Right now, nobody knows the religious or racial breakdown of the federal judiciary.
And in the age of doxxing, that is how it should stay.
As the Jewish community has learned, there is no shortage of racist ratbags in this country who are prepared to single out people for malicious mischief based on their race or religion.
This is why the federal government needs to be very careful about its proposal to start collecting statistics on the “diversity” of the judiciary. The only possible reason for collecting data on the ethnic or religious background of judges would be to use it as a benchmark for future race-based judicial appointments.
Collecting this data might seem well-meaning, but it misconstrues the role of the judiciary, would feed racial division and would inevitably hurt the standing of the very people it is intended to benefit. At the moment, the community knows that all judicial officers are selected based on their ability to do the job. They are not selected because of their race, religion, sexual orientation or disability. They are there to do a job of critical importance. They are not there to represent anyone or provide special treatment for those of the same race or religion. Inherent characteristics such as ethnic background are simply irrelevant to the question of whether candidates for the bench are fit for office.
But it is easy to see how that would change if statistics on judicial diversity are ever introduced.
Politicians would inevitably brag about their successes on this measure, while criticising their opponents who fall short. Merit might remain the formal criterion for appointment – but in name only.
The commitment to measure judicial diversity was made by Attorney-General Mark Dreyfus in September, 2022, when he accepted in principle a series of recommendations from the Australian Law Reform Commission. He committed the government to promoting diversity on the bench and introducing what he described as a more transparent process of appointing judges.
This forms the context for this week’s push by the Australian Institute of Judicial Administration to promote diversity and cultural awareness as key considerations in selecting judges. So with the push for diversity on the bench gathering strength, it is worth considering what sort of selection system would achieve this outcome.
In its 2022 report on judicial impartiality, the Law Reform Commission did not recommend any particular method of selecting new judges. But that report does single out one proposal which, if enacted, would restrict the discretion of the Attorney-General and hand real influence to an advisory panel. This system would have the effect of imposing a political penalty on any Attorney-General who departed from a list of candidates drawn up by an advisory panel. The composition of the proposed advisory panels would be diversified – “potentially including lay members”. And if an Attorney-General departed from the panel’s short list, a public explanation would be required by law. Instead of allowing each federal government to choose its own method of selecting judges, the method outlined in the commission’s report would be entrenched by statute.
Compare this to the view of Marilyn Warren, a former Chief Justice of Victoria. In 2007 she told a conference hosted by the National Judicial College that the predominant experience was that the current appointment system had worked well. She warned against removing the judgement of the executive branch of government – whose core is the ministry and the Governor-General – and “imposing a mandatory community-based selection model”. “Transparency for the sake of satisfying modern pursuit of accessibility of process will make the process more open and public but political and, inevitably, controversial.
Look at the American experience,” Warren said. The selection system outlined by the Law Reform Commission seems to come very close to the sort of “bureaucratisation” that has been opposed by Robert French, a former Chief Justice of the High Court. In 2017, when French retired from the court, he made it clear he supported the current system in which judicial selection is a matter for the executive. “The question is, first of all, should that selection process be constrained by a limitation to a number of names put up by some sort of panel? Or should the executive simply have a process by which it receives the best possible advice?” French said. “I am inclined personally, although there are others who would debate this, not to favour bureaucratisation of the selection process.”
It is worth pondering how this compares to the system that is being used to select judges for the Federal Circuit and Family Court. In December, 2022, the selection method was referred to in a media release issued by Dreyfus. It shows an advisory panel had presented the Attorney-General with a limited number of candidates for the bench. “I established an advisory panel, comprising the Hon James Allsop AO, Chief Justice of the Federal Court, the Hon Alan Robertson SC, former Justice of the Federal Court, and a senior officer of the Attorney-General’s Department,” Dreyfus said in his media release. “The advisory panel assessed the nominations to the FCFCOA and provided me with recommendations on suitable candidates. The three people whose judicial appointments I am announcing today were all recommended to me by the panel,” Dreyfus.
In practical terms, Dreyfus had voluntarily restricted his choice of candidates to those recommended by his advisory panel.
If those on the short list had not measured up, there was no real impediment that might discourage him from looking further afield.
That, however, might not always be the case.
