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Gleeson warns of judge shortage -

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Gleeson warns of judge shortage

Reporter: Kerry O'Brien

KERRY O'BRIEN: The Chief Justice of the High Court, Murray Gleeson, warned in a major speech today
that it is becoming increasingly difficult to recruit judges from amongst the best of Australia's
lawyers. Chief Justice Gleeson has raised the prospect of a day when, in terms of both professional
experience and ability, lawyers might be more than a match for judges. On top of the recruiting
problem, it seems more and more judges are retiring early, creating more vacancies. Senior Federal
Court Judge Ronald Sackville, is also the chairman of the Judicial Conference of Australia, a kind
of peak body for judges. He believes part of the problem is the growing chorus of criticism from
politicians and the media of judges' performances, particularly sentencing. I spoke with Mr Justice
Sackville in Sydney late today.

KERRY O'BRIEN: Judge, the Chief Justice has raised concerns that lawyers may be finding it less and
less attractive to become judges. He points to the danger that the bar might become too smart for
the bench. How real is that concern?

JUSTICE RONALD SACKVILLE, FEDERAL COURT OF AUSTRALIA: I'm not sure the bar will become too smart
for the bench, but there is a real concern about recruiting judges and a concern about retention of
the judiciary. There has always been a difficulty in the sense that some barristers would prefer to
stay at the bar rather than accept judicial appointment for a range of reasons, but the anecdotal
evidence is that the difficulty of attracting qualified people to the bench has probably become
greater. But it is important to note that the bar is not the only source of recruits to the

KERRY O'BRIEN: Fine, but why would it be becoming less attractive?

JUSTICE SACKVILLE: I think there are a couple of reasons. One reason is certainly that being a
judge these days makes you more vulnerable to criticism and attack. It has always been the case
that judges can be attacked in the media and they have been, but the intensity and the degree of
the attacks, I think, is much greater than used to be the case. With the electronic media the
impact on individual judges can be quite considerable.

KERRY O'BRIEN: Now, not just the media, political pressure and criticism as well?

PETER SACKVILLE: There is a symbiotic relationship between the media and politicians. Quite often
there has been political criticism of courts. For example, in migration decisions and the media
play a part in that. Not every person who contemplates being a judge is happy about that kind of
potential exposure to attack which sometimes can be very personal and unreasonable.

KERRY O'BRIEN: When you say immigration, what do you mean?

JUSTICE RONALD SACKVILLE: I mean for some time there was a degree of antagonism, if you like,
between the relevant minister and the courts. There was criticism of what the courts were doing.
That meant that particular decisions could be subjected to intense criticism and sometimes
individual judges were subject to intense criticism.

KERRY O'BRIEN: Some would say that means the judges are too thin skinned. Are you saying there was
an issue of the separation of powers there?

JUSTICE RONALD SACKVILLE: There is an issue of the separation of powers. Politicians have to keep
within their province and the courts within theirs. I think it has become clear that anybody who is
seeking judicial appointment, or prepared to accept judicial appointment cannot be too
thin-skinned. It is simply the case that if you are too thin-skinned, it may be you will be
uncomfortable in that position, particularly, for example, in relation to sentencing where
criticism can be extremely vehement.

KERRY O'BRIEN: What has changed there over the years? Are you saying the public is more conscious
of sentencing, of law and order issues? Are you one of those who believes that politicians have
beaten up the issue of law and order too much and this is part of the fallout?

JUSTICE RONALD SACKVILLE: There is no doubt politicians beat up the issue of law an order,
particularly at election time. What has changed, I think, is that there is a greater willingness on
the part of the community, generally, to criticise and sometimes attack judges.

KERRY O'BRIEN: Do you accept though that there may be occasions when the public criticism, the
public concern about a particular sentence might be a valid concern?

JUSTICE RONALD SACKVILLE: Absolutely. I think that the courts have to accept that there will be
substantial degree of criticism, much of that is entirely proper and appropriate. The courts have
to be prepared, I think, to engage more openly in the public arena in order to rebut criticism
where that rebuttal is warranted.

KERRY O'BRIEN: Do you think some judges are losing a sense of public duty?


KERRY O'BRIEN: I know that the gap has always been there between judicial income and what many
lawyers can earn at the bar. So that has not changed.

JUSTICE RONALD SACKVILLE: I agree with that. I also think that sometimes too much emphasis is
placed on that because the fact is, as you say, there has always been a gap. If someone is a leader
at the bar, for example, he or she will suffer a significant diminution of income by coming to the
bench. Nothing much has changed there. However, because I think the standing of the judiciary in
many respects has changed and not for the better, that is a factor that bears upon the decision of
people to leave the bench and, of course, sometimes people think with complete justification there
is another life they would like to pursue once they are able to do that.

KERRY O'BRIEN: Putting all of those things together, is there a risk that we could see a decline in
the quality of the bench?

JUSTICE RONALD SACKVILLE: Yes, there is. Unless the best people, and again I stress I'm not talking
exclusively about people from the bar because people from the solicitor's branch of the profession,
academics, public sector can and do make excellent judges, but if there is a reluctance on the best
part of the people to come to the bench and a reluctance of senior judges to stay the course, then
of course the judiciary is in danger of losing some of its best people and the community will
therefore suffer.

KERRY O'BRIEN: Another point the Chief Justice Gleeson raised is the issue of how judges are
appointed. Is there disquiet amongst the judiciary that the integrity of the separation of powers
between executive government and the judiciary is at risk of being diluted?

JUSTICE RONALD SACKVILLE: I don't think because of the appointment process. Under our
constitutional arrangements, it is the executive, in practice at Federal level the
Attorney-General, doubtless with some input from the PM and cabinet, who makes judicial
appointments. Sometimes the community expresses disquiet about so-called political appointments,
but they have always been made in Australia. Attorneys-general of the Commonwealth have been
appointed and have made excellent judges. I don't think there is disquiet at that level. I do
think, however, the process can be much more transparent if we were to adopt, for example, an
advisory judicial commission, as has been introduced or proposed for New Zealand and the United

KERRY O'BRIEN: Do you personally favour the idea of an independent judicial commission to make
recommendations to government for future judges?

JUSTICE RONALD SACKVILLE: For what it's worth, in general I do. That's my own view. It is not the
view of the judicial conference of which I chair because I don't speak on behalf of any court. My
own view is the judiciary would benefit from a more transparent appointment process and it is a
process that would be seen to invite applications or expressions of interest from a broader range
of qualified people so it's not the exclusive province of the bar. I think there would be some
advantages in that.

KERRY O'BRIEN: You have been around a long time and understand the political processes. What do you
think the odds are that politicians would be prepared to cede any powers in those kinds of

JUSTICE RONALD SACKVILLE: It's difficult. For obvious reasons, politicians prefer to have the power
of appointment in their own hands Tasmania, something like the commission that I've referred to has
been introduced. Not quite the same thing. Over the period of time, given the precedents in
countries that provide a model for us, I don't regard it by any means impossible.

KERRY O'BRIEN: Ronald Sackville, thank you for talking with us.