The long march though our institutions seems to be gathering pace. The latest targets are the courts and the  judges who preside over them, if a recent report by the Australasian Institute of Judicial Administration  (AIJA) is any guide. I have no objection to subjecting our institutions to scrutiny. But if we are going to have campaigns for so-called reform, they should be explicit and hold out some prospect of improving the institutions we already have, instead of damaging them. I doubt if the AIJA report measures up to either of those tests. Worse still, I doubt this report would improve anything, and it may well undermine the present judicial system that has served us so well in preserving and enhancing the rule of law. The basic point the AIJA makes in its report is that the current qualifications for appointment as a judge are totally inadequate for the enlightened times in which we live. I disagree.

Its recommendations fall into three categories. First, there are criteria that are apparently so trifling and insignificant that they ‘have not been catalogued here’. They consist of such trifles as whether candidates for judicial office are citizens or residents of Australia, hold a practising certificate, or are otherwise qualified to practise as a lawyer. Strange, you would have thought that they were absolutely essential criteria which deserved a bit more attention than simply to say they ‘have not been catalogued.’ I would also have added a few more qualifications like having a law degree, that appointees are actually practising the law and understand that judges should keep out of politics, unlike some who are now lamenting the defeat of the Aboriginal Voice. Without those basic qualifications, you are going to have an entirely inadequate judiciary that will simply not be up to the job.

Secondly, the AJIA hops into the old criteria that it maintains should be discarded or downgraded. These old criteria are the ones that have been used for hundreds of years to appoint judges who have given us an independent judiciary that has preserved and guaranteed the rule of law, the most basic element of a civilised society. And that is the basic weakness of the AIJA report: it knocks away the foundations of a good institution without putting anything better in its place.

Foremost among those foundations is the concept of merit. Naturally, the AIJA does not reject the concept of merit altogether. Had it done so, no one would have taken seriously anything that it said. The trouble is that the AIJA make a series of observations about merit that make me wonder if they believe in it at all. Merit is alright, it seems, but only up to a point. Thus it is said that ‘merit comes in many forms’ and what we really need is ‘a wider concept of merit’ which must mean wider than the concept of merit we apply at the present. And the concept of merit we apply at the present, which the AIJA clearly does not like, is merit ‘developed through traditional professional legal practice, especially at the bar’. In other words, if you actually work as a lawyer, know the law, have been successful at it and are recognised by the profession for the job you have done, and ‘especially’ if you have reached that standing at the practising Bar, that is apparently not enough. You are not within this magical world of the ‘wider concept of merit’ and you should not be a judge.

Thirdly, not only does the AIJA downplay the importance of this most basic of requirements, but it offers only a vague alternative which is really a formula for appointing judges who will be social reformers. I want judges to apply the law and if the law is to be changed, I want those changes to be made by the elected representatives of the people, not by unelected progressive zealots.

What, then, is this wider concept of merit? Here, we come to the new wish list of criteria, the nitty-gritty for appointment as a judge. Top of the list is the need for ‘diversity’. Judges from now on must be ‘diverse’. As the present system has given us ‘a judiciary lacking diversity’, what we are told we need is diversity in judges. Why? Because we must have ‘a diverse judiciary’ that reflects ‘the diversity of Australian society’.

The strange thing is that, important as it apparently is, we are not given a definition of ‘diverse’, so it could mean anything. It is stranger still, when we are then told that even without a definition, diversity is ‘significant’ and even stranger that, although significant, diversity ‘cannot be articulated in criteria applicable to individuals’.

We are left, then, with  a vague requirement for diversity which can only mean diversity in the sense in which the word is actually used today, being diversity of race, class, gender or any number of personal proclivities.

At best, the AIJA gives us a few clues on the alleged attributes of good judges to be found in the world of diversity. So, we are told that ‘emotion awareness’ is in. So also are ‘cultural awareness’, ‘recognising social disadvantage and equity’, ‘adapting to change, especially social change’, using social media, managing your emotions and ‘the feelings of others’ and, again, ‘emotion management skills and cultural awareness’. You will probably find no shortage of feel-good judges with all of these qualities who are in touch with their inner feelings. But they will not be impartial and dispassionate judges above the fray of public debate as they should be and applying the law without fear or favour. If we abandon traditional merit and replace it with the vaguest concept of diversity and all it implies, we will be opening the door to damaging the judiciary and, with it, yet another institution. But then, perhaps, marching through another institution is the real objective of those behind campaigns of this sort.

Until someone can articulate a better system, leave well alone.