Queensland University of Technology Law and Justice Journal
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Barbara
Hamilton[*]
The simple answer to this question is there is some good news for
future female judicial appointees (or appointees of non-dominant
background), but this good news comes with many caveats. The highlighting of
some serves to indicate at the outset that the good news is limited. The
emphasis on female is to illustrate that the argument of this article is
not just about extension of the judicial franchise to more women, but also
to
those persons who do not fit the dominant norms for judicial office. Indeed the
aim of much feminist scholarship is not just to
examine issues relating to
women’s inequality and law, but to demonstrate the reality of unequal
treatment within the legal
system for many
“others”[1] or groups who
are non-dominant in the system, eg the poor, the queer, the
Indigenous.
It is the purpose of this article to examine the strengths of
a new Law Council of Australia (LCA)
Policy[2] on judicial appointments as
well as its flaws and shortcomings. Some recommendations will be made regarding
its prospective implementation
by State and federal Attorneys-General. This is
likely to be on the political agenda in 2001 and beyond as the issue of criteria
for judicial office and ‘merit’ entered the public arena in the past
few years and particularly so in
2000[3] after a decade of debate in
academic, political and other
circles.[4]
At face value, the
LCA Policy does extend the judicial franchise well beyond those who have been
‘traditionally anointed’
(ie senior male commercial
barristers)[5] in the past – but
the question must be asked: does it extend it far enough? The policy
demonstrates that change on judicial
appointments has finally occurred within
the legal profession. However, it has taken 80 years to achieve this change in
the goalposts
- women in most States having gained the right to practise law in
the early 1920’s. Questions must still be asked - will the
policy lead
speedily to a more representative Australian judiciary or is it going to require
another 80 years of evolution before
this is a reality? Are more aggressive
affirmative action policies necessary? Is a principle of ‘parity’,
which requires
quotas based on eg sex, or ethnic background, needed?
The
answer to all these questions will depend on how, if and when each State and
federal Attorney-General implements this new Policy
(or something similar
emanating from other sources, eg State Law Reform Commissions). Sensitively
developed and implemented, there
is the prospect of a more
‘inclusive’ and representative judiciary with a 21st
century understanding of equality before the law; conservatively implemented,
there is the prospect of ‘more of the same’-
what some have termed
a “cloned judiciary”.[6]
Thus, it is the manner of implementation that is crucial. However, it is a
golden opportunity, because it is a chance to change the
goal-posts with the
mandate of LCA policy. It stands to reason that change which occurs with
some degree of acceptance from ‘insiders’ (legal professionals) and
does not involve the disruption
and negative perceptions of affirmative action
policies and even more so quotas, is more likely to be long-lasting and
effective.[7]
The LCA Policy sets out explicitly a process for developing a protocol
for judicial appointments at both State and Federal level
(with the exception of
appointments to the High Court). The Policy provides a model for developing this
protocol. There are two attachments
incorporated in the Policy: attachment A
listing the attributes of candidates for judicial office, and attachment
B listing the office holders to be consulted prior to actual
appointment. The Policy encourages State and Federal Attorneys-General to
publish their own judicial appointment
protocols, drawing on (but not restricted
to) the model set out in the Policy. The attributes of candidates for judicial
office
cover three areas – legal knowledge and experience, professional
qualities, and personal qualities. In requiring qualities
beyond traditional
requirements of legal knowledge and experience, it is believed the pool of
‘eligible candidates’ is
potentially widened. This could be good
news for future possible appointees of ‘non-dominant’ background,
but a careful
examination of the attributes for judicial office set out in the
Policy is required, as discussed below.
Issues of ‘fitness’ for judicial office came to the forefront
in Queensland in late 1998, when the newly elected Labor
government began
actively appointing women to the
bench.[8] The merit of appointees was
raised in the local press.[9] The
Queensland Bar Association in particular criticised a very broadly
well-qualified woman appointee on the basis she did not meet
the traditional
criteria.[10] The issue came to a
head in February 2000, when former Chief Justice of the High Court of Australia,
Sir Harry Gibbs, a Queenslander
himself, said at an opening of the Queensland
Supreme Court Library Rare Books Room:
A more 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.[11]
This was seen to
be an endorsement at the highest level of criticisms that had been circulating
within the legal profession in Queensland,
particularly the Bar. These
criticisms were that women and other appointees of non-traditional background
were only being appointed
because of their sex or ethnic origin; their
appointment could not have had anything to do with their capabilities. Indeed
one Supreme
Court judge publicly drew attention to the eminence of the source
and said the remarks should be treated seriously for that reason:
“When a
man of Sir Harry’s stature has something to say it should not be ignored
or brushed
aside”.[12]
Material
from the LCA makes clear that, while the need to adopt a new, updated policy of
judicial appointment was recognised in 1999,
the immediate impetus for the
Policy was the controversy emanating from Sir Harry Gibbs’ remarks and the
comments of other
leading lawyers in the public
arena.[13] Justice Mary Gaudron, the
only female justice of the High Court, also focussed attention on the issue from
a different perspective:
The way in which debate turns to
“merit” when but only when a woman is considered for a particular
position or office
is not only insulting, it is clear evidence of a belief that
women are inferior and ought to be treated as
such.[14]
The previous decade
had seen substantial literature and reports on the
issue,[15] and had seen other
overseas jurisdictions address and move on the same
issue,[16] but ultimately it seems
it was the stridency of remarks (offensive to the ears of the public of 2000,
yet emanating from respected
and influential judicial figures), that captured
public’s distaste in a way that forced the LCA to reevaluate its policy.
The LCA Policy will be welcomed throughout Australia but particularly so
in Queensland, where according to one female judge, appointees
shudder every
time a new woman appointment is
made,[17] as they revisit the debate
over their ‘merit’ as
appointees.[18] The definition of
‘merit’ embodied in the attributes of judicial office in the Policy
envisages merit in much wider
terms, than has previously been the case. Thus the
LCA criteria will make it easier for broadly qualified woman lawyers (and other
lawyers from non-traditional backgrounds) to be appointed without the criticism
that has previously dogged many such appointments.
In particular, the LCA
Policy makes clear that judicial appointments can be made from a pool much wider
than the traditionally favoured
ie ‘meritorious’ (senior male
commercial barristers, who have reached the status of Senior Counsel). This
implicit, but
unexpressed criterion, which has applied in the superior
(principally Supreme) courts, has disenfranchised women as judicial appointees.
This is because comparatively few women even today seek and maintain a bar
practice. In 2001 in Queensland only 8% of the practising
Bar are women; the
figure in Victoria around 20%; other States fit somewhere
between.[19] This is despite women
having been 50% of law graduates for at least 10
years.[20]
The reasons for
the low level of female participation at the Bar have been canvassed at length
elsewhere. In particular, Hunter and
McKelvie’s report on Equality of
Opportunity at the Victorian Bar[21]
identified many gendered impediments to women seeking the path of the bar and
remaining there, including: demanding and irregular
working hours inimical to
family responsibilities (apparently it is even “difficult for male
barristers to find (and keep)
partners prepared to be
barristers’wives”)[22],
lack of support systems on which male barristers usually relied, briefing
practices controlled by senior male solicitors, lack
of orientation to
‘courtroom behavior’ (the outward forms, as well as the subtle norms
that govern), but in particular
the ‘culture’ of the bar. The report
highlights an intensely masculine culture involving: high levels of criticism of
female barristers, exclusion of females from social networks, lunching rituals
at male clubs, issues of sexuality being used to undermine
women’s
credibility, and in particular, ‘no dobbing’ in respect of gender
biased treatment or practices. Naturally
many women fail to thrive in or even
seek such a climate.[23]
An initial strength of the Policy results from the authoritativeness of
its source, which makes it likely to be consulted and implemented
in some form.
It was issued by the Law Council of Australia, the peak body representing the
legal profession in Australia (both solicitors
and barristers) after an in-depth
consultative process within the profession through the LCA’s committees.
Many embrace the
view that change which occurs with some mandate from
‘insiders’ (legal professionals) will be more easily embraced by
the
legal profession; change that is ‘accepted’ is not likely to be
undermined.[24] It will be
interesting to observe, should the policy be sensitively implemented in
Queensland, whether the authoritativeness of the
source will give legitimacy to
non-traditional appointments; a legitimacy which was denied many of the
appointments of former Attorney-General
Matt Foley during 1998-2000.
Appropriately implemented, I believe those who would criticise non-traditional
appointees will at least
be far more careful in phrasing their public
utterances.
A second positive is that it does not purport to set out a
blue-print model for all States; rather it is a statement, which may be
developed, added to or implemented in individual ways by State and federal
Attorneys-General. It applies to all jurisdictions and
levels of judicial office
in Australia, with the exception of the High Court. In effect, State and federal
Attorneys-General can
develop their own judicial appointment protocols.
Nevertheless, regardless of how far they depart from the LCA model, their
protocols
will justify and legitimise individual processes of appointment,
because the policy provides leeway for the personalisation of protocols.
Its third strength is it that it encourages each State and federal
Attorney-General to publish a Judicial Appointment Protocol, thus
making the
process demonstrably more open and transparent. In most States, even to have a
written statement about the process of
judicial appointments, apart from a
formal process or advisory committee, is in itself
novel.[25] The existence of a
written protocol certainly must inspire greater confidence in the process and go
some way to countering criticisms
of cronyism or ‘jobs for the boys’
or ‘jobs for the girls’. David Pannick’s comments about any
formal
committee process of appointment apply equally to a written protocol,
setting out the process of appointment, “...it could
hardly fail to
improve on the unarticulated criteria, acts of God, and secret processes of
nature which currently govern judicial
appointments”.[26]
At the outset the Policy makes clear that merit is the overarching
principle. “In addition to any statutory criteria for eligibility
for
appointment, the sole criterion for judicial appointment should be
merit”.[27] Clearly there are
sound reasons for this – “Judicial Legitimacy” requires a
merit principle.[28] It is
frequently linked to the rule of law. Dr Michael White QC alludes to the rule of
law at the commencement of his article on
“Judicial Appointments”
and continues: “The quality of the persons appointed to hold judicial
office is, therefore,
a foundation stone for a democratic structure and civil
liberties and freedoms”.[29]
Later he notes that merit has been linked to the observance of human rights
obligations, in particular the International Covenant
on Civil and Political
Rights provision that “everyone is entitled to a fair and public hearing
by a
competent...tribunal”.[30]
There is, however, an intrinsic problem with merit. Merit can lie in the
eye of the beholder[31] and has not
served women and ‘other’ contenders for judicial office in the past,
as the debate in Queensland in recent
years has shown. The Queensland Bar
Association in past years blatantly took a stance on female judicial
appointments, evincing a
highly gendered view of merit (discussed
above).[32] Margaret Thornton has
argued persuasively that merit has a mystique, malleability and subjectivity
that can be used to “justify,
to criticise, or to constrain, any policy
proposals”.[33]
Margaret
Thornton explains that concepts like merit are not value neutral and the
result has been “the ‘best person’ to occupy a position
of
authority has tended to be unproblematically defined in masculinist terms, which
reflect the values of the public
sphere”.[34] Similarly Brian
Martin points out that “...the evaluation of merit is shot through with
the biases of those in positions of
power as well as biases in the very
definition of merit in a system which imposes unequal life
opportunities”.[35]
This was clearly seen in the debate about merit in Queensland. The
Queensland Bar Association and other judges, who saw the Attorney’s
appointments as fundamentally sexist, appeared to have seen merit only in
appointments of senior (preferably Senior Counsel) barristers
- presumably on
the basis of the traditional view that well-honed legal (principally commercial)
and advocacy skills are the touch-stone
for judicial office. Judged against this
standard, the Attorney-General’s appointments lacked merit. However those
who criticised
appeared to lack awareness that their definition of merit was
biased in reflecting and continuing the existing power order (favouring
their
own) – thus their definition lacked its own intrinsic merit. Martin makes
this point: “The usual definition of
merit..... may seem (emphasis
added) fair, and be applied fairly within its own terms, while being entirely
compatible with the continuance of structural
inequalities such as male
dominance”.[36] Jocelynne
Scutt, leading Australian feminist lawyer, cut to the quick regarding the
failings of ‘merit’ in relation
to female judicial appointments in
the Australian newspaper last year – women can’t win either
way, as successful contenders or otherwise:
What is merit? Don’t
ask Alice. When it comes to judicial appointments, ask the March Hare. Women are
rarely appointed to the
judiciary... because women are not good enough. Lacking
the magic quality, merit, women do not rate. For the relatively few appointed,
merit is not the criterion. Rather, it is affirmative
action.[37]
The LCA Policy affirms the traditional view that judicial appointment
remain a function of the Executive Government, who should formally
consult top legal office bearers, ie Chief Justice of the Supreme Court,
Chief Justice of the Court to which the appointment is made, President
of the
Bar Association, President of the Law Society and may consult other
persons. There is no concept of a formal advisory body or independent
commission.
In the United Kingdom in the past few years, there has been a
substantial call to divest judicial appointments from the Law Chancellor
and
place the responsibility with a judicial appointments commission, with
substantial layperson
membership.[38] This movement is
reflective of the same call there has been in Australia for more openness and
transparency in the appointment process
and for a process that creates greater
opportunity for selection of persons outside the bar
elite.[39]
Scotland has
recently moved strongly in this direction - appointments have been in effect
wrested from the hands of the Law Advocate
ending a centuries old tradition. In
future, Scotland’s judges will be selected by an independent appointments
board headed
by a non-lawyer with equal proportions of lay and legal members,
though the formal power of appointment remains with the Scottish
Executive.[40] In other
jurisdictions, the process of appointment is carried out largely by advisory
committees (with differing degrees of persuasiveness
or compulsion to follow
their recommendations), again with ultimate power of appointment resting with
the Executive.[41] The main
difference in debate about models centres not on whether the body is a
commission or advisory committee, but whether it
should be primarily comprised
of laypersons or of
lawyers.[42]
In Australian
many argue for and are strongly committed to ensuring the check of democracy
(ensured by maintaining a popularly elected
Attorney-General as appointer of
judges) upon a judiciary, which otherwise fiercely maintains its independence
from popular opinion
or government influence, through (virtually) life tenure
provisions and only exceptional grounds for
dismissal.[43] Nevertheless a
judicial appointments commission or advisory body could take a strongly
democratic form as in Scotland and Canada.
In Scotland, the Commission is
appointed by the Executive after advertisement; the chair is a lay person and
there are five legal
and five lay representatives. Judicial officers are chosen
by the Commission after advertisement, application and interviews with
candidates. The Commission then provides a preferred candidate and short list of
candidates in order of preference to the Minister.
This is similar to the model
operating in each Canadian province, but the preponderance of lay members is
even stronger: six non-lawyers
to one judge and two practising lawyers.
Applicants submit a full written application to the advisory committee, who
ranks each application
as “highly favourable”,
“favourable” and “not favourable”. Attorneys-General
have voluntarily
agreed to restrict themselves to the first two
categories.
Dr Michael White QC, in a recent article examining models for
judicial appointment in other jurisdictions beyond Australia, recommends
that
either appointments occur through a Commission (with nominal lay person
membership) or the Attorney-General be constrained by
appointing from the list
of recommended nominees of a small committee of “judicial
persons”.[44] This fails to
take account of the fact that the most important feature of a modern process
designed to ensure a ‘non-cloning’
judiciary is that the
Attorney-General be advised by or consult formally with a group much more
representative of ordinary Australians,
and certainly not just by a group of
‘insiders’ (legal professionals) for the reasons discussed below. If
the process
involves an independent Commission, it is the composition of members
that is the major issue.
Section 3 of the Policy states that the Attorney-General for the
jurisdiction should, in consultation with the legal profession (emphasis
added), establish and make publicly available a Judicial Appointment Protocol,
which outlines the judicial appointment
process in that jurisdiction. The
emphasis on consultation with the legal profession points to a flaw discussed
above and further
in this article; it is essential that the criteria of judicial
office in the 21st century ensure the appointment of judicial
officers who have the confidence of the many persons and groups currently
disenfranchised
from the legal system.
A glance through newspapers every
week reveals stories of alienation of recurring groups, for instance - women,
the poor, children,
gay and lesbian people, indigenous people, non-English
speaking people. Selection criteria must ensure that the courts are staffed
with
those who have a 21st century understanding of equality before the
law, ie an understanding of the structural and other factors that lead to
unequal treatment
of such groups, as well as individual persons.This is unlikely
to happen if a new process is designed in consultation only with the
existing
power holders, ie members of the legal profession. Daniel Goleman comments
succinctly on the inability of those who are
‘enfranchised’ to
understand the position of those who are not:
It is a paradox of our time
that those with power are too comfortable to notice the pain of those who
suffer, and those who suffer
have no power. To break out of this trap
requires......the courage to speak truth to
power.[45]
Thus it is
imperative that the consultation process involved in developing a new Judicial
Protocol include contributions from a wide
spectrum of society; at the very
least from community legal services and community organisations. It should also
involve the participation
of individuals, who have the courage ‘to speak
truth to power’, although this is a hard ask from persons who may lack
many of the resources so prized by the system itself – financial security,
education, articulateness, confidence, as well as
familiarity and knowledge of
the norms of the system. Comments I made, when reviewing Beyond the
Adversarial System, a book which collected together insights of ‘major
players’ of legal system reform, are apposite here. I pointed out that
the
book, mirroring the legal system reform agenda itself, was principally a
collection of offerings from the elite and required
a greater representation
from a grass-roots level for a balanced approach:
There is a concern
that reform of the legal system may reflect the same problems that have occurred
in the past in the development
of the law. The law grew up in the eye of the
white Anglo-Celtic male, because its almost exclusive actors were white,
Anglo-Celtic
males. Reform of the legal system must be broadly
inclusive.[46]
I further
pointed out, that in my opinion, the most interesting contribution was of
indigenous author, Colleen Starkis, who wrote
in an Aboriginal way based on oral
tradition used to reach group consensus, from her perspective as a Darkinong
woman and from the
perspective of the group, with whom she collaborated. It is
to be noted that of all the authors in this text, Starkis found the legal
system
most in need of radical change. She painted a picture of total
disenfranchisement of Indigenous Australians from the legal
system; this was in
stark contrast to other authors, such as former LCA President Bret Walker, who
saw the legal system as a level
playing-field for the enjoyment of rights before
a neutral umpire.[47]
The
views of persons and groups, such as Starkis and her collaborators, need to find
their way into any attempt to formulate a new
process for selection of judges
for the 21st century. A recognition of this need permeated the
governments’ views in both Scotland and Canada, when they set up their
judicial
appointments’ bodies with a majority of lay members – the
view being the judiciary must serve the whole community and
be seen to
understand the whole community. The Scottish Executive state the function of
legally qualified members is to testify as
to the legal ability of candidates,
“while lay members could assess qualities such as the candidate’s
understanding of
people and society and ability to communicate well with the
huge variety of people who pass through a
court”.[48]
Thus, as
we stand at the threshold of a new judicial appointments policy, it is vitally
important who is entrusted with the task of
developing the new Protocol. It is a
chance to embrace change (with an authoritative underpinning), and enshrine a
policy, which
will see the courts staffed by more persons who can hear the
voices of ordinary Australians.
The agenda for change will be inevitably
controlled by the government of the day. This frequently means resultant law
reform is a
‘baggage of compromises’- any government has to deal
with many and differing agendas and is to some degree controlled
by powerful and
conflicting interest groups, whom it represents and who all have a stake in the
reform outcome. We may have to accept
the imperfect imperatives of law reform,
but it is essential that the ‘stakeholders’ in the process of
developing a new
protocol include groups representative of ordinary Australians,
as well as legal professionals, academics and government. This is
not mandated
by the LCA Policy, which confines the Attorney-Generals’ consultations in
relation to the protocol to the legal
profession, although Attorneys-General
are urged, but not required, to consult widely in relation to actual
appointments. To follow
the LCA Policy and confine the consultation process so
narrowly in the development of protocols is likely to continue the
“self-perpetuating
oligarchy”.[49]
Once a judicial appointment protocol has been developed, which
establishes a system more likely to result in a ‘inclusive’
judiciary, the criteria of merit to be embodied in the protocol need to be
established.
Margaret Thornton addresses the importance of the relevant criteria
when she says, “...the determination of what criteria are
relevant at the
threshold ensures that a particular value system is encompassed in that
construct”. [50] “It is
doubtful that we will ever get to a position where the more subjective elements
[of merit] will be
eliminated”,[51] but it is
clearly high time the criteria for judicial office attempt to reflect something
other than the male Anglo-Celtic value
system. The traditional criteria for
judicial office, which generally focus on skills related to process and
argument, do not serve
most Australians well in the 21st century.
Criteria favouring persons with courtroom experience reinforces negative traits
of an adversarial system, which is itself
under scrutiny and subject to many
proposals for reform. As I have argued before:
...if courts today are to
reflect a 21st century understanding of equality before the law, one
crucial aspect is the selection of judges. This selection needs to be based
on
far more than legal and advocacy skills... Today selection based on those skills
is not sufficient to ensure courts are staffed
with judicial officers able to
recognize and meet the imperatives of legal system reform. Nor is it sufficient
to ensure the many
persons who currently feel disenfranchised from the legal
system truly ‘have a voice’ and ‘will be heard.’
For
until they do, equality before the law exists in theory, not in
practice.[52]
Thus new
criteria for judicial office need to reflect a broadly based value system. All
recent models and proposals for reform of
the judicial appointment process,
whether Australian or overseas, adopt criteria that extend well beyond the
traditional legal and
advocacy skills into the realm of personal qualities, and
in that respect to a greater or lesser degree attempt to incorporate a
more
broadly based value system.[53]
The Policy sets out a recommended list of ‘Attributes of Candidates
for Judicial Office’ as attachment B. Attributes are
divided into three
categories:
| • | Legal Knowledge and Experience |
| • | Professional Qualities |
| • | Personal Qualities |
The attributes appear to be modelled very closely
on the United Kingdom published selection criteria, which broadly adopts the
above
categories. The proposed Tasmanian model requires very similar qualities
as well.
The heading legal knowledge and experience defines
“necessary” and “desirable” experience. Court or
litigation
experience is not required as a necessary, rather it is specified as
desirable. This makes it clear that there can be no concept
that only barristers
are entitled to appointment. However it is necessary that the successful
candidate “will have obtained a high level of professional achievement and
effectiveness in the areas of
law in which they have been engaged while in
professional practice (emphasis added)”. The United Kingdom has a
similar requirement. This would appear to require appointments from practising
barristers
and solicitors. In contrast, Tasmanian and New Zealand criteria
require demonstrated overall excellence in a legal occupation, which is
clearly preferable if the goal is to achieve a more inclusive
judiciary.
The goalposts will have hardly changed at all if those
appointable are only practising barristers and solicitors; academic lawyers,
government lawyers, community service lawyers or members of legal tribunals
equally have a claim to appointment and may bring a critical
dimension to law,
in that they may be more aware of imperatives for reform, than those steeped in
the system as their livelihood.
In particular the NZ criteria appear to
recognise the importance of awareness of the critical dimension. Under the
heading legal
ability, it is pointed out: “At an appellate level, legal
ability includes the capacity to discern general principles of law
and in doing
so weigh competing policies and values”.
The following qualities are specified as “desirable”:
| • | Intellectual and analytical argument |
| • | Sound judgement |
| • | Decisiveness and the ability to discharge judicial duties promptly |
| • | Written and verbal communication skills |
| • | Authority – the ability to command respect and to promote the expeditious disposition of business, while permitting cases to be presented fully and fairly |
| • | Capacity and willingness for sustained hard work |
| • | Management skills, including case management skills |
| • | Familiarity with, and ability to use, modern information technology or the capacity to attain the same |
| • | Willingness to participate in ongoing judicial education |
The first five attributes are also
found in the Tasmanian model. The highlighted characteristics above could be
seen as gendered requirements
(and thus disadvantaging non-dominant groups
equally), drawing on ‘male’ concepts. Nevertheless, many women who
have
entered the profession (and particularly attained senior positions) may see
these concepts as neutral, because they involve the norms
of the profession, are
extolled as neutral, and they may have endeavoured to exhibit or develop these
qualities themselves.[55]
Margaret Thornton and others have pointed out that women have not been seen
as bearers of “authority”, because the attributes
of authority have
been defined in masculinist terms; authority is frequently equated with command,
which itself is redolent of militarism
and
sovereignty.[56] Authority is also
associated with powerful speech. Kathleen Jones points out: “[W]e define
the masculine mode of self-assured,
self-assertive, unqualified declarativeness
as the model of authoritative
speech”.[57] On the other hand
female speech (generally) may be considered to lack authority and credibility
in the public sphere. Research has
demonstrated that men and women use, and are
expected to use, different modes of
speech[58] and that “qualities
more likely to be used by, and socially appropriate, for females are associated
with powerless speech and
lessened
credibility”.[59] As Kathleen
Jones says: “...the ‘female’ voice of would-be authority may
speak in compassionate tones inaudible
to listeners attuned to harsher
commands”.[60]
The
subjectivity and value-laden perceptions of terms similar to those listed in the
LCA criteria have been the subject of adverse
comment in the UK. Clare McGlynn
notes that Kamlesh Bahl, chairwoman of the UK Equal Opportunity Commission, has
noted:
The great danger in an area such as the judiciary,...is that it
has always been seen as a male area of work, so perceptions of what
makes a good
judge – and what constitutes “authority” and
“decisiveness” – are also likely to
be
male.[61]
McGlynn
continues:
In particular, it is often thought that
“authority” is something women lack. Authority is an elusive
concept, dependent
more on what others think than one’s own
qualities.[62]
Intellectual
and analytical argument, sound judgement, and decisiveness can be subjected to
similar analysis – these qualities
resonate with the voices of reason and
dominance, so often attributed to the male sex within the legal profession
– women’s
(frequently) different reasoning patterns and quiet
assertiveness are sublimated within these categories as defective.
“Capacity
and willingness for hard work” is also problematic in a
gender sense, because women’s employment patterns, particularly
within the
legal profession (with periods devoted to child raising and part-time work
resulting from family responsibilities) may
be regarded as counter-indicative of
this trait. There may be arguments similarly that women more frequently (than
men) seek ‘balance’
between their work and external lives and
believe their work productivity is enhanced by such balance; “capacity and
willingness
for hard work” may be assessed against a standard generated by
those prepared (or needing) to work a ten-hour day or more,
which appears the
norm in legal practice.
The NZ list of professional qualities, titled
“Personal technical skills”, has I believe quite a different
flavour, which
while canvassing similar territory, avoids the above perceptions.
“Personal technical skills” are described as follows:
There
are certain personal skills that are important, including skills of effective
oral communication with lay people as well as
lawyers. The ability to absorb and
analyse complex and competing factual and legal material is necessary. Mental
agility, administrative
and organisational skills are valuable as is the
capacity to be forceful when necessary and to maintain charge and control of a
court.
The LCA Policy lists as “desirable” the following
qualities:
| • | Integrity, good character, and reputation |
| • | Fairness |
| • | Independence and impartiality |
| • | Maturity and sound temperament |
| • | Courtesy and humanity |
| • | Social awareness including gender and cultural awareness |
While it is pleasing that the
policy identifies qualities that draw on insight and humanity, in particular the
last two listed qualities,
this list is nevertheless subject to the same
criticisms noted above – they are subjective and value-laden criteria,
dependent
more on what others think than a person’s inherent qualities.
McClynn notes this of the requirement of “standing”
in the UK, which
is similar to the LCA’s “good character and
reputation”:
“Standing” is another very subjective
notion that is prone to interpretation on stereotypical grounds, and again
relies
more on the views of others, rather than the abilities of the individual.
Standing also equates to being known in the profession,
something which is much
easier on the whole for men who have greater access to contacts and
networks.[63]
It is suggested
that some important personal qualities are missing in this list. In particular,
if the goal in the 21st century is a judiciary more aware and
sensitive to the needs of ordinary Australians and the diversity of modern
Australian society,
criteria which draw on this need to be represented, for
instance:
| • | Willingness to understand the viewpoints of others |
| • | A history of involvement in community organizations or activities |
| • | Willingness to educate oneself beyond one’s own boundaries |
Again the problem
with such qualities is they are highly subjective and need to be framed in a
manner that will allow the candidate
to be tested in relation to them in an
objective way.
Feminist scholarship has demonstrated the tenacity of the myth of
objectivity, rationality and neutrality in law until comparatively
recently. The
reality was (and largely still is) that the law looked directly into the eye of
the ‘reasonable man’, while
at the same time asserting its
objectivity. In contrast, law’s subjectivity was (and still is)
specifically instanced by legal
doctrine, procedural rules and judicial
statements categorising women as unreliable
witnesses.[64] It is believed there
will be a similar strong belief held by both male and female legal
professionals that the LCA criteria are
value neutral and could not be seen to
advantage either gender or ‘others’. Rosemary Hunter and Helen
McKelvie’s
research relating to female barristers in Victoria indicates
many female barristers deny the gender oppression created by an intensely
masculine culture at the bar, whilst at the same time giving clear instances of
it.[65] The same phenomenon has been
written about in the US; both those responsible for discrimination and its
victims deny its existence.[66] Both
structural reasons – the need to conform to succeed within the profession
– and psychological explanations –
the reluctance of
‘victims’ to identify as such – have been given as
explanations.
It would serve potential appointees of non-dominant
background better to follow critical comment in the UK in relation to the
subjectivity
of similar criteria and “replace ... vague and virtually
meaningless criteria ... and come up with criteria directly related
to the
skills actually required, which can be tested with some semblance of
objectivity”.[67] While the
LCA criteria clearly represent an improvement on the traditional implicit
criteria, which focus on courtroom skills, these
criteria could still result in
a ‘cloned’ judiciary for the reasons addressed above.
The most important task of the appointment process ultimately is matching
the candidate to the criteria, and in this respect the LCA
Policy does not
deliver in a way that follows the path of other jurisdictions and that is
therefore likely to lead to the possibility
of real change in the judiciary. The
LCA Policy is sadly lacking in a proper process to match the candidates with the
criteria in
two respects. One is that the consultation process relating to
appointments is ‘cloned’; the second is that there is
no open and
transparent process, which can ensure all relevant aspirants are considered in
the selection process.
In respect of the first issue, the Policy says
the Attorney-General should consult:
| • | Current Chief Justice of the Supreme Court |
| • | Current Chief Justice (or equivalent) of the Court to which the appointment is made |
| • | President of the Bar Association |
| • | President of the Law Society |
The Policy then says the Attorney-General may
consult:
| • | Such other persons as the Attorney-General thinks fit eg office holders or organizations, such as appropriate women lawyers’ organizations. |
The weight
given to prominent members of the legal profession (should versus
may and it is not clear if the A-G may consult community non-legal
organisations) in the LCA Policy is probably reflective of the International Bar
Association (IBA) stance. In the IBA ‘Code
of Minimum Standards of
Judicial Independence’ it is stated that promotions of judges must be
vested in a body with a majority
of members of the judiciary and legal
profession.[68] It is natural that
‘insiders’(Bar Association members) ultimately want to keep the
process ‘in-house’. However
it is vitally important there be an
equality, if not preponderance, of lay opinions on the suitability of
candidates, if a judiciary
with the qualities suggested in this article is
sought. It was this thinking which motivated Canadian and recent Scottish
reforms,
as expressed by the Scottish Justice Minister:
It is right that
the judicial appointments board will be headed up by a lay person. The judiciary
serves the whole community. They
must understand and be seen to understand that
whole community.[69]
In
respect of the second issue, the LCA Policy does not follow most other recent
models of Judicial Appointment (UK, NZ, Canada),
which require judicial
positions to be advertised, written applications addressing the criteria
submitted, checking the applicant’s
credentials, and formal interview by
an advisory body or commission. The Policy says the Attorney-General may
consider:
| • | Advertising for “expressions of interest” for a particular judicial appointment. |
This is not sufficient to ensure the best
matching process of candidate to criteria can occur – a formal process of
advertisement,
application, interview, checking and consultation is necessary
for this. If establishing broader criteria for judicial office is
to be truly
effective in producing long-lasting change in the judiciary, then there is a
need for all relevant candidates to have
a chance to be ‘heard’. In
particular, there may be many lawyers ‘out there’ who understand the
need for
broad criteria, are in sympathy with them, and in particular have a
disposition to educate themselves beyond their own boundaries,
who would be
unlikely to be considered even by ‘insiders’.
Any form of change within the legal profession is difficult. The history
of women’s struggle for acceptance as equals within
the profession is a
testament to that. Sensitive implementation of the LCA Policy brings with it the
possibility of a real shift
in the goalposts and thus long-lasting change in the
nature and composition of the judiciary. I realize that there is a tension
between my arguments on the nature of desirable change and who needs to drive
this change. On the one hand, there is my essential
argument that a judicial
appointment protocol must involve and reflect the views of ordinary Australians
in order to ensure a ‘non-cloned’
judiciary. On the other hand, I
believe the protocol needs some form of ‘insider’ support, otherwise
it will be undermined.
For these reasons, I have argued the LCA Policy
satisfies both needs – it emanates from the peak body of the legal
profession,
but it acknowledges State and Federal Attorneys-General should
develop their own protocols, drawing on, but not restricted to the
model
suggested by the Policy.
Thus, there is a chance to learn from the
mistakes of other jurisdictions and from the growing body of critical literature
of similar
processes. State and federal Attorneys-General can use this
knowledge to develop protocols – protocols that will result in
a more
representative and inclusive judiciary with a 21st century
understanding of equality before the law. In itself, the flow-on from a more
diverse composition of the Bench (in terms
of women, ‘others’, and
lawyers from more diverse fields of legal endeavour) should be greater
sensitivity to the needs
of a broader spectrum of society. One reason alone for
enhanced judicial sensitivity is if judicial common rooms reflect a greater
‘melting-pot’ of ideas and background experiences, this should
increase the understanding of all members of the court.
The strength of a
well-developed protocol is that it will do this without a form of affirmative
action – without seeking to
make the bench deliberately representative,
which raises the hackles of many within the profession.
Many women and
other community groups see a need for stronger affirmative action or even quotas
(eg 50% of the bench to be women,
indigenous people to be proportionately
represented), as numbers of women (and ‘others’) are so
comparatively small on
the Bench, after eighty years in the profession, and
after at least ten years of graduating in equal numbers with men from law
school.
The price is the negative perception that persons appointed under such
policies have not been appointed on merit. The merit issue,
as has been seen
particularly with the Queensland experience of recent years, has often been
misused as a detrimental catch-cry.
Jocelynne Scutt pin-points this: “What
is merit? Don’t ask Alice. When it comes to judicial appointments, ask
the March
Hare....Lacking the magic quality, merit, women do not
rate”.[70] The debate about
“merit” of female appointees may not happen so publicly again, but
the same sentiments will traverse
bar and judicial common rooms and law offices,
unless the issue is tackled head-on. I see the answer in a well-developed
protocol
which changes the goal-posts.
Such a protocol will not
compromise appointment on ‘merit’. Rather it will embody a more
inclusive and transparent concept
of merit, even though it is accepted that
‘merit’ is inevitably subjective. This should in turn lead to a more
representative
judiciary and arguably, a judiciary who can also
‘hear’ the voices of those who have struggled in the past to be
‘heard’
within the legal system, without the negative impact likely
to flow from more aggressive policies. The challenge for State and federal
Attorneys-General is how they implement the LCA Policy (in developing their own
judicial appointment protocols) – the gauntlet
has been thrown down!
[*] Associate Lecturer, Law School, Faculty of
Law, Queensland University of Technology, Brisbane, Queensland. I would like to
acknowledge
the valuable research assistance of QUT Senior Research Assistant,
Anne Overell and QUT law student, Deanne Wilden, and the helpful
comments of
Professor Margaret Thornton and the anonymous referees. A version of this paper
was presented to F-Law (Feminist Legal
Academics Workshop) 2001: Praxis and
Politics – Moving Forward in Difficult Times Conference, February 15-16
2001 at QUT Faculty
of Law,
Brisbane.
[1] This term has been
used by many academic writers, including Margaret Thornton, whose work is
referred to extensively in this article,
in particular Dissonance and
Distrust: Women in the Legal Profession, Oxford University Press
1996.
[2] The Policy was released
on 28 January, 2001. It is available on the LCA website at
<www.lawcouncil.asn.au>. The
LCA website indicates that at a meeting on 30 June 2001 it was decided to make
certain amendments to this policy. Details
of these amendments had not been
released at the time this article went to publication. Valuable feedback on the
new policy was
obtained from participants, who included many leading feminist
legal academics, at the Feminist Legal Academics Workshop 2001 (supra *).
[3] See for instance
‘Forget Judge’s Gender: Gibbs’, The Weekend Australian,
February 12-13 2000; J Scutt, ‘No merit to endemic sexism in the legal
system’, The Australian , 19 July 2000 at
13.
[4] See in particular:
Attorney-General Michael Lavarch, Discussion Paper: ‘Judicial
Appointments-Procedure and Criteria’
September 1993; Justice Tasmania,
Discussion Paper: ‘Judicial Appointments in Tasmania’ August 1999
and references to
Australian academic literature discussed in this
paper.
[5] To the best of my
knowledge, research is not available that has compiled comprehensive information
on background of judicial appointees
(for example information including areas of
practice, ethnic background or sexual orientation). However it seems well
accepted in
legal circles that until the last few years, many appointments to
superior courts were of senior male commercial
barristers.
[6] Baroness Helena
Kennedy described the process of appointment in one’s own mould as
“cloning”, as reported in C McGlynn,
(1998) New Law Journal
597 at 598.
[7] This was the view
expressed by almost all authors (‘major players’ of legal system
reform) in H Stacy and M Lavarch,
Beyond the Adversarial System,
Federation Press 1999. It has been beyond the scope of this article to
examine the substantial body of literature relating to the
impact of the
implementation of affirmative action
policies.
[8] In June 1998, prior
to the Beattie Labor government coming to power, there was one female Supreme
Court Justice out of 23 justices
– in January 2001, there were 7 women out
of 24 Justices, including Justice Margaret McMurdo who was appointed President
of
the Court of Appeal. In June 1998, there were 3 female District Court Judges
out of 35 judges – in January 2001, there were
6 female District court
judges out of 35, including Judge Patricia Wolfe, who was elevated to Chief
Judge. In June 1998, there
were 6 female magistrates out of a total of 62 - in
January 2001, there were 15 out of 75 female magistrates, including Dianne
Fingleton
who was appointed as Chief Stipendiary Magistrate. Another female
magistrate was subsequently appointed in
2001.
[9] See ‘Lawyers
Attack Woman’s Appointment to Top Court’, Courier Mail, 5
September 1998; ‘Activist Judiciary Warning’, Courier Mail,
February 12 2000.
[10] I
have previously written about this. See B Hamilton, ‘Criteria for Judicial
Appointment and “Merit”’ (1999) 15 Queensland University of
Technology Law Journal
10.
[11] Oration by Sir
Harry Gibbs 11 February 2000 at
<http://www.courts.qld.gov.au/sc & dc/speeches/gibbs110200.htm>
.
[12]
Shepherdson J as quoted in ‘Judge backs Gibbs’ remarks, Courier
Mail, March 11 2000.
[13] ‘Message from the
President’ Australian Lawyer September 2000; ‘Law Council
Moves to Deliver More Transparency to Judicial Appointments’ Australian
Lawyer February 2001.
[14]
Justice Mary Gaudron, High Court of Australia, Speech to launch
‘Corporate Women, Children, Careers and Workplace Culture: The
Integration
of flexible work practices into the legal and finance professions’, NSW
Parliament House, Sydney, NSW 14 July 2000.
This speech achieved wide coverage
in the press, see for instance ‘Gaudron enlivens the equality
debate’, The Australian, 17 July
2000.
[15] Supra n
4.
[16] Judicial appointment
processes from overseas jurisdictions are comprehensively canvassed in Justice
Tasmania, Discussion Paper:
‘Judicial Appointments- Procedure and
Criteria’ August 1999
<http://www.justice.tas.gov.au/legpol/judicial.htn>
and in Dr M White QC,
‘Judicial Appointments: Including the role of the Attorney-General’
(2000) 20 Aust Bar Review
115.
[17] Queensland District
Court Judge Helen O’Sullivan, in her role as Chair of the session
‘Judiciary, the Courts and Change’
at the F-Law Workshop 2001
(supra *) expressed this view to the
audience.
[18] The issue of the
‘merit’ of female judicial appointees raged in the Queensland press
for quite a time, see notes 9,
10, 11 and
12.
[19] Enquiries of the Qld
Bar Association revealed this figure in January 2001; enquiries of the Victorian
Bar Association revealed this
figure in March 2001. Enquiries of Bar
Associations in the other States revealed figures between the Queensland and
Victorian figures.
In NSW as of January 2001, 12.6% of those holding NSW Bar
Association practising certificates were women. However, not all barristers
are
members of the relevant Bar
Associations.
[20] Australian
Law Reform Commission, Equality before the Law: Women’s Equality,
Report No 69 Part II (1994) at para
9.1.
[21] R Hunter and H
McKelvie, ‘Equality of Opportunity for Women at the Victorian Bar: A
Report to the Victorian Bar Council’
(1998) Victorian Bar Council,
Melbourne.
[22] Ibid at
xi.
[23] See M Neave,
‘Women at the Victorian Bar – Reform or Rejection’ (1999)12
AFLJ 121.
[24] Supra
n 7.
[25] Only
Tasmania has produced a formal discussion paper on the process of appointments,
supra n 16. Enquiries of the Queensland Attorney-General’s
Department revealed no policy document about the process of judicial
appointments.
[26] G Drewry,
‘Judicial Appointments’ (1998) Public Law Comment 1 at
7.
[27] Law Council of Australia
Policy on Judicial Appointments at
1.
[28] See CJ M Gleeson,
‘Judicial Legitimacy’, ABA Conference, New York, 2 June 2000
referred to in McMurdo J (President,
Qld Court of Appeal), opening address to
Feminist Legal Acedemic Workshop 2001, 15 February 2001 (see * above) at
3-4.
[29] Dr M White QC,
‘Judicial Appointments: Including the role of the Attorney-General’
(2000) 20 Aust Bar Review
115.
[30] Article 14.1 ICCPR; Dr
M White QC, Ibid at
138.
[31] See McMurdo J,
supra n 28 at 3.
[32]
Supra n 10.
[33] M
Thornton, ‘Affirmative Action, Merit and the Liberal State’ (1985) 2
Australian Journal of Law and Society 28 at
29.
[34] M Thornton, ‘The
Fictive Feminine’ in Dissonance and Distrust: Women in the Legal
Profession, Oxford University Press (1996) at
35.
[35] B Martin, ‘Merit
and Power’ (1987) 22 Aust Journal of Social Issues 436 at
437.
[36]
Ibid.
[37] J
Scutt, ‘No merit to endemic sexism in legal system’, The
Australian, 19 July 2000 at
13.
[38] K Malleson,
‘Ending elitism in judicial appointments’ (August 2000) Legal
Action 6; See C McGlynn, ‘Appointing Women Judges’ (1998) 148
New Law Journal 597; J Hayes, ‘Appointment by invitation’
(1997) 147 New Law Journal
520.
[39] See A Murray and F
Maher, ‘Judging the Judges’ (1998) 23 Alt L J
185.
[40] B McCain,
‘New System for selecting judges: Generations of secrecy to end with
independent appointments board headed by a
non-lawyer’ The Herald
(Glasgow, Scotland) 15 March 2001 at
8.
[41] New Zealand and Canada
have adopted models along these
lines.
[42] Justice Tasmania,
Discussion Paper: ‘Judicial Appointments in Tasmania’ August 1999,
<http://www.justice.tas.gove.au/legpol/judicial.htn>
at
13.
[43] LJ King, ‘The
Attorney-General, Politics and the Judiciary’ (2000) 29 Univ of West
Aust Law Review 155 at 175; McMurdo J supra n
28.
[44] Dr M White,
supra n 29 at
159-160.
[45] D Goleman,
Vital Lies, Simple Truths: the Psychology of Self-Deception, Bloomsbury
1997 at 13.
[46] B Hamilton,
Book review: ‘Beyond the Adversarial System’, (1999) 15
Queensland University of Technology Law Journal 218 at
222.
[47] B Walker,
‘Judicial Time Limits and the Adversarial System’ in Beyond the
Adversarial System, Federation Press 1999 at
89.
[48] B McCain, supra
n 40.
[49] Judge Rosemary
Balmford, ‘Gender Equality in Courts and Tribunals’ (Spring 1995) 94
Victorian Bar News
34.
[50] Supra n 33
at 30, quoting G Ezorsky, ‘Hiring Women Faculty’ (1978) 7
Philosophy and Public Affairs
82.
[51] C Burton, Redefining
Merit, Affirmative Action Agency Monograph no. 2, AGPS Canberra
1988.
[52] B Hamilton,
supra n 10 at 17.
[53]
Selection criteria utilised in a wide range of jurisdictions are canvassed in
Justice Tasmania, Discussion Paper: ‘Judicial
Appointments in
Tasmania’ August 1999.
[54]
I gained valuable feedback on the gender considerations relating to these
criteria from presenting the Policy and seeking the opinion
of participants at
the Feminist Legal Academics Workshop 2001 (supra
*).
[55] M Thornton,
‘Authority and Corporeality: Women in Law’ (1998) 7 Feminist
Legal Studies 147 at 152-153.
[56]
Ibid at 154. See also M Thornton, Dissonance and Distrust:
Women in the Legal Profession, Oxford University Press 1996, see
particularly at 31, 35, 109 and
111.
[57] K Jones,
Compassionate Authority: Democracy and the Representation of Women,
Routledge 1993 at 119, quoted in M Thornton,
ibid.
[58] K Mack,
‘Challenging Assumptions about Credibility’ Proctor May 2001
16 at 18. K Mack, ‘Continuing Barriers to Women’s Credibility: A
Feminist Perspective on the Proof Process’
(1993) 4 Criminal Law
Forum 327 at 330-331.
[59]
Ibid.
[60] K
Jones, supra n 57 at 118.
[61]
C McGlynn, ‘Appointing Women Judges’ (1998) New Law
Journal 597 at 597-598.
[62]
Ibid at 598.
[63]
Ibid.
[64] See M
Thornton, supra n 55 at 155.
[65]
This follows from the research undertaken by Hunter and McKelvie for the
Victorian Bar Council, supra n 21. I have also had the benefit of reading
two as yet unpublished papers on this topic: R Hunter and H McKelvie,
‘Talking
up Equality: Women Barristers and the Denial of
Discrimination’ and R Hunter, ‘Women Barristers and Gender
Difference’
(forthcoming in U Schultz and G Shaw (eds), Women in the
Legal Profession: A Challenge to Law and Lawyers, Hart Publishing Oxford
2002). Both these papers draw on the research for the Victorian Bar
Council.
[66] D Rhode,
‘The “No-Problem” Problem: Feminist Challenges and Cultural
Change’ (1991) 100 Yale Law Journal 1731 at
1773.
[67] G Bindman,
‘Appointing Judges without Discrimination’ (1991) 141 New Law
Journal 1692 at 1695.
[68] D
R Meagher QC, ‘Appointment of Judges’ (1993) 2 Journal of
Judicial Administration p 190 at
201.
[69] B McCain, supra
n 40.
[70] Supra n
37.
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