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Chief Justice of the High Court. Part 2: The independence of the Bar and selection criteria for judicial appointments

SUSANNA LOBEZ: Is there any benefit to the community, Sir Anthony, in this day and age, do you believe, of an independent Bar?

ANTHONY MASON: The independence of the Bar is some guarantee of independence of mind and integrity. I don't think that the barrister is as susceptible to pressure from a client as, say, the big firms of solicitors are. For example, if you have a major client - one of the largest companies in Australia - the loss of that client probably means a significant loss for the firm of solicitors that acts for the client. In that way, the firms of solicitors, and even the smaller firms of solicitors who have a big client, are subject to pressure of a kind that the barrister is free from.

SUSANNA LOBEZ: And that would also apply to firms that are quite often employed by government agencies?


SUSANNA LOBEZ: The barrister is never employed by anybody?

ANTHONY MASON: No. Well, he shouldn't be. Up to date, the barrister, according to rules of Bar associations has not been at liberty to take up permanent employment by an employer. Now, I'm speaking from my recollection of the days when I was in the profession and it's conceivable that there has been some change. You, Susanna, may know more about that than I do.

SUSANNA LOBEZ: Well, there's certainly moves afoot, Chief Justice. There's been criticism, Sir Anthony, of the make-up of Australian courts and perhaps some inaccurate generalisations about judges' backgrounds. Apart from merit, as a lawyer, in the selection of judges, is representativeness an important factor?

ANTHONY MASON: In my view, merit, which includes integrity, is the paramount factor that should dictate judicial appointment. I don't consider representativeness as such a relevant factor, and that is because the judge does not give his decision as a representative of any section of the community. He's required to give an objective, independent decision. But I can see that in terms of public confidence in the judiciary, there is a case for saying that the judiciary should be representative of the community. I think the community would feel more comfortable if it thought that the judiciary did not consist of judges who came from one or a relatively few sections of society. Ultimately, I think we will have a judiciary that is more representative than it is today, and in terms of public confidence, I would hope that was so. But at the same time, I think we should still insist on appointing those people to the bench who we believe are best fitted to discharge judicial responsibilities, particularly at a time when we are expecting maximum efficiency from the judges and the courts.

SUSANNA LOBEZ: As judges increasingly have this huge impact on the wider community, would you imagine something like confirmation hearings are ever likely to be part of the appointment process, as they are in the United States?

ANTHONY MASON: It's difficult to peer into the crystal ball and predict what is likely to happen, but I would be strongly opposed to the introduction of a procedure by way of confirmation hearings. Indeed, I think the experience of those hearings in the United States confirms the inadvisability of introducing them. What we've seen and heard of those hearings in recent times indicates that they don't concentrate on what is the crucial issue, namely, the legal ability of the candidate to serve as a justice of the Supreme Court of the United States.

The hearings seem to engage in issues of a sensational kind - take the Clarence Thomas hearings for example - the effect of which is likely to erode or undermine public confidence in the judiciary. The result is I'm totally opposed to them.

SUSANNA LOBEZ: Would you in any way favour a wider group of people to be consulted about judicial appointments, though?

ANTHONY MASON: I wouldn't necessarily be opposed to consultation with a wide group of people by an Attorney-General; indeed, I don't know what are the limits that Attorneys-General set for themselves in consultation. We do know that they consult with presidents of Bar associations, presidents of law societies, President of the Law Council of Australia, and they consult with the Chief Justice or the president of the particular courts to which appointments are to be made. I noticed one of the proposals mentioned by Mr Lavarch, the present Federal Attorney-General, as one to which he's giving consideration, is the appointment of a commission to consider appointments and make recommendations, and another is to formalise the process of consultation so that the public knows the identity of the persons and bodies consulted. Now, they're two proposals which deserve consideration.

SUSANNA LOBEZ: Would you imagine there'd be any merit, Chief Justice, in a term appointment of judges of perhaps five years? Do you think there might be dangers in judges being birds of passage on their way to another, perhaps, more lucrative career?

ANTHONY MASON: I'd be opposed to the proposal. I think there are dangers. One danger is the risk that a person appointed as a judge for five years would not dedicate himself to judicial service in the way that a person appointed for a long term undoubtedly does dedicate himself or herself. Another danger arises from what will happen when the judge who served for five years goes back into practice. When he or she goes back into practice, they do so as someone who has previously served as a judge. When they appear for clients in court or advise clients, the litigant on the other side must harbour suspicions that the other side has an advantage, because they are represented by somebody who previously served as a judge. So, I'm opposed to the proposal.

SUSANNA LOBEZ: Sir Anthony, in respect of judicial education, which has been popularly talked about in the last 18 months or so, Lord Devlin has warned against the risks that detailed judicial training may undermine the independent cast of mind of the judge of our tradition. How do judges keep in touch with the community, its values, and how do they become educated with ongoing social issues?

ANTHONY MASON: I'm not opposed to judicial education to the extent that it focuses upon professional training. In addition, I've supported AIJA initiatives in relation to general awareness seminars and Aboriginal culture seminars. But outside those fields, I am inclined to share the general caution uttered by Lord Devlin. We must take good care to ensure that under the guise of judicial education, judges are not subjected to indoctrination or attempts by interest groups and pressure groups to influence judicial decision-making in favour of such a group.

I don't think that you need to send judges to classes in order to educate them about the community in which they live. They are part and parcel of that community.

SUSANNA LOBEZ: A judge I spoke to recently said one of the difficulties is that the best advocate in the world may not actually be a very good decision-maker. There is no sort of P-plate period for judges. How is it that we can determine whether they're going to be good decision-makers? Decision-making is hard.

ANTHONY MASON: I agree with that, but overall I think we've done pretty well in the selection of judges. At the same time, I am in favour of judicial education so long as it is confined to professional training. Other countries in the world run educational programs for judges on their appointment, and it seems to me that we would ease the path of new judges if we had such programs.

SUSANNA LOBEZ: Sir Anthony, who were your judicial role models?

ANTHONY MASON: It may seem strange to say it, but I've never had a judicial role model. There's no judge that I've ever consciously attempted to model myself on. There are judges for whom I have had and still have profound respect and admiration, such as Sir Owen Dixon, who I think was an incomparable Australian judge, and Lord Wilberforce who, in recent years, retired from the House of Lords.

SUSANNA LOBEZ: What do you envisage will be the qualities that a Chief Justice will need to have to see in the turn of the century?

ANTHONY MASON: I think the requisite qualities are much the same as they have always been, but I think there will be more pressure on a Chief Justice in time to come, and that pressure, I think, will arise from the greater emphasis on judicial accountability and a feeling that the Chief Justice is the person who should be communicating with the public through the media and other organs.

SUSANNA LOBEZ: So, someone will need to have the ability to be the public face of the law in Australia?

ANTHONY MASON: I think so. I think that's inevitable.

SUSANNA LOBEZ: Last week, Chief Justice Sir Anthony Mason said he could not live on an unoccupied island, a real terra nullius, without his wife, his books, and good food and wine. But what might he do for housing?

I understand that you're also quite interested in architecture, so you might be well occupied on that unoccupied island.

ANTHONY MASON: Yes, I am very interested in architecture, but I have the feeling that I have no architectural ability or artistic ability. Now, I'm interested in gardening, but I go to other gardens and I'm amazed at how constructive my friends are as gardeners, or some of my friends are. And I realised that I, myself, lack the sense of design that they have. So that I take an interest in gardening, regretting that I lack this sense of design, and I'm sure it is a reflection of this inability I feel in the world of art and architecture. I wouldn't be any good as a designer.

SUSANNA LOBEZ: Who from history would you most like to spend an evening with or dine with?

ANTHONY MASON: You gave me advance notice of this question and I spent some considerable time thinking about it and engaging in various fantasies, but ultimately I came to the very firm conclusion that I would prefer to dine with Cicero rather than anyone else. And as you'll recall, he was the Roman orator, advocate, philosopher and politician. I think that I could .. we could have a very interesting discussion.

SUSANNA LOBEZ: Do you imagine that your views would accord?

ANTHONY MASON: In some respects, yes.

SUSANNA LOBEZ: You certainly wouldn't run out of conversation topics.

ANTHONY MASON: I don't think so. And he really was a multi-faceted personality and a great commentator on the events and personalities of his time.

SUSANNA LOBEZ: So there could have been a bit of salacious Roman gossip at this dinner party?

ANTHONY MASON: Well, there could be, although his writings don't portray a great interest in that. I think I'd have to ask Ovid along to the dinner as well, if I were interested in engaging in conversation of that kind.

SUSANNA LOBEZ: Chief Justice Sir Anthony Mason, thank you indeed for letting us see some facets of your personality and for talking with the Law Report.

ANTHONY MASON: Well, I've enjoyed it, Susanna. I'd like to thank you.