McGinty caught in a legal dilemma

THE announcement last week by UN Secretary-General Kofi Annan that Western Australian Supreme Court judge Hon Justice Kevin Parker had been appointed to the International Criminal Tribunal for the former Yugoslavia seems likely to create a few headaches for WA Attorney-General Jim McGinty.

Justice Parker, who is also a former WA solicitor-general, commences his new duties in The Hague in early December – creating a vacuum that will be hard to fill.

His departure is understood to coincide with the impending retirement of two other WA Supreme Court judges, Justice Robert Anderson and Justice Graeme Scott.

To have three judges simultaneously leaving the WA bench is unusual enough to create more than a bit of mayhem in finding replacements.

But this issue is exacerbated by the fact that the current Labor Government has already made five appointments in its first term – justices Carmel McLure, Chris Pullin, Michael Barker, Eric Heenan and Narelle Johnson.

To put that in perspective, there are only 18 WA Supreme Court judges. So it is possible that this Government will have appointed almost half the members of the State’s highest court in just one term.

That is extraordinary.

To be fair, Justice Johnson’s appointment has actually increased the numbers on the bench ahead of the expected loss of Justice Barker, who is viewed as the likely candidate to head the State Administrative Appeals Tribunal if the legislation makes its way through parliament.

Even so, there are a lot of new faces – virtually a generational change.

Fortunately the WA Supreme Court deals mainly in criminal and commercial matters and, therefore, there is no point in politicising appointments even if a government were so inclined – and no-one is suggesting the current Government is.

But there is still a problem with that level of turnover – simply finding adequate people who want to do such a job and agree to the appointment.

By saying appointment I refer to the process whereby, traditionally, the WA Governor agrees to names recommended by cabinet after they are put forward by the State attorney-general following extensive consultation with the profession (in this case WA solicitor-general Rob Meadows, QC).

But even with a hunt on for several new District Court judges to complicate matters, Mr McGinty is not concerned about the search process.

“We have always been able to find people of excellent calibre,” he said.

It will be interesting to see how he goes. Perhaps the unexpected rate of turnover might force him, as some in the profession suggest, to look beyond barristers, the traditional source of new judges, widening the pool to include academics or solicitors (though I understand the latter is not without precedent).

Mr McGinty has already given the term Queens Counsel a finite life by naming all new appointments Senior Counsel.

Perhaps this is another chance to throw in a little more reform – even if it is more by accident than design.