Page 3294 - Week 09 - Wednesday, 19 August 2009
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There is not a role for the standing committees of the Assembly in relation to the appointments of judges or magistrates.
While I acknowledge that the Attorney-General did advise the committee the vacancies would be publicly advertised and that he would consult with the Law Society, the Bar Association and the sitting Chief Magistrate, this is an entirely informal process and it is done behind closed doors. My bill seeks to open those doors, at least a little.
My bill will require the executive to consult with an appropriate Assembly committee on proposed appointments of presidential members of ACAT, magistrates and special magistrates of the Magistrates Court and resident judges and the Master of the Supreme Court. The committee may be nominated by the Speaker and, if not, then the standing committee dealing with legal matters—currently the Standing Committee on Justice and Community Safety—will consider the proposed appointments. The committee will be given 30 days to consider the proposed appointments and may make recommendations to the executive. The executive will not be permitted to make the appointments until either the committee has made its recommendations or 30 days have elapsed, whichever occurs first. The executive, in making the appointments, must have regard to the committee’s recommendations but it does not have to follow them.
There are precedents for this approach. In the ACT all appointments to government boards, committees and tribunals are referred to committees for consideration. Well, that is almost the case. I note in passing that the Standing Committee for Justice and Community Safety had the opportunity to comment on all the appointments to ACAT except those of the presidential members, which were made by the executive solely.
Nationally, there is a process of consultation with the state Attorneys-General for judicial appointments to the High Court. In the US there is a very public process. In the UK, there is an arm’s-length process undertaken by the independent Judicial Appointments Commission. Whilst my bill does not go as far as some of these examples, it does provide a level of scrutiny by the elected representatives of the people of the ACT, not just those in cabinet and not just behind closed doors with professional representative bodies.
What about the criticisms of an approach such as my bill espouses? First, there is the criticism regarding the risk of politicising the judiciary. Assembly committees generally are made up of members from across all political parties, thus representing the broad cross-section of the people of Canberra. By that alone, at least some of the potential for political appointments is ameliorated. Secondly, there is the criticism of the risk of loss of confidentiality. The deliberations of the appropriate Legislative Assembly committee would be conducted in accordance with the Assembly’s standing and temporary orders. Whilst those orders provide flexibility as to whether a committee’s deliberations are conducted in public or private session—therefore, in the latter case, confidential—the usual practice of committees in considering proposed appointments to government boards and committees et cetera is to undertake those deliberations in private session. It is anticipated that a committee in considering proposed appointments under this bill would follow that usual practice.
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