Login
Curiosity on judicial hires, independence a ‘threat’ to system
With Australia’s inherited justice system the way it is, an academic says asking the “hard” questions about a judge’s experience and competency is a risk many tend to avoid.
Naomi Neilson
Speaking on The Lawyers Weekly Show, Dr Jessica Kerr of the University of Western Australia said the justice system may suffer from a decrease in public confidence if it does not accept that changes need to be made to how someone is appointed to the bench.
Dr Kerr stressed that she "love[s] judges, and always have", but does think there is a "fundamental issue at the heart of our inherited judicial system", being that the nation has "never really taken responsibility" for preparing judges properly and supporting them properly "to do the incredibly important work that they have to do".
However, any curiosity about competency and experience is often regarded as a threat to judicial independence – and one that many, including those studying judges, have preferred “not to go near”.
“If you’re seen as exposing what you might call ‘dirty laundry’, [or] if you’re seen as saying, ‘look, judges are people, they’re not omniscient, they’re not omnipotent’, it can be seen as risky because it can undermine the public’s willingness to protect judges,” Dr Kerr said.
The issue begins with the way judicial appointments are “bestowed” upon individuals as a “kind of prize”. In this way, it signals to the public the chosen individual has been regarded as a competent judge.
However, any further probing on the judge’s specific preparation – or lack of training – for the role is a “threat to the recognition system”.
These questions could include anything from the individual’s experience and values, what they can and cannot do, and whether they have any skills that may be “counterproductive” to their new roles.
As it currently works, Dr Kerr explained many judges may not get formal training until they have been on the bench for 18 months.
With the intensive judicial orientation program only run a couple of times a year, she added it was entirely possible for a judge to have presided over multiple jury trials before they complete the course.
“I don’t see any reason, in principle, why we couldn’t move towards a paradigm where no judge is left to fend for themselves in a courtroom until they have a certain level of specialised professional training,” she said.
Dr Kerr did note there has been the “fantastic” step taken by the National Judicial College’s new curriculum for judicial education.
Looking into other methods to improve, Kerr also suggested having “hard” conversations long before an individual has been appointed.
“We need to be saying, what should you do as a lawyer if you want to be a judge one day? What opportunities are there in your life as a lawyer and as a person with a life outside the law to develop the kinds of skills and knowledge and values … that would make you a good judge one day?” Dr Kerr said.
The issue with this is there still exists an “unbelievable” stigma that prevents lawyers from openly admitting they want to be a judge.
While there are plenty of downsides to being a judge, Dr Kerr said the advantage they can count on is the “protected status” granted by judicial independence – but this also prevents certain questions.
“That protected status, whereby you do what you feel and you need to do, and you are by and large left alone, that’s a very precious part of judging,” Kerr said.
However, openly questioning if they may not be ready to be left alone or whether they need further training may be perceived as a threat.
“Protected status is not something that people in the general community tend to understand very well, and it can lead to a lot of resentment about, you know, why are judges paid so much? Why do they sit in those ivory rowers? Why can’t we sue them?” Dr Kerr said.
Listen to the entire episode here.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
