The Law Council of Australia Policy 2001 on the Process of Judicial Appointments: Any Good News for Future Female Judicial Appointees?

The Law Council Of Australia Policy 2001 On The Process Of Judicial Appointments: Any Good News For Future Female Judicial Appointees? Barbara Hamilton * Introduction 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) Policy2 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 * 1 2 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. 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. 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 *). 223 BARBARA HAMILTON (2001) beyond as the issue of criteria for judicial office and ‘merit’ entered the public arena in the past few years and particularly so in 20003 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 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 3 4 5 6 7 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. See in particular: Attorney-General Michael Lavarch, Discussion Paper: ‘Judicial AppointmentsProcedure and Criteria’ September 1993; Justice Tasmania, Discussion Paper: ‘Judicial Appointments in Tasmania’ August 1999 and references to Australian academic literature discussed in this paper. 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. 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. 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. 224 Vol 1 No 2 QUTLJJ The Law Council of Australia Policy 2001 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 bel (...truncated)