Gerard Brennan's tips on the best for bench

FORMER High Court chief justice Sir Gerard Brennan suspects there is no one who could meet all his criteria for a judge.

FORMER High Court chief justice Sir Gerard Brennan suspects there is no one who could meet all his criteria for a judge.

Brennan, who is a member of the panel that recommends federal court judges to the Government, is talking about a list he has drawn up to help guide his deliberations.

The list has three categories -- personal qualities, background and professional skills -- and 21 things to look for in a potential jurist. These include concepts such as moral courage, humanity and "authority without pompousness".

"It's often said that the really great advocate is the person who dominates the courtroom," Brennan says. But the domination of the courtroom, in my experience, doesn't come successfully by the person who speaks the loudest or the longest or expostulates the greatest.

"It usually comes from someone who has something that is relevant to say and who says it clearly, forcefully and without equivocation. Whether at the bar or on the bench, the notion of authority comes from what emerges from their style.

"On the bench there are those, I think, who exhibit tremendous authority, certainly by indicating their appreciation of the issues that are before them, their mastery of the area of law which is being debated, and their sensitivity to any evidence that is being given.

"Sensitivity doesn't mean soppiness. If they have a villain there they can spot the villain. If they have somebody who is not articulate but isn't a bad sort of person, then they don't worry about the fact that they are not articulate.

"All of us have known from time to time some judges who have exhibited pomposity, but often as a defence mechanism.

"The judge with real authority never has to be pompous. Authority is something which is perceived in those who appreciate the system or the person operating it."

Brennan, who celebrated his 80th birthday in May, says thelist "helped to identify to myself what I have been doing intuitively".

Along with acting NSW Supreme Court judge Jane Mathews, federal court judge Kevin Lindgren and the deputy head of the federal Attorney-General's Department Ian Govey, he decides who to recommend as federal court judges to the Attorney-General Robert McClelland.

This outsourcing of the appointments process represents the first time a federal government has not kept the selection of judicial officers entirely in house.

McClelland has another panel, which includes retired Family Court judge Sue Morgan, wading through applications for the Federal Magistrates Court.

In defying constant calls for reform, former attorney-general Philip Ruddock suggested every model that had been proposed represented "a self-appointing judicial elite".

Indeed, the panels in NSW that interview prospective magistrates and district court judges contain legal and community representatives but no retired judges.

But Brennan insists the composition of the federal court panel means the Government won't be appointing what he calls "judicial clones".

"His (Mr Govey's) role and his duties to the Attorney (-General) would be such to ensure that notion of a judicial cabal was kept firmly under control," he says.

In any case, he and Justice Mathews, also a former judge of the Federal Court, "have a concern about the welfare of the system rather than a perpetuation of particular views".

That led him to give a talk last year in the Senate lecture series, in which he described the then system for appointing federal judges as "significantly undesirable".

He says the argument is not new and points out that Sir Garfield Barwick proposed a judicial appointments commission system in 1977, saying the "privilege of executive government in this area should at least be curtailed".

But Barwick was speaking after Lionel Murphy had been foisted on the High Court and Brennan's comments followed significant disquiet over Ruddock appointments such as Berna Collier and Denis Cowdroy. There has also been criticism by sections of the profession about appointments in Queensland, NSW and Victoria. 

Sir Gerard calls the new model "a vast improvement".

The Attorney-General's Department processed the applications and sent them to each panel member. A series of telephone hook-ups followed, which involved going through the names one by one to reach a consensus on who might be worthy of consideration. There was no physical meeting.

"We graded the nominations, from those most suitable, and then going down the list," Sir Gerard said.

They settled on three groupings. The first comprised the most suitable, the second group were those "suited for appointment" and the third were "eligible for appointment but not up to the standard of the other two". In all, 10 names were forwarded to the Attorney-General.

No interviews we deemed necessary, but Sir Gerard said this was "not necessarily a final position".

"We did not want to advantage or prejudice any appointee by sub rosa considerations. We wanted this process to be as far as possible done on material each applicant was aware of."

As Federal Court Chief Justice Michael Black's nominee, Justice Lindgren also made "some inquiries" in conjunction with other members of the Federal Court.

"Certainly, a sounding may be taken such as: 'You have had so and so appear before you very often. How does so and so appear to you in terms of legal ability?'

"It's one thing to have a response from somebody to a question of that kind but it's another thing to say to another judge, 'who do you think should be appointed?"'

The panel was told there were two vacancies in the Sydney registry. Their decision on the two most suitable was unanimous and accepted by McClelland. He ended up making three appointments -- Justice Jayne Jagot of the NSW Land and Environment Court, Lindsay Foster SC and Nye Perram SC -- so whomever was the third judge must have come from the "suited for appointment" list.

He said the involvement of the Chief Justice meant the court was being consulted about its needs. In this case, Sir Gerard said, it was "those who would command confidence in the administration of commercial law".

"The improvement has been demonstrable," he said. "It is clear to those who have applied or been nominated and to those who have been appointed that there was no external irrelevant influence on the decisions that were made and that qualities were looked for in the appointees that were suitable for the judicial function to be performed.

"That's a big step forward and a step forward which I think the community is entitled to insist upon."

The three categories on Sir Gerard's list contain 21 separate qualities. For a prospective chief justice he adds "leadership both in intellect and personality".

"No judge will ever be found to possess them all. It's impossible."

He said "absence of political or sectional partisanship" does not rule out people such as NSW Chief Justice Jim Spigelman or Chief Justice-elect Robert French, both of whom had political backgrounds. It's not political connections, but partisanship that is the deciding factor.

He suggested those who undertook community activities such as meals on wheels "would certainly show humanity".

"But they would also be developing an acute appreciation of the fact that there are many people who are in positions of disability or poverty."

He believes "humanity" in a judge is important.

"The common law did not emerge just out of somebody's head one day. It's something that has emerged from a set of values which has gone way back in our history and which have been accepted by our community as the result of many a hard battle.

"Go back if you like, I'm romancing here, but you can go back as far as Magna Carta and you can think of the injustices that were stopped by Magna Carta.

"You can go to the Act of Settlement which gave judges independence. Why? Because you didn't want to have idiosyncratic power exercised over people and property.

"Then you had the whole history of the industrial revolution, the agrarian revolution and the emergence of what might be called the 'liberal society'.

"These are some of the events from which emerged the values which underpin the principles of our common law. They are values which represent the growth of humanity as we know it. So if you have a judge who exhibits humanity in her or his ordinary dealings, you have a judge who is in synch with the values of the common law.

"That, to my mind, is extremely important."

Sir Gerard suspects McClelland is a beneficiary of the system because it cuts down on the lobbying by professional groups and other politicians.

"Now the Attorney-General is able to say: 'No sense in coming to me, I've got my process'.

"That process has another advantage, namely that when an appointment is made the appointee is able to feel he or she goes on to the court with approval of a peer group -- or perhaps even better than a peer group -- and is no longer beholden to the government or a chief justice or whoever else might have been involved in the process in earlier times."

Sir Gerard described the panel's work as "a public interest exercise".

"Not in the interests of the judges and not even in a sense the interests of the court as an institution, except in so far as the court as an institution is there to serve the public. It's a public interest exercise."

He is quite firm about what he would do if the Attorney-General was not accepting of the panel's advice.

"If the process degenerated to the point where the recommendations weren't, in general, being accepted -- then obviously the process would have served its time.

"I wouldn't be part of the process."

Sir Gerard Brennan's list of judicial qualities

It is possible to express desirable judicial qualities but it is unlikely that any person will be found to exhibit each of them without qualification. But the leading quality in each category should be characteristic of any appointee.

Personal:

Integrity and independence of mind
Moral courage
Tolerance of differences
Equable temperament
Absence of any source of embarrassment, whether financial or personal
Humanity

Background:

Good repute
Absence of political or sectional partisanship
Sound general education
Extra-legal interests or activities

Professional skills:

Relevant knowledge of law and underlying legal principles
Extensive curial experience or demonstrated ability to acquire curial skills quickly
Ability to assimilate information efficiently
Conceptual and analytical skill
Industriousness, decisiveness and ability to organize workload
Common sense
Courtesy, humility of mind
Ability to articulate clearly and logically
Authority without pompousness
Commitment to the rule of law and consciousness of the social significance of judicial service.
High repute in peer group

In the case of a Chief Justice

Qualities of leadership both in intellect and personality.