Imagine 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 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.