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STUART J BARNETT discusses the recent comments of a former High Court judge on the selection of judges.
A number of women have recently been appointed to senior judicial positions evidencing amove towards equality on the bench. Whilst many inside and outside the legal profession welcome the move towards a bench that better reflects society as a whole, it has not been without its detractors. In a speech at the opening of Queensland's Supreme Court Library Rare Book Rooms Sir Harry Gibbs criticised the emphasis given to sex or ethnic origin as opposed to merit as criterion for appointment to the judiciary. The former Chief Justice of the High Court said '[a] ... recent heresy is that the bench should be representative and that the sex of the aspirant or perhaps his or her ethnic origin should be a more important consideration than merit.[1]
Sir Harry ignores the subjective nature of 'merit'. His comments highlight the failure of traditional concepts of 'merit' to encompass the unique experiences of women and those from different ethnic (and economic) backgrounds. These traditional concepts, along with the rejection of a representative bench, have resulted in a bench dominated by men of Anglo-Saxon or Celtic background implying that only they have the skills necessary to judge.[2] The merit of an aspirant, however, cannot be considered separate from the process of appointing judges and according to Sir Harry it needs to be more transparent.[3]
A claim that gender or ethnic origins have been given more credence than merit in appointing judges is difficult to prove. There is no universally recognised concept of 'merit' and even if deconstructed to include character, temperament, ability and experience it remains subjective and open to interpretation. All appointments to the bench are discretionary in nature and therefore appointments are open to manipulation. Those making judicial appointments, the government via the Attorney-General, never consider that an appointment is made on grounds other than merit. If an Attorney-General wishes to make an appointment based on political affiliation, gender, ethnic origin or religion he or she can interpret 'merit' in terms that take into account the favoured characteristics of the aspirant. This can work for and against gender and those of a particular ethnic origin but, to date, has mainly worked against.
Proponents of the traditional concept of 'merit' may argue that there is a level playing field and sex or ethnic origin has never been a disqualifying factor for appointment. Is it just coincidence that the majority of aspirants considered to be meritorious have been white males? Even if this question can be answered in the positive the white male dominance of the bench shows that the concept of 'merit' excludes women or those with different ethnic origins and denies that there are any important, immutable differences between women and men[4] or between different ethnic origins. Yet differences based on gender and ethnic origin provide unique experiences invaluable to the bench.
There are at least two good reasons for a bench that constitutes a fairer reflection of society. The first is the unique experience and understanding an aspirant who is female or of particular ethnic origin brings to the bench. The second is the appearance of a judiciary in touch with various sections of society, which improves public confidence in the justice system.
Sir Harry rejects the notion of representation, stating: 'the bench should never be representative, for the duty of a judge is not to represent the views or values of any section of society but to do justice to all'.[5] Presumably, it is only those who are appointed according to traditional principles of 'merit' who have the ability to dispense justice. 'Justice' itself is like 'merit' in that it too is subjective and can be influenced by an aspirant's gender or ethnic background. This is not to suggest judicial activism by the judge in favor of the section of society they represent. For a judge appointed to the bench where gender or ethnic origin is taken into account still has a duty to do justice to all. What they have, that meritorious white male aspirants do not, is experience of being female or of non-Ango-Celtic ethnic origin.
One of the advantages of female judges may be to help eliminate gender bias in the law by using their understanding of women's experiences in their decision making.[6] Justice Jane Matthews of the Federal Court and President of the Administrative Appeals Tribunal recently highlighted one example. Her Honour argued that although law is based on common sense and fairness and in most cases the gender of the judge makes no difference, there are certain cases such as those involving discrimination in which women tend to be more sensitive.[7] It is this sensitivity that adds considerably to the bench and ultimately to justice. Similar considerations apply to those of different ethnic origin.
To accept that gender or class or ethnic origin is relevant to decision making and a valid criterion for appointment to the bench then necessitates consideration of the extent to which the bench should be representative or fairly reflect society. Sir Harry considered that '[t]he bench can never be representative, for there are many sections of society which it would be impossible to represent'.[8] However, inability to represent all members of society, per se, is not sufficient reason to avoid making attempts at ensuring that society is fairly represented on the bench. A further argument against representation was advanced by Justice McPherson of the Queensland Court of Appeal, acting in his capacity as Chairman of the Judicial Conference of Australia:
... if a truly representative bench has now become a genuine concern of government, the only legitimate means of achieving it is by popular election of judges irrespective of individual legal ability. Having regard to experience with that system in the United States, it seems unlikely that [the government] ... would be prepared to recommend that it be adopted.[9]
It is easy to sympathise with his Honour's view on popular election of judges. However, public appointment is at one end of the spectrum; it is no less legitimate for appointors to attempt to make sure that the composition of the bench better reflects society. This can be done by simply recognising the benefits of characteristics other than those emphasised under traditional concepts of 'merit' in the appointment process.
The current power of appointment to the bench is vested in the government, at both Commonwealth and State level, which in practice means the Attorney-General.
Traditionally judges have been appointed from the bar, which is dominated by males. Justice Jane Matthews considered the 'perception that good advocates make good judges is a fiction'[10] and advocated the enlargement of the pool from which aspirants to the judiciary are chosen.
There is no requirement that Attorneys-General consult with the profession but in practice they often do with varying degrees of attention given to the advice given. The Australian Law Reform Commission report, Equality before the Law: Women’s Equality,[11] recommended that a judicial commission be set up to advise the Attorneys-General on judicial appointments. The composition of this advisory panel could include both women and those of different ethnic origin enhancing the prospect of the departure from traditional concepts of 'merit'. The ALRC report also suggested identification and publication of the criteria for judicial appointment.[12] To date, the recommendations made by the ALRC have not been implemented nor has the appointment process been made any clearer. However recent appointments have been made both from within the wider legal profession and academia.
While it is important that neither gender nor ethnic origin, nor for that matter class, political affiliation or religion, form the sole basis of judicial appointments, traditional concepts of 'merit' need to be redefined to include the experiences of females and those of different economic and ethnic origin. Australia is an egalitarian multicultural society and a bench that better reflects society as a whole not only improves justice but also gives the appearance that justice is being done. To achieve this it is necessary to acknowledge the unique experiences that women and those of different backgrounds bring to the role of judge and to reform the appointment process enabling transit towards a more representative bench.
Stuart Barnett is a Gold Coast legal academic.
[1] The Right Honourable Sir Harry Gibbs GCMG AC KBE, Oration Delivered at the Opening of the Supreme Court Library's Rare Books Room at the Supreme Court of Queensland, II February 2000, <http:/!www.courts.qld.gov. au/sc&dc/speeches/gibbs II 0200.htm>.
[2] A report by the Federal Attorney-General, in 1993, found that men of Anglo-Saxon or Celtic background held 90% of federal judicial offices: Attorney-General's Department Judicial Appointments- Procedure and Criteria, AGPS, 1993, para 1.4.
[3] Sir Harry Gibbs, above.
[4] Sheehy , E A, 'Personal Autonomy and the Criminal Law: Emerging Issues for Women', Background Paper in R. Graycar and J. Morgan,The Hidden Gender of Law, The Federation Press, 1990, p.40.
[5] Sir Harry Gibbs, above.
[6] Attorney-General's Department, above, para 5.63-5.69; on the broader impact of gender on judging see Neave, Marcia, 'The Gender of Judging', (1995) 2 Psychiatry, Psychology and Law 3.
[7] McWilliams, E, 'A Fairer Gender Balance on the Bench Means a Fairer Society' (1998) 36(IO)LS/63.
[8] Sir Harry Gibbs, above.
[9] Open Letter to the Attorney-General of Victoria, The Hon Jan Wade MLA, 31 May 1999, <http://www.law.monash.edu.au/JCA/wade.htm> .
[10] McWilliams, above.
[11] Australian Law Reform Commission, Equality before the law:Women's Equality, ALRC 69, Part 2, 1994, Recommendation 9.3, at <http://www.austlii.edu.au/au/ other/alrc/publications/reports/69/vol21ALRC69.html>
[12] ALRC Report, above, Recommendation 9.5.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/55.html