Dr. David Kenny:

I thank the Senator very much. I will address the points he has raised. On the matter of pensions, there is an additional problem in respect of the taxation burden on past pension provision because of the accelerated accumulation under the scheme that was drawn up. I do not know if that issue has been resolved but it should be examined as a matter of urgency if it has not because I have heard of it causing problems.

I agree with his point on the rotation of membership. When the final text is revealed, careful consideration should be given to whether there would be any problem with the group acting as a unit because of that rotating member. That is absolutely worth looking at.

The second point, on the comparative question, has been addressed but it would be unusual not to have some sort of representation from the professions. This sort of indirect representation by way of a judicial member is unusual in the context of the schemes of which I am aware. It is a question of ensuring that any representation of the professions is used appropriately. There is a risk that members of some eminence such as our colleagues here, who are chairs of their respective professional bodies, might bring such a degree of extra process knowledge to the table that transparency issues could be created. While the very detailed knowledge the head of a particular body might have about people's backgrounds is very valuable, we have to make sure that does not turn the process into something else. It should be a matter of an application being made and a process being followed in which all members can participate rather than some members bringing to the table knowledge that is entirely extraneous to that process, which was not gathered through the process and which is not transparent in the process. Professional representation is important but perhaps it should be a member chosen by the head of the respective professional body rather than the head himself or herself. That could be a good compromise.

On the Senator's final point, which had regard to questions in interviews, this is a challenge. It is a challenge to decide what one can ask a judicial candidate to determine merit, temperament and so on. There are questions that can be asked that are common in general interview practice. For example, candidates can be asked to tell the board about a time they encountered a given situation. From their answers, one can try to draw out the various desiderataof merit. This is seen in the appointments process in England and Wales, for example. The reason it is important to try to include candidates for judicial promotion within the same process is that we have seen the problems that arise when there is a parallel process for people who have applied, formally or informally, for promotion. If one ends up with a parallel process in which applicants are treated differently, it can result in either set of candidates being treated unfairly or not being given the same fair and equal consideration based on the same factors. There is a challenge to be faced in determining what can be asked in a judicial interview without getting into questions of judicial ideology, which none of us wishes to see being central in the process. General emotional intelligence interview-style questioning provides some questions that could be asked which would be relevant to all candidates.