Affirmative Action for Judges
The traditional basis on which judges have been appointed is merit. The most able have been chosen from experienced Queen's Counsel of good reputation. In some instances there have been departures from the merit principle, by reference to political considerations. These departures have generally been at the instance of the Labor Party, which has shown little interest in preserving important aspects of the rule of law, such as the impartiality of judges.
Examples of unfortunate Labor Party political appointments have included Justices Edward Mctiernan, Bert Evatt, Lionel Murphy, Mary Gaudron and Michael Kirby, all of whom have been either lacking in requisite ability or have in other respects been unsuitable. Regrettably the Labor Party has in no way resiled from making inappropriate appointments on a political basis. Here it is necessary only to examine recent appointments to the State Supreme Courts by State Labor Governments. Appointees include many of insufficient ability who have been preferred to more able and trustworthy non-political barristers.
The importance of an independent, trustworthy judiciary can hardly be exaggerated. Citizens are entitled to the enforcement of their rights and the application of the law. When judges are appointed for political reasons it is often expected, by those who appoint them, that they will not apply the law accurately but will instead promote particular social or political causes. The appointees often act accordingly.
The matter of political appointments is now exacerbated by the current tendency of Labor governments to appoint unsuitable female judges, often at the instance of feminists. In general feminists support the political left, and their influence in the Labor Party is now excessive. Accordingly many of the female judges – there are some few exceptions – who sit in various Australian courts are there by reason of gender and lack the necessary abilities.
In this context it is interesting to note the unfortunate criminal proceedings which were wrongly brought against Ms. Pauline Hanson and by which she was wrongly imprisoned, until she was fully acquitted on appeal. It has been noted that many female judges or senior legal officers were implicated in the wrongful conviction. Judge Roslyn Atkinson held that Ms. Hanson had fraudulently registered One Nation as a political party, the Director of Public Prosecutions was one Leanne Clare, the trial judge (who not only oversaw the conviction but imposed an entirely inappropriate prison sentence of three years) was the District Court Chief Judge, Patsy Wolfe, and a member of the Court of Appeal who criticised the Prime Minister was the President, Margaret McMurdo. (Mr. John Howard had done no more than express cautious concern at the prison sentence, which he was entitled to do.)
The Hanson case exemplifies the poorer quality of justice that is, with few exceptions, dispensed by female judges and law officers. It may be asked, why does the legal profession not criticise more strongly affirmative action in appointments? There are three reasons. First, there is a culture of politeness and acceptance in the profession in regard to judicial appointments. Although in general this politeness is appropriate, it has led to weakness when undesirable appointments have been made. Secondly, in general senior barristers hope themselves for judicial preferment, with associated pension rights, and they are careful to avoid criticisms (however desirable and appropriate) of politicians that may jeopardise their own prospects. Regrettably many members of legal organisations have not hesitated in putting their own hoped-for preferment above the expression of proper opinions in the public interest. Thirdly, the feminist lobby is presently powerful, although in due course its influence will wane further. The feminist lobby attacks strongly those who are opposed to the appointment of inappropriate female judges, and tries to disparage them as "reactionary" or "sexist".1 This has meant that the great bulk of the legal profession, who would be in agreement with the substance of the present article, tend to remain silent because they do not wish to become unnecessarily involved in controversy.
These difficulties are evident in all the Australian States, and Victoria may be taken as an example. The Attorney-General, one Rob Hulls, is a veteran Labor Party politician who may be perceived to belong to the old class-warrior school of that Party. He is married to a female barrister. He engages in feminist rhetoric, such as, "I think we continually have to smash through the glass ceiling that exists in the legal profession". It may be deduced that for Mr. Hulls the "legal establishment" is as much an object of attack as other Labor Party targets.
Significantly Mr. Hulls has recently caused the appointment of Chief Justice Marilyn Warren. He claimed publicly that she was the most appropriate person to be appointed, a foolish claim because in fact there are various other available persons who are regarded as substantially more capable. Further, Mr. Hulls has adopted the policy of appointing Senior Counsel on a feminist basis, so that in many instances female Senior Counsel are less capable than male barristers who have been prejudiced by reason of their gender. Significantly, of twenty-one appointments of Senior Counsel made in November 2003, the senior fifteen practitioners were men, and the junior six practitioners were women.2 The least senior male practitioner was more experienced than the most senior female practitioner. Hence all the women had less experience as barristers than all the men – a quite remarkable example of Labor Party and feminist attempts to promote women regardless of ability.
Mr. Hulls in appointing Ms. Warren also disregarded an important general rule, whereby if a member of a court is to be promoted to Chief Justice, it should be the senior judge. If junior judges are able to be chosen, there may be emulation between them, with a temptation to please the Executive by giving decisions favourable to the relevant Government. This general rule is salutary, and has, for example, been adopted for the High Court, in which a junior member of the Court has never been promoted above a more senior member. This desirable rule was breached by Attorney-General Hulls, whose stance as a class-warrior and opponent of traditional values is regrettable and bizarre.
1. As an example of these tactics, in the Financial Review of 31 October 2003 there was a smearing attack upon the author, who had criticised the briefing of female barristers otherwise than on the basis of ability. The two journalists associated with the smear, Katherine Towers and Chris Merritt, went so far as to set out a bizarre suggestion that Sir Charles Spry had regarded Robert Menzies as a communist. In fact, Sir Charles Spry (the author's father) was an eminent Australian who was on terms of mutual confidence and respect with Sir Robert Menzies, as well as with Mr. Arthur Calwell and various other Labor Party leaders.
2. The twenty-one appointees as Senior Counsel, in order of their years of experience as barristers, were Graham Thomas, Peter Riordan, John Champion, Timothy Ginnane, Anthony Neal, James Parrish, Jonathan Noonan, Christopher Delany, Graeme Clarke, David O’Callaghan, Cameron Macaulay, Stephen O’Bryan, Neil Clelland, Mordecai Bromberg, James Peters, Carmen Randazzo, Elspeth Strong, Debra Mortimer, Michelle Gordon, Fiona McLeod and Kristine Hanscombe.
National Observer No. 59 - Summer 2004