THE HON. MARK DREYFUS QC MP
MEMBER FOR ISAACS
GEORGE BRANDIS HAS FAILED THE TEST ON APPOINTMENTS TO THE BENCH
Attorney-General George Brandis has now been in office for more than two years. In that time, he has appointed some 17 judges to the federal courts he is tasked with overseeing and maintaining.
Unlike many others, our system of government leaves the appointment of judges almost wholly in the hands of the attorney-general of the day. This is a serious responsibility. Judges almost always go on to serve well beyond the tenure of the politicians who appoint them.
Making the right choices goes right to the core of the attorney-general's responsibility to maintain the integrity of our legal system. It is right that those who hold that office are held to account for these choices.
Unfortunately, it is now clear that Senator Brandis' judicial appointments are glaringly lacking in one obvious respect. Of the 17 federal judges he has appointed, just three are women.
I make no criticism of the merits of any of Senator Brandis' individual appointments, but in the aggregate this is just not acceptable. Frankly, its deplorable that women make up less than 20 per cent of this Liberal governments judicial appointments, a throwback to the bad old days we had thought long since passed.
This is not an abstract point. It is not a matter of political correctness. It goes to the very integrity of our legal system, and to Australians trust in it.
If Australians are to have confidence in the judiciary, it must reflect the diversity of our community. I do not for a second contend that we should impose blunt quota requirements on the judiciary, but the fact that Senator Brandis' appointments are so dramatically skewed, so unreflective of the breadth of the Australian community, can only undermine the standing of the courts as a whole.
We must ask serious questions about the kind of attorney-general who would behave in this way, and about the kind of prime minister and cabinet which would allow him to do so. This is, after all, the same Attorney-General and the same government which has left the position of Sex Discrimination Commissioner, apparently not considered a priority, vacant for months despite former commissioner Elizabeth Broderick having announced her retirement more than a year ago.
Senator Brandis might insist, as he did before the 2013 election, that judicial appointments should be based on merit alone. It is a truism that judges should be based on merit, but there is no necessary tension between diversity and merit.
The merit of a candidate for the bench cannot be measured or quantified in some crude, reductionist way. Judges are human beings, with all the complexity and the idiosyncrasy that entails.
You do not choose a judge in the same manner as you might mark a law school essay. An attorney-general must carefully consider a range of factors, of which the diversity of the judiciary is but one, though undoubtedly significant. Even if we accept Senator Brandis' argument at face value, does he really maintain that he was unable to find even a half a dozen women of sufficient merit for appointment to our federal courts? This cannot be right. In my time as attorney-general, I felt spoiled for choice by the great diversity of impeccably qualified candidates.
Though there is certainly more work to be done in ensuring women are properly represented at all levels of the legal profession, no one can seriously doubt there are meritorious candidates among all the women at the Bar, let alone the many more practising as leading solicitors in their field, or working as eminent academics or even state judges.
Neither I nor either of my predecessors as attorney-general in the Labor government struggled to appoint many more women than Senator Brandis has managed.
Some part of the governments concerning pattern of appointments must surely stem from their rejection of the appointment process Labor established in government. That transparent process saw vacancies advertised and expressions of interest welcomed, a formal process of consultation and the consideration of nominations by independent advisory panels.
No contemporary attorney-general could hope to be familiar with all of the potential candidates for the several federal courts. In my experience our system of open and transparent appointments helped ensure that the government properly considered all suitable candidates.
Senator Brandis has completely abandoned this process. I welcome Senator Brandis having consulted with the opposition on High Court appointments, but it is worrying that his appointments to the other federal courts have been so opaque.
The inscrutability of this process must be even more worrying given Senator Brandis' demonstrated failure to appoint a reflective proportion of female judges.
If this pattern continues, the community's confidence in the judiciary and in our legal system as a whole will inevitably suffer. Its time for the Attorney-General to lift his game before he does further damage.
This opinion piece originally appeared in The Australian on Friday 18 December 2015.