Fowler, Edward --- "2017 Sir Samuel Griffith Essay Prize: Would Australia Benefit from an 'American-style' Confirmation Process for Appointments to the High Court?" [2018] SGSocUphAUCon 17; (2018) 30 Upholding the Australian Constitution 214

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2017 SIR SAMUEL GRIFFITH ESSAY PRIZE

WOULD AUSTRALIA BENEFIT FROM AN ‘AMERICAN-STYLE’ CONFIRMATION PROCESS FOR APPOINTMENTS TO THE HIGH COURT?

Edward Fowler (Canberra)

The process of judicial appointment to the High Court was a subject of debate even before the establishment of the Commonwealth. The framers of the Constitution rightly placed this power within the hands of the Governor-General instead of Parliament. This paper argues an American-style system of judicial appointment would not be appropriate for Australia given that the High Court has a more diverse jurisdiction than the Supreme Court. Appointments in Australia should be based on technical prowess and broader considerations than the judge’s views about constitutional interpretation.

Judicial appointments to the High Court are made by the Governor-General in Council.^[1] Clark’s original draft of the Constitution included a Federal Executive Council,^[2] but this was omitted at the 1897 Constitutional Convention.^[3] Justices are chosen by the Attorney-General following a decision made at Cabinet. While judicial appointments can give the impression of being a ‘gift’ of the government,^[4] the process is subject to extensive consultation.

Since 1979 the Attorney-General has been required to consult with his state counterparts,^[5] and, though not necessary, discussions with the Chief Justice or Justice and the Bar are the long-standing convention. From time to time, there are calls for reform, usually concerning a perceived lack of transparency and selection criteria.^[6] The Constitutional Commission considered these issues in 1988, but made no recommendations to change the status quo.^[7] The system has fared well in Australia’s constitutional history, and is most appropriate given the High Court’s role.

It is important to keep in mind that the High Court acts as both a constitutional court and an appeals court. The High Court has original jurisdiction over constitutional affairs, and appellate jurisdiction for all decisions made in the State Supreme Courts and Federal Court. While constitutional cases generate the greatest amount of attention, in reality they make up only a small portion of the High Court’s caseload.^[8] The day to day activities of the High Court are mostly appeals heard in the areas of private and criminal law. This requires Justices to be generalists, with command of the technicalities of the law. Because the High Court is an appellate court, it must be ‘staffed by judges who can handle not only constitutional issues but all manner of complex areas of the law, such as wills and succession, contracts, copyright, commercial law, and so on’.^[9] The existing system is in a much better position to ensure this than one overseen by the legislature.

Judges are, for the most part, appointed for their experience rather than political patronage. In Australia, we tend to follow the modern British practice of making appointments based purely on ‘personality, integrity, professional ability, experience, standing and capacity’.^[10] That Justices of the High Court interpret the Constitution as it ‘is’ rather than to suit the Government of the day, is essential for maintaining checks and balances. Good Justices tend to previously be lawyers of high standing in the private law or Judges in the Supreme Courts and, increasingly, the Federal Court. The Attorney-General, in consultation with the legal community, is best suited for picking these candidates. The few bad appointments to the High Court were when this tradition was ignored.

Governments have occasionally made political judicial appointments, which have diminished the standing of the High Court. Justice Piddington was appointed by the Fisher Government in 1913, but did not ultimately take his seat after it was revealed that Attorney-General Hughes asked for his loyalty to the Commonwealth rather indiscreetly via telegram.^[11] The appointment of Justice McTiernan was opposed by Prime Minister Scullin and his Attorney-General, but nonetheless approved because he was preferred by the Federal Labor Caucus.^[12] The appointment of Justice Murphy by Prime Minister Whitlam in 1975 was widely seen as a move to cull the ambitions of a potential leadership challenger and to stack the High Court with someone sympathetic to his Government’s law reform agenda.^[13] In these instances, the disregard of advice from legal professionals has led to politicians making appointments based on partisan principles. It is probable that further politicising the process through Senate hearings and confirmations would lead to the appointment of more mediocre judges. The recent experience of the United States of America supports this proposition.

One of the criticisms frequently made about Senate confirmations to the Supreme Court of the United States is the imposition of a litmus test, where candidates are assessed on their ‘knee-jerk’ reactions to contentious policy issues rather than judicial philosophy more generally.^[14] It has led to a system where judges must make what are effectively campaign promises about how they would rule on certain cases or face veto by hostile Senators.^[15] Since the Warren Court, the process has favoured activist judges, with several confirmations of judges who take a conservative approach to constitutional interpretation being thwarted by public campaigns.^[16] Sir Harry Gibbs observed at the time of the controversial hearings for Judge Bork that in the United States of America it seems ‘party politics plays so large a part that some of those appointed fall short of the standards that the office demands’.^[17]

One can only imagine how past judicial appointments to the High Court would have been stifled had we an American-style system. Take the appointment of Justice Callinan, a very good judge and upholder of the Constitution. However, at the time his appointment was marred by controversy due to an unfortunate epithet made by then Deputy Prime Minister Fischer;^[18] his appointment was opposed by large sections of the media and the majority of parties in the Senate.^[19] But because of the Australian form of executive judicial appointment, the Howard Government was able to appoint Justice Callinan to the bench. Justice Callinan went on to lead a distinguished judicial career of conservative-minded jurisprudence. This did not always translate to support for the conservative Government, as his notable dissent in the WorkChoices Case shows.^[20]

Legalism remains the orthodoxy at the High Court because Justices are selected for their eminence as judges or lawyers. To succeed in the law in Australia, one requires an extensive career of interpreting black-letter statutes. This is not to say there haven’t been activist judgements made in the Court’s history. The High Court has given the Commonwealth much more power than the framers of the Constitution intended, particularly with the invention of implied prohibitions and recommendation of implied immunity of instrumentalities in the Engineers’ Case.^[21] Though there is ample criticism of High Court judgments to be made with respect to federalism, it is hard to see how Senate confirmations would strengthen federalism more than the current system. The US-system was proposed in the Federalist papers on the premise that the Senate would act as a house of review for states’ rights. In Australia, Senators are largely beholden to the whips of national parties. A more reasonable proposal for supporters of federalism would be to have the Attorney-Generals from each state decide the composition of the High Court. This was proposed, but rejected, at the Constitutional Convention in 1897 by the South Australian delegation.^[22]

The High Court plays a vital role in safeguarding responsible government, the rule of law and federalism. No more important has this been than now, at a time of unprecedented growth in the size and scope of the Federal Government. An independent judiciary, comprised of judges serving as agents of the Crown fearlessly and without favour, is one of the hallmarks of a free society. The existing system of executive-appointed Justices has largely provided this; exceptions to this were when this system was bypassed for political expedience, rather than flaws in the system itself. There is evidence a US-style process of Senate hearings and confirmations could jeopardise the process in Australia, and offer none of the obsequious benefits it affords to Americans. It is best to follow the system designed by the framers of the Constitution and refined by later generations, rather than to start afresh with something entirely different. This will give future generations the best chance of enjoying the liberties we enjoy today.

Endnotes

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^[1] Commonwealth of Australia Act 1900 (Cth), s 72(i).

^[2] See J M Williams, The Australian Constitution: A Documentary History (2005) 106.

^[3] Ibid 543.

^[4] M Kirby, The Judges (Boyer Lectures, 1983) 20.

^[5] High Court of Australia Act 1979 (Cth) s 6.

^[6] G Barwick, ‘The State of the Australian Judicature’ (1977) 51 Australian Law Journal 495; G Brennan, ‘The State of the Australian Judicature’ 72 Australian Law Journal (1998) 34; R French, ‘The State of the Australian Judicature’ (2009).

^[7] Constitutional Commission, Final Report of the Constitutional Commission (1988) vol 3, 398.

^[8] High Court of Australia, Annual Report: 2015-16 (2016) 35.

^[9] G Fricke, Judges of the High Court (Hutchinson, 1986) 160.

^[10] Lord Hailsham, ‘Appointment to Silk and the Judiciary’ (1985) 82 The Law Society’s Gazette 23-35.

^[11] B Galligan, Politics of the High Court (University Queensland Press, 1988) 93.

^[12] Ibid 107.

^[13] J Hocking, Lionel Murphy: A Political Biography (Cambridge University Press, 1997) 221.

^[14] L Tribe, God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes our History (Random House, 1985) 97.

^[15] Ibid.

^[16] R Bork, The Tempting of America: The Political Seduction of the Law (Free Press, 1990) 9.

^[17] Sir Harry Gibbs, ‘The Appointment of Judges’ (1987) 61 Australian Law Journal 9.

^[18] N Savva, ‘Fischer Seeks A More Conservative Court’, The Age (Melbourne 5 March 1997) 6.

^[19] G Alcorn, ‘A Law Unto Himself’, The Age (Melbourne 2 May 1998).

^[20] [2006] HCA 52; (2006) 229 CLR 1.

^[21] [1920] HCA 54; (1920) 28 CLR 129.

^[22] Government of New South Wales, Proceedings from the 1897 Australasian Conference, September 2-24, Parliament House, Sydney (1898) 123.