Concepts of Representation in Their Application to the Judiciary in Australia

Abstract

In considering whether judges in Australia can and should be representative of the community, it is necessary to bear in mind that the role of the judge in the Australian federal system has distinctive features, shaped by the Australian constitutional and legal system. Judges are required to have a high level of expertise in a wide field of legal subjects, and to be seen to undertake their role independently. Consequently, lay representation among judicial decision-makers has not been the norm for Australian courts, and this is unlikely to change. Nonetheless, some lay participation in judicial decisions is effected through use of juries in criminal trials, appearance by amici curiae, merits review by tribunals with some lay membership, and diversionary sentencing courts. In the past, the qualifications for being a judge have been claimed to impede the appointment of judges on a more representative basis. Nevertheless, in recent years the judiciary has become more representative, in the sense of more diverse, at least in terms of gender. This may be due to formal and informal changes in the process of appointing judges to introduce greater consultation, and the use of a broader range of selection criteria, including concepts of diversity, community representation, and accounting for a range of experiences as relevant to demonstrating aptitude and merit.