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Address to the Anglo-Australasian Lawyers Society breakfast, Sydney.



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ARC CAnglo-Australasian Lawyers Society Breakfast

The Union Club, 25 Bent St, Sydney

Friday 12 September 2008, 8.10am

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[Acknowledgements]

• First, may I acknowledge the traditional owners of the land we meet on - and pay my respects to their elders, both past and present.

[Other Acknowledgements]

• Chair - Michael Sexton SC, New South Wales

Solicitor-General (Also speaking)

• Distinguished guests.

[Introduction]

1. I’m very pleased to be here today.

The Society provides a useful forum for members of the legal

profession in Australia,

New Zealand and the United Kingdom to get together, to share

experiences and ideas.

2. Just as we share common sporting pursuits, we share a common legal

history.

In developing our systems of justice, we face similar challenges.

3. It is vitally important for the continued growth of any profession that

it maintain strong links with its counterparts in other countries.

And one of my commitments as Commonwealth Attorney-General is

to promote and encourage the Australian legal profession to foster

strong ties with other jurisdictions.

4. Since being appointed Attorney-General, I’ve had the opportunity to

meet with law ministers from around the world. This included

attending the Commonwealth Law Ministers Conference in

Edinburgh in July.

This has given me a great opportunity to discuss and gain insight into

legal developments in those jurisdictions that are of interest to

Australia.

5. One area of interest to me is developments in comparable countries

relating to judicial appointments.

6. Since coming to office, I have been fortunate to meet both the

Attorney-General for England and Wales, The Rt Hon the Baroness

Scotland QC and the Solicitor-General, who is effectively a Deputy

Attorney-General, Vera Baird QC MP.

7. I have also met with the Rt Hon Jack Straw, Secretary of State for

Justice, who is responsible for the UK Judicial Appointments

Commission. And I’ve been watching with particular interest the

UK’s experience with this Commission.

8. And the changes I’ve recently implemented here have some

similarities to procedures used in other countries including the UK.

[Judicial Appointments Processes]

9. This morning I’d like to speak about the Rudd Government’s

approach in our first tranche of appointments to the federal courts.

It’s a work in progress - but we are on the way.

10. As I indicated in February when I first announced changes to the

process, the role of the executive in choosing who will be responsible

for ensuring the administration of justice according to law, impacts

directly on public confidence in the courts.

11. One of my most important responsibilities as Attorney-General is to

identify suitable candidates for appointment to the federal courts.

For this reason, changes to the federal judicial appointments process

was one of my first priorities when I became Attorney-General.

12. There is no doubt that the calibre of appointments impacts on the

standing of the court.

13. For far too long the appointments process was shrouded in mystery.

This had two very unfortunate consequences.

First, it can detract from the honour of being appointed to judicial

office.

Second, it can diminish public confidence in the courts and the justice

system.

14. This would be lamentable considering the generally fine judicial

officers we have in this country.

15. The Government believes that any federal judicial appointments

mechanism should ensure:

• greater transparency and public confidence in the process

• that appointments are based on merit and suitability

• that everyone who has the qualities necessary for appointment as a judge or magistrate is fairly and properly considered, whether they are barristers, solicitors or academics, and whether or not they are known to government.

[The High Court]

16. As you would know, the High Court’s 12th

Chief Justice was sworn in last week.

And the Honourable Chief Justice Robert French is Australia’s first

Chief Justice from Western Australia.

17. Chief Justice French was appointed after an extensive consultation

process - broader than anything that has occurred in the past.

18. I am required to consult State Attorneys-General.

19. In addition to this, I consulted all members of the High Court, all

Australian Chief Justices, the Law Council and Australian Bar

Association and all their State counterparts, Australian Women

Lawyers, the National Association of Community Legal Centres and

National Legal Aid, and the Deans of law schools.

20. While it was a lot of letters to sign, it was worth it. It produced a

group of very strong candidates. The views of those who made

suggestions greatly assisted the Government in making its decision.

21. The outcome of this process was the appointment of a Chief Justice

with an outstanding reputation as a very fine jurist and a

fundamentally decent human being.

And I’m pleased to say his appointment has been warmly welcomed

across the legal profession and the wider community.

[The Federal Court]

22. As you will also be aware, the Government recently appointed the Hon

Justice Jayne Jagot, Mr Lindsay Foster SC and Mr Nye Perram SC to

the Federal Court of Australia.

23. In addition to inviting a wide range of individuals and bodies - the

same as for the High Court - to consider making nominations, we also

placed public notices in national media seeking expressions of interest

and nominations.

24. Comprehensive assessment criteria were published on my

Department’s website. These criteria emphasise legal excellence. This

not only includes making sound decisions. It also includes how

candidates manage a courtroom, how they treat people appearing

before them, whether they express themselves in a way that can be

understood by litigants, and whether they can manage a high volume

workload.

25. A selection panel comprising former High Court Chief Justice Sir

Gerard Brennan, Federal Court Chief Justice Michael Black or his

nominee, acting NSW Supreme Court Justice Jane Matthews and Ian

Govey, Deputy Secretary of my Department, assessed the nominees.

26. The candidates were short-listed from over 100 nominations and

expressions of interest, and the Government appointed candidates

from among the names recommended by the panel.

27. All three appointees are respected as extremely talented lawyers and

will bring experience across many areas of law to the Federal Court.

[The Federal Magistrates Court]

28. Clearly, different considerations apply to different courts. This was

evident when we compare the number of names received for the High

Court and indeed the Federal Court, with the more than 450

expressions of interest and 130 nominations that were received for the

appointments to the Federal Magistrates Court.

29. And Federal Magistrates have recently been appointed in Brisbane,

Hobart, Melbourne and Sydney.

30. Like the Federal Court, these positions were publicly notified and I

also sought expressions of interest and nominations from a wide range

of individuals and organisations.

31. A panel comprised Federal Magistrate

Michael Baumann, retired Family Court Judge Susan Morgan, and

Kathy Leigh, a senior officer in my Department - met with candidates

and considered their claims against criteria published on my

Department’s website.

32. I am pleased that the 7 new Federal Magistrates that I announced last

week, not only have the requisite expertise, but also come from diverse

backgrounds and experience including legal aid and academia, as well

as from the ranks of solicitors and the Bar.

[Reflections so far]

33. When I first announced our proposed changes to the judicial

appointments process in February this year, I said ‘the process for

selecting federal judges and magistrates has been ad hoc. It is fair to say

that consultation has not always been as transparent and extensive as it

could be. This means the public has to take it on trust that appointments

are made on merit and suitability rather than personal or political

affiliation and that consultation beyond a small circle of insiders has

occurred.’

34. I also said in that speech that the judicial appointments process will be

shaped over time in light of the Government’s experience in

implementing the procedures. And we have learnt a lot over the past 6

months.

35. I’m very pleased to say that feedback on the new process has been

very positive.

36. Indeed, the Australian Bar Association in a Press Release following the

recent High Court appointment said ‘the appointment process now

being followed… had not only been comprehensive, it had also been both

meaningful and constructive’.

37. It’s also important to acknowledge that greater consultation has

benefited the Government’s decision making process.

I believe that wide-ranging consultation for each court was integral to

ensuring that all suitable candidates - be they barristers, solicitors, or

academics - were identified and fairly and properly assessed.

38. Broad consultation will continue to be a feature of any future

appointments process.

Indeed the enthusiastic response from the legal profession and the

public has demonstrated that there is an appetite and appreciation for

consultation on upcoming judicial appointments.

39. I think we have made a great deal of progress in achieving a federal

judicial appointments process that is much more transparent and

consultative.

40. A number of constructive suggestions have been made and each is

being carefully considered.

On this front I’d like to make a number of observations.

41. The processes we employed were tailored to meet the particular needs

of each court.

42. And I am satisfied that we were able to achieve a transparent,

consultative and open processes that operated in a practical way -

without being overly cumbersome or bureaucratic.

43. Of course, there is always room for improvement and over the coming

months we will work to fine tune the process. One change will be to

add the Council of Australasian Tribunals to our consultation list to

ensure we get the views of all Australian Tribunal Heads.

44. We will also take steps to ensure the process is timely and efficient,

particularly for the Federal Magistrates Court. We were not fully

prepared for the volume of applications received. But this will be

addressed.

45. We will be making public notices more accessible, by ensuring they

appear in local and not just national press. And we are also looking at

options such as electronic lodgement of expressions of interests on my

Department’s website. We are also looking at enabling nominees and

those who express interest to rely on previously submitted

documentation.

46. Finally today, I’d like to pay particular thanks to the selection panels

for the Federal Court and Federal Magistrates Court.

47. These panels have identified and provided me with the names of highly

suitable candidates. In turn they have contributed to giving the public

confidence that appointments have been made on the basis of talent

and not political patronage.

[Conclusion]

48. I began today by talking about my colleagues across the world and the

need to learn from each others’ experiences.

49. The UK’s experience with its Judicial Appointments Commissions

seems mixed, and I have noted comments by the Rt Honourable Jack

Straw, Secretary of State for Justice earlier this year to a

Parliamentary Committee about this.

50. However, their Judicial Appointments Commission, and the process I

have instigated do share a number of key features. They both are

about making the appointments process clearer and more accountable,

and selecting candidates for judicial office based on merit and fair and

open competition.

51. And our process continues - public notices appeared last weekend for

a new Federal Magistrate in Cairns, and will appear over the weekend

for a new Federal Court Judge in Perth to fill the position vacated by

our new Chief Justice of the High Court.

52. Thank you for your time this morning and I welcome any questions

you may have.

ENDS

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