Andrew Murray (WA, Australian Democrats) Share this | Hansard source

Unusually for me, during the last parliamentary sitting I took leave from the Senate for an afternoon, to go to Sydney to attend the Magna Carta lecture. The invitation from the British High Commission was hard to resist given the historical significance of the Magna Carta and the quality of the speaker. Signed 800 years ago, in 1215, this charter of freedoms and values is one of the bedrocks of democracy. The Magna Carta has been kept alive and is a charter that continues to resonate in the modern world. Australia has its own copy, which is proudly displayed here in Parliament House.

The lecture was titled ‘The role of judges in a modern democracy’ and was delivered by Lord Falconer of Thoroton. He is the Lord Chancellor and Secretary of State for Constitutional Affairs in the United Kingdom. Needless to say, he is a man of vast experience and considerable wisdom. The basic tenet of his address was that the judiciary’s role is subtly changing, particularly in relation to politics. It is a change that is occurring without the need to effect any constitutional change. It is also a change that is establishing a new form of relationship between the executive, the legislature and the judiciary. He stated:

We want them to undertake in a non-political way the resolution of issues which have either in the past been regarded as political or which are becoming more political.

To illustrate this, he focused on sentencing and human rights as areas where judges in the modern democracy seem to demonstrate many of the pressure points in the relationship between the public, the executive, the legislature and the judiciary. Drawing on the democratic ideal of equality before the law, he stated that the personal rights and freedoms of each individual can only be given effect to by protection under the law. The extent of this protection, he remarked:

... will involve judgements on whether executive action has exceeded the limits of freedom and freedom from discrimination to which the individual is entitled in a modern democracy.

However, I do not intend to elaborate on these aspects of his address—which is available on the web for those interested. Rather, I am going to focus on the fundamentals that Lord Falconer considers are essential for a modern and successful judiciary, in particular a better framework for appointing judges. This is an issue which has long concerned me. There have been renewed calls from within and outside the judiciary for a revised judicial appointments process. This has long been demanded. Back in 1998, Felicity Maher and I jointly published an article entitled ‘Judging the judges’ in the August edition of the Alternative Law Journal. In it we argued that, to ensure public confidence in our nation’s highest court and its pronouncements, High Court justices must be perceived as the most meritorious and as completely independent. We argued for a transparent process, but in Australia the procedures to appoint justices to the High Court remain clouded in secrecy.

Under section 72 of the Commonwealth Constitution, only two requirements need be satisfied. They are that appointments must be made by the Governor-General and that appointees are to be less than 70 years of age. Additionally, the High Court of Australia Act 1979 sets out two further requirements: section 6 states that, before appointments are made, the Commonwealth Attorney-General must consult with the states’ attorneys-general; and section 7 states that a candidate must have served as a judge of a court or must have been admitted as a barrister or solicitor for not less than five years. These requirements are an insufficient safeguard because the modern practice of government allows a blatantly partisan executive too much discretion in appointing High Court justices.

The increasing public perception seems now to be that, when a government is able to choose who is to fill judicial vacancies, it will more likely than not choose those sympathetic towards the views of that party and will look for attitudes and philosophies in candidates that it likes. Whether that is fair or unfair, that is quite a common perception. My heart froze at the horrifying confirmation that this was the coalition government’s agenda when the then Deputy Prime Minister declared that what was needed in Australia were capital ‘C’ conservative judges. I could feel the breath of tyranny, and an assault on liberty, in those words. What a slur he put on every judicial appointment with those words! Not only that but this was a dangerous thing to do, because, if as judgements accumulate those judges end up being perceived as partisan to one side of politics, public confidence in the independence of the judiciary will suffer.

This is most true when great and hotly contested political decisions are at stake, such as on government advertising practices, freedom of information laws and industrial relations laws. It may not be fair, but, as the old adage goes, it is much easier to lose a reputation than to gain one, and in a democratic system of checks and balances public perception is a big factor.

On another front, the consequence of the existing judicial appointments system is a history of predominantly white, Anglo-Saxon, eastern states men on the High Court bench. It is a bench that to date has not reflected the diversity of communities they judge. Lord Falconer stressed in his address that a system of appointing judges must clearly demonstrate to the public that selection is made on merit, that selection is divorced from politics and that selection reflects the society they are to judge. We need judges each with different world views. We need the mix to include those who have been outspoken on the rule of law, those who have been activists and those who are left, right and in the centre. What we do not need is to have even a hint that the scales of justice might be unbalanced through the appointment of judges or magistrates who the government or the public believe will defer to the government line because of patronage.

In his closing remarks, Lord Falconer stated that judges require an indefinable wisdom when making decisions, a wisdom that ensures public confidence is retained. He stated:

They must seek to give effect not to their personal views but to the values inherent in their legal system. Those values must reflect the society that system serves ... Our societies can ask for no more from their judges, but, to make our system work, our societies must expect no less.

Australian society can indeed ask for and expect more in our system. Political parties here occasionally complain about judicial appointments but, once in power, have made little administrative or legislative change to make the process more transparent. Not so in the United Kingdom. A more transparent and democratic process of appointing judges was ushered in under reforms announced by Prime Minister Blair in June 2003.

This process now involves a judicial appointments commission that recommends candidates to the Lord Chancellor, who then has limited power to reject those candidates. The expressions of interest process and the selection process are transparent, and appointment recommendations are based solely on merit. The task of setting out the criteria against which merit is tested lies with the commission. Although the final decision still remains in the hands of the government, those on the short list have all been ticked off by an independent body. No longer is the partisan political executive the sole selector of who should judge their society.

And neither should it be here. There are many countries where judicial appointment commissions exist. These include Ireland, Canada, South Africa, Israel, France, Germany, Italy, the Netherlands, Portugal and Spain. Numerous states in the United States also have them, and we are all aware how presidential nominees for the Supreme Court are put through close scrutiny by the parliament in the United States.

The Australian Democrats believe that a new process of appointing judges should be implemented here to ensure full public confidence and trust in the High Court. Three principles underlie our model. First, the candidate search and appointment procedures must be completely transparent, second, that merit is the fundamental selection criterion, and third, that there are no discriminatory obstacles for suitably qualified women and minority group representatives.

The appointment process should be depoliticised, even if that politicisation is just a perceived politicisation. This can be achieved by implementing a two-pronged model, one similar to the new United Kingdom system. The first prong is the creation of an independent judicial appointments committee and the second prong is the publication of selection criteria in a protocol periodically reviewed by the committee. This model can be achieved without resorting to the rigorous elements required for constitutional change under section 128 of the Constitution.

Instead, section 6 of the High Court of Australia Act could be amended to provide for the establishment, constitution and functions of a judicial appointments committee. Further, section 7 could be amended by adding to the qualifications requirement a protocol of criteria to be drafted by the committee. General recognition of the principles of equal opportunity, independence and integrity could also be given statutory force.

Reforms to achieve such a model are central to a modern and robust democracy. They are central to the separation of powers doctrine, whereby the judiciary is completely and transparently independent from the executive and legislature. Lord Falconer remarked:

… each part of the state needs a clear understanding of the interdependency of each of their roles. The legislature [and executive] cannot pass laws which they suspect the courts will … construe in a way which does not deliver their intent.

If the political system fails in its decisions, as it is bound to do periodically, we need an independent judiciary that can address those failings in law, with no public perception that the bench is stacked and the process tainted.

The Chief Justice of Australia is alert to the task that is presently at hand, recently remarking that, in the contest between the new laws that address national security and that in the process transgress upon our liberties, the judiciary will be called upon to make decisions that may not be at all popular. He stressed the need to hold to the strongest traditions attached to judicial determination and the rule of law.

So back to the capital ‘C’ conservative judges that the then Deputy Prime Minister told the world we should and were going to get. Unfortunately for them, and despite their obvious ability and merit, the Howard government’s judicial appointments have to live with those political remarks and are affected by them in public perception terms. They can only prove the perception wrong by their conduct and judgements. And it is in the area where there is a great political clash that they will be watched most closely.

The recent High Court decision in Michael McKinnon v Secretary, Department of Treasury is a case in point. The applicant’s case obviously had merit because it was a split decision, but the effect of the decision was a blow to accountability and public scrutiny in the public interest. It did nothing for the spirit of freedom of information. News Ltd chairman and chief executive Mr John Hartigan stated in the Australian on 7 September the decision was:

… extremely disappointing … not just for The Australian newspaper but for Australians everywhere who value freedom of information and freedom of speech

Other commentators have remarked negatively on some of the prevailing judgements in the court. Former New South Wales Auditor-General Tony Harris, coming as he does from a strong accountability background, in the Australian Financial Review on 12 September noted that, in the Work Choices advertising case, this majority judgement was based on an ‘obscure aside’ which was not part of the statute and which overrode the principle endorsed by the parliament requiring appropriations to be used for specified outcomes. Effectively, the 3-2 split decision gave the government unfettered discretionary power over spending departmental appropriations. We currently await another decision, with the High Court now considering a third politically contentious case—that is, whether the Commonwealth’s corporation powers validate the federal government’s hostile takeover of the states’ industrial relations power.

To conclude, I will briefly return to Lord Falconer’s speech. Not only did it reveal the need to protect the essential principles of the rule of law and the separation of powers; it also revealed how it is possible to strengthen the law and judiciary in modern democracies and deal with a necessary tension that must exist between the political and judicial worlds. Former Labor chief of staff Michael Costello, in an opinion piece on Lord Falconer’s address published in the Australian on 15 September, concluded his piece with these words:

We do have Australians who can speak with the quality and gravitas of a Falconer. Unfortunately, neither our Prime Minister nor our Attorney-General are among them: not from any incapacity but because the Howard Government has proven intolerant of constraints on prime ministerial power.

I can only trust that, when Labor eventually comes to power, steps will be taken to ensure that the principle of an independent judiciary is reinforced and that we will never ever hear a Labor Deputy Prime Minister saying that they will appoint capital ‘L’ Laborites to counteract Mr Howard’s capital ‘C’ conservatives. We need a judicial appointments system that frees us from the fear of such taints or perceptions. The health of our democracy demands it.