It has long been accepted that judges need to be independent of government and that there are some protections are in place, such as tenure to age 70 for judges (subject only by removal by parliament for proven misbehaviour or incapacity)[i], guaranteed salaries and, in federal jurisdictions, administering their courts[ii]. However, court budgets are under the control of parliament and, most importantly of all, appointments are effectively at the sole discretion of the government. Even where there is provision for consultation by Bar or Bench, this is often ignored. While Australia has not seen court stacking on the industrial scale seen in the USA, we must not wait for that looming risk to emerge.  To that end, the moment a National party leader demanded the then Attorney-General’s recommendation based on extensive consultation be rejected in favour of a ‘capital- C’ conservative,[iii] Australia has been on notice.

Appointment of Judges

What is needed is an independent Judicial Commission that makes recommendations of those who would make suitable judges. While the final choice could be made by the government, it would be much better for the recommendation to be made by a parliamentary committee using the Queensland approach to appointing some key independent officials. This requires a majority of the committee to recommend appointment – with the majority including at least one member from the government and opposition parties. This brilliant exercise in ‘pure procedural justice’[iv] was suggested by the outgoing National Party government for EARC and CJC and has been adopted for other officials.

Other Appointments

This approach to appointments should be used for all key independent institutions involved in the accountability process – AAT members, auditors-general, integrity commissions, DPPs, ombudspersons, police commissioner, commonwealth integrity commissioner etc. – though they generally have a shorter fixed tenure.

There does not have to be a different body for each kind of appointment and there may be a combined body like the UK Commissioner for Public Appointments.

A similar approach should be taken to the appointment of Royal Commissioners and the terms of reference. If it is good enough for standing Royal Commissions like an integrity commission, it is even more important for the usual ad hoc royal commissions. They are far more open to political abuse than standing royal commissions because it is not known in advance who or what will be investigated by standing Royal Commissions. However, in calling an ad hoc royal commission, the issue is specified and it is usually pretty clear (in some cases blindingly obvious) who will be investigated. This opens the path to appointing someone whose public pronouncements indicate that they are prepared to go after those the issues government would like to target.

Necessary Funding

Institutions do not operate with a commissioner alone. They need funding and funding should be guaranteed for all integrity and accountability institutions for at least 7 years. It is corrupt to reduce the funding of an independent body after it made adverse findings, pursued misconduct or just started asking awkward questions is corrupt. Governments are not entrusted with power for that purpose. Indeed, it fits TI’s definition of corruption i.e. the abuse of entrusted power for personal or party political benefit.

The executive should not control the quantum or timing of access to the funding of integrity agencies. There should be transparency around how the funding level is set and explicit criteria on how the adequacy of funding is assessed.  The role of recommending the funding level to the Parliament should be assigned to the parliamentary committee with the closest involvement in reviewing the work of the integrity agency, or it could be assigned to a single committee or an independent commission.

Public Service Independence

Public servants are not expected to have the same degree of independence as integrity agencies. They must faithfully implement the lawful policies established by the government. This enables politicians to use their powers for the purposes they were given and be accountable to Parliament and people for policies promised and delivered. However, the public service is expected to give ‘frank and fearless’ advice and to confine its actions to those that are lawful and for the purposes granted. This requires recognition of the professionalism of the public service and protections from retaliation.

[i] Australian constitution s72.

[ii] In some states, courts are administered by the state department of Justice/Attorney General.

[iii] Hon Daryl Williams QC had developed a model for consultation and in 1998 proposed a highly regarded judge for appointment to a High Court vacancy. However, Hon Tim Fischer demanded a ‘capital-C’ conservative and Hon Justice Ian Callinan was appointed

[iv] Even if both parties want to have one of their own in that position, they cannot achieve it and are forced to seek someone that both parties trust.

Recommendation 14

A Judicial Commission should be created to make recommendations and appointment by similar approach to heads of integrity agencies.

A similar approach for appointment of Royal Commissioners and DPPs should be created.

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