As I believe Henry Kissinger once said: "If only both sides could lose". In South Australia, the lawyers want to appoint the judges but the government insists that it will.
Political appointments to the U.S. Supreme court have produced judicial dictators with little respect for the actual law that they are supposedly enforcing so that model is thoroughly on the nose. They found, for instance, a right to abortion in the constitution, when the word "abortion" in fact appears nowhere in that document.
On the other hand, appointments to the High Court of Australia have generally reflected the views of the legal fraternity rather than being obviously political and the result there has been law that arouses little controversy. So I am afraid I do come down on the side of the lawyers on this one -- particularly since the government has made clear that its appointments will not be wholly merit-based but will in part be based on what is between the legs of the appointee.
If it weren't for political intervention, the legal fraternity would appoint only "good old boys" to the judiciary, at the expense of women, non-Christians and members of ethnic minorities. In an escalating dispute between South Australian Attorney-General Michael Atkinson and the legal fraternity, he told The Australian the state Government would continue to appoint judges, crushing hopes for an independent board to handle the appointments. "I really don't think religious minorities, be they Jewish, Muslim, Orthodox, Hindu, Sikh or others, would have much chance under the system of a judicial appointments committee, because they would be turned down on most occasions on the grounds they are not the most meritorious appointment," Mr Atkinson said.
"It would be argued there is always a good old boy more deserving. The only way broader consideration would come into judicial appointments is because the Government appoints them - otherwise it would be a closed shop."
The Law Society of South Australia has called for an independent board, arguing that the Government had failed to maintain national standards by refusing to create independent bodies for law reform and police integrity, and an independent commission against corruption. Funding is in place to appoint three extra District Court judges, one by the end of this month and two next financial year. It is hoped the additional judges will help clear a backlog of trials.
But prominent Adelaide lawyer Lindy Powell QC said the views of the Government on appointing women had been "slow-moving". There are 55 men and 22 women holding positions in the supreme, district and magistrates courts in South Australia. "The consciousness of the need to have women properly represented on the judiciary, I think those views have developed about as quickly in government as they have on the bench," Ms Powell said. "I think the views of government are mirrored in the views of the judiciary. "I don't think it (an independent board) would have made any difference, quite frankly."
She rejected claims the legal fraternity pushed for "boys' club" appointments. Regardless of who appointed the judiciary, it was imperative to have wide consultation to appoint on merit. Ms Powell supported forming an independent body to appoint judges and magistrates.
Law Society of South Australia Criminal Justice Committee chairman George Mancini said Mr Atkinson had misunderstood the calls for independence. "I didn't think affirmative action was an approach to an appointment," Mr Mancini said. "I thought it was merit-based."
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