Appointing Australian judges: A new model

Abstract

The article argues for reform in the process by which members of the Australian judiciary are selected. Such reform is needed in order to ensure two things. First, that the judiciary retains the independence that is essential for it to discharge its constitutional functions. And, second, that it reflects the society from which it is drawn and continues to enjoy the confidence of that society. We recommend that Australia adopt a process for judicial appointments that is based on the process recently established for England and Wales under the Constitution Reform Act 2005 (UK). Appointments would continue to be made by the executive. Judicial Appointments Commissions (consisting of three judicial members, three legal members and six non-legal members — including the Chair) would recommend to the executive the names of three persons from among whom the appointment must be made. The Commissions’ recommendations would be the culmination of an evidence-based process involving applications, references, interviews and in some cases practical assessment of relevant skills.