Balmain girls don't need to cry

Judicial and quasi-judicial appointments ... Much grandstanding about an "open and fair" system based on merit ... Yet party mates seem to make the grade without too many formalities ... Time for the NSW AG to get his "restoring faith" policy into action ... Mary Jerram's term as NSW Coroner coming up for renewal 

Smith: restoring faithThe process of judicial appointments is still shrouded in secrecy. The present government's foreshadowed new improved and transparent model has not quite arrived.

In Opposition, then shadow attorney general, Greg Smith, released a discussion paper, Restoring Faith in Justice: Promoting Transparency in Judicial Appointments in New South Wales (2008).

That paper criticised the absence of formal written procedures - publicly available - governing the process of appointment across the range of judicial offices in NSW.

Outfits such as the Law Council of Australia have voiced the same concern.

The LCA produced a formal "protocol" to be followed by federal and state governments for all judicial appointments (other than to the High Court): see The Process of Judicial Appointments, LCA, September 2008.

Some commentators have advocated the establishment of an independent judicial appointments commission, the role of which would be to make recommendations to government (but not decisions) as to the appointment of candidates to judicial vacancies (see, eg, The Judicial Appointments Process in Australia: Towards Independence and Accountability by Justice Ronald Sackville, ABA Judicial Appointments Forum, October 27, 2006).

The prime emphasis in all of these papers and suggestions is openness of process and appointments based on "merit".

In short, political background and patronage should not influence the process unless that is a material fact to be taken into account for a particular appointment.

In response to Smith's discussion paper, then attorney general John Hatzistergos said that as vacancies for positions such as district court judges, magistrates, tribunal members, public defenders and crown prosecutors were advertised, the process of appointment was "open and fair".

The suggestion was that "applicants" for judicial (and quasi-judicial) state government appointments would come before a selection panel - consisting of the head of the AG's department or his nominee, a retired judge, a "prominent" community member and a "leading" member of the profession.

As with all concepts that purport to be based on the unassailable concepts of "merit" and "openness", there is a need to examine the facts.

One particular appointment provides a salutary basis for such examination. 

In 2006 Magistrate John Birley Abernethy announced his retirement as NSW State Coroner. A farewell function was hosted at the Canada Bay Club on October 6, 2006.

NSW Coroner Mary Jerram: couldn't keep her down on the farmOn October 22, 2006, Mary Jerram was appointed as a magistrate in New South Wales by then attorney general Bob Debus.

At that stage, Debus had not announced his impending departure - to federal politics. There was no indication that the appointment of Ms Jerram - in fact the re-appointment of Jerram - to the magistracy was simply a formal appointment presaging appointment to the position of State Coroner, soon to be vacated by Abernethy.

There was no reference to Jerram's political background and little reference to the fact that she had retired from the magistracy in 2001 to take up farming life in New Zealand - her country of birth - with her new husband on a 304-hectare sheep and cow property.

However, it was not until May 2007 that Jerram's appointment as State Coroner was announced by the new attorney general, Hatzistergos.

It was for a five year appointment.

Upon that announcement it was reported that Magistrate Jerram had been a teacher, while her children were young, then studied law and had become a legal officer at the Independent Teachers Union in the late 1980s.

She had worked as a solicitor for the Legal Aid Commission and was appointed as a magistrate in 1994. 

She had experience as a children's and industrial magistrate. Fairfax Media reported that Jerram had spent two years as a country magistrate in Goulburn dealing with, "everything from Babe to Braveheart ... from people stealing sheep to murder".

But her experience in coronial cases was limited, she said. Nonetheless, "she was looking forward to the challenge ... It will be a satisfying way of finishing my career."

Jerram's appointment did not follow a process of advertising for the position of State Coroner, or any call for nominations or "expressions of interest"; no "independent" process of selection for the specific role was followed.

The appointment was a fait accompli as at the time of Magistrate Jerram's October 2006 appointment to the bench by departing attorney general Debus.

Making and unmaking of the Labor left in Leichhardt MunicipalityIn his book Basket weavers and true believers: making and unmaking the Labor left in Leichhardt Municipality 1970-1991, Leftbank Publishing 2007, Tony Harris surveys the membership of the ALP branches of the inner-Sydney municipality of Leichhardt - including the infamous Balmain branch - and those members of the Left whose politics "had been shaped by the social movements of the times and by the hopes and disappointments associated with the Whitlam Government".

The book contains a number of interviews, including one with Mary Jerram.

Jerram joined the Labor Party in October 1975 and remained a member until around 1987; her departure apparently due to "the bitterness that had developed in the Balmain branch in the 1980s".

She and her then husband, lan Cameron, had moved into a terrace house in Balmain. The Balmain branch of the ALP was a natural choice. Here she became acquainted with the legal fraternity of Neville Wran, Rod Madgwick and Jeff Shaw.

Jerram is described as one of the most prominent Balmain ALP members to have "moved on in the legal profession".

After an appointment to the office of Public Defender, appointment to the magistracy followed in 1994 with appointment as Deputy Chief Magistrate in 2000, just before her retirement the following year.

In her May 1999 interview with Tony Harris, Jerram said she was, "stimulated by feminist writers like Kate Millet, Betty Friedan and Germaine Greer".

She was glad she had "sloughed off' her conservative middle-class background to become "a committed socialist".

With such credentials, it could not be seriously suggested that Jerram was not the best person for a Labor government to drag out of retirement in New Zealand to take up the job of State Coroner in 2007.

The question now is simply: is she the best person for the job in 2012?

Apparently, she would like another term when her current five year stint ends in May.

Five more years would take her nicely to retirement at 72. It will, to use her Honour's words be a, "satisfying way of finishing my career".

Plainly such a re-appointment by the present government could not be seen as "political" in any sense ... or could it?

The present attorney general, Greg Smith SC, has retained, as head of his department, the mercurial (and prominent Old Falconian) Laurie Glanfield AM, who was involved in the State Coroner's appointment in 2006.

Is attorney general Smith aware of these background details and the circumstances of her initial appointment? Will the attorney general follow a protocol that will:

1. Seek expressions of interest and nominations for the position of State Coroner;
2. Establish a selection panel to assess all applications and nominations against published criteria;
3. Ensure that the selection panel not only comprises the Chief Magistrate and a retired judicial officer with a clear understanding of the coronial role but also comprises an official from the Attorney General's Department (if necessary) who is both objective and professionally competent to assess who is the "best person" for the job?

It would be extremely handy to have answers to these questions and a clear promulgation by the present government of the published criteria by which all judicial appointments will be made - under a clear and open "merits" process.

Anything less simply perpetuates the myth of "transparency" and "merits" that has attended the political process of judicial appointments in this blighted State for so long.