If Clive Palmer was a High Court judge

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'Judge Palmer Presiding' by Chris JohnstonImagine that in a few months, perhaps following a hefty donation to the Labor Party, Attorney-General Nicola Roxon announces the appointment of the High Court's newest judge — Clive Palmer.

The Honourable Justice Palmer sets about rewriting the law in radical new ways. Directors of mining companies, His Honour holds, are not subject to regulation by ASIC because of a hitherto unrecognised 'ensuring Australia's prosperity' exception. He further decrees that disbanding the Australian Greens is constitutionally valid, being necessary for the defence of Australia against the CIA's incursions into our coal industry.

Surely such an appointment would be wrong, and could be challenged in some way? Actually, no.

Due to the impending retirement of High Court judges William Gummow and Dyson Heydon, two new judges will soon be appointed. The position is one of the nation's most important. Few wield more power over Australia's affairs, a fact recently reiterated when the High Court declared the Malaysia solution unlawful.

Yet the 'process' of High Court judge appointments is so shadowy as to barely deserve that label. High Court judges are appointed at the absolute, unchallengeable discretion of the Attorney-General and Cabinet. Unlike many other government decisions, there are no criteria the Attorney-General must take into account.

The situation is rendered more anomalous when one considers the importance Australia places on the 'separation of powers' doctrine. It is often called upon in public discourse, and treated with reverence in our constitutional law. The High Court sits at the apex of one of the 'powers', the judiciary. The Attorney-General sits close to the apex of another, the executive. And yet the Attorney-General is responsible for appointing High Court judges.

A modern-day constitutional drafter would be ridiculed for proposing a system so open to abuse.

In the Hindmarsh Island Bridge case, it was considered too great an infringement of the separation of powers doctrine to let a judge prepare a government report on the Bridge. But apparently it is no infringement at all of this doctrine to let one power choose which people the other power will consist of.

You might think this is just a theoretical problem — that in some third-world fledgling democracy, such an unaccountable, unprincipled system might be cause for concern, but in civilised Australia, we can trust our representatives to do the right thing. You would be wrong.

It is difficult to say whether the most unprincipled High Court appointment was Gough Whitlam appointing his own Attorney-General, Lionel Murphy, in 1975; Joseph Lyons doing the same with John Latham in 1935; or Robert Menzies appointing his cousin Doug in 1958.

In more recent times, the abuses have persisted, albeit less flagrantly. In a speech at Adelaide University, Alexander Downer admitted that ideology was a relevant factor in the Howard Government's High Court appointments — first, that they were black-letter lawyers, not activists, and second, that they would favour the Commonwealth over the states in deciding who is allowed to do what under the Constitution.

Heydon and Gummow, both Howard appointments, are renowned and outspoken black-letter lawyers. Moreover, Downer hinted that John Doyle, the soon-to-retire South Australian Chief Justice, widely tipped to be SA's first High Court judge, was overlooked by the Howard Government because he served for many years as SA's chief barrister, and would thus be too sympathetic to the states in their constitutional battles with the Commonwealth.

A. J. Brown reveals in his recent biography of Michael Kirby that the Keating Government rejected Doyle on similar grounds, instead appointing Kirby — but only after Gareth Evans convinced Keating that Kirby was sufficiently left-wing, despite being a monarchist. Evans' exact words were that the Court needed 'an adventurous spirit up against all those other fucking Tories'.

Such partisanship cannot be good for our system of government. Having the members of our judiciary selected, at least partially, on their political and jurisprudential ideology and beliefs about federalism is wrong in principle and may even have observable adverse effects.

It may be, for instance, more than coincidental that our constitutional law has been heading in a direction that interprets the powers of the Commonwealth in broader and broader terms. A particularly notable example of this development was the WorkChoices case, in which the High Court affirmed the power of the Commonwealth to regulate industrial relations, a power that any casual reader will find difficult to locate in our Constitution.

This arcane state of affairs has not been allowed to persist in the UK, that great enemy of arcane constitutional arrangements. The UK instead has a Judicial Appointments Commission, which takes the appointments process out of the murkiness of the Cabinet room, and hands it to a committee of lay persons, judges, and lawyers, who appoint judges through a transparent process of nomination and interview, according to specific criteria.

Legal academics Simon Evans and John Williams have proposed a similar system for Australia, although they wish to trial it with lower courts before applying it to the High Court.

It is well past time Australia adopted such a Commission. The judicial appointments process requires reform, both to maintain the integrity of our democracy, and to ensure the judiciary develops our law in a way that furthers the public good, not the Commonwealth government or a particular ideology. 


Patrick McCabePatrick McCabe works at an Adelaide law firm while completing a Graduate Diploma in Legal Practice. He is a former contributor to the Adelaide University magazine On Dit. Patrick won Eureka Street's 2011 Margaret Dooley Award for Young Writers with this essay

 


Topic tags: Patrick McCabe, High Court Judges, Clive Palmer, Michael Kirby

 

 

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Existing comments

Gummow was appointed by Keating, not Howard. And so?
Frank Brennan SJ | 21 May 2012


And who appoints the Judicial Appointments Commission and on it goes.
Peter C | 21 May 2012


The selection process for finding a new High court judge should be open and only people of great integrity, intelligence and a firm first class knowledge of the Law should be considered. If we allow the politicians to pick their own choices based on what sort of judge would suit their political style, we will not get good judges and may allow judges to become judicial activists for their own utopian dreams interpreting the constitution and the dictates of the Law to their own world views which may be in completely different context to what the Law was intended for in the first place. I also would like to comment my disgust that Eureka St would print such a foul filthy swear word as appears in this article. My family and many others including non-Catholics find this type of language extremely offensive. There is no absolutely no need for using bad language in any article on Eureka St and if the author is directly quoting someone they should leave the bad language out or leave a blank instead of using any bad language.
Trent | 21 May 2012


We live in a democracy and the result is that the elected government has very great power - even to send citizens to overseas wars and the danger of death. So it is important that we all take an active interest in politics, perhaps becoming members of one of the parties and helping to select suitable political candidates. Sadly, the loudest critics of politicians are often those who stand aside and fail to participate.
Bob Corcoran | 21 May 2012


But Trent - the quote is valid! It does take adventurous spirits to combat f***ing Tories!Hopefully, the "specific criteria" of the UK's Judicial Appointments Commission are determined by such highly spirited types.
Michelle Goldsmith | 21 May 2012


Pardon my naivety on this matter, but if matters that reach the High Court are open to a range of different interpretations and can be influenced by one's personal political interests, doesn't that mean there's a problem with the law process rather than who is appointed? If different outcomes can be reached by different judges, it seems the constitution isn't clear enough. Would a bill of rights do anything so improve the integrity of decision-making?
AURELIUS | 21 May 2012


Great essay Patrick. Keep up the good work.
Denise Christensen | 21 May 2012


Good idea. And the members of the Appointments Commission should be appointed by the States, not the Commonwealth. This would serve as a slight counter to the tendency you referred to of the High Court absurdly increasing the powers of the Commonwealth at the expense of the States and the people by inventing non-existent implications which its highly imaginative judges claim to see in the Constitution (which was plainly intended to give the Commonwealth very limited powers with the States retaining the lion's share of government powers). And I must agree that the extremely offensive word you included in the article is totally unacceptable. Regardless of whether the quote is accurate or whether the speaker made valid point. Even the ABC doesn't print such profanity, much less a Catholic publication. This might be acceptable in banter among the lads in your law firm but please remove it from here. No wonder so few women bother reading or commenting on your articles when you print a word with such a connotation of sexual violence, as a meaningless intensifier.
Sharon | 21 May 2012


I have read the A J Brown biography of Michael Kirby - an excellent piece of writing. A lawyer writing about another lawyer! The current Federal Government has failed in many areas but I don't think appointing Nicola Roxon as Attorney-General has been a mistake - so far. She is well qualified for the position and smart enough to stay right away from Clive Palmer(cough, splutter). Of course, appointments to the High Court are of great importance to our country - and the Labor Party have been a bit more adventurous than the Lib/Nationals. I think a Judicial Appointments Commission could work - but only if lay persons were part of the process.
Pam | 21 May 2012


Quite perceptive points. But, is there some editorial dictate at E.S. that articles submitted have a guarantee of publication if they take a cheap shot at Clive Palmer, Gina Rinehart, Tony Abbott, or the Vatican?
HH | 21 May 2012


Thanks to those who have made a comment. I thought I should address some of the concerns raised. To Frank, obviously you are right. This is a bad fact-checking error on my part. But I don't agree that "And so?" is the proper response to the issues raised in my article, as you seem to be implying. Perhaps I have misunderstood your meaning. To Trent and Sharon, I'd like to note that my submission to Eureka Street censored the "f-word". It was not my decision to print it in full. I don't use this word in 'banter' at my workplace, and I don't have any evidence to suggest that women avoid reading my articles (though perhaps this latter assertion was directed at Eureka Street generally? In which case I also don't think it's true). Nonetheless, I appreciate your taking the time to read and comment on my article.
Patrick McCabe | 21 May 2012


Nothing will surprise me. Today Clive and tomorrow Gina. With the country almost falling on its head on the right side of the political divide, money reigns supreme and anything can be bought. The country's media outlet is already owned by a an ageing plutocrat bent on acquiring world power and a minority of greedy billionaires, while the rest of the population seems to be dozing in an increasingly hot summer haze. And then, there are the likes of Trent who seemed permanently anchored in the middle ages.
Alex Njoo | 21 May 2012


Another female to add to the reading list! Great article Patrick, very interesting and thought provoking. And a quote's a quote, whether it has profanities in it or not. Well written.
Gabrielle Klingberg | 21 May 2012


A very bad system of selection which has little do with democracy but which as far produced mainly a great outcome for Australia. It shows that in the end great minds read and use the laws as they are meant to be implemented. The selection of our Parliament is far more democratic. Look at what we had selected to rule us! There is much space to list all the good things about Bob Brown, Peter Slipper, Julia Gillard, Craig Thomson etc. Anybody willing to start?
Beat Odermatt | 21 May 2012


I think this article is a kiteflying exercise by the legal profession to control all aspects of our legal system. Patrick, Is your next article about a Legislation Commission to bypass the democratically elected Parliament? I believe in what Gareth Evans said in his colourful language that we are better off with people who have an adventurous spirit for legal interpretation for High Court appointments. As the current attorney-general responsible for High Court appointments, I have faith that Nicola Roxon will make a good appointment and be more socially objective than some Commission. Previous appointments such as that of Lionel Murphy and Michael Kirby have been excellent because their adventurous spirit resulted in better law.
Mark Doyle | 21 May 2012


Thank you Patrick and I apologise to you. My criticism is directed entirely to the ES editor. What a puerile attitude on his part to insert f- words into the publication which do not appear in the submitted articles. Apparently for no other reason than just to show that he can do it and that nobody can stop him, or for cheap shock value. Mark Doyle, it is the democratically elected Parliament's role to MAKE laws. Judges' role is to apply the laws which Parliament has made, and to apply the Constitution which has been made directly by the people through referenda. God save us from judges (either Labor or conservative) whose "adventurous spirit" makes them imagine that they know better than the people and their democratically elected representatives what's good for them, and that their role is to invent novel "interpretations" of the laws and Constitution which Parliament and the people did not intend, and so make supposedly "better law".
Sharon | 22 May 2012


Sharon, the article was about the appointment of High Court judges, not journalistic codes of ethics and the use of profanities. The fact is the F-word was used with a quote, to relay to us the reader to level of contentiousness in this issue, but the word was not directed at the reader (ie you) on a personal level. I want to read the truth, what people say, not some sterilised version of it. Do you expect the media to censor out the details of other tragedies like crime and war horrors just so they don't upset the sensitivities of armchair activists?
AURELIUS | 23 May 2012


Have the wisdom to back away, Patrick. You are clearly in the process of winning a battle and losing the war. The High Court works well and has done for a long time despite all you are saying. It does not appear to be corrupt and lacking integrity to me - on the contrary. If it ain't broke don't fix it.
Jo Farley | 23 May 2012


The article contains: "The situation is rendered more anomalous when one considers the importance Australia places on the 'separation of powers' doctrine." The statement above is ridiculous. Separation of powers as enunciated by Montesquieu involves separate and independent executive, legislative and jucidial branches of government. In the Westminster system the executive branch is part of the legislature. If Australia had regard for the separation of powers it would get rid of the Westminster system.
David Fisher | 25 May 2012


First, Justice Gummow was appointed to the High Court in 1995, under the Keating Government.

Secondly, have any recent High Court judges (apart from Justice Murphy) made the wrong decision? Have any of them been bad? Have any of them not acquitted themselves with the greatest excellence in the high office they have assumed? No. Mr McCabe does not criticise any judge of any of his or her decisions. He merely labels them 'blackletter' or 'activist', labels which are meaningless, when subject to scrutiny.

Thirdly, although the Crown is responsible for appointing judges, the executive branch cannot interfere in their decisions because of tenure. Tenure is the great guarantee of judicial independence. Indeed, the Hawke Government thought that Justice McHugh would side with their side of politics. He failed to fulfil those expectations.

Fourthly, the political persuasion of the judge doesn't matter in practice. Murray Gleeson has observed that during his Chief Justiceship, there was only one case where judges divided along the lines of the party in government when they were appointed, and that had to do with the liability of local councils to mend footpaths. Hardly a high constitutional or political matter.
Robert Turnbull | 25 May 2012


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