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Fairer process to court judges

IN case you hadn’t heard – in which case you’re not alone – WA will begin advertising for judges next year.

That means filling Supreme Court vacancies.

I stumbled across this unannoun-ced development while trying to get to the bottom of how these prestigious jobs are filled.

This issue has sparked varying comments; some even claiming old school ties can help.

Others say that to appreciate the selection procedure its worth pondering on Winston Churchill’s wartime quip about Russia being “a riddle wrapped in a mystery inside an enigma”

But according to one source, from January 1: “The office of the Attorney General intends to advert-ise annually for those interested in any judicial office in the forth-coming year”.

Currently the Government advertises all judicial appointments except those for the Supreme and District Courts.

“In those courts the Solicitor General speaks to the presiding judge. The candidates are usually selected from among those who have acted as commissioners,” my source said.

“Once names have been selected they are consulted among the professional associations and heads of jurisdiction. Then the final recommendations goes to Cabinet for approval and then to executive council.”

Those pondering on this closed circuit recruiting method will find it hard not to conclude that it’s been a cozy lawyers’ operation, since essentially only lawyers are involved – the Attorney-General is generally a lawyer, as are Solicitors General, presiding judges, and candidates who may have been commissioners.

And those in the mentioned legal professional association are inevitablly all lawyers.

But who actually approaches whom? Are there any winks or nods? And who gives whom the hint that they or someone they know and like wishes to be a judge?

Clearly something has happened at upper judicial levels because WA is set to adopt a system whereby Supreme Court aspirants will need to respond to an annual advertisement.

Evidently someone, or several people, at those levels were unhappy with the present practice.

But will the new approach be satisfactory and, more importantly, could a wiser and better one have been adopted?

For example, is there anything stopping those deciding on who will be a judge from ignoring applicant’s letters and instead contacting someone else deemed worthy of a bench spot even if they hadn’t applied?

If that happened the new system would be mere window dressing.

Why, one wonders, was not a democratic option adopted instead?

Why should not those selected to be judges not be required to have their appointments confirmed by the Legislative Council, that is, by the 34 elected MLCs, instead of the Cabinet?

Under such a procedure the elected representatives of the people in session could quiz appointees on a range of relevant issues if it was felt the need arose.

The Legislative Councillors could scrutinise applicant’s records as solicitors, barristers or commiss-ioners.

Aspirants to the bench would need to get either a simple or a two-thirds majority vote before becoming judges. Those deemed unsatisfactory would not be confirmed.

Open Legislative Council hearings would also mean much of the mystery of top judicial appointments would forever go.

Moreover, the democratic method need not replace the new advertising procedure, nor would it exclude the legal profession.

Under such a system current arrangements and the advertising could remain.

Adopting parliamentary confirm-ation would not only give electors a say – even if only an small indirect one – it would also get coming generations of lawyers accustomed to the idea that they were in their well-paid jobs because the people’s representatives, not just a cabinet and tiny group of senior lawyers, put them there.

It also gives the people a small say in how those making many judgements over their lives get to their positions. Currently the people have no say; they are out in the cold.

Let’s not forget judges are paid well and the funds come from electors as taxpayers, not from a small legal fraternity.

True, most appointments would probably be automatically confirmed by the Legislative Council. But the democratic procedure would be there to ensure applicants could be confronted with some perhaps-difficult questions on their views of the law and other relevant issues. Not a bad thing.

The Chief Justice earns $235,057. The one senior judge (Kennedy) earns $215,677 and the other 15 each earns $208,384 annually and all qualify for a prestige car that can be replaced after 40,000 km or two years.

Their travel and accommodation perks are like those for State ministers. All qualify for a non-contributory pension at 60 per cent of their salary, which rises for retirees when serving judges pays rise.

So any claims that adoption of democratic as opposed to Cabinet confirmation may dissuade young lawyers from wanting to become judges hardly holds water.

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