Page 4494 - Week 12 - Wednesday, 14 October 2009
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The provisions of the original bill would require cabinet to forward to the relevant Assembly committee the name of the person they intend to appoint to a judicial post. The revised process would cover the appointments of presidential members of ACAT, the magistrates, special magistrates, resident judges of the Supreme Court and the masters of the Supreme Court. The bill would then give the committee the opportunity to make a recommendation to cabinet on that proposed appointment.
The objective behind the proposed changes to the appointment process is one of improving the transparency of government appointments of judicial officers and reducing the potential for perceptions of politically motivated appointments. The Liberals’ argument is that opening up the appointment process and giving the committee the role of making a recommendation is one small step towards reducing the potential for damaging public perceptions of the judiciary.
The rationale is that, by having a role for the relevant committee, which will be made up of the various political parties represented in the Assembly, the executive of the day would be less inclined to propose to make an appointment along political lines. That is, because the committee had the opportunity to make a recommendation, there would be a disincentive for the executive to propose an unreasonable appointment. I think this can be most accurately described as a “chilling effect” where any political motivations held by the executive would be moderated by the presence of the committee in the process. This is a discrete and specific outcome.
That the political motivations of the executive would be chilled and moderated are, I think, the strongest arguments in favour of this bill. The bill cannot be described as being any stronger than that. Mrs Dunne has described the bill along similar lines. When tabling the bill she said that it would “dilute, if only a little, the risk of accusations of political appointments to these most important posts”.
That said, there are some risks associated with the proposed bill and we think that they outweigh the discrete and specific beneficial effect identified. By opening up the process and handing the committee a role in judicial appointments, the risk is that the process could be politicised. This would completely work against the intent of the original proposal, which was to remove perceptions that appointments are politically motivated.
I note that Mrs Dunne has said publicly that this is not the intent of the bill, and I fully accept that statement. However, the point I make is that the provisions of the bill could be misused or misapplied in the future by a committee, a member of the committee or any individual who has been made aware of the deliberations of that committee. The Greens note that the committee has the ability to apply convention and keep its recommendation to cabinet confidential. However, it is only a convention and this leaves open the possibility that the intent behind the bill could be ignored in the future.
The Greens do not want to open up judicial appointments in the ACT to a United States style political process. That is something to be guarded against at all costs, in our view. It is not accepted process in Australian jurisdictions to have public commentary and analysis by politicians on proposed judicial appointments. As I have
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