By Lola Archibald
It’s 2024, and in another ‘historic’ 6-3 verdict, the US Supreme Court has made a decision described by the minority as ‘intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms.’[1] As has become customary, you and your friends discuss both the outcome and the outrageous American judicial appointment process - I mean, whatever happened to the Separation of Powers! You talk about Democracy, Judicial Impartiality, and the Rule of Law (silently thanking your LAWS1201 tutor all the while), when suddenly, someone asks: How do we appoint judges in Australia, anyway?
Record scratch. You don’t know.
…Or at least, I didn’t when my well-meaning, Engineer-studying friend turned to me during just such a conversation. Determined to never be caught out again, I have since gone down a SuperSearch rabbit hole, and discovered a world of mystery, secrecy, and inconsistency, which has led to High Court appointments being described as ‘the gift’ of the Cabinet and Attorney-General.[2]
Australia’s Selection Process
Section 72(i) of the Constitution provides that justices of the High Court ‘shall be appointed by the Governor-General.’[3] In practice, the Commonwealth Attorney-General is largely responsible for determining suitable candidates and carrying out a selection process [4].There is no legislatively prescribed process or defined set of criteria outside of the requirements that an appointee has been a legal practitioner in Australia for at least five years, and is less than 70 years of age [5]. After determining a suitable candidate, the Attorney-General will seek the approval of the Prime Minister and Cabinet [6]. Once approved, the Attorney-General recommends the candidate to the Governor-General, who ultimately appoints the new justice [7].
… And everything wrong with it
While critics acknowledge that this process has so far maintained an Australian High Court bench of excellent quality [8], there remain undeniable issues which have led to calls for reform from High Court justices themselves [9]. Under the current system, the Executive Government is given ‘unfettered’ [10] discretionary power which could be used to impinge on the independence of the judiciary [11]. Moreover, the lack of prescriptive criteria or procedure, coupled with the historically secretive nature of the process, could undermine both the quality of the judiciary and public confidence in the system. So, while Australia may have thus far avoided the partisan appointments and rampant court-stacking which plague the United States, our process does not immunise us against such phenomena.
As is evident from the selection process, High Court appointments in Australia are left to the ‘uncontrolled and unreviewable’ discretion of the executive government [12]. Such unrestricted control undeniably creates the risk of appointments being made on political or patronage grounds, rather than solely on ‘merit’ as is claimed. [13].That such a risk is present was acknowledged by Justice Brennan in 2008, who noted:
‘The respectful aura with which the judiciary has traditionally been surrounded encouraged the public to expect, and governments overall to satisfy, the expectation that judges would be appointed ‘on merit.’ But in reality, there have always been exceptions.’ [14]
Here, Brennan J suggests that it is merely an ingrained culture of respect for the judiciary that has prevented unmeritorious appointments in Australia so far. This is deeply concerning. If an independent judiciary is truly fundamental to the protection and maintenance of democracy, judicial appointments cannot be left to rely on the reverence any single government may or may not have for the judicial arm of government.
Despite the ongoing quality of Australia’s High Court bench, Brennan J is correct in his observation that there have been ‘exceptions’ to the general rule of meritorious appointments; political and ideological considerations have played a role in the past. A shocking example was the appointment in 1998 of Justice Ian Callinan by John Howard’s Liberal government. Callinan J - a recognised conservative with ties to the National Party[15] - was appointed after the then Deputy Prime Minister Tim Fischer called for the appointment of a ‘Capital-C Conservative.' [16] Several Labor appointments have also been considered to be politically influenced, including Justices Evatt and McTiernan [17]. Moreover, across the political spectrum, governments seem to agree that the appointment of ‘activist’ judges should be avoided, as they are perceived as being more likely to strike down Federal legislation [18].
As evidenced by these examples, the forefronted role of the Executive Government in appointing High Court justices has the potential to threaten the independence of the judiciary. This was demonstrated in a recent study which found that Judges are ‘on average, more likely to rule in favour of the Prime Minister who appoints them than those who come after.’ [19] This is coined the ‘loyalty effect.’ [20] The study - of which ANU academics Dr Patrick Leslie and Professor Zoe Robinson were co-authors - examined more than two-thousand High Court judgements over twenty-five years to support the conclusion that the selection mechanism in Australia creates a ‘personalised’ challenge to judicial independence [21]. The anecdotal evidence of politically motivated judicial appointments, combined with the evidence of the ‘loyalty effect’ clearly demonstrate the potential dangers of Australia’s current appointment process, revealing the potential for Executive influence to be exerted on the Judiciary.
A defining feature of Australia’s current selection process is the absence of proscribed selection criteria. Broadly, it has been said that appointments are made based on ‘merit,’ but no effort has been made to define the term and it has consequently been criticised as ‘elusive or illusory.’ [22] In fact, former Queensland Court of Appeal judge Justice Geoffery Davies said that, in the context of judicial appointments, ‘no word is more used or abused… than ‘merit.’’ [23] The primary criticism of the reliance on ‘merit’ is that, if not broken into constituent elements, it becomes subjective [24]. Evans and Williams argue that, where ‘merit’ remains subjectively determined, the risk becomes that those making the selection will ‘collapse into the general tendency ‘to see merit in those who exhibit the same qualities as themselves.’’[25] As a result, the Bench is likely to exhibit less professional, social, and gender diversity [26]; this may have contributed to the fact that no female judge was appointed to the High Court between 1987 and 2005 [27]. The lack of clear process has meant that the procedure seemingly varies based on the preferences of each Attorney-General [28]. While the extent of these differences is hard to determine, given the process is not publicised [29], Justice Brennan has strongly criticised it as being ‘cloak[ed] in secrecy’ while we pay ‘lipservice to the rule of law.' [30] Undeniably, the lack of defined criteria raises important issues concerning consistency, and public confidence which should be addressed.
Potential Models of Reform
Overall, examination of Australia’s current High Court judicial appointment process reveals problems of transparency and consisten
cy which are potentially dangerous to the maintenance of an independent judiciary, and could undermine diversity on the bench. Potential models of reform remain debated, however it is often suggested that Australia could draw inspiration from the United Kingdom [31], which in 2005 changed its process from one similar to Australia’s to a more transparent procedure based on clear criteria [32]. The new system relies on a Judicial Appointments Commission consisting of fifteen people, including a chair who is a lay member [33]. The Commission assesses potential candidates on five ‘core qualities’, including intellectual capacity, personal qualities, ability to understand and deal fairly, authority and communication skills, and efficiency [34] before providing a recommendation to the Lord Chancellor. Notably, any reform in Australia would have to conform with our unique constitutional landscape [35], though academics seem to agree that such a process would be constitutional [36].
Despite its shortcomings, however, it is true that the current Australian system has avoided the extreme situation in the United States which inspired this article. I believe Murray Tobias QC put it well in his comparative analysis of the two jurisdictions, observing:
‘The contrast between the United States and Australia is manifest… the US system for the appointment of judges is regrettably politicised and thereby flawed. We in [Australia] are indeed fortunate, for I believe that our appointment process, though not beyond criticism and some reform, retains that fundamental independence from the Executive which the judiciary guards jealously in the public interest.’[37]
It will be interesting to see whether policy in this area develops in the future (especially so Australia can maintain its Capital-I, Independent Judiciary). For now, though, primed with the knowledge I have gained writing this article, I feel ready to field any future questions from inquisitive non-Law students - hopefully you do too!
Endnotes
1. Trump v United States, 603 U.S. ___ (2024) 23-939 (Jackson J).
2. Patrick Leslie, Zoë Robinson, and Russell Smyth, ‘Personal or Political Patronage? Judicial Appointments and Judicial Loyalty in the High Court of Australia’ (2021) 54(4) Australian Journal of Political Science 445, 446 (‘Judicial Appointments and Judicial Loyalty’).
3. Australian Constitution s 72(i).
4. Cassie Davis, ‘Judicial Appointments’, Parliament of Australia (Flagpost, 10 November 2021
5. Ibid.
6. Ibid.
7. Ibid.
8. Gerard Brennan, ‘The Selection of Judges for Commonwealth Courts’ (Speech, Senate Lecture Series, 10 August 2007), 5 (‘The Selection of Judges for Commonwealth Courts’).
9. See Ibid.
10. Ibid.
11. Leslie, Robinson, and Smyth, ‘Judicial Appointment and Judicial Loyalty’ (n 2), 446.
12. Brennan, ‘The Selection of Judges for Commonwealth Courts’ (n 8), 5.
13. Simon Evans and John Williams, ‘Appointing Australian Judges: A New Model’ (2008) 30(2) Sydney Law Review 295, 296 (‘A New Model’).
14. Brennan, ‘The Selection of Judges for Commonwealth Courts’ (n 8), 5.
15. ‘About Justice Ian Callinan’, David Bain (Web Page) <http://www.davidbaindonate.nz/about-justice-ian-callinan/>.
16. Leslie, Robinson, and Smyth, ‘Judicial Appointment and Judicial Loyalty’ (n 2).
17. Ibid.
18. Murray Tobias, ‘Judicial Appointments in the United States and Australia - A Comparison’ (2018) 20(1) The University of Notre Dame Australia Law Review 1, 13 (‘Judicial Appointments - A Comparison’).
19. Leslie, Robinson, and Smyth, ‘Judicial Appointment and Judicial Loyalty’ (n 2), 446.
20. Ibid, 445.
21. Ibid, 459.
22. Evans and Williams, ‘A New Model’ (n 13).
23. Ibid, 297.
24. Ibid.
25. Ibid, 298.
26. Ibid.
27. George Williams, ‘High Court Appointments: The Need for Reform’ (2008) 30(1) Sydney Law Review 161, 161 (‘The Need for Reform’).
28. Brennan, ‘The Selection of Judges for Commonwealth Courts’ (n 8), 1.
29. Ibid, 16.
30. Ibid, 16.
31. Ibid, 12.
32. Ibid,
33. Williams, ‘The Need for Reform’, 164.
34. Brennan, ‘The Selection of Judges for Commonwealth Courts’ (n 8), 13.
35. Ibid, 16.
36. Ibid.
37. Tobias, ‘Judicial Appointments - A Comparison’, 19.
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