I suggest that the potential for injustice could be minimised by paying greater attention to the characteristics of decision-makers.
What woman would liken the experience of giving birth to buying a bag of chips? This was the bizarre observation of Federal Circuit Court judge, Alexander Street, in a recent discrimination case. While the decision was overturned on appeal, it highlights the lack of transparency in judicial appointments.
Judges are appointed by governments of the day, which means that they have a great deal of influence in determining contemporary understandings of justice. If there is no transparency in the appointments process, the decision-makers tend to favour Benchmark Men (white, Anglo-Celtic, heterosexual, able-bodied and male) who look like themselves. The result is that nothing changes.
Gender justice, however, requires not just technical expertise, but vision and emotional intelligence, together with a knowledge of and sensitivity to diversity. For this reason, transparency in judicial appointments is essential.
The Hinton Case
The complaint was not based on sex but arose under the federal Disability Discrimination Act (DDA). Although the complainant did not suffer from a disability herself, her husband, who is deaf, had been refused access to sign language interpreting services by a private hospital in relation to the scheduled birth of their child.
Judge Street was of the view that there was no evidence that the wife was discriminated against. He rejected out of hand any suggestion that the husband was accessing a service, suggesting that providing him with information at the birth was analogous to the wife ‘buying a bag of chips’ with the husband standing next to her. In dismissing the case, Judge Street described it as ‘a baseless trifle’ that was ‘doomed’, ‘oppressive and vexatious’ and an ‘obvious abuse of process’.
The Full Court of the Federal Court which, coincidentally, comprised three female judges ─ Collier, Jagot and Perry JJ ─ were scathing of the view that giving birth was ‘a trifle’ and the equivalent of buying a ‘bag of chips’.
In regard to Judge Street’s attempt to dismiss the complaint, the Full Court found that it was ‘inescapable that the appellant was denied procedural fairness’. In remitting the matter to the Circuit Court for determination, the Full Court decided that Judge Street should not hear the matter lest he ‘decide the case on other than its merits’.
The immigration judgments of Judge Street
Hinton, however, was not the first case in which Judge Street has raised eyebrows. After being appointed by Senator Brandis, he ruled against 254 of 256 immigration applications in his first six months (1 January to 19 June 2015), finding in favour of the Minister for Immigration and Border Protection.
In ALA15, a case alleging apprehended bias, statistics were compiled on Judge Street’s record by Mr Victor Kline, supporting the applicant’s contention that the judge should disqualify himself. Reliance on statistics in this way was unprecedented.
Although the applicant’s appeal was unsuccessful, the extraordinary number of cases heard ─ and dismissed ─ by Judge Street inevitably raises questions about judicial independence. In comparing the record of Street J with that of the eight other judges of the Federal Circuit Court in the Sydney Registry, Mr Kline found that they delivered 54.89 per cent of the immigration judgments, while Judge Street personally delivered 45.11 per cent of them.
Mr Kline also believed that all 256 immigration judgments decided by Judge Street were delivered ex tempore (on the spur of the moment), which allows scant opportunity for reflection.
Dilemmas for litigants
While the appellate process can provide an important corrective element within the legal system, as in Hinton, it is uncertain and unpredictable. Successfully establishing an error of law, such as an allegation of apprehended bias, for example, involves an onerous burden of proof, as revealed by ALA15. Appeals are also likely to be financially risky for complainants who may already have had costs awarded against them at the first hearing.
An imbalance of power is notorious in discrimination and immigration cases where a vulnerable individual is typically confronted by a powerful corporation or government body with deep pockets. I suggest that the potential for injustice could be minimised by paying greater attention to the characteristics of decision-makers.
Transparency in judicial appointments
This could be done by ensuring greater transparency in judicial appointments, an issue that has been on the agenda in most jurisdictions for several decades, including federal courts. However, Senator Brandis wound back the clock in regard to most federal courts when he assumed office in 2013.
As a result, there are now no advertisements, no calls for expression of interest, no selection panels, no formal interviews and no standard criteria for judicial appointments. The absence of transparency may mean that merit (appointing the best person for the job) is not the basis of judicial appointments. We can only guess when political preferment or some other reason might be a factor influencing an appointment.
As courts are the bulwark of a democratic society, we should not unquestioningly accept the absence of transparency. We must put pressure on Senator Brandis and the Turnbull Government to reinstate formal criteria in deciding appointments to all federal courts. While outcomes cannot of course be predetermined, contemporary society demands that we at least have judges who are sensitive towards and respectful of others in respect of sexism and ableism, as well as racism and sexuality.