Tuesday, 14 May 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
The first three of these amendments are to section 50, which provides for interpretation for the purposes of Part 8 of the Bill. I wish to briefly deal with an issue that arose since we last met.A story reported in the national newspapers on 10 May last indicates that acceptance of an amendment by me last week in some way represented a change of mind on my part, or even more than that, a departure from Government policy. That is not so. In fact, it is quite the contrary. The amendment we dealt with on the last occasion merely copperfastened the position set out in the Bill and in the Constitution in bringing some common sense to a procedural issue. There will be a requirement for a slight tweaking on Report Stage. I acknowledge the initiative by Senators McDowell, Norris and others but it does not do what it was purported to do in the national newspapers. In any event, the amendments being considered in this grouping are designed to add experience to sit alongside skills and attributes, as the description of one of the two statements to be prepared and published by the procedures committee under Part 8 of the Bill.
Briefly, the procedures committee will be set out in accordance with section 16. We can recall from section 10(2) that the functions of the commission shall be to select and recommend a person to the Minister for appointment, to approve a statement for selection procedures and a statement of the requisite skills and attributes for inclusion in what would be a published statement. Part 8 deals with the published statement. It provides the means by which the second function of the commission, as set out in section 10(2), is to be discharged and, later, in section 53, the procedures committee is empowered to prepare for submission to the commission a statement setting out selection procedures and a statement of requisite skills and attributes. Sections 53(5) and (6) set out matters that the procedures committee shall have regard to in preparing these statements.
With respect to the amendment, we are considering the second type of statement dealt with under Part 8, namely, the statement of requisite skills and attributes. The effect of amendment No. 97a and the latter amendments, which Senator McDowell has accepted are broadly similar, if not identical, would be to change the description of the statement of requisite experience, skills and attributes. Amendment No. 97a seeks to insert the term "experience" in the definition of what requisite skills and attributes means while amendments Nos. 97b to 97e, inclusive, would restyle the statement of "requisite skills and attributes" as a statement of "requisite experience, skills and attributes".
I am not minded to accept amendment No. 97a because Part 8, for the most part, deals with matters other than those relating to technical qualifications or experience; it deals with selection procedures. The amendments in this grouping do not appear to concern that aspect in respect of the published statements. We must accept the fact that experience is something entirely different from attributes, attributes being qualities and characteristics we would seek such as determination, honesty and work ethic. In short, I do not want to prescribe anything in particular for candidate judges because that will be an obligation on the part of the procedures committee. Experience is different from attributes.
We have already dealt with, over a considerable period, the basis for the assessment of a number of factors such as qualifications, knowledge and probity. Practice, experience and knowledge are to the fore here and that is important but it must be brought forward by the candidate in an application and by the commission in a recommendation.Experience is somewhat different from what might be regarded as more objective headings or attributes. My preference is that it will not be for the commission or the procedures committee to determine what type of legal experience, judicial experience or any other experience might be required. The basic qualifications and experience requirements are provided for in the Bill.
I believe that under section 56, for example, the committee can review the qualification requirements and the commission can seek research in that regard. The committee can report on the matter to the commission. However, this is still somewhat different from the matter of experience. The amendments are unnecessary because this is adequately provided for in the foregoing provisions of the Bill and it is not appropriate to insert them in section 50.