The Chief Justice, Sir Gerard Brennan issued a warning this week about the state of the rule of law in Australia. He lamented that many lawyers were not taking up judicial appointment or were postponing it for a long time. It was resulting in a short supply of competent judges. The judge did not say it directly, but he must be aware of the reason: lawyers are receiving too much money. Many barristers and solicitors after a fairly short time in the profession are earning more than the chief justice himself.
For many the judiciary offer a pension and prestige but not more money or more interesting work. It offers an opportunity for public service but that comes at the cost of greater personal social isolation.
This state of affairs has resulted, as Sir Gerard pointed out, in many refusing the offer. Some, indeed, have accepted judicial appointment, only to resign later and return to more lucrative and interesting work at the Bar.
Sir Gerard isolated several other forces destructive of the rule of law being administered by competent people. One was the plethora of specialist tribunals; another was political appointments (or politically correct appointments); a third was governmental interference with judicial tenure; a fourth was governments seeking to undo rulings of the courts they did not like; and another was no conducting justice in public. All undermined the rule of law and public confidence in it.
Sir Gerard did not cite examples, but they clearly exist. Many tribunals and commissions have been set up to deal with things like unfair dismissal, sexual harassment and discrimination. They adjudicate rights between subjects, yet are not conducted with safeguards that come second nature to traditional judges. An attempt by the High Court to rein in this assault on the rule of law and independence of the judiciary was met by the Federal Government _ not with contrition and retreat as one might expect _ but further artful tinkering to stay technically within the Constitution rather than within its spirit.
It now open to a Government determined to dismiss an inconvenient judge to abolish the court the judge sits on and then reconstitute it under another name reappointing all judges but the inconvenient one. It did this with Justice Staples. It can do it with any court but the High Court.
Much “justice” is now conducted without publicity with suppression orders on names, evidence and even orders.
Sir Gerard is right to warn about an erosion of public confidence in the administration of justice. The factors he points to are significant. Perhaps the most corrosive is that money is driving the legal profession to the extent that judicial appointment is not longer seen as the pinnacle of a legal career.
Sir Gerard would probably not like it, but maybe there is a case for developing a separate judicial career structure starting straight from a university course in law and judicial technique that goes from presiding over fencing disputes in a neighbourhood court to hearing constitutional cases in the High Court _ quite separate from the legal profession which goes from thousands of dollars and year to hundreds of thousands of dollars a year.
There is a corollary to saying there is a shortage of competent judges _ that the judiciary is being drawn from too small a pool.