Facing Up to Diversity? Transparency and the Reform of Commonwealth Judicial Appointments 2008-13

Abstract

In this article, we describe and consider the impetus for the reforms to federal judicial appointments that were initiated by Attorney-General Robert McClelland in 2008 and applied during the life of the Labor Government until 2013. We then proceed to evaluate those reforms by reference to the central idea of transparency. Looking first at the role of the express criteria in identifying a candidate and then at the way in which particular appointments were publicly justified by the Attorney-General, we assess how adequately all the factors leading to an individual’s selection were acknowledged under the reformed process. This takes us to a fairly familiar controversy — the relationship between ‘merit’ (whether expressed as a one-word concept or through elaborate criteria) and diversity. Our discussion of this relationship draws on the experience of judicial appointments reform in the United Kingdom over the last decade. McClelland was candid about his interest in promoting diversity, but refrained from its direct inclusion in the design of the appointments model. Nevertheless, we argue that diversity considerations found a way into the appointments process. We suggest this was both inevitable and defensible. However, the failure to acknowledge the role of those considerations meant that the model did not ultimately deliver the degree of transparency that was proclaimed as its central rationale.

Keywords: federal judicial appointments, commonwealth, transparency, Robert McClelland, reform, diversity