Appendix 6
Law Society of New South Wales – Extract from submission 7
Selection Process for the Judiciary
Policy Document
(Adopted by Council at its meetings on 26 March 1997 and, as
amended, on 19 June 2008) The Australian Judiciary, both State and Federal, has
maintained the highest traditions of independence and fearlessness. Any new
selection process must ensure that these fundamentals are not diluted.
Independence implies freedom from sectional, political and other affiliations.
One of the frequent criticisms levelled at the judiciary is
that it is "unrepresentative" of the community. The Law Society
believes that the fundamental criterion for selection must be merit and merit
alone. The best candidate must be chosen no matter who he or she is and where
he or she is from. No other consideration should be allowed to interfere with
this paramount criterion if the Australian judiciary is to continue to maintain
its eminence.
The following represents the Law Society's position on the
selection of judges, State and Federal.
Criteria for selection
Merit
Merit is the fundamental criterion and the only means of
ensuring that the best candidate is selected. Gender, political leanings or any
other consideration should not influence selections.
The qualities which constitute merit include particularly:-
-
legal skills;
-
personal qualities
The principles of equal opportunity should be borne in mind
when selecting between two candidates who are in all respects of equal merit,
e.g. if the candidates are of different gender, the female candidate should be
chosen.
Legal Skills
Legal skills required include:
-
thorough knowledge of the law and long experience in the practice
of law;
-
oral and written skills;
-
thorough understanding of the rule of law, the role of the courts
and our system of government;
-
ability to digest large quantities of information and identify
the legal issues arising from them;
-
thorough knowledge of the law of evidence and procedure;
-
litigation experience, including advocacy experience, though the
latter should not be given primacy.
Personal Qualities
Personal qualities required include:-
-
integrity;
-
independence;
-
impartiality;
-
self-discipline;
-
capability to uphold the rule of law and act independently;
-
organisational and management skills;
-
ability to reach verdict and judgment in a timely manner;
-
ability to discharge his/her duties with courtesy.
The Selection Process
At the present time most judicial appointments come from a
single branch of the legal profession, the Bar. Traditionally, advocacy skills
have been regarded as singularly the most important attribute in judicial
appointment. The Law Society believes it is merely one of a range of skills and
should not be given undue prominence. The selection process must cover all
lawyers, barristers, solicitors and academic lawyers, providing they have the requisite
qualifications. The skills and qualities of the other branches of the legal
profession have been undervalued in the appointment of judges and this
imbalance should be corrected. The sole criterion is merit; the best candidate
for the position, irrespective of whether the candidate is a barrister,
solicitor or academic lawyer, should be appointed.
The Law Society supports the continued existence of an
informal selection process. However, it believes that the consultation must be
wider and on a more formal basis and must include consultation with the NSW Bar
Association and the Law Society of NSW. The establishment of an official body
or committee for the selection of judges is not supported. Many eminently
suitable candidates would be reluctant to go through a public process of selection.
However, there can be no objection to calling for expressions of interest on a confidential
basis.
For example, where an appointment to the High Court of
Australia is to be made, apart from the statutory obligation to consult with
the States' Attorneys General, there should be wider consultation with the
judiciary, leaders of the legal profession and former Chief Justices.
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