Wednesday, 19 November 2025

 Michael GALEA (South-Eastern Metropolitan) (14:01): I am pleased to take the opportunity to continue the contribution I started before question time concerning the motion before us today, Mr Limbrick’s motion 1162, in which he is advocating for some form of independent judicial appointments review process to be undertaken by the Parliament or a committee thereof.

It is an interesting idea. I understand that some comparison has been drawn with the UK. I did not have time to incorporate this into my earlier comments, but I do note that in the UK, as best as I understand it, there is the Judicial Appointments Commission, the JAC, but there is also a pre-appointment inquiry process that the Justice Select Committee and I believe some other committees undertake on behalf of the Parliament in that jurisdiction. My understanding is that it is only in relation to specific types of judicial officers at the very higher end – Supreme Court justices and other equivalent roles. They do have a bit of a different system going beyond just the judicial system to include other senior commissioner roles and the like that this process is applied to. But as far as it relates to judicial appointments, my understanding is that it only equates to the senior roles. There has been a mixed bag of evidence back from the UK as to its effectiveness, with some citing some of the additional costs and delays that this process has caused, which warrants us bearing in mind.

The UK has gifted us many fine institutions and many fine values and principles. It has gifted us, amongst other things, the delights of chicken tikka masala and butter chicken, just to name a few dishes that you can find upstairs in Sessions today – you can find some excellent British Indian cuisine. That is not to say that just because we are a Westminster parliament we need automatically be adopting everything that the UK does. In this scenario the UK provides valuable potential positives from such a model, but it also provides some serious warnings. That is why I think that when we are discussing these matters it would be very wise of us to err on the side of the separation of powers which I outlined at the start and the importance of that. It is such a foundational principle to our justice system, to our parliamentary system and to our system of government.

I do note that in canvassing this motion there have been some open discussions about what such a committee would look like should it take shape. I understand that even at some point there was a suggestion that the Public Accounts and Estimates Committee could be responsible for overseeing judicial appointments. Noting that our good friend in the chamber the newly esteemed and elevated Mrs McArthur is a colleague of ours on PAEC, I am not sure if I delight or tremble at the thought of her being engaged in that process in any way, shape or form. I am sure if she were here, she would have some valuable contributions to add to this debate. I do note that the Public Accounts and Estimates Committee is predominantly focused on public finances.

It is focused on the oversight role it plays for two very important institutions of this Parliament, the Victorian Auditor-General’s Office and indeed the Parliamentary Budget Officer. Through that work, such as the report we tabled yesterday, it does have the provision and capacity to undertake follow-up and review inquiries into various VAGO reports and audits, as it does to its powers of own motion, notwithstanding the highlights of the PAEC year of course, which are the financial and performance outcome hearings, which we will be undertaking just next week, as well as budget estimates in the other half of the year. Consequently, as a result of all of those roles and functions that the PAEC undertakes on behalf of the Parliament, it is already a very, very large committee with a very large workload, certainly when compared to, in my view, pretty much any other committee of the Parliament. Consequently, I do not think it would be the appropriate committee for such a review commission to be placed onto as well – I think its workload is already very full. More importantly, due to the fact that its role fundamentally is to ensure the safe, transparent and ongoing operations of the state’s finances, it is not appropriate to be diluting that by incorporating judicial pre-appointment hearings into that as well. There may be other committees that may be better suited if we were to go down such a path. There was an interjection on the IOC. I am not an expert on that committee and I will allow others to speak to that, but I daresay that it would need to be a wholly separate function for a wholly specific purpose. Indeed, even if we were to do that, a serious question would need to be addressed as to what level that is drawn at – if it is just at the High Court or the County Court or if you are going to apply it to all magistrate court appointments or even indeed all VCAT or other administrative tribunal appointments as well.

There remain many questions, but it does not take away from the fundamental point that this would be a significant and serious change to the way in which the Parliament and the judiciary relate to each other. It would be potentially a very grave misstep, especially if not done correctly, if you were to do so, again reiterating the comments that I made earlier and indeed made by other speakers from both sides of the chamber on the importance of the separation of powers. There will be times when we make laws that judges do not necessarily agree with. They can have that view, but we are the ones entitled to make the laws. There are times, and I am sure we can all recall occasions, when justices hand down a decision that we do not agree with as a collective or as an individual, but it is their responsibility and their right to make their decisions within the bounds of the law. It is not the role of the Parliament to necessarily be second-guessing, tempting though it may be for many of us in many different cases.

I think it is important that we defer to basic principles, and the basic principle that is observed both here and in the vast majority of Westminster systems across the world, including across most of the Commonwealth, remains that the Parliament and the judiciary are fully separate, and that is a very important thing for the separation of powers. I note again, as I mentioned before the lunch break, we already do have a very thorough, robust and open process for applications, in particular to the Magistrates’ Court and to VCAT as well. For those reasons, I do not support the motion before us today.

 Rachel PAYNE (South-Eastern Metropolitan) (14:09): I rise to speak briefly on behalf of Legalise Cannabis Victoria on this motion. We value transparency and integrity in the judiciary. Without it, we erode public trust in institutions and are all left worse off. Senior judicial officers have a massive responsibility. They are tasked with applying the law and making decisions that have a profound impact on people’s lives. We of course reasonably expect that these officials will perform their duties to the best of their ability and without outside influence. This motion today speaks to those expectations. It details how other Commonwealth jurisdictions utilise independent judicial commissions or similar processes to scrutinise the appointment of judges with the hope of ensuring appointees are of quality and independence of mind.

Here in Victoria we do not have this kind of system. Instead, expressions of interest from qualified persons for appointment to the Supreme, County and Magistrates’ courts of Victoria are sought by the Attorney-General and publicly advertised. In understanding their suitability for these roles, applicants are guided to the Framework of Judicial Abilities and Qualities for Victorian Judicial Officers, which provides the attributes that are expected from judicial appointees. These are divided into six headline abilities and qualities: knowledge and technical skill; communication and authority; decision-making; professionalism and integrity; efficiency; and leadership and management. While we may not have a judicial commission in Victoria that deals with the appointment of judges, this framework for applicants makes it clear that only those with adequate skills and independence are suited for these roles. That is not to say that a judicial commission as a concept is not compelling. A broad membership in which judges and the legal profession can be involved in appointments is popular for a reason: it promotes transparency and accountability in decision-making and improves public trust in the judiciary and the belief that all appointments are merit based.

We do have a Judicial Commission of Victoria that deals with complaints about Victorian judicial officers and Victorian Civil and Administrative Tribunal members. This commission is led by deeply experienced members of the judiciary and non-judicial members. Expanding the remit of the Judicial Commission of Victoria to include the appointment process may have been something that we could have considered supporting, but that is not the crux of this motion that we are debating today. This motion calls on the Attorney-General to establish a new process whereby prospective senior judicial appointees will be invited to appear before an appropriate parliamentary committee for a public hearing prior to the appointment. In America we see senior judicial appointments subject to a public hearing process. These public hearings are not well-intentioned fact-finding missions by the legal fraternity or public service; these are political point-scoring matches that devolve the judiciary into partisan politics. We believe this undermines public scrutiny and trust in the judicial system. While we believe transparency and integrity in the judiciary – including in senior judicial appointments – is a valuable aim, we believe that public hearings by parliamentary committee would have the opposite effect. The separation of the judiciary and government is central to public trust in our democracy, and we want to see that protected.

 Tom McINTOSH (Eastern Victoria) (14:13): The judicial appointment process in Victoria supports the independence, integrity and capability of the judiciary. If we want a judiciary that enjoys the confidence of the public it serves, it must reflect the community that it serves. Unlike many jurisdictions, Victoria operates several open recruitment processes for judicial officers. Magistrates and VCAT members are appointed through a formal merit-based process with open public advertisements, a recruitment panel process including interviews and independent advice from the Department of Justice and Community Safety as well as the independent court and tribunal. For higher courts, appointments are made in consultation with heads of jurisdiction, and all appointees undergo rigorous probity checks: criminal history and ASIC insolvency searches, conflict of interest declarations and character checks through the Victorian Legal Services Board and commissioner. These are comprehensive safeguards.

It is a priority for government and the Attorney-General that we continue moving towards greater transparency in how we appoint judicial officers in Victoria. The motion points to overseas examples, but the evidence there is mixed. In the United Kingdom the move to a commission introduced cost and delay without clear proof of better outcomes, and public confirmation hearings, as proposed in the motion, risk delay, politicisation and reputational damage to candidates, all of which are unlikely to increase public confidence in appointees and the institutions they are appointed to. The government is committed to a representative, capable and independent judiciary, and our current processes are focused on delivering exactly that. Public hearings are not the right mechanism for that and would not strengthen judicial appointments in Victoria, and therefore the government will be opposing the motion.

From a comparative judicial appointment process perspective, some international jurisdictions have used an independent commission to oversee judicial appointments – as I said before, those such as the United Kingdom – and while it is acknowledged that there was no issue with the former process in the UK, it was committed that the commission would expand the pool from which judicial candidates were selected, which had not been the case for nominations from heads of jurisdiction. There are mixed views on whether the reform has resulted in a demonstrably improved judicial appointment process, and it has introduced cost and delay. Future courts reform could consider options such as a consolidation of the Judicial College of Victoria and the judicial appointments process to ensure it is entirely independent of government. Appointments to the Magistrates’ Court and the Victorian Civil and Administration Tribunal, VCAT, involve an open and competitive recruitment process. Public recruitment campaigns are conducted when there are vacancies and consist of expression of interest, application and formal interview. The relevant head of jurisdiction then makes a recommendation to the Attorney-General on proposed candidates. The appointment of judges to the Supreme Court and Court of Appeal are made following consultation between the Chief Justice and the Attorney-General, with the Attorney-General making a recommendation to the Governor in Council.

All judicial appointments are subject to comprehensive probity requirements, which may include a nationally coordinated criminal history check, a review of the Australian Securities and Investments Commission register of persons banned or disqualified, a search of the Australian Financial Services Authority’s national personal insolvency index or completion of a declaration of private interests and a statutory declaration attesting to any perceived or actual conflicts of interest. Proposed judicial appointees are required to declare information such as whether they have ever been bankrupt or insolvent; whether they have been charged, convicted or had a finding of guilt made against them; and whether there are any arrangements or circumstances which could constitute a conflict of interest. The department also conducts character checks for judicial officers and VCAT members with the Victorian Legal Services Board and commissioner. Character checks may reveal information about any investigations, complaints or inquiries made against or about the person’s conduct, behaviour or character. It also advises of any disciplinary outcomes, which may include a formal warning or reprimand, additional training or counselling, disciplinary charges or legally binding determinations, which may include specific remedial actions. Potential candidates are also referred to the Framework of Judicial Abilities and Qualities for Victorian Judicial Officers developed by the Judicial College of Victoria, which outlines the attributes the government, courts and communities expect from judicial appointees. I will leave my comments there.

 David LIMBRICK (South-Eastern Metropolitan) (14:18): I thank all the members who contributed to this debate today. Whilst it is disappointing to not get the support of the major parties on this, it was interesting to hear some of the comments from Mr McIntosh about ideas for consolidation of existing agencies. That is an interesting idea. I hope to hear more from the Attorney-General’s office on that when and if it happens. The reason I wanted to do this today was to draw attention to the fact that we are significantly different to many other jurisdictions throughout the Commonwealth. I note that many people were referring to the United States, and I intentionally did not mention that, because I tend to agree that the United States process is not very good. However, I have pointed to Canada, where it works very well; they have a public hearing process. Nevertheless, I think that we need to look at what is happening in other Commonwealth jurisdictions and look at what we are doing and consider whether we need to evolve what we are doing in Victoria, because I think the one thing that we all agree on is that trust in the judicial system from the general public must be maintained, otherwise we are in a parlous state in Victoria. I think that if we can look at other jurisdictions and see what they are doing and if those things are working, then maybe we should think about them if they have similar backgrounds to us, such as Commonwealth members. With that, thank you very much.

Council divided on motion: