Who Judges on who becomes our Judges?

Updated: Feb 5



The Australian High court nomination process is the polar opposite of the SCOTUS process. Is that a good thing?

With all eyes on the 2020 United States Election, you would be forgiven for missing that Australia has appointed two new justices to the High Court. Justices Bell and Nettle are reaching the constitutionally prescribed retirement age of 70, to be replaced by Justices Simon Steward and Jacqueline Gleeson. Beyond the niche worship of Justice Kirby, our High Court Justices rarely gain the celebrity (and intense scrutiny) of their US counterparts. The intense political battle surrounding the replacement of the revered late Justice Ruth Bader Ginsburg has highlighted just how polar opposite the two nations’ nomination procedures are. Mercifully, our parliamentary system does not provoke the hyper-partisanship and intense media coverage that has been seen in the recent confirmation of Justice Amy Coney Barret. However, unless you existed within the uppermost echelons of our legal and political milieu, the announcement of their appointments would have been the very first time most will have heard of our new Justices. Sitting on the highest court in our Judiciary, these justices wield enormous power. Given how opaque the decision making is, would Australia gain from just a little bit more theatrics?

How Judicial Appointments are Made

Our Constitution provides virtually no blueprint for judicial appointments. Section 72 merely states that “The Justices of the High Court… shall be appointed by the governor-general in council”. In practice, this means our executive branch has relatively unfettered discretion in these appointments. Prime Ministers appoint justices upon the advice of the Attorney-General and cabinet, to be rubber-stamped by the Governor-General. The High Court of Australia Act 1979 provides some criteria, such as the requirement to have been either ‘a judge of an Australian court or enrolled as a legal practitioner for at least five years’, though this is a low threshold to meet. Organic political conventions have fortunately meant that our most eminent legal minds are typically those whom are elevated to the bench, free from overt political implications .

The SCOTUS nomination process is starkly different. The President nominates a candidate for consideration, who is then put before a Senate Judiciary Committee. A thorough examination of the nominee - including their previous decisions in lower courts, prior legal writings and judicial philosophy - is conducted. This committee then reports the nomination to the senate, which must confirm the Justice with a simple majority vote. The many fallacies of this process have been well-publicised. In 2016, the Republican-controlled Senate refused to grant a hearing for Judge Merrick Garland (a President Obama appointee) citing it being an election year, only to ram through an appointment of their own days before the 2020 election. This is just one of countless instances of political shenanigans that have corrupted the process. However, beneath the veneer of a broken electoral college which impedes a truly representative Congress, the US does provide some lessons which Australia could take heed of.

The ‘inner-circle’ appointment

Critics of our appointment process rightfully point to the ‘closed-door’ nature of the decision making, with virtually zero public scrutiny afforded to candidates before they are granted positions of enormous power. Attorney General Christian Porter, Prime Minister Scott Morrison and senior cabinet members; to quote from Hamilton, “no one else was in the room where it happened”. In saying this, it is irrefutable that Justices Steward and Gleeson have the credentials and distinguished careers to merit their positions on the bench. Justice Steward has been highly regarded amongst the legal cognoscenti for a long time for his expertise in taxation and commercial law. Justice Gleeson has had a diverse career, with extensive experience in public practice and a background in commercial law. Both have been drawn from the Federal Court and are clearly qualified enough to leave historic conventions unscathed. However, while the process was a much more muted affair, it would be remiss to dismiss the Morrison Government’s judicial appointments as being apolitical.

In February of this year, the Coalition was frustrated by the decision of the High Court in Love v Commonwealth; Thoms v Commonwealth (of which you can find a summary here) which ultimately declared that Indigenous Australians cannot be considered ‘aliens’ for the purposes of s 51(xix) of the Constitution. The Morrison cabinet was clearly vexed by the decision, with Home Affairs Minister Peter Dutton criticizing the judgments as “a very bad thing” that could be “open to exploitation”. Attorney-General Porter even suggested that the Government would be “looking into ways in which we might be able to effect that policy, without reliance on the power”, effectively subverting the ruling. Interesting to note, all three judges appointed by the Abbott and Turnbull governments: Nettle, Gordon and Edelman JJ joined Bell J in the majority. This is sure to have rankled top party officials, whose hard-line immigration stance has been a central policy tenet since wining office in 2013. This is not the first time a government’s own judicial appointee has given decisions unfavourable to their policy agenda. Prime Minister Gillard famously criticised Chief Justice French (appointed by Prime Minister Rudd) over the invalidation of the so-called “Malaysian solution’’ for offshore processing of asylum seekers. Nonetheless, it is sure to have been at the forefront of the government’s conscious when assessing their candidates. Finding nominees less willing to engage in judicial adventurism may rebalance the majority in future cases of a similar strain.

Justice Steward has a reputation for a strict “black-letter” approach to law. Black-letter is defined as a rigid adherence to legal precedent, with a narrow interpretive focus. This seems unproblematic. The separation of powers doctrine does rightfully impose that our judicial system remains independent of the legislative process. However, this approach would mean that the courts would only be willing to curtail the government when it is acting ultra vires, thereby refraining from invalidating more covert infringements of rights. Justice Heydon (now the subject of several substantial sexual misconduct allegations), a Prime Minister Howard appointee, was well-known for his strict black-letter approach. He consistently dissented when the court forayed into topics such as implied rights and limits on government powers including in seminal cases such as Rowe v Electoral Commissioner and Coleman v Power. Heydon J also frequently conferred plenary power in the federal executive to the detriment of the states, notably being in the majority in New South Wales v Commonwealth (‘WorkChoices’). It is not a stretch to imagine that an overzealous executive branch would seek to appoint Justices that they expected to utilise a ‘black-letter’ approach to side favourably with them on matters of constitutional interpretation. It is unclear if these new justices will indeed steer the court away from ‘adventurism’, but the secretive process clearly foments uncertainty as to the motivations behind these nominations.

Another concern is the insular culture of the legal and political elite that does not allow for a court that truly represents the communities which its decisions directly affect. Justice Gleeson is the daughter of the former Chief Justice Murray Gleeson, often known to have presided over of the more ‘conservative’ periods in the courts history. He shared with Justice Heydon much of the same philosophy on the bench (with a few notable exceptions). Although that fact alone should not paint his daughter with any particular brush, it doesn’t shake the reputation of the historic elitism that permeates the legal industry. There have been so few women appointed to the High Court (Gleeson J will be just the sixth), that Her Honour’s appointment should be treated with the accolade that it deserves. With more than 60 women now sitting on the Federal and state supreme courts just as qualified to be nominated, the public is robbed of the chance to assuage notions that her nomination was not tinged by agenda. Her merit could have (and most likely would have) been verified by the public, through the proxy of a senate hearing or independent body review. A High Court Justice has enormous power in shaping the futures of a wide array of Australian communities, yet our Judicial appointees still seems to be drawn solely from a pool of wealthy, private-school educated and well-connected candidates. They also do not reflect the breadth of issues that are brought before the court. Justice Bell was well-known for her expertise in criminal law, with extensive experience at the Redfern Legal Centre. Her retirement presents a vacuum in that area of the law. Having a homogenous world-view may mean the court is more ‘collegiate’, but doesn’t recognise the different challenges that varied communities in Australia face. Australia’s constitution contains very little explicit protections compared to the Bill of Rights so beloved by the American public. While radical judgements that defy the separation of powers doctrine should be avoided, the public does rely heavily on the High Court for the protection of our rights and freedoms. We at least deserve the chance to know the person who will take up this mantle before they are granted lengthy terms.

Despite the rigmarole of the US approach, installing a pared back version here may prove to be a much more beneficial exercise. Many have floated the idea of having US-style Senate hearings which would allow senators to scrutinize the Prime Minister’s appointee to allow for a more transparent process. This would also incentivise states to have greater representation in the process beyond the cursory “consultation” that occurs at present. To date there has not been a Justice appointed from South Australia, Tasmania or the territories. It would also allow ordinary citizens to view and participate in the process, pressing their elected officials to act if they feel the executive arm has over-extended their presence. Another solution would be the creation of an independent appointment committee that would oversee the nomination process free from political influence. This could bring together a diverse array of some of Australia’s best legal minds to find candidates that actually represent the constituents they make decisions on, to suggest to the Prime Minister. There is still yet to be a indigenous voice on the court, despite the seismic decisions that the High Court are in charge of (see Love; Thoms above). The UK already has implemented such a body, which has allowed for the appointment of diverse candidates that exist outside of the inner-circles of the elite.

Conclusion

Justice Steward is fifty-one and Justice Gleeson fifty-four. Assuming good health, this gives a 15-20 year era from which they can shape the court and the nation. The jury is still out as to what their legacy will be, however the High Court will no doubt be faced with unprecedented legal challenges in the next two decades. Litigation stemming from climate change has already stirred in lower courts and the pandemic has upended the relationship between civil liberties and public health. These two new justices are mostly uncontroversial picks that conform to convention. Can we always trust in this being the case though? Will the wrong government at the wrong time be allowed to circumvent public scrutiny in pursuit of policy homogeneity? In this era of disinformation, Australia is not immune to the internal discord and rising authoritarianism that plagues liberal democracies. Relying on historical conventions as safeguards against the uncertain future of our democratic institutions makes us vulnerable. This may sound hyperbolic, but if the last four years of Trump, Brexit and Russian Twitter bots have shown us anything, it’s that institutions matter. Having meaningful checks and balances that will continue to allow for informed civic participation is of paramount importance.

The circus that occurs in the US may not be the most appealing model, but its high time we at least erected the big tent and gave crowds a show. Maybe just omit the clowns.


Image: Sydney Morning Herald

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