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Gleeson, M --- "Judicial Selection and Training: Two Sides of the One Coin" [2004] LegEdDig 42; (2004) 13(1) Legal Education Digest 13

Judicial Selection and Training: Two Sides of the One Coin

M Gleeson[1]

[2004] LegEdDig 42; (2004) 13(1) Legal Education Digest 13

77 Aust L J 9, 2003, pp 591–597

There is a remarkable contrast between the level of interest taken by governments, politicians, commentators and the members of the public, in two topics. The first is the policy and process adopted by governments when they appoint judges. The capacity to control or influence the selection of judges is regarded, on all sides of politics, as an important aspect of governmental power. The second topic is that of judicial education: training newly appointed judges and magistrates, and providing for their continuing professional development.

The reason why the contrast is remarkable is that, in truth, the two topics are closely related. But the relationship seems to have escaped attention. One of the main differences between the administration of justice in common law and civil law countries is in the background, training and appointment of judges. In countries with a civil law tradition, being a magistrate or judge is a career upon which lawyers ordinarily embark at the beginning at their professional lives, and in which they remain until the end. Young lawyers are trained to be judges, and they progress upon a career path within the judiciary.

The common law tradition is different. In England, and in other jurisdictions with a divided legal profession, there has always been a close association between Bench and Bar. No one ever professed to believe that all good barristers would make good judges. And there were some outstanding judges who had not been particularly successful at the Bar. But it was seen as the best way of identifying prospective judicial talent.

The common law system of judicial recruitment has advantages and disadvantages. The major advantage is its contribution to a spirit of judicial independence. Judges have never regarded themselves as public servants. One reason for that is the professional background from which judges are chosen. The status and independence of the judiciary in common law countries owes a good deal to the fact that historically judges have been appointed from within the legal profession, and that many successful lawyers have regarded it as a privilege to be offered judicial office, even if that involved a large drop in income. Most people appointed to judicial office had spent a substantial part of a professional lifetime appearing regularly as advocates in courts. They were familiar with the rules of procedure and evidence, and the trial and appeal processes.

One of the disadvantages of the common law system, which has attracted increasing attention in recent years, flows from the fact that judges reflect the characteristics of the group from which they are drawn. That group is somewhat homogenous. The author is not seeking to advocate the retention of the Bar’s absolute monopoly on judicial appointment. His point is different; and one that has largely been ignored by people who profess to be interested in breaking down that monopoly.

Governments in Australia, in the past, have avoided that issue by relying on the Bar to train their prospective judges. This has saved them trouble and expense. If governments want to reduce that reliance, then they need to find an alternative way to train judges. Until they do that, experienced barristers will always have a huge advantage in any selection process that is seriously based upon merit.

In England, and in Australia, many people say they want to see judges appointed from a wider pool. In recent years, a good deal of effort has gone into the production of lists of qualities that ought to be possessed by candidates for judicial appointment. Their arguments are largely directed towards encouraging judges to write reasons in a particular way, and they are constantly required to scrutinise reasons for judgment in order to advise upon the prospects of success of an appeal, or in order to conduct an appeal. This skill can be taught, as well as acquired by experience. But it cannot be ignored.

There are additional reasons why judicial training and development should be a subject of wider concern. The increasing specialisation of legal practice means that old assumptions about the breadth of the experience of professional advocates are no longer valid. Many barristers find, upon judicial appointment, that much of the work they are required to do is outside their range of experience. Furthermore, litigation is increasing in complexity. The range of cases that come before courts is as wide as the range of disputes that can arise between citizens and governments.

There has been educational response from the Australian judiciary over the last fifteen years, but it has attracted little interest on the part of governments or the legal profession, and virtually no public attention. Australia now has a National Judicial College, established in 2002. It seems that it has not yet achieved the critical mass necessary for its acceptance and success. Courts in all Australian jurisdictions have now produced their own programs of judicial development. The progress that has been made in this area is a notable, even if largely unrecognised, achievement.

Experience in Australia, and in the United Kingdom and North America, has shown that programs of judicial training and continuing professional development will only be successful under certain conditions. Evaluating their educational needs is itself a skilled task, as is evidenced by the growing class of judicial educators in common law countries, including Australia. They represent a valuable resource upon which governments are able to draw. Judges respond much better when programs are designed with substantial input from experienced colleagues and former colleagues. It is important that the judiciary should accept that continuing education is part of the job. Obtaining financial support from governments for bodies that are independent of government control, or even influence, is not easy. The acceptance of the need for judicial education in Australia is growing, but it has a long way to go. There was some early resistance within the judiciary but that has disappeared.

The National Judicial College has the potential to become a major force in the Australian judiciary of the twenty-first century. In Australia, movement between the federal and State judiciaries is common. As a result, the Australian judiciary is much more cohesive than that of the United States. The National Judicial College provides one such opportunity. Its governing body is representative of federal and state jurisdictions. Its Chairman is a State Chief Justice. It has the support of the federal government and the federal judiciary. It has the support and active cooperation of the Judicial Commission of New South Wales. Its establishment was fostered by the Council of Chief Justices of Australia and New Zealand, and the Australian Institute of Judicial Administration.

There is no difficulty understanding the desire of governments to look for judicial talent beyond the group of experienced barristers who have, in the past, held a virtual monopoly on judicial appointment. The trend towards increasing recruitment of judicial officers from outside the ranks of experienced advocates is not the only reason why that is so, but it makes the need for appropriate systems of judicial education more obvious and more urgent. The time has come for the matter of judicial training and continuing legal education to be taken up by all governments that appoint judges and magistrates. It is up to judges to raise the level of public interest in that subject.


[1] Chief Justice of the High Court of Australia.


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