Judicial Appointments: QLD Calls for a New Judicial Commission

After the release of QLD's "Judicial Appointment Protocol Discussion Paper" in October 2015, the QLD Law Society (QLS) has now called for a review of the judicial appointment process with introduction of a judicial commission to deal with appointments.

Purpose and Scope of Judicial Appointments Discussion Paper 

During the 2015 State Election, the new QLD Government committed to review the current processesfor the appointment of judicial officers in Queensland, and to consult extensively with stakeholders in the development of a protocol as to how judicial appointments should be made. The purpose of the discussion paper is to stimulate discussion and debate around the regime governing the appointment of judicial officers in Queensland, and to seek the views of key stakeholders on the following issues:

• the skills, attributes and qualities (both personal, and professional) required of a judicial officer;
• strategies that could be adopted for identifying suitable candidates for appointment; and
• the best process for assessing judicial candidates.

The discussion paper concludes by posing the following questions for consideration about the current process for judicial appointments in Queensland, including possible models for reform:

• Question 1: Should there be a formal, and publicly available, procedure for the appointment of judicial officers in Queensland?
• Question 2: If so, should the procedure take the form of Guidelines or a Protocol approved by the Attorney-General (as in New South Wales and Tasmania), or a more formal Determination (as currently operates in the Australian Capital Territory for appointments to the Supreme and Magistrates Courts)?
• Question 3: Should a statutory body similar in purpose and form to the Judicial Appointments Commission (JAC) in England and Wales be established?
• Question 4: If a statutory body like the JAC in the United Kingdom is not favoured, what elements should be included in the judicial appointments procedure?

Judicial Appointments Around Australia

The appointment of judicial officers around Australia varies but can be briefly summarised as follows:

• Commonwealth - The Commonwealth Constitution provides that the Justices of the High Court and of the other courts created by the Parliament are to be appointed by the Governor-General in Council. In practice, the Attorney-General makes recommendations to the Cabinet and Governor-General.
• Australian Capital Territory - In the Australian Capital Territory, all judges of the Supreme Court, including the Chief Justice (collectively known as ‘Resident Judges’) are appointed by the Executive by commission.
• New South Wales - In New South Wales, the Governor-in-Council appoints judicial officers on the recommendation of the Attorney-General. In practice, a nominee is selected by Cabinet on the recommendation of the Attorney-General, who then informs the Governor of the nominee for appointment.
• Northern Territory - In the Northern Territory, in the case of the Supreme Court the Administrator may, by commission, appoint a person who has not attained the age of 70 years and is, or has been, a Judge of a Court of the Commonwealth or of a State or Territory of the Commonwealth, or is a lawyer who has been admitted to the legal profession for at least 10 years, to be the Chief Justice of the Court, a Judge of the Court or an additional Judge of the Court.
• Queensland - The Constitution provides that the Governor in Council, by commission, may appoint a barrister or solicitor of the Supreme Court of at least five years standing as a judge. When the need for a judicial appointment arises, the convention is that the Attorney-General consults directly with the Premier, the relevant head of jurisdiction, the Bar Association of Queensland and the Queensland Law Society before making a recommendation for the appointment of a judge or magistrate to the Cabinet and the Governor in Council.
• South Australia - In South Australia, the Governor is responsible for appointments to the Supreme, District and Magistrates Courts.
• Tasmania - In Tasmania, the appointment of judicial officers is a prerogative of the Crown to be exercised by the Executive Council through Cabinet.
• Victoria - In Victoria, judicial officers are also appointed by the Governor on the advice of the Executive Council. In practice, the Attorney-General selects a nominee and provides the recommendation to the Governor following Cabinet approval.
• Western Australia - In Western Australia, the Governor is responsible for appointments to the Supreme, District and Magistrates Courts.

A New Judicial Commission in QLD?

Current appointment processes across all the States and Commonwealth have been criticised by the QLD Discussion Paper for there being "currently no formal, or publicly available, criteria against which judicial nominees are assessed."

In a similar vein, and in regards to High Court Appointments, an article from The Conversation has stated:

In Australia, the lack of transparency is the most controversial aspect of judicial appointments - usually, merit, is the most common deciding factor, but arguments have been made for judicial diversity and representativeness, and, as succinctly argued by Nicola Roxon, in the Conversation Article, this has "the potential to affect the community’s perception of the judiciary and their confidence in it."

In direct reaction to these statements, QLS president Bill Potts said:

Mr Potts has stated to Lawyers' Weekly that this is the right time to consider a judicial commission in Queensland to ensure an independent and just judiciary:

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Review of the Judicial Appointment Process in QLD - Discussion Paper

Government Media Release Regarding QLD Discussion Paper - 15 October 2015

The Conversation Article

Judicial Appointments in NSW - Discussion Paper

Lawyers' Weekly Article - 15 January 2016