Chairman's Introductory Remarks Judicial Appointments and Tenure Session
Judicial Independence in Australia: Contemporary Challenges, Future Directions Conference
TC Beirne School of Law, the University of Queensland, St Lucia, Brisbane, Queensland
In my time, I have followed two learned professions for extended periods, the legal profession and the profession of arms. At least in terms of rank,[1] I have attained rather more in the former than the latter and, fortunately, only undertaken active service in the Law!
Reflecting on how, as a serving judge, and thus a not disinterested party, to introduce this session, I thought that the best way of observing a counsel of judicial reticence might be to impart something of what I have learned in my erstwhile other profession about appointments and tenure.
I first encountered the notion of appointment on merit not in the Law but some four decades ago in the Army as an Officer Cadet. That was when the Chief Instructor at the Officer Cadet Training Unit, a Lieutenant Colonel, made it clear to me and my fellow officer cadets that, quite apart from performance in field and other exercises, the final touchstone which he used in deciding whether we would graduate was, "Would I trust this man to lead a platoon of which my young son is a member in battle?"
As I have recently been reminded in the course of assisting in the preparation of a publication that will commemorate the First World War service of members and prospective members of the Queensland legal profession, that Chief Instructor was echoing an ethos that more than anything else served to explain why the 1st Australian Imperial Force comprised such superb fighting formations. They were well led. And, as that war progressed, their leaders came to be appointed on the basis of demonstrated performance in battle. Their historian and fellow member, Charles Bean, put the ethos this way:
"Anyone watching an Australian battalion on parade felt that in this year's corporals he saw the next year's sergeants and the following year's subaltems."[2]
When I attend an occasion such as the Exchange of Christmas Greetings in the Banco Court, I have a similar feeling. In this year's cohort of Juniors I see the next cohort of Queens's Counsel and the cohort after that of superior court judges. That, overwhelmingly, is where the relevant "battle experience" is to be found.
The ethos Bean identified and which I experienced was also, in my view, pinpointed by an American, Tim Kane, in an article in The Atlantic, Why Our Best Officers Are Leaving.[3] Kane's thesis, prompted by the resignation, mid-career, at the rank of Lieutenant Colonel, from the Army of his contemporary, the Rhodes Scholar, John Nagl, was that, "the military is creating a command structure that rewards conformism and ignores merit. As a result, it's losing its vaunted ability to cultivate entrepreneurs in uniform." By "entrepreneurs in uniform" Kane meant those who are independent, lateral thinkers and are prepared to take calculated risks, based on experience.
As with the Law, the senior ranks in the Military are appointments made by political officers. Insofar as that is a democratic intrusion, that is a highly desirable and, in the case of the Military, an important manifestation of civilian control. But it can suit political officers to reward conformism of one sort or another. Perhaps the most poignant example of this is offered by the fate of the senior air staff of the French Air Force in the 1930's.
Pierre Cot was Air Minister from June 1936 until January 1938. He was a strategic bombing enthusiast. He tripled the bomber force, including by converting seven of the twelve observation and reconnaissance escadres (squadrons) to bomber escadres, and equipping four of the five remaining reconnaissance escadres with aircraft capable of long-range bombing. The observation mission, except in the colonies, was turned over to the air force reserve. This policy met some opposition in the Superior Air Council. To facilitate acceptance of his programme, Cot convinced the parliament to pass a law reducing the mandatory retirement age limits for each grade by five years. That measure, as Lieutenant Colonel Faris R. Kirkland, USAF (Ret.) observes in his article, The French Air Force In 1940 Was It Defeated by the Luftwaffe or by Politics?:[4]
"forced all of the members of the Superior Air Council into retirement and removed 40 percent of the other officers as well. The vacancies were filled by promoting NCOs and calling reserve officers to active duty--men he believed were more amenable to his new programs of political indoctrination. His purges and the sudden promotion of strategic bombing enthusiasts generated a crisis of morale in the officer corps."
Kirkland continues:
"The crisis was exacerbated rather than alleviated when Guy La Chambre replaced Cot in 1938, because the new air minister conducted his own purge--of the men whom Cot had promoted. La Chambre denounced strategic bombing and directed the air force to prepare to provide close support to the army."
The result was a complete engendering of mistrust between senior professional officers and the government, diversion of resources and chaotic or non-existent means of coordinating air support and interception. Front line French aircraft were at least equal, if not superior, to those of the Germans in numbers and quality, and the Germans had no monopoly on airmanship and courage, but one reason for the rapid Fall of France in 1940 may be traced directly to the failure of the French Air Force effectively to deploy in air interdiction or ground support roles. That failure, in turn, may be traced to the rewarding of conformism over merit by political officers.
We delude ourselves, I suggest, if we do not realise that there can be just such a tendency, latent if not patent, by political officers in relation to judicial office, even extending to tenure. A local example of the latter is offered by the Judges' Retirement Act 1921 (Qld), which removed in one stroke half of the Queensland Supreme Court bench, including, if one excludes Mccawley J, whose time was principally devoted to duty on the Industrial Court, the entirety of the Brisbane bench.[5] The tendency is one which is to be recognised and resisted in a well governed society, I further suggest.
But it is not for me to address the topics of appointment and tenure, only to introduce and, I hope, to have provoked reflection about them.
Our speakers for this session are:
- Professor James Allan, Garrick Professor of Law at the T C Beirne School of Law, University of Queensland, who will speak to his paper, Is Talk of the Quality of Judging Sometimes Strained, Feigned or not Sustained?
- Professor Heather Douglas, also of that Law School, who will speak to the paper she has co-authored with the Law School's Dr Francesca Bartlett, Women, Feminism and Judicial Diversity; and
- Professor Brian Opeskin, Macquarie University, School of Law, who will speak to his paper, Judicial Exits: The Tenure of Judges in Three Apex Courts
An abstract for each paper appears in the conference programme.
[1] Major, Australian Intelligence Corps, Army Reserve. Enlisted as an Officer Cadet, 1975, commissioned into the Australian Intelligence Corps, 1976, transferred to what is now termed the Standby Reserve, 1993. For interest and comparative purposes only, a Federal Court judge ranks well above a Service Chief in the Commonwealth Table of Precedence: Special Gazette No. S206 on Tuesday, 5 October 1982: http://dfat.gov.au/about us/publications/corporate/protocol-guidelines/Pages/appendix-22-commonwealth-table-of-precedence.aspx Accessed, 10 July 2015.
[1] C. E. W, Bean, Anzac to Amiens: A shorter history of the Australian fighting services in the First World War, Australian War Memorial, Canberra, 1946, p, 537. Bean's view was challenged by an academic, Dr Dale Blair, in his 1998 Victoria University of Technology thesis, 'An Army of Warriors, these Anzacs': Legend and Illusion in the First AIF, based on an analysis of the 1st Battalion, AIF. He later converted that thesis into a book, Dinkum Diggers: an Australian battalion at war, Melbourne University Press, Carlton, Victoria, 200 l. In reviewing that book for the Australian War Memorial, the freelance historian, Peter Edgar commented:
The book is interesting but not entirely convincing. It does tend to rely too much on the views of disgruntled or disappointed 1st Battalion "diggers", whether in letters written from the battlefield or in the author's interviews of survivors. There is not enough demonstrated understanding of the battles fought by the AIF or of their context in the war as a whole. A battalion itself is really too small an entity to make possible a useful military analysis of its part in a great battle of the First World War, but the "ANZAC" qualities cannot really be separated from an analysis of the battles.
From time to time, Blair takes a swipe at the Official Historian, Dr C. E.W. Bean who he says, in one instance, "advanced an idealised view of sacrifice to provide the nation with higher meaning and comfort as compensation for the death of its soldiers". At the end of his six-volume history of the First AIF Bean wrote, "the greatness and smallness of their story will stand". Blair's book is about the smallness of the story of the First AIF. For the greatness it is necessary to turn elsewhere, notably to Bean himself.
https://www.awm.gov.au/joumal/j36/edgarreview/ Accessed, 10 July 2015.
My own research in relation to the members and prospective members of the Queensland legal profession who served in the First World War, the service experience of whom extended across many AlF units, tends to support Bean and the reviewer, rather than Dale.
[3] The Atlantic, January/February 2011 lssue: http://www.theatlantic.com/magazine/archive/2011/01/why-our-best officers-are-leaving/308346/ Accessed, IO July 2015.
[4] Air University Review, September-October 1985: http://www.airpower.maxwell.af.mil/airchronicles/aureview/1985/sep-oct/kirkland.html Accessed, 10 July 2015.
[5] B. H. McPherson, Supreme Court of Queensland, Butterworths, 1989, pp 299-305. The judges removed, who had hitherto enjoyed life tenure, were Cooper CJ (75 years), Real J (74 years) and Chubb J (76 years).
