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Australian judge apologises after claiming that colleagues are appointed regardless of merit

<span>Photograph: Dave Hunt/AAP</span>
Photograph: Dave Hunt/AAP

A federal and family court justice who planned to deliver a speech at an international conference claiming that progressive governments appointed diverse judges regardless of merit has been forced to apologise to his colleagues and told he can no longer attend the conference.

The speech by Justice Joshua Wilson had been uploaded on the court’s website before Justice William Alstergren, the chief justice of the family court and chief judge of the federal circuit court, was alerted to its contents and ordered that it be removed this week.

The speech was dated 17 April, and Wilson planned to deliver it in September at the International Association of Judges annual general meeting in Taiwan.

“Is it correct to say that the brightest and the best are appointed to judicial office, independent of political persuasion? The answer is in the negative in the case of the overwhelming majority of appointments,” Wilson, a division one judge, wrote in the speech.

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“It sometimes occurs that a government appoints a person to judicial office who is aligned with the opposite party’s politics. That is a rarity.

“Occasionally, an attorney-general appoints a person as a judge who is wholly apolitical. Again, that is a rarity. Appointment to judicial office is a political activity.”

Wilson went on to say that appointments to state and territory courts were highly political, and that “progressive governments are more likely to appoint to benches based on gender and ethnic diversity, irrespective of merit or expertise”.

Alstergren said in a statement to the Guardian that he was alerted to the paper, which had been uploaded without his knowledge or permission, by a number of judges.

He said Wilson had been planning to attend the conference as a member of the association, not as a representative of the court.

He said that as soon as he was alerted to the paper it was immediately taken down from the website, and that a statement was made to all judges indicating that it did not reflect the views of the courts and that protocols were in place to make sure this could not happen again.

“Further, Justice Wilson will not be providing a paper at this conference nor will he be attending, and I have taken steps to ensure there is no further publication of the paper’s content,” Alstergren said.

“The judge has apologised to the judges of both courts for the comments.

“I reiterate that I am extremely proud of each of the judges of the Courts and hold the greatest respect for the history of our Courts and their judges, both past and present. We are taking steps to ensure this cannot happen again.”

Wilson had been considered close to Alstergren, and reportedly paid tribute to him when he became a judge in 2015.

The speech had been written to respond to four main topics: appointment to judicial office, promotion within the judiciary, workload within the judiciary, and removal from judicial office.

Wilson wrote that aspiring judges typically gained favour with governments by assisting them when they are in opposition.

“Such legal assistance may take the form of pro bono advice or in-court representation to non-legally based activity such as handing out how-to-vote cards at polling booths during elections or by-elections.

“When the opposition assumes office as government, the attorney-general repays those political favours by rewarding the legal representative with judicial office.”

In the speech, Wilson notes that “most judges have climbed the mountain to judgeship because of the fact that they are driven, are possibly obsessive, are undeniably focused and are fiercely ambitious. Some are also highly competitive, they are organised and they dislike wasting time.”

He said that those traits “propel the judge to do the extraordinarily heavy lifting most judges undertake” but that he also wanted to address “a more sinister, latent personality issue from which the judge may suffer, possibly even unknowingly.

“A person who suffers from undiagnosed ADHD, asperger’s syndrome, bipolar disorder, autism or similar conditions should give very serious consideration to the wisdom of taking on the role of the judge.”

He went on to question the work ethic of some judges, saying that “some judges are not so enthusiastically inclined” as their heads of jurisdiction to sit as often as required.

“That may be personality based.

“It may be associated with age or other physical or psychological circumstances or it may even be a recognition that with tenure to the statutory age of senility, absent some draconian investigation into personal conduct, the judge holds office and there is nothing a head of jurisdiction can do to compel the relevant judge to work harder than he or she is doing or willing to do.”

According to a former judge who spoke to the Guardian, of particular concern to the judiciary were comments Wilson made about former colleagues.

Wilson said that between 1975, when the family court was created, and 2021, when the federal and family courts were overhauled, they had been filled with people of “generally less than ideal” experience, until former attorney general Christian Porter replaced those who had retired with more experienced barristers, including counsel, “exponentially increasing its productivity”.

The former judge, speaking on condition of anonymity, said: “It undermines public confidence in the judiciary… it undermines confidence in the executive government, and confidence in the court.

“It really does cast aspersions and make people think it was a bit of a corrupt process of appointing judges, and we don’t get the best we can.

“It almost makes us look a bit like a banana republic.”

Wilson also seemingly questioned the investigation into former high court judge Dyson Heydon, who was found by an independent investigation to have sexually harassed six junior court staff. Three of the women reached a “historic” settlement with the Commonwealth in February this year. Heydon has always denied the allegations.

Wilson wrote that the investigation was conducted without Heydon being interviewed in a “seeming departure from principles of procedural fairness” but that “the information given by the alleged victims was unreservedly accepted with Heydon’s behaviour roundly condemned in the absence of his version being known.

“It is difficult to know whether that was more a reflection of the theory that ‘where there’s smoke there’s fire’ than the theory that public accountability of judges places judges at the apex of exemplary behaviour. To offer a view on that would serve only to further burden the volume of debate on point.”