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Bar Talk
22 June, 2007  
Heresy from a Queensland barrister

The bars want a say in judicial appointments because “we know best”. The trouble is that the bars’ own silk selection process is hardly a model of how to run a decent “consultation” process


imageThe little hissy-fit by the Queensland bar n’grill over Fabulous Phil Ruddock’s failure to “consult” about his judicial appointments has been a charming distraction.

The theme was picked-up by the ABA’s Stephen Estcourt and helpfully fanned along by Rupert’s organs, see: Ruddock law postings duck protocol and Call for shake-up of top law postings.

While the bar wants a place at the selection table, Ruddock is keen to keep a free hand so he can appoint Liberal Party hacks and hard-line “family values” zealots as and when he wants to.

The fuss started on June 8, when the attorney general announced the appointment of four fresh federal magistrates. Queensland Grill supremo Martin Daubney couldn’t stand it and put out a statement saying that while he “welcomed” Howard’s appointment it “really is bad” that the AG didn’t clear it with him first.

Ruddock tried to score a few really pathetic points after Estcourt told one of the papers that he’d spoken to little Kevvie Rudd’s people about a more hands-on role for the bar in the appointments business.

The AG, who increasingly is showing signs of madness, declared that this amounted to the ABA seeking to “veto” his judicial appointments.

It was against this background that an anonymous Queensland barrister circulated an “open letter”, taking a slightly countervailing view to that of the official party line. It’s best enjoyed in full:

Appointing barristers to the bench:
Why change what suits the Bar?

An open letter from a Queensland barrister

Various Australian bar associations, in particular that representing the Queensland bar, have been pursuing a vigorous campaign against judicial appointments they deem unsuitable. Appointments are criticised as “political” or “not the best candidates”. They have made a great noise about the fact that state and federal attorneys general apparently no longer consult them.

But you could hardly expect an organization that is there to protect the interests of its barrister members not to complain when it is being ignored. Of course they want barristers appointed, which is probably the main reason they are being ignored – they want governments to appoint people just like them as judges. And while the world has moved on, the barristers’ associations haven’t.

The most vocal critic of the present system of appointments, the Queensland bar had, until recently, only one female senior counsel, compared with 132 males. That hardly represents diversity. Yet they lament that their opinion is not being sought by governments when they are appointing judges.

As the Courier-Mail noted recently in a snippet planted by the bar, Messrs Glenn Martin and Martin Daubney are named as suitable candidates for appointment to the bench. Well, there’s a surprise! One can only wonder who the Bar Association of Queensland would recommend if consulted by any attorney general on suitable candidates for appointment to the bench.

For over 100 years judges have been selected almost exclusively from the ranks of barristers. This practice was based largely on a belief that a judge must work for many years at the bar in order to understand court procedure. For it is only court procedure that separates the bar from other branches of the legal profession. But the fact is that court procedure can be taught and learnt, as many fine appointments to the bench from sources other than the bar over many years attest.

Where the practice of appointing non-barristers to the bench has not been followed, the powerful bar associations have tried to make life cruel for appointees, and it still does. Every time a non-advocate (or other unacceptable candidate) is appointed to any bench there is a cry that the appointment is unacceptable – it is a political appointment, better candidates are available, or whatever can be alleged irrespective of truth. And the bar is quite prepared to bring the whole of the bench and the law into disrepute in order to damage an individual’s reputation when it chooses to do so. On every such occasion they try by any means to sully the reputation of the appointee in order to prove their unsuitability. The disgraceful speeches of the leaders of the Queensland bar at appointments made in 2006, and the harassment of appointees of the last few years by bar associations in several jurisdictions are ample evidence of this.

And while non-barristers appointed to the bench can expect to be given no courtesy, this is all the more so if one is female, a member of a minority, or from the wrong school (or club).

The venom of the so-called “leaders” of the bar has shown itself potent notwithstanding that most leaders of this august institution themselves have very little individual eminence or learning or scholarship of the law. They are, almost without exception, narrow in their experience and learning with little international reputation although moderately good at court procedure (with some obvious exceptions).

So the solution of the bar to such unacceptable appointments has been a failed attempt to bludgeon governments into appointing a standing committee – a judicial commission – to either recommend or make appointments to the various benches. As long as lawyers have a majority of members on the committee, of course.

Not surprisingly, given that such a committee would be appointed by someone, and therefore represent some interest or other, the basis of any recommendation or appointment would not be any more transparent, while losing the control inherent in having an elected representative – an attorney general – responsible for the choice.

Should the Australian public trust an industry association to advocate something in the public interest when its objective is to ensure, as far as possible, that only its favoured members are appointed to the bench?

Should it trust an industry association that has been prepared to engage in vile character assassination in order to advance its interests?

And should it trust an industry association that, itself, engages in the appointment of senior counsel (the only people acceptable for appointment to the bench, no doubt) in a shadowy and opaque manner which almost entirely precludes women, men who fail to belong to the right club or went to the wrong school, or minorities of any type.

If governments fall for this trick they deserve to lose the right to make judicial appointments.

“Appointments should be mad on merit” cry the barristers’ unions. But they don’t mean it. They mean appoint people like us – male, white, right school, right club, and barristers. If you don’t, we’ll make your lives a misery. And the press is more than willing to help because they don’t know any better and it’s a way to kick tall poppies, and that gets a by-line and sells papers.

Don’t forget to participate in Justinian’s survey of The Best & The Worst on The Bench. Download a nomination form.

 
 

Reader Comments

Posted by: Robert King-Scott
Date: June 27, 2007, 8:52 pm

I am not surprised tha above letter is annonymous, it is easy to criticise barristers. I doubt the individual is a barrister more likely a journalist, posssibly Evan Whitton, who has little knowledge of what being a barrister involves.I would think that if, as a long term plan, you wanted to become a judge then you might select a profession that wouild best qualify you to do so. Surprise surprise the Bar!!! Not only do you become experienced in the law and in conducting a court case but you also become pretty good at assessing people, a necessary attribute for a judge. Unfortunately, recent appointments in Qld have not been experienced barristers and the status of the court has suffered accordingly. R F King-Scott
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