Will the Heydon scandal finally produce judicial appointments reform?
Andrew Lynch
26.06.20
This week’s shocking revelations about the complaints of sexual harassment of young female associates working for Justice Dyson Heydon in his years on the High Court have prompted many reactions. Foremost has been admiration for the bravery of the associates who came forward and sorrow at the impact of this experience upon their lives, including the abandonment by some of such promising careers in the law.
To this has been added a collective sharing by women across the profession and through the media about their own personal experiences and the ingrained hierarchical and cultural attitudes of the legal world that have enabled abuses of position to persist. These stories have been incredibly powerful and are a clear call to arms for significant and lasting change.
Chief Justice Susan Kiefel, in breaking the news of the High Court’s internal investigation of the complaints, set the tone by committing to the adoption of all recommendations of the investigator, Dr Vivienne Thom. These include the introduction of new policies to address the employment circumstances of Justices’ personal staff , as well as the provision of formal avenues of complaint and access to support.
Those changes have been warmly welcomed, most especially the identification of a colleague to provide independent advice and support to associates as a critical way of overcoming the deficiency of informal channels, and the fact that the formal authority for those experiencing harassment to approach has been the head of the court. Unfortunately, later news coverage this week on the efforts by some of the associates to seek help from the Court during their time there has only highlighted just how sorely this new role is needed.
But the reforms should not stop there. Nor should they be confined to efforts to change a dominant and highly gendered legal culture – not only in the courts themselves, but in the places judicial officers pass through on their way to the bench including barristers' chambers, law firms and, yes, law schools.
As central as these responses are to the Heydon scandal, they should be accompanied by systemic formal changes that are similarly geared to the better promotion of professional standards, transparency of process, and accountability amongst the Australian judiciary.
This is where the political arms of government – who have largely played a dead bat on the week’s news from the High Court and the ensuing debate – have both a role and a responsibility.
My colleague Gabrielle Appleby reflected on the affair by saying that a ‘standing, independent complaints body with appropriate powers would ensure that there is a place for complaints to be received, the capacity to investigate them properly, and an independent body to impose penalties should misconduct be found’. She cited other recent and diverse examples as highlighting the lack of suitably sophisticated machinery for addressing and resolving problematic judicial conduct.
I share the view that while the reform of internal processes and culture of courts is a priority in responding to what the Heydon complaints starkly reveal, there is a need for a more public and independent architecture for addressing concerns over judicial conduct that government should look to provide – as has existed in New South Wales for several decades now.
At the same time, and to focus on a different but just as significant part of the issue, we need to ask, when will the Commonwealth finally get serious about judicial appointments reform?
The question comes with a caveat. Just as Appleby was careful to point out that by calling for institutional complaints-handling she was ‘not claiming that there are pandemic levels of misconduct within the judiciary’, I am not suggesting that the ranks of the Australian judiciary contain a substantial number of persons unsuited to office. On the contrary, the Australian community has long been served by judges who are impressive in their quality, independence and dedication. To argue that we might adopt a better process for appointing judges is not to collectively impugn the judiciary we have. If anything, it seems fair to say our high calibre judiciary is done a disservice by a process that essentially still adheres to the idea of appointment as a ‘gift of the executive’.
The arguments for a more transparent and consultative process of selecting individuals for judicial appointment are well-traversed – and there has not exactly been a shortage of examples over the last few years to sustain the case for acting on them. For the most part the concern with appointments has been with political considerations and suitable knowledge and temperament, but the Heydon scandal adds some fresh dimensions to this.
The first is to emphasise the absolute relevance of personal attributes as a consideration when assessing the suitability of an individual for judicial office. That may seem trite, but in fact we are all too familiar with the resort to ‘merit’ as a shorthand justification for the appointment of individuals by government. There are dangers of omission in this. That perceptions of ‘merit’ may be so narrow as to exclude essential personal qualities, even with the benefit of hindsight, was illustrated by former Prime Minister John Howard’s response when asked whether he now regretted his government’s appointment of Heydon to the bench. Howard said he stood by the appointment and simply that Heydon ‘was an excellent Judge of the High Court of Australia’. Depending on how one understands ‘excellence’ (or ‘merit’), that seems a questionable judgment to make in light of Chief Justice Kiefel’s statement on Monday and the position in which the Court now finds itself.
Daryl Williams QC, the Commonwealth Attorney-General who appointed Heydon to the High Court in 2003, had earlier described ‘merit’ as the ‘essential criterion’ before elaborating to say that ‘outstanding professional skills and personal qualities, such as integrity and industry, are required, together with a proper appreciation of the role of the Court’. But why not similarly unpack the term through published criteria?
The ‘personal qualities’ which Williams and others have mentioned need not be a matter of inference. Rather, these can be expressly stated as part of a full articulation of the required judicial attributes. As Ronald Sackville catalogued in a paper for the Judicial Conference of Australia a few years ago, some state governments have utilised express criteria in advertising judicial vacancies and selecting persons for the bench. In New South Wales that includes qualities of ‘integrity’ and ‘good character’.
In 2015, Australian judges themselves, working across different jurisdictions, suggested selection criteria for adoption by government. The document detailing the suggestions, published by the Australasian Institute of Judicial Administration, details six broad criteria including ‘Personal Qualities’. Some specific sub-criteria go to questions of good character and conduct (not only ‘integrity’ but also, under the criteria ‘Authority and Communication Skills’, the ‘ability to inspire respect and confidence’).
Despite these developments, the Commonwealth has steadfastly declined to articulate any discrete criteria for the appointment of federal judges. Even the modest reform of judicial appointments under the Rudd-Gillard Labor government hesitated to depart from the standard line that ‘all appointments are based on merit’.
It is tempting to think that criteria are just words – and that expressly stating that an individual must have ‘integrity’ or ‘good character’ will make no real difference in practice. While there can, of course, never be a guarantee that all persons appointed to the bench may not disappoint expectations at some point in their judicial career, such criteria can be afforded a meaningful role in selecting judges when they are applied as part of a suitably thorough process.
One of the most galling aspects of the Heydon scandal has been the reports that his behaviour towards women was an ‘open secret’ in legal and academic circles – both here and in the United Kingdom where Heydon held a visiting professorship at Oxford University.
It has not been made clear whether the ‘open secret’ predates Heydon’s appointment to the High Court. But in a hypothetical case where an individual under consideration for appointment had a reputation for behaviour of the kind for which the Chief Justice expressed the High Court’s shame on Monday, then we would obviously wish for a process that ensured this was somehow raised and handled so that the individual might be removed from contention.
The President of the NSW Women Lawyers’ Association, Larissa Andelman, is now calling for consultation with the Association on the appointment of Senior Counsel and judges in that jurisdiction ‘to identify issues before harassers were promoted to senior positions’, a stance backed by former Family Court Chief Justice, Diana Bryant.
Consultation has waxed and waned in federal judicial appointments over the last decade. Labor Attorney-General Robert McClelland initiated a wide-ranging process to seek views on potential appointments to judicial vacancies, which were advertised for all federal courts except the High Court. He also adopted the use of three-person advisory panels consisting of the head of the relevant court or their nominee, a retired judge or senior member of the federal or state judiciary, and a senior member of the Attorney-General’s Department. The panel reported to the Attorney-General with a list of those persons it found to be ‘highly suitable for appointment’, from which the minister made a selection.
That process was modest by international standards, most obviously the dramatic abdication by the executive in England and Wales over a decade ago of its discretion over judicial appointments to an independent statutory commission, with significant input from the judiciary itself. But it was certainly better than having no publicly stated process which has been the Coalition’s preferred approach since it resumed office in 2013. The curious member of the public remains informed simply that ‘As the nation's first law officer, the Attorney-General is responsible for recommending judicial appointments to the Australian Government.’
There’s nothing to be gained by ‘open secrets’ being acknowledged after damage is done – not just to institutions and the public’s confidence in them, but critically to the lives of individuals who might have expected to have been better protected. But if such knowledge is going to inform earlier decisions about whether an individual possesses the necessary personal qualities listed in any selection criteria, then something more elaborate in the way of a process is required from the government than currently appears to be the case. (And no, that does not need to be an adoption of the United States Senate judicial confirmation process with its hyper-partisanship – there are many other models which we could consider for this purpose).
Obviously there needs to be transparency about the nature of the process devised – not only for its own sake, though that is something – but also if it is to supply a proper opportunity for input from an extensive range of relevant professional bodies and officeholders. To ensure that critical views are not too easily disregarded, it also makes sense for the Attorney-General to draw on nominations supported by a panel comprised of persons with different experiences and perspectives – possibly more so than in the case of the panels convened under McClelland’s model.
The story of Heydon’s time on the High Court will remain in the news for some time yet, and it will make an indelible impression upon the Australian legal community for many years to come. That’s as it should be – any continuance of a professional culture that condones the behaviour complained of or lets it go unremarked upon would just be a further insult to those who have come forward.
But the necessary changes are not all ones for the legal community to implement itself. Government has a clear opportunity to play its part by committing to greater transparency, consultation and accountability in the selection of individuals for judicial office.
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Professor Andrew Lynch is the Head of School and Deputy Dean at UNSW Law.
Suggested citation: Andrew Lynch, ‘Will the Heydon scandal finally produce judicial appointments reform?’ on AUSPUBLAW (26 June 2020)