Judicial Appointments: Is there a Need for Reform?

by Susan Waywood

In recent times there has been a significant debate about the process for appointing judges in Australia. Much of the debate has been triggered by recent changes to the judicial appointment process in England and Wales. Canada has long-since taken steps to change its judicial appointment process and has gone so far as to require the most recent appointee to the Supreme Court of Canada to undergo a publicly televised appearance before an Ad Hoc Committee of Parliamentarians.

In Australia, England and Canada the judicial appointment system has been criticised for lack of transparency. In Australia, some have argued that it is necessary to articulate more thoroughly what attributes a meritorious candidate should have. Such critics have advocated for a commission made up of both laypeople and members of the legal profession who would pass on a shortlist of candidates to the Attorney General for selection.

At a recent forum in Sydney, Attorney-General Philip Ruddock spoke out in favour of the current system, noting that a history of appointments by different political parties has created a highly creditable outcome for Australians. Ruddock noted that use of a commission would not necessarily enhance transparency and that under the present system elected officials were accountable to voters for their appointments.

United Kingdom

On 31 October 2006, the United Kingdom’s Judicial Appointments Commission (JAC) launched a new system for judicial appointments intended to ensure that the system is transparent, impartial and fair. The JAC’s new system will be used for the first time to select up to 25 new High Court judges, and the approach will be adopted for future judicial appointments to courts and tribunals across England and Wales.

The JAC is an independent body set up in April 2006 under the Constitutional Reform Act 2005 to take over the selection of judges from the Lord Chancellor. This change marks a break with nine centuries of judicial tradition.

The changes introduced by the JAC include:
  • increased marketing of vacancies;
  • a more streamlined and objective application process for all judicial office holders;
  • a simplified definition of merit based on five core qualities and abilities required to make a good judge;
  • a new system for filling High Court vacancies including a mandatory application process, interviews for shortlisted candidates, and the fair and open use of references.

    Canada

    In Canada the debate surrounding the appointment of judges has been most apparent at the Supreme Court of Canada.

    The federal government appoints judges to the Supreme Court of Canada, the federal courts, the appellate courts (for example, the British Columbia Court of Appeal) and the superior-level courts in each province and territory (for example, the British Columbia Supreme Court).

    To be considered for appointment to a superior level court, an applicant or nominee must be a lawyer in good standing who has been in practice for at least 10 years and is a Canadian citizen. Federally appointed advisory committees exist in each province and territory to recommend applicants to the federal Minister of Justice who in turn makes recommendations to cabinet.

    Provincial governments make judicial appointments in the so-called “inferior” or “provincial” courts which typically hear matters related to criminal law, family law, youth criminal justice, minor civil claims and traffic law. Provinces typically have an application process involving a nominating committee, with the provincial Minister of Justice making a selection from the appointment eligibility list and in turn making a recommendation to cabinet.

    In Canada the debate surrounding the appointment of judges has focussed upon appointments to the Supreme Court of Canada. Critics have argued that the historic appointment process allowed the governing party to stack the court with like-minded, activist judges.

    Justices of the Supreme Court of Canada are appointed by the Governor General based on the advice of the Queen's Privy Council for Canada. By tradition and convention, only the Cabinet advises the Governor General and this advice is usually expressed to the Queen's representative exclusively through a consultation with the Prime Minister.

    A number of efforts to reform the appointment process were made in 2004 and 2005, with efforts to reform the appointment process further impeded by federal elections in June 2004 and February 2006.

    Canada’s most recent appointee to the Supreme Court of Canada underwent a rigorous screening process prior to his appointment in March 2006. The previous government established an Advisory Committee to review and assess the merits of a number of candidates. That committee established a shortlist of candidates. In February 2006 the new federal government introduced additional changes intended to increase openness and accountability. The prime minister selected the nominee from the shortlist established by the Advisory Committee, but required the nominee to undergo a publicly televised appearance before an Ad Hoc Committee of Parliamentarians. This new process still left the Prime Minister with the final say on who becomes the candidate that is recommended to the Governor General for appointment to the court.

    Despite these reforms, in Canada the process used to appoint judges to the Supreme Court of Canada is still under review. Full details of a process to fill future vacancies on the Supreme Court of Canada will be announced at a future date.


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