“Taking shortcuts of any kind, being opportunistic rather than principled, when making judicial appointments will, sooner or later, lower public confidence in our legal system,” writes legal columnist HUGH SELBY. 

A worldly wise, cynical septuagenarian, practising lawyer (and, therefore, not me), likes to refer to the “great and the good” when he is bemoaning decisions by those in power that bestow grace and favour upon someone who may have surprisingly acquired some position.

Take, as an example, appointing someone to a Supreme Court when they were not on the recommended list from the selection committee, but had a good political connection.

Of course, this doesn’t matter unless and until you are a party in a case being decided by such a “not recommended” person. Then you wonder if a merits-based appointee might have run the trial better and would write a good decision that reflects their acumen and only their acumen within a couple of months.

God forbid that you are told on the qt about a close association between a key witness for the other side and the judge’s associate who, it is widely whispered, drafts the judge’s reasons.

You wonder because your future is at stake. Everyone else gives it no thought: it’s not their problem. But the heady gossip circulates, infects, and wounds the standing of the court and its judiciary.

The point is that taking shortcuts of any kind, being opportunistic rather than principled, when making judicial appointments will, sooner or later, lower public confidence in our legal system. 

Indigenous woman makes history in chief magistrate role

When a Supreme Court Justice chooses to go downstairs

Which brings us to the appointment announced this week of Justice Louise Taylor as the new ACT Chief Magistrate.

That she is well qualified for the position is quite clear. She ticks every box for suitability, with wide experience of litigation, upper management in ACT Legal Aid, and years as a magistrate before becoming a resident judge of the ACT Supreme Court in 2023. She will continue in that role while serving as chief magistrate.

So why am I not joining in the chorus of congratulations all round?

Because the way this has been handled in the public space is a classic example of opportunistic policy making that will create future problems.

A dangerous precedent has been set.

I first heard that Justice Taylor was in line for this appointment some time ago. The question was then asked (but not by me): “Why would she be interested in going downstairs?”

That’s a reasonable question. It has not been answered.

She’s not the first judicial officer to choose to go down the hierarchy. A good example is a Supreme Court justice in NSW who went down to the District Court decades ago because he liked the trial work atmosphere in that court.

That was at a time when it was jury trial after jury trial. Judge-alone trials were not available. A jury verdict means that the trial judge doesn’t have the task of writing a decision. 

These days, however, because of the number of pre-trial or even intra-trial rulings on the law, that judge may have decided to stay on the Supreme Court because the task of writing reasons can’t be avoided.

Looking again at NSW, the chief judge of the District Court holds a commission as a Supreme Court justice. The chief magistrate (recently renamed as chief judge of the Local Court) is a District Court judge who had years of experience as a magistrate before their appointment to the District Court.

Well, that’s all right then, except that it isn’t, not here. There are 130 plus Local Court magistrates who sit all over NSW. The size of that court, its budget, its workload, and its geographical coverage dwarfs our ACT court with its single location as an island now surrounded by tram work.

If there is a claim that our Magistrates Court needs a Supreme Court justice at the helm because of public perception, a need for extra gravitas (whatever that means), enhanced leadership that only a justice can bring, then that claim lacks any evidential support.

The 2023 Remuneration Tribunal determinations fixed a Supreme Court justice salary at just over a half million, and the chief magistrate at $40,000 less. My cynical colleague wonders which salary scale will apply to her honour?

I wonder too, because the job descriptions haven’t changed. Perhaps the “great and the good” will tell us what the new chief magistrate will be paid and on what bases?

I repeat that on her past experience Her Honour Louise Taylor is well qualified to be our chief magistrate and I wish her all the best in leading that court as its members strive to deliver quality justice to the many people who come before it.

But step one is for her to step down from the Supreme Court. If it proves necessary then, as has happened with a former chief magistrate, and barristers, she can be appointed as an acting justice of the Supreme Court for a fixed term to work there. If that happens then someone else can be appointed as acting chief magistrate.

Meantime, we are saddled with a decision that smacks of opportunistic convenience and for which there is no defensible policy rationale. It will come back to bite us. Oh, dear!

Hugh Selby, a former barrister, is the CityNews legal columnist.