ALRC calls for transparency and diversity in judicial appointments

The Australian Law Reform Commission’s report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, tabled in federal parliament on 2 August makes some important recommendations on appointments of judicial officers and the importance of diversity in that process, which should be road tested in the context of the Administrative Appeals Tribunal (AAT) because that quasi-judicial tribunal has had its perceived objectivity undermined by years of abuse of Coalition government which used it as a vehicle for rewarding its political friends.

The ALRC report makes a number of recommendations and they include that the “Australian Government should develop a more transparent process for appointing federal judicial officers on merit, involving: publication of criteria for appointment; public calls for expressions of interest; and a commitment to promoting diversity in the judiciary.” The Commission says that the Attorney –General ‘‘should collect, and report annually on, statistics regarding the diversity of the federal judiciary’’. As the ALRC observes, and to lawyers it will come as no surprise, ‘‘judicial officers are more likely to be married and to have Anglo-Celtic ancestry. They are also less likely to have been born overseas, to speak a foreign language at home or to be living with a disability.’’ In other words judicial appointments do not reflect what Australia is today.

There is much to like about the ALRC report and there is an opportunity to immediately adopt and implement its recommendations on appointments and increasing diversity in the context of the AAT.

The AAT enables citizens to seek reviews of decisions adverse to them made by government agencies in areas such as taxation, welfare payments, workers compensation and freedom of information. From the election of the Abbott government in 2013 through to the end of the Morrison government this year, the appointments process to the AAT has been nothing short of appalling. The Australia Institute recently found that while in “the Howard and Rudd/Gillard/Rudd administrations, political appointees accounted for 6 and 5 per cent of all appointees respectively … during the Abbott/Turnbull/Morrison administration, political appointees accounted for 32 per cent of all new appointments.” Since 2013 236 appointments have been made to the AAT.

Even a cursory examination of those appointments shows that there was no attempt by the Coalition governments to ensure diversity of membership. Yes a number of women were appointed but when it came to language, culture and those living with a disability they simply were not considerations. Reward for political loyalty seemed the most relevant factor in appointments. How else to explain the large number of ex-Coalition MPs and political staffers who have been given AAT positions.

That one third of the AAT membership are ‘political appointees’ tells us that Mr Dreyfus has good reason to abolish it. This would end the tenure of all members. A new tribunal should be established and the ALRC recommendations on a transparent appointment process and a commitment to diversity could be road tested in sifting through the applications for membership of a new tribunal.

More broadly there should be a more transparent appointments process for all courts in Australia, not just federal courts. Some governments have moved to improve the diversity profile of their courts. The Victorian government is the leader in this regard. It has made an effort to represent the diversity of the society that courts serve through appointments to its Magistrates and County Courts particularly. But there is still much to be done, as there is in every Australian jurisdiction.

Democracy is enhanced, and in particular confidence in an impartial justice system is higher, when judicial appointments reflect the diversity of society. As Kate Berry from the US think tank, the Brennan Center for Justice, rightly observes, “A diverse bench also promotes public confidence that the judicial system is fair and objective. When the judiciary includes all voices and perspectives, members of the public are more likely to trust that theirs will be heard as well. Diversity on the bench has the added benefit of establishing role models for all groups by showing that individuals from diverse back­grounds can obtain judicial positions, as well as positions of prominence in the bar.”

For a new Attorney General like Mark Dreyfus, who appears to have an interest in being a more reformist first law officer than we have had at the federal level for many years, the ALRC report is perfect timing. He can make a statement by adopting its recommendations on appointments and enhancing diversity of the bench. And it provides him with a solution to the politically compromised AAT.

Greg Barns SC
6 August 2022

This is a shared article from Financial Review, 3 August 2022, and Pearls and Irritations, 6 August 2022.