Report No. 80
3.6. Australia-Views of Sir Garfield Barwick.-
Recently, Sir Garfield Barwick, Chief Justice of Australia, made the following suggestion1 as to the manner of selection of the judiciary and as to the need of restraint upon executive appointment of the judiciary:-
"In my view, the time has arrived in the development of this community and of its institutions when the privilege of the Executive Government in this area should at least be curtailed. One can understand the reluctance of a Government to forgo the element of patronage which may inhere in the appointment of a judge. Yet I think that long term considerations in the administration of justice call for some binding restraint of the exercise of this privilege. I make bold to suggest that, in all the systems of Australia where appointments to judicial office may be made by Executive Government, there should be what is known in some systems as a judicial commission-but the nomenclature is unimportant-a body saddled with the responsibility of advising the Executive Government of the names of persons who, by reason of their training, knowledge, experience, character and disposition, are suitable for appointment to a particular office under consideration.
Such a body should have amongst its personnel judges, practising lawyers, academic lawyers and, indeed, laymen likely to be knowledgeable in the achievements of possible appointees. Such a body is more likely to have an adequate knowledge of the qualities of possible appointees than any Minister of State is likely to have. Some may prefer to pass the actual choice of appointees to such a body; others may prefer that recommendations only may be made by it; yet others may prefer to require the submission by that body of a short panel of names, outside of which the Executive Government may not go; or may not go without public explanation of the reason for doing SO.
It is not for me to express here my own preferences. It should suffice that I say with a degree of emphasis that the time is here when some restraint should be placed upon and accepted by the Executive Government in its choice of judicial appointees."
1. Sir Garfield Barwick The State of the Australian Judicature, (July 1977), Vol. 51, Australian LJ 480, 494 (19th Australian Legal Convention, Sydney).