You're in a room you don't want to be in.
There's a stranger in a suit with your future in their hands,
Four years ago, that judge was me.
The people looking up at me then had no choice but to trust me.
But what had I done to deserve it?
Australia's judicial system operates under a shroud of mystique
which fends off tough questions like this.
But you will have the right to ask
how people like me prepare for the job of judging.
And you may not feel comfortable with the answers.
To set the scene, first, let's think about public confidence.
Judges in Australia are not elected.
Yet, the power they wield is immense.
Ultimately, we trust the system
because we believe that judges generally get it right.
we risk unbalancing the whole constitution.
But we live in a time when blind faith in elites is eroding fast.
Judges are increasingly vulnerable to the "why" question.
Why do you deserve the power we have given you?
Second, it's fundamental that judges have to be seen as independent,
doing their jobs without fear or favor.
To avoid any pressure from the government of the day,
judges have high salaries, which can never be cut,
and they can't be fired for what they say or do.
Unless they're obviously corrupt or mad.
In exchange, judges agree to be ultrarestrained,
A kind of veil comes down when a judge is appointed.
and it feeds into this sense that judges are somehow different
Finally, I can tell you that all judges are in theory appointed on merit.
Judges are chosen in a confidential process
which relies heavily on advice from senior judges.
The people chosen are all experienced lawyers,
traditionally top courtroom lawyers or barristers,
who spend their days appearing in front of judges.
They're all personally shoulder-tapped for the job,
and the results are in general, pretty impressive.
But what do we really mean when we talk about merit?
For one thing, barristers are historically maler,
paler and staler than other lawyers,
which is really saying something.
It's been argued that the people who get chosen as judges are above all,
the ones who remind existing judges of themselves.
Diversity on the bench is an issue that's become impossible to ignore.
And judges are essentially picked
based on how well they argue cases in front of judges.
But that doesn't really make sense.
Let's compare a courtroom and an operating theater.
Barristers and judges both play essential roles in court,
just like anesthetists and surgeons in an operation.
But you don't hand an anesthetist a scalpel
just because he's been putting people to sleep
The underlying skill set may be the same in law as in medicine,
but the jobs are fundamentally different.
The strange truth about judging in countries like Australia
is that even though judges are such an important part of government,
we've basically privatized the system of making them.
That work is done, if it's done at all,
within the private legal profession.
There is no judge school for wannabe judges.
Judicial appointment is seen as a badge of honor,
not as a professional milestone that a lawyer builds up to
the way that a doctor works towards specialization.
until the day they take the judicial oath.
And from that day it is sink or swim,
except they can't be fired for incompetence.
How do you think it would feel
to know your life was on the line in a judge's first ever case?
And how do you think that judge would feel?
The transition to the bench can be a baptism by fire.
I had never run a criminal trial as a lawyer,
and there I was in a magistrate's court
being asked to hand down 12-year prison sentences
Is it any easier to make that transition as a top courtroom lawyer?
Well, in some ways, definitely.
Barristers do know a lot of law
and the years of watching judges in action do give them a head start
our expectations of judges are changing, too.
Judges are increasingly called on
for a whole range of extra nonlegal skills.
They have to be managers and leaders,
politically and culturally savvy,
able to handle relentless scrutiny and social isolation.
We don't necessarily expect or even value those skills in a barrister.
And when we aim for a more diverse judiciary,
the problem actually gets worse.
If we want less male, less pale judges,
we're not likely to find them all in barristers chambers.
And people who haven't spent their working lives in court
can't possibly be expected to just know how judging works,
no matter how excellent they may be in other ways.
So what you end up with is a situation where no new judge
is actually likely to have every piece of the merit puzzle.
But the number and shape of those missing pieces
varies hugely from judge to judge.
Why does our system assume that anyone comes ready-made
It turns out there are some pretty strong cultural reasons why.
People who study judiciaries, that's me now,
are traditionally reluctant to talk about behind-the-scenes issues,
for fear of being seen as interfering with judicial independence.
I think this has gone too far.
Independence depends on public confidence.
And we can no longer be expected to trust what can't be explained and justified.
But the legal elite have an obvious interest in maintaining the status quo.
it feels uncomfortable to criticize a process
that my barrister friends say is a natural progression,
And getting any lawyer to talk openly about learning how to judge is hard.
that admitting to judicial ambitions is out of order.
You can aim to be a barrister, which puts you in the running,
but you can't be seen as angling for an appointment.
The contrast with a profession like medicine couldn't be more stark.
The incentives in law are all backwards.
that it was only in confronting these culture barriers
that I would have any hope of breaking through
So how do we talk about making judges?
It starts with government taking more responsibility for its own processes.
And not just in explaining why it picks one person over another,
At the top of my list is ongoing education for judges.
Judges in Australia do actually go to judge school now,
but only behind closed doors once they're already on the job.
It's labeled as CPD: Continuing professional development,
which is totally routine and compulsory for lawyers
and other modern professionals.
But because no one is supposed to tell a judge what to do
in case that undermines their independence,
In principle, a judge like me could just say no.
And that CPD label neatly avoids the elephant in the room,
the fact that every modern lawyer needs at least some help
learning how to be a good judge in the first place.
There's actually some amazing work starting to happen in judicial education,
but it is nowhere near enough.
it's those pre-appointment years that matter the most.
Government has taken no responsibility at all here.
And to get past that stigma on wannabe judges,
the profession itself has to change.
Whether it happens formally or informally,
we need to be thinking about a judicial career path
and actively creating judicial merit.
We need to support young lawyers like me,
particularly the diverse ones,
to do things that will make them great judges,
are not likely to get them promoted as lawyers.
In hindsight, I wish I'd had way more experience
in things like community justice,
And I so wish I could have gone to judge school.
Better prepared lawyers would mean better inputs
for those people who choose and manage judges
and ultimately better evidence that those judges deserve your trust.
And that's what it all comes back to.
could find our future in the hands of a judge.
we need to be able to look each other in the eye
and know we can trust the system.
(Applause)