria Scope of the review Terminology Further information and copies of this discussion paper How to make a submission 9 Part 2 Skills, attributes & qualities required for judicial office Overview of pre-requisites for judicial office Selection criteria 11 Part 3 Attracting and identifying suitable and diverse candidates Introduction Barriers to attracting candidates Strategies adopted in Australia Other possible strategies 16 Part 4 Assessing and recommending candidates Introduction Current process in Victoria Approaches in other jurisdictions Other Australian jurisdictions International judicial appointment commissions Options for reform Option 1 Retain the existing system Option 2 Reform the advisory panel system Option 3 Establish an independent judicial appointments commission Key issues for options for reform Composition Scope of Executive discretion Should there be different processes for different positions? Consultation about potential candidates Timeliness of appointment process 24 Part 5 Health assessments prior to appointment Equal opportunity and privacy considerations Approaches in other jurisdictions Issues raised by health assessments 28 Judicial appointments process in Victoria Discussion Paper July Part 6 Conclusion 31 Appendix 1 List of Questions 33

6 P1 part 01 DEPARTMENT OF JUSTICE VICTORIA 6 Overview & consultation process

7 Part 1: Overview & consultation process 1.1 Purpose of review The process for appointing judicial officers is of fundamental importance to the operation of the judicial system. The quality of the appointment will impact on the court many years after the appointment, especially for tenured judicial officers. 1 It is critical that the process for appointing judicial officers results in the best possible judicial appointments and that the community has confidence in that process. The judiciary has a core function in Victoria s democratic system as one of the three arms of government. The judiciary acts as a check on the actions of the Executive, interprets and applies the law passed by the Legislature in cases of dispute, and develops the common law. To fulfil this role the courts and judicial officers must be independent, impartial and maintain the rule of law. This is reflected in the right to a fair hearing which is protected by the Charter of Human Rights and Responsibilities Act In addition, a modern court needs to be efficient, accessible, accountable and transparent. Courts operate in an environment in which the law is increasingly complex, more cases are being lodged and there are new approaches to resolving disputes. Inevitably, these new demands and expectations require judicial officers to have a broad range of skills and attributes. The purpose of this discussion paper is to seek community views on the following key issues: the skills, attributes and qualities required of a modern judicial officer (Part 2) strategies for attracting and identifying suitable candidates who reflect the diversity of the community (Part 3) the best process for assessing and appointing candidates (Part 4) whether candidates for judicial office should be required to have a health assessment before being appointed (Part 5). As there are more judicial officers now than there were ten years ago, and there is an ongoing need for more appointments to be made, the need to examine these issues is increasingly important. 3 Judicial appointments Discussion Paper July Notes. 1 Tenured judicial officers are appointed until the compulsory retirement age and can only be removed from office by Parliament for proved misbehaviour or incapacity : Constitution Act 1975 (Vic) s 87AAB. Non-judicial VCAT members, who do not have tenure, can be removed by the Governor in Council by a special procedure which does not involve Parliament: Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss Charter, s There are now 44 more judicial officers in total than there were in 1999.

8 The Attorney-General has also continued the practice of using advisory panels to provide advice on judicial appointments to the Magistrates Court and non-judicial appointments to the Victorian Civil and Administrative Tribunal (VCAT). DEPARTMENT OF JUSTICE VICTORIA Overview of appointments process in Victoria Judicial officers in Victoria are appointed by the Governor in Council. 4 In practice, the Governor makes judicial appointments on the recommendation of the Attorney-General. The Attorney- General identifies his or her preferred candidate for a judicial vacancy and then obtains approval from Cabinet before submitting a recommendation to the Governor in Council. This process reflects the Attorney-General s position as the first law officer for Victoria. The current Attorney-General, the Hon Rob Hulls MP, has introduced the following reforms to make the process of appointing judges and magistrates more transparent and to broaden the pool from which judicial officers are appointed: publishing selection criteria for all judicial positions advertising for expressions of interest from eligible candidates for all judicial positions 5 conducting wider consultation before deciding on a preferred candidate, including with the judiciary, the Victorian Bar, the Law Institute of Victoria, Victoria Legal Aid, and the Victorian Government Solicitor. The advisory panel process for appointments to the Magistrates Court and VCAT does not preclude appointments being made outside that process. Since 1999, there have been a total of 180 appointments to Victoria s three nonspecialist courts 6 and 385 appointments to VCAT Scope of the review The issues discussed in this paper relate to the appointment of judges (including heads of courts), associate judges, magistrates, acting judicial officers and members of VCAT. The paper refers to appointments of judicial officers in the Supreme Court, County Court, Magistrates Court and VCAT. The paper does not explicitly refer to appointments to the Children s Court and the Coroners Court as virtually all of the judicial officers of those Courts are appointed as magistrates and then assigned to one of these two courts. 8 Notes. 4 This means that the Governor of Victoria appoints a person to judicial office when he meets with, and acts on the advice of, the Executive Council. The Executive Council is made up of at least two and normally four ministers who represent the government. 5 See Document&1=45-Court+and+Tribunal+Appointments~&2=45-Judicial+Appointments~&3=~ (accessed May 2010). 6 Department of Justice (unpublished data at 27 July 2010). This figure does not include the appointment of judicial registrars. The breakdown is 58 appointments to the Supreme Court (including Court of Appeal and Associate Judges), 54 appointments to the County Court, and 68 appointments to the Magistrates Court. 7 This figure includes judicial and non-judicial appointments to VCAT and re-appointments of VCAT members: Department of Justice (unpublished data at 27 July 2010). 8 Children, Youth and Families Act 2005 (Vic) s 507; Coroners Act 2008 (Vic) s 93(1). Special provisions apply to the appointment of the State Coroner, the Deputy State Coroner, and the President and Acting President of the Children s Court: Children, Youth and Families Act 2005 (Vic) ss 508, 509; Coroners Act 2008 (Vic) ss 91, Department of Justice, Investigating Complaints and Concerns Regarding Judicial Conduct (November 2009), available at: Concerns_-_Judicial_Conduct.pdf?MOD=AJPERES. 10 Rob Hulls MP, Deputy Premier, New Commission to receive complaints against judges Media Release (2 June 2010). More information about the judicial complaints review can be found at:

9 Requests for hard copies of the paper and enquiries about the review can be directed to: Teresa Valles Administration Assistant Issues relating to complaints and concerns about judicial officers, including the grounds for removal and health issues arising after appointment, have been reviewed by the Department of Justice in a separate process, which included the release of a Discussion Paper in On 2 June 2010, the Government announced that it would introduce legislation into the Parliament this year to establish the Judicial Commission of Victoria to investigate and respond to these concerns Terminology Throughout this discussion paper the term judicial officer means either a judge, associate judge, magistrate, acting judicial officer or a member of VCAT. The term head of court or head of jurisdiction means the person who has been appointed as the most senior judicial officer of each court or VCAT, namely the Chief Justice of the Supreme Court, the Chief Judge of the County Court, the Chief Magistrate, the President of the Children s Court, the State Coroner and the President of VCAT. 1.5 Further information and copies of this discussion paper Further information on this review and electronic copies of this discussion paper can be obtained by visiting the Department s website at gov.au/newcourtsact. T. (03) F. (03) E. newcourtsact@justice.vic.gov.au 1.6 How to make a submission If you wish to comment on the matters raised in this paper, you can make a written or taped submission. Please or send your submission to: New Courts Act Project Courts and Tribunals Unit Department of Justice GPO Box 4356 Melbourne Vic 3001 F: (03) T. (03) E. newcourtsact@justice.vic.gov.au Submissions may address any relevant issue and do not need to be limited to answering the questions in the discussion paper. Submissions must be received by Tuesday 31 August Please note: Unless marked private and confidential all correspondence and submissions will be regarded as public documents, and may be made available on the Department of Justice s website, or be viewed by members of the public on request. Even if a submission is marked private and confidential the submission may still be the subject of a request for access under the Freedom of Information Act 1982 (Vic) ( FOI Act ). The FOI Act requires the Department, if practicable, to notify you if a request is made for access to a document containing information relating to your personal affairs and, if a decision is made to release that document, to notify you of your rights of appeal under that Act. Judicial appointments Discussion Paper July

10 P2 part 02 DEPARTMENT OF JUSTICE VICTORIA 10 Skills, attributes & qualities required for judicial office

11 Part 2 Skills, attributes & qualities required for judicial office 2.1 Overview of pre-requisites for judicial office In Victoria a person is eligible for judicial office if they satisfy minimum legislative requirements relating to age and legal experience or qualifications. For most positions this requires a person to be less than 70 years of age and have been admitted to the legal profession in an Australian jurisdiction for at least five years. 11 A person who meets these requirements can lodge an expression of interest for a judicial vacancy which addresses the selection criteria outlined below. 2.2 Selection criteria One of the early initiatives of the current Victorian Attorney-General was to publish selection criteria to make explicit the basis on which candidates are assessed for judicial office. As part of the selection process people with substantial legal experience and knowledge of the respective jurisdiction are invited to lodge an expression of interest which addresses the following selection criteria: 13 personal qualities such as integrity, fairness, maturity, sound temperament and commitment to public service a demonstrated interest in appropriate dispute resolution is an advantage awareness of issues of gender, sexuality, disability and cultural and linguistic difference demonstrated intellectual and analytical skills, sound judgment, decisiveness, and the capacity to command authority, and manage and initiate change the ability to communicate fairly, effectively and courteously with all court users a commitment to the use of technology and participation in ongoing judicial education will also be viewed favourably. Judicial appointments Discussion Paper July There are also probity requirements which must be met before a person can be appointed. These require a candidate to disclose a range of information such as criminal offences or charges, bankruptcy proceedings and conflicts of interest. 12 Notes. 11 Alternatively, a person is eligible if they are or have been a judge (for any judicial position) or a magistrate (for a position of judge in the County Court or a magistrate): Constitution Act 1975 (Vic) s 75B; County Court Act 1958 (Vic) s 8; Magistrates Court Act 1989 (Vic) s 7. The exception to these standing requirements relate to ordinary and senior members of VCAT who do not need to be admitted to legal practice: see Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss See the Courts and Tribunals Victoria website at: Appointments/$file/expressionofinterest_judicial_March09.rtf (accessed 25 May 2010). 13 See the Courts and Tribunals Victoria website at: Court+and+Tribunal+Appointments-Judicial+Appointments?OpenDocument&1=45-Court+and+Tribunal+Appointmen ts~&2=45-judicial+appointments~&3=~ (accessed 25 May 2010).

12 TABLE 1: JUDICIAL COLLEGE OF VICTORIA S FRAMEWORK OF JUDICIAL ABILITIES AND QUALITIES FOR VICTORIAN JUDICIAL OFFICERS DEPARTMENT OF JUSTICE VICTORIA 12 Headline ability Knowledge and technical skills Communication and Authority Decision-making Professionalism and integrity Efficiency Leadership and management Core abilities and technical skill sound knowledge of law and its application sound knowledge of procedure and appropriate application establishes and maintains authority of the court manages hearing to enable fair and timely disposal communicates effectively sound judgement appropriate exercise of discretion maintains independence and authority of the court maintains personal independence and integrity personal discipline promotes highest standards of behaviour in court manages hearings to facilitate fair and timely disposal actively manages cases to promote efficient and just conclusion of business strategically plans and organises manages change supports and develops talent manages quality standards encourages and facilitates teamwork

13 Applicants are also referred to the Framework of Judicial Abilities and Qualities for Victorian Judicial Officers developed by the Judicial College of Victoria which outlines the attributes the government, courts and community expect of judicial officers. 14 The Framework is divided into six broad categories with corresponding abilities and skills as listed in Table 1 on page 12. The Framework also sets out the personal qualities which relate to each category, such as conscientiousness, courtesy, fairness, decisiveness, patience, selfdiscipline and responsibility. Selection criteria have been published in many other jurisdictions covering a range of different abilities and qualities which are largely incorporated into the Framework. 15 Question 1 In addition to the attributes identified in the Framework of Judicial Abilities and Qualities for Victorian Judicial Officers developed by the Judicial College of Victoria, what other abilities, skills and qualities are required of a modern judicial officer? Judicial appointments Discussion Paper July Notes. 14 Available at: judicial_abilities.pdf. 15 See, for example, the qualities and abilities for judicial office published in England and Wales by the Judicial Appointments Commission, available at: (accessed May 2010).

14 P3 part 03 DEPARTMENT OF JUSTICE VICTORIA 14 Attracting and identifying suitable and diverse candidates

15 Potentially suitable candidates may also be deterred from applying for judicial office for a range of reasons, including: a misconception that they are not the sort of person who would be considered favourably for judicial office a belief that they do not have all of the technical skills required to perform the role concerns about the terms and conditions of judicial office, such as a view that there are limited options for flexible work arrangements and perceptions around the possible implications of the pension. Strategies used in Australia to address some of these issues, and other possible strategies, are discussed below. Part 3 Attracting and identifying suitable and diverse candidates 3.1 Introduction Traditionally, most judicial appointments have come from the Bar and have been predominantly middle-class, male and Anglo-Celtic. That has started to change over recent years, but the Government needs to continue to look for ways to ensure the judiciary reflects the diversity of the community. A judiciary which is representative of the community is more likely to command public confidence in the impartiality of the institution. 16 A further benefit is the potential to increase the quality of appointments by identifying wellqualified candidates who may not have been considered for judicial office in the past. A judicial appointments process needs to attract and identify suitable candidates from diverse backgrounds. 3.3 Strategies adopted in Australia In Victoria, advertisements are placed in newspapers for all judicial appointments inviting expressions of interest for judicial vacancies. These advertisements expressly encourage expressions of interest from women, people with disabilities and people of Indigenous and culturally diverse backgrounds. The Attorney-General also consults widely to identify suitable candidates, including with the judiciary, the Victorian Bar, the Law Institute of Victoria, Victoria Legal Aid and the Victorian Government Solicitor. Judicial appointments Discussion Paper July Barriers to attracting candidates One of the barriers to a diverse judiciary is that qualified people with a range of backgrounds and characteristics may not put themselves forward for consideration. The Government, the judiciary and legal professional organisations have a key role in identifying people who should be considered for judicial office. However, another impediment is that people from less orthodox backgrounds may not be well-known to the Government or to those who are consulted about appointments. Some jurisdictions have a formal process to enable a person to nominate another person for a judicial vacancy. For example, the Commonwealth advertises for both expressions of interest and nominations, and has developed forms to be completed for both processes. 17 A person who is nominated is asked whether they wish to be considered for the position and, if so, is added to the pool of candidates. As part of this review the Government will consider whether to implement a similar nominations process in Victoria. Notes. 16 Michael McHugh, Women Justices for the High Court (Speech delivered at the High Court dinner hosted by the West Australian Law Society, 27 October 2004). 17 Commonwealth Attorney-General s Department, Judicial Appointments: Ensuring a strong and independent judiciary through a transparent process (April 2010) 2 ( Cth Appointments Paper ), available at: Legalsystemandjustice_CourtAppointments (accessed May 2010).

16 DEPARTMENT OF JUSTICE VICTORIA 16 Advisory panels established by the Commonwealth to provide advice about judicial appointments also have a role in identifying and approaching potential candidates Other possible strategies Judicial appointment commissions established in the United Kingdom and elsewhere are usually more active in seeking applications. For example, the Judicial Appointments Commission in England and Wales conducts outreach events like speaking to law students, legal professional associations and other groups of potential candidates, conducting road shows providing potential candidates with information on selection processes and first-hand accounts of judicial office, and developing an newsletter. 19 However, the Governments in both England and Wales and Scotland have both recently conducted reviews of their processes in response to concerns that they have not made significant progress on judicial diversity. 20 The report of the review in England and Wales found that there was no quick fix and made 53 recommendations. Many of the recommendations in the report are worth exploring in the Victorian context. One of the key themes of the report is that there should be a focus on the concept of a judicial career which is not just about attracting and appointing people, but also retaining, developing and promoting the best talent. For example, this approach recognises the importance of: a staged induction period where the appointed person has little or no experience of sitting judicially or of the relevant jurisdiction training to enable judges to both perform their current role and to develop their skills and address areas of weakness appraisal and mentoring throughout a judicial career to build confidence and skills, identify and encourage talent, target training, and support career development clear policies and practices relating to flexible work options and reasonable adjustments to accommodate the needs of people with disabilities. The report makes a number of specific suggestions for encouraging applications which could be considered in Victoria, including: encouraging interest early such as by giving students an opportunity to spend up to a week with a judge and encouraging people from underrepresented groups to take positions of judicial assistants (which are similar to associates to judges) providing more routes for potential candidates to understand what the role involves and to gain practical experience, such as by enabling practitioners to spend a few days work-shadowing a judge. A significant focus of the report is on the importance of opportunities to gain relevant skills prior to applying for judicial office. The report recommends the creation of a Developing Judicial Skills Course, approved by the Judicial Studies Board, for people who do not have day to day experience of courts or advocacy. The course could provide training in relevant skills and an opportunity to establish if a judicial career is right for them. The Judicial College of Victoria has had considerable success delivering training and education to the judiciary and would be well-placed to offer such a course to people who want to be considered Notes. 18 Advisory panels are established for appointments to the Federal Court, the Family Court and the Federal Magistrates Court (but not for the heads of court) - see previous footnote, Ministry of Justice, The Report of the Advisory Panel on Judicial Diversity 2010, 69, available at: publications/judicial-diversity-report.htm. 20 See previous footnote, and MVA Consultancy, Continuous Improvement: An Analysis of Scotland s Judicial Appointments Process (October 2009).

17 for judicial office in Victoria. Another possibility is for universities to develop courses in judicial decision-making. 21 The report also emphasises the importance of applicants having prior judicial experience in a part-time fee paid position before they are appointed to a tenured position. In England and Wales people applying for a permanent full-time judicial office are expected to have prior judicial experience, usually as a Recorder. Recorders are part-time judges appointed for a period of five years and paid for each day they sit. They usually sit in the Crown Court and the county courts and deal with the less complex matters of the court. The Judicial Appointments Commission will take into account a candidate s performance as a Recorder in deciding whether to recommend the person for a permanent judicial office. In Victoria, VCAT members can be appointed as sessional members and thus gain experience prior to being appointed as full-time members. 22 Consideration could be given to amending the selection criteria for judicial office to provide that experience as a sessional member of VCAT, or another tribunal such as the Mental Health Review Board, is an advantage. Question 2 Are there any other barriers to attracting and identifying suitable candidates from diverse backgrounds? Question 3 In addition to advertising for applications and nominations, what strategies could be implemented to ensure suitable candidates from diverse backgrounds are identified and apply for judicial office? For example: a. Should regular presentations be made to the Victorian Bar, the Law Institute of Victoria, law students, and other groups of potential candidates seeking applications and nominations? b. Should training courses be set up to enable potential applicants to obtain an understanding of what judicial office entails and to develop relevant skills? c. Should the selection criteria for judicial office make it desirable for candidates to have completed a judicial skills training course or have prior experience in a judicial or quasi-judicial setting? Alternatively, should one of these requirements be compulsory? d. Should the English recorder style system be adopted in Victoria whereby candidates for a permanent full-time position in the judiciary are assessed according to satisfactory performance in a part-time judicial position? Judicial appointments Discussion Paper July Another theme of the report is the importance of leadership to deliver change. The report recommends the establishment of a Judicial Diversity Taskforce to oversee an agreed action plan and report on progress made. The recommended composition of the taskforce includes the Lord Chancellor, the Lord Chief Justice, the Chairman of the Judicial Appointments Commission and leaders of legal professional organisations. Notes. 21 Such courses exist in some civil law countries. For example, in Germany two examinations under the German Judiciary Act and practical legal training, including a judicial clerkship, qualify a person to become a judge. Examinations are conducted at universities including the University of Vienna and University of Regensburg. In France, there is a French National School for the Magistracy - see (accessed July 2010). In addition, a national school for the judiciary exists in Spain see > (accessed July 2010). 22 Although this is not a requirement. Neither sessional nor full-time non-judicial members of VCAT have tenure. Ordinary members hold office for a term of 5 years: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 14.

18 P4 part 04 DEPARTMENT OF JUSTICE VICTORIA 18 Assessing and recommending candidates

19 Part 4 Assessing and recommending candidates 4.1 Introduction Part 3 of this paper considered strategies which could be used to identify and attract suitable candidates for judicial office. It is critical that candidates are appropriately assessed to ensure that they have the required skills, attributes and qualities. This part describes the current processes in Victoria for assessing and appointing candidates and key features of some approaches used in other places. It then examines three options for reforming the assessment and appointment process. 4.2 Current process in Victoria In Victoria, the Attorney-General discusses with the head of jurisdiction the nature of the judicial vacancy, any particular skills and attributes which may be appropriate, and the present and future needs of the court. The Attorney-General assesses the suitability of candidates who have lodged an expression of interest and other people who have been identified as possible candidates. This assessment includes consideration of the contents of the expression of interest application (if any), feedback arising from consultations undertaken by the Attorney, and the results of probity checks. For appointments of judges and magistrates, the Attorney-General will have a faceto-face meeting with the proposed candidate before forming a concluded view about whether to recommend the person for appointment. In addition, for appointments to the Magistrates Court and VCAT, an advisory panel is convened to provide advice to the Attorney-General. Advisory panels are established as vacancies arise. They assess the expressions of interest for the position against the selection criteria, interview short-listed candidates, and contact referees nominated by the candidate. The panel then prepares a report for the Attorney-General with its assessment of candidates and a list of suitable candidates for appointment. The Attorney-General may recommend for appointment any person who meets the statutory requirements. Although the Attorney-General has not appointed people assessed as being unsuitable by an advisory panel, he is not bound by the panel s assessment. 4.3 Approaches in other jurisdictions Other Australian jurisdictions Consistent with Victorian practice, New South Wales, Tasmania, South Australia and the Northern Territory establish advisory panels to assess candidates for lower court appointments. Panels are also established in Tasmania for appointments to the Supreme Court and in New South Wales for appointments to the District Court. 23 At the Commonwealth level advisory panels provide advice to the Commonwealth Attorney-General when judicial vacancies arise in the Federal Court, the Family Court and the Federal Magistrates Court (except for the positions of heads of court). 24 In all Australian jurisdictions, the relevant Attorney-General retains the discretion to recommend for appointment whoever he or she chooses, subject to minimum statutory prerequisites and is not bound by any recommendations or advice of an advisory panel. 25 Judicial appointments Discussion Paper July Notes. 23 Although the names of these panels vary, they are similar in function and composition to the advisory panels that operate in Victoria. 24 Cth Appointments Paper, above n 17, Although the Attorney-General s decision may need to be endorsed by Cabinet as in Victoria.

20 DEPARTMENT OF JUSTICE VICTORIA International judicial appointment commissions There are a number of different models in jurisdictions outside Australia for the appointment of judicial officers. Many common law countries have established permanent appointment bodies or commissions to assess candidates for judicial office and make recommendations for appointment to the government. Such bodies now exist in England and Wales, Scotland, Ireland, Northern Ireland, Canada, Hong Kong, South Africa and some US states such as California. 26 In England and Wales, the Judicial Appointments Commission has responsibility for making recommendations for the appointment of most judicial positions. The Commission has developed a detailed process for selecting candidates including a national call for expressions of interest, shortlisting candidates by either a paperbased sift or a written qualifying test, and selection days consisting of a panel interview or of an interview and roleplay. 27 The Commission also undertakes consultation about candidates as discussed later in this paper. Following this process the Commission provides the Lord Chancellor with the name of one person for each judicial vacancy. The Lord Chancellor has two opportunities to reject the selection or require the Commission to reconsider its choice, but ultimately the Lord Chancellor is required to accept one of the three selections of the Commission. The Commission is required by legislation to make selections solely on the basis of merit while having regard to the need to encourage diversity in the range of people available for appointment Options for reform Any reforms to the process by which judicial appointments are made in Victoria must be consistent with Victoria s constitutional traditions. No change is proposed to the role of the Governor in Council to make appointments, or to the responsibility of the Attorney-General to make recommendations for appointment to the Governor in Council. This part will examine the following three reform options: retain the existing system reform the advisory panel system by establishing panels for all judicial appointments and making changes to how they are composed and operate establish an independent judicial appointments commission. The discussion below briefly describes some of the advantages and disadvantages of the reform options Option 1 Retain the existing system The current system has resulted in high quality judicial appointments. Reforms made by the Attorney-General have also increased the transparency of the process, especially as a result of the publication of selection criteria for judicial office and the ability of any person to submit an expression of interest. Further, an Attorney with a commitment to attracting and appointing a diverse judiciary may have more success achieving this aim than approaches which require consensus to be reached by a number of people. Arguments can also be made in support of the current use of advisory panels only for appointments to the Magistrates Court and VCAT. These appointments involve consideration of candidates from a large pool, often lawyers in private practice whose record is not as readily available. Advisory panels enable large numbers of candidates to be screened in Notes. 26 Some other countries have similar bodies see the Ministry of Justice, The Governance of Britain: Judicial Appointments (October 2007) Judicial Appointments Commission of England and Wales, Annual Report , Constitutional Reform Act 2005 (UK) s 63.

21 Some candidates for judicial vacancies on higher courts may be reluctant to be part of a formal assessment process, especially if it requires a formal interview. There is also a concern about the appropriateness of interviewing serving judges who are being considered for elevation to a higher court, or a higher office in the same court. a streamlined process while retaining the Attorney-General s unfettered decisionmaking power. In contrast, candidates for appointment to the Supreme Court and the County Court are usually experienced in their particular legal field and have a profile which facilitates an assessment of their suitability for judicial office. This is the case, for example, where candidates are senior members of the bar, academics or serving judges or magistrates. Compared to other options, the current approach is also low cost. Advisory panels are created on an ad hoc basis as judicial vacancies arise and do not require the infrastructure and other costs of a permanent body or commission Option 2 Reform the advisory panel system The second option is to establish advisory panels for all judicial appointments in Victoria, including Supreme and County Court appointments, and make changes to how they are composed and operate. The key advantage of extending advisory panels to the Supreme and County Courts is that it creates a formal assessment process outside the Attorney s office, which utilises the knowledge, expertise and judgment of panel members. The Attorney s decision may be better informed as a result of the panel s recommendations and may produce appointments from a broader range of backgrounds. A more transparent process may also encourage applications from a broader range of people who might otherwise believe they do not have the profile to be considered. However, in a number of Australian jurisdictions it is already the case that candidates for appointment to higher courts are required to be part of a selection process which may involve an interview. 29 The Commonwealth s view is that the selection panel can decide whether interviews are conducted for appointments to the Federal Court and the Family Court. 30 Retired Justice Ronald Sackville has said that there is no compelling reason why changes introduced for magistrates courts, such as interviews of candidates, cannot be applied more generally to the selection process for vacancies in the superior courts Option 3 Establish an independent judicial appointments commission The third option is to establish an independent judicial appointments body or commission ( the commission ) in Victoria to assess candidates for judicial office and provide advice to the Attorney-General. Based on the precedents in other jurisdictions, a commission model in Victoria would have a permanent structure, governance arrangements and composition. The key advantage of a commission is that it would be a permanent body with staff who have the time and skills to develop and apply comprehensive selection processes. Like its counterparts in other jurisdictions, a commission would decide how it shortlists candidates, when it conducts interviews and whether it requires candidates to participate in other selection exercises such as role-plays. Further, a more independent and transparent approach may also give confidence to potential applicants that their application will be considered on its merits. Judicial appointments Discussion Paper July Notes. 29 For example, advisory panels may interview candidates in the following jurisdictions: Commonwealth for Federal Court appointments, Tasmania for Supreme Court appointments and NSW for District Court appointments. 30 Robert McClelland MP, Attorney-General (Speech delivered at the Judicial Appointments Forum, Bar Association of Queensland Annual Conference, 17 February 2008) Justice Ronald Sackville, The Judicial Appointments Process in Australia: Towards Independence and Accountability (Speech delivered at the Australian Bar Association Judicial Appointments Forum, 27 October 2006) 16.

22 4.5 Key issues for options for reform Some of the key issues which need to be considered if advisory panels are reformed, or if a judicial appointments commission is established, are examined below. DEPARTMENT OF JUSTICE VICTORIA 22 However, some commentators have questioned the benefits of appointment bodies and point to deficiencies in the performance of the Judicial Appointments Commission in England and Wales. The main criticisms are that the appointment process is overly bureaucratic and the whole appointments process is unreasonably intrusive as well as taking too long. 32 Another criticism of the Commission in England and Wales discussed above is that it has not achieved one of its mandated aims of increasing the diversity of the judiciary and that some people who have the skills and experience for judicial office are not being appointed. 33 Finally, concerns have been expressed that transferring the decision from an individual to a group of people may result in the selection of mediocre compromise candidates and may not result in the appointment of the best candidates. 34 A commission would require moderate ongoing funding to establish a permanent office, to employ staff and to pay interview panel members where appropriate. The Commonwealth Senate Legal and Constitutional Affairs References Committee, which recently reviewed the process for federal judicial appointments, formed the view that it was not necessary to establish an appointments commission to have effective and appropriate selection processes and was not convinced that the cost of a commission is warranted Composition If advisory panels are reformed, or an appointments commission is established, consideration will need to be given to how they are composed. Currently, advisory panels for appointments to the Magistrates Court are usually comprised of the Chief Magistrate, a senior public servant from the Department of Justice and a third person, such as another judicial officer or the CEO of the Judicial College of Victoria or the Sentencing Advisory Council. 36 Variations on the composition of advisory panels include: a retired judicial officer (Commonwealth), 37 a representative of a professional legal body chosen by the Attorney-General (Tasmania for Supreme Court appointments), 38 and a prominent community member (NSW). 39 There are a variety of approaches around the world for the composition of the boards of appointment commissions. The Judicial Appointments Commission in England and Wales is comprised of fifteen members including five judicial members, two lawyers, five lay members, a tribunal member and a magistrate. A lay person chairs the Commission. The Queen, on the advice of the Lord Chancellor, appoints the members of the Commission. 40 Notes. 32 McClelland, above n 30, As noted above, some of these concerns led the Ministry of Justice to commission a report on judicial diversity, above n Kate Malleson, The New Judicial Appointments Commission in England and Wales: New Wine in New Bottles?, in Kate Malleson & Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (2006) 39, Senate Legal & Constitutional Affairs References Committee, Parliament of Australia, Australia s Judicial System and the Role of Judges (2009) For VCAT vacancies, the panel is usually comprised of the President or Vice President of VCAT, the head of the relevant VCAT list (such as the Guardianship list), and a senior public servant from the Department of Justice (usually the Executive Director, Courts). 37 Cth Appointments Paper, above n 17, Department of Justice, Tasmania, Protocol for Judicial Appointments (April 2009). 39 The community member is chosen by the Attorney-General.. 40 A special panel is convened to recommend lay people for appointment as a commissioner: Constitutional Reform Act 2005 (UK) Schedule 12, Clauses 7 8.

23 is required to appoint a person from a list of names recommended by an advisory committee. 46 In Ireland, the Judicial Appointments Advisory Board puts forward up to seven names for each vacancy but the Executive can appoint a person who is not on the list. 47 There are different views about whether non-lawyers should constitute the majority of the board members, 41 should be equally represented, 42 or be a minority. 43 Some people have expressed concerns that a board that is dominated by judicial officers may result in a narrow pool of recommended candidates who reflect the profile of the existing judiciary. 44 A distinction needs to be drawn between the members of the board of the commission, and the membership of any selection panel which may be created at the request of the commission in respect of a particular vacancy. For example, the commission may decide that the specialist skills of a particular position warrants the inclusion of an expert in that field on the selection panel Scope of Executive discretion Another key question to be decided is whether there should be any restrictions on the Government s power to appoint the person it decides is the best candidate. As noted above, in England and Wales the Executive is provided with one name for each vacancy and has very limited scope to reject or request reconsideration of the selection of the Judicial Appointments Commission. 45 In Canada, the Executive Commentators have put forward a range of models in the Australian context. For example, Simon Evans and John Williams advocate a model whereby the Executive is restricted to appointing one person from a pool of three recommended candidates, although the Executive can request a further three candidates if reasons are provided. 48 Some other commentators favour a model where the Executive retains the option of appointing a person who has not been recommended by the commission. In this event the Government would need to publicly explain why the commission s recommendations had been rejected Should there be different processes for different positions? A further issue is whether the same process should apply to all judicial appointments. There may be an argument for developing special processes for the appointment of heads of court and the appellate judges on Victoria s Court of Appeal, as these positions are usually drawn from the ranks of serving judicial officers. Judicial appointments Discussion Paper July Notes. 41 A position advocated by retired Justice Ronald Sackville, above n 31, As proposed by Simon Evans & John Williams in Appointing Australian Judges: A New Model (2008) 30 Sydney Law Review 295, 323. This is the position in Scotland. 43 As is the case in England and Wales. 44 For example, Stephen Gageler has said that: Judges would tend to create their successors in their own images in Judicial Appointment (2008) 30 Sydney Law Review 159, See discussion at See Office of the Commissioner for Federal Judicial Affairs Canada website: process-regime-eng.html (accessed May 2010). 47 Courts and Court Officers Act 1995 (Ire) s Evans & Williams, above n 42, See, for example, Rachel Davis & George Williams, Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia (2003) 27 Melbourne University Law Review 819, 858 and Sackville, above n 31, 20.

24 DEPARTMENT OF JUSTICE VICTORIA 24 As noted above, the Commonwealth has decided that advisory panels should not be convened for appointments to the High Court or for the positions of heads of court because candidates for these positions are likely to be serving judges and already known to the Government. 50 Some overseas jurisdictions with appointment commissions have different bodies to make recommendations in relation to similarly senior positions. 51 In contrast, in 2009 the Tasmanian Government convened an advisory panel to make recommendations for the position of Chief Magistrate. 52 A number of commentators believe that reforms to the appointment process, including the option of a commission which may interview candidates, should apply to all appointments, including appointments to the High Court Consultation about potential candidates One operational issue, which requires particular attention, is how consultation about potential candidates should be conducted by advisory panels or an appointments commission. It is essential that any selection process thoroughly considers an applicant s work history in addition to their skills and capacity. On occasions, the assessment of the person s work history would include asking people, who are not named as a person s referee, about the applicant s work performance. There is a tension between the need to conduct consultations about a person s suitability, the importance of preserving the confidentiality of the process, and affording an appropriate level of transparency. Some commentators have expressed concerns that this consultation may not be evidence-based and tends to advantage the more visible candidates to the detriment of diversity and public confidence. 54 To minimise these risks the Judicial Appointments Commission in England and Wales advises candidates of the referees it may contact and requires all consultation between the Commission and the judiciary to be conducted in writing Timeliness of appointment process Any process which is adopted to assess candidates and make recommendations for appointment must be timely. As outlined above, one of the criticisms of the Judicial Appointments Commission in England and Wales is that the process takes too long. There is clearly a tension between undertaking a thorough and comprehensive assessment of candidates and conducting an expeditious process. For example, a process which requires candidates to attend both interviews and selection exercises such as role plays, and which requires written reports from referees, will take some time. Notes. 50 Cth Appointments Paper, above n 17, For example, in England a selection panel makes recommendations for appointment to the positions of Lord Chief Justice, Heads of Division and the Lord Justices of Appeal, and a selection commission is established for Supreme Court appointments: Constitutional Reform Act 2005 (UK) ss & Similarly, in Canada a separate Selection Panel makes recommendations for appointment to the Supreme Court: (accessed June 2010). 52 Lara Gidding MP, Attorney-General of Tasmania, New Chief Magistrate Appointed, Media Release (15 July 2009). 53 George Williams, High Court Appointments: The Need for Reform (2008) 30 Sydney Law Review 163, Evans & Williams, above n 42, Judicial Appointments Commission of England and Wales, May, Professor George Williams supports an approach whereby a commission can only obtain further information on candidates in the form of written statements made against the appointment criteria : above n 53, 168.