At least since Federation Australian lawmakers have recognised that there is a need for judicial independence within the separation of powers doctrine. As the final court of appeal and guardian of the Commonwealth Constitution, the High Court possesses significant influence.
The High Court is established under section 71 of the Constitution. It has a jurisdiction that permits it to hear a wide range of matters in the first instance. But it is those disputes arising under the Constitution, and in particular between the Commonwealth and the States, that have most clearly illustrated the enormous judicial power exercised by the Court.
In the landmark “Engineers Case” for instance, the Court abandoned the doctrine of implied prohibitions and ruled in favour of the Commonwealth, upholding its enumerated power of “Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.” A similar approach was taken in the “Uniform Tax Case” and the “Franklin Dam Case”. Such cases have been part of an ongoing trend shifting the balance of power in favour of the Commonwealth at the expense of the States.
The fact that it is only the Commonwealth that is permitted to appoint judges to the court has been criticised. The present system of appointments is a seemingly ad hoc process but in reality provides a necessary flexibility. It cannot be considered to adhere to any transparent selection criteria as such, and has remained largely unchanged since Federation.
While Section 72 of the Constitution provides that the justices “of the High Court and of the other courts created by the Parliament Shall be appointed by the Governor-General in Council,” it is the Attorney-General, in a non-political capacity, who submits his or her selection to Cabinet for approval. It would be safest to assume that all who take up the position of Attorney-General are politicians first and law officers second.
History shows it is extremely difficult to find an example of a neutral Attorney-General. In practice, the Attorney-General’s choice is usually approved by convention, and the involvement of the Governor-General becomes a formality. Any Attorney-General must consult with the State Attorney-Generals before making an appointment.
The present system is for the most part effective from a rule of law perspective. Concerns over preferential treatment in appointment leading to biased judges must be weighed against security of tenure and the financial stability judges receive upon appointment. Aspects of Australia’s democratic system, such as juries, further help to maintain a check on executive power.
Yet, a judiciary that functions with impunity is not desirable. It is crucial that judges are not insulated from accountability in being given tenure and financial security. If a balance is struck between accountability and independence the result should be a satisfactory level of protection from the whims of politicians. Furthermore, once the principles of natural justice are enshrined in law, judicial selection and appointment become less important.
While personal views may cloud judgment, it is preferable to have a clearly partisan politician who can be directly held to account at free and fair elections making an obviously biased appointment rather than have the convoluted and complex vested interests inherent in some suggestions for a judicial appointments commission.
Critics who fear politicisation should note that media interest of judicial appointments in itself constitutes a level of politicisation. Politicisation, to some extent, is thus inevitable. But the relatively unpredictable nature of electoral cycles ensures that even a stacked judiciary may not be useful to the political ideologues that appointed it.
In comparison, as compulsory retirement at age 70 is not required of US judges this allows them to choose their time of retirement to coincide with political developments, compromising the impartiality of the American judiciary. A notable example is the controversial American presidential election of 2000. Bush v Gore was decided in favour of George W. Bush on the basis of decisive votes cast by appointees of the first President Bush, with judgments being split along conservative and liberal lines.
In the Australian context, to narrow a judge’s evolution of opinion over a career on the bench into a single political label is not feasible. There are numerous counter-examples where judges have gone on to politically evolve in different directions. Others like Justice Kirby have found themselves dissenting more as the composition of the court has changed over the past decade.
It is improbable that in more than 100 years not a single talented candidate for the post of High Court justice has emerged from South Australia or Tasmania, but it is the outcome of decisions made by a wide variety of political actors from a range of political allegiances.
Even the best judges are not gods and it is unrealistic to expect complete impartiality, as the emerging science of jurimetrics demonstrates. In any case, changing attitudes in the community have influenced politicians’ choice of appointees.
Lionel Murphy’s appointment by the Whitlam Labor government in 1975 was highly controversial because he was the subject of an official investigation and critics perceived the appointment as an attempt to appoint a Labor sympathiser on the court. Tellingly, since the Murphy appointment no former politician has been appointed to the High Court by either of the major parties. What is also revealing is the overall confidence with which the public generally holds the High Court.
That Australia does not need a standardised, inflexible and formal consultation process has been recognised by the Law Council of Australia. Even so, a commission composed of the Commonwealth Attorney-General and his state counterparts should be instituted. It should be mandatory for the Commonwealth to obtain some level of consensus among the States, and, failing agreement, power to appoint would revert back to the Commonwealth. Such a compromise would ensure wider input into the decision through decentralisation of the selection and appointment process. This is not a likely scenario however.
Perceptions of the objectiveness of appointments are themselves highly subjective, and ultimately if elements of democracy, such as juries, are retained in the High Court, these should keep in check those who would abuse judicial or political power. As judges are utility maximising individuals, there is perhaps a case for making it more attractive for highly qualified lawyers to aspire for such positions.
While the ideal of complete impartiality in judicial appointment and selection may never be realised, we should nevertheless strive towards a better system of appointments that recognises the genius of the old common law ways. To strike a balance between giving judges complete independence and no independence is not an easy task, and persuading the Commonwealth to share its power of appointments could very well be an impossible one.