The Secret Business Of Making A Judge
By Bernard LaganMarch 23, 2012
Like a papal conclave, appointing a High Court judge is a process shrouded in secrecy. It has been so for more than 100 years. Will Australia’s Attorney General, Nicola Roxon, shine new light on an old ritual?
Australia has a new High Court judge: Stephen Gageler, SC. Here’s our backgrounder on the selection process.
When he departed the High Court in 2009, Michael Kirby's customary disagreements with his colleagues had earned him the status of the court's Great Dissenter. What was not known then was that the Great Dissenter's contretemps also extended to the nation's first law officer, the federal Attorney General — who came discreetly calling to sound out the judge about who best to fill the court's vacancies.
"Gossiping away about candidates with current judicial office holders is contrary to my notion of the proper relationships. Not to say seriously lacking in due process to those most affected," Kirby recalls. "I did not approve of judges selecting, or influencing the selection of, judges. It is as simple as that."
He — albeit with his usual charm — sent the Attorneys General packing; Kirby believed that the maintenance of the separation of powers between the Judiciary and the Government was at risk of being impugned should he share his views on the merits of the eminent lower court judges and barristers under consideration for elevation to the High Court.
Kirby didn't discriminate between Attorneys General; both John Howard's Attorney General, Philip Ruddock and Labor's Robert McClelland were gently rebuffed when they sought his views. His fellow High Court judges, however, apparently saw no such risk and have happily — sometimes enthusiastically — shared their opinions before an Attorney General takes a name to Cabinet, according to past Attorneys General.
Such is the mystery and sensitivity that surrounds the picking of a new High Court Judge that those most deeply involved in the process are reticent about its inner rituals — the nearest Australia comes to sede vacanate, the dark state that falls over the Vatican upon the death of the Pope. They maintain, for instance, that the High Court's justices would not be pleased to have their role in choosing their own aired in public.
Unless the shrouded process by which High Court Judges are chosen changes, then the seven justices are likely to receive more frequent visits from the current Attorney General, Nicola Roxon, or her successor. After a lengthy period of settlement, the court is going to be upended by the retirement of the majority of its judges over the next three years. All will have reached 70 — a vintage the Australian Constitution establishes as what some have described as the statutory age of senility, beyond which the judges may not serve.
The first to go will be Justice William Gummow — regarded as the court's outstanding intellect — in October this year. Justice Dyson Heydon, a black-letter conservative, departs in March 2013, followed later by Justices Ken Hayne and Susan Crennan.
Their replacements will have a profound effect on the work of the nation's highest court, which can strike down the Government's laws and policies — as it did most recently by quashing the Government's plan to send hundreds of boat people to Malaysia. The defeat was a political embarrassment and it explains why all Governments seek — albeit often unsuccessfully — to choose High Court judges who might be sympathetic to their policies.
The High Court's history is coloured with examples of Governments' attempts - covert and not so - to put in the fix to get their man onto the bench (it chalked up its first 84 years with no women justices). The most infamous came in 1913 - a dozen years after the court's establishment - when Prime Minister Billy Hughes wanted to appoint Albert Piddington, a grand orator, lawyer and former Liberal MP, to the court. But first Hughes wanted to be sure that Piddington was sympathetic to the Commonwealth's powers. Hughes asked Piddington's brother-in-law, the poet Dowell O'Reilly, to make sure Piddington would be onside. Piddington was - but his was not a popular appointment. The Bulletin magazine railed against Piddington, describing him as "a more or less obscure junior", and Piddington, shattered by the criticism, made history by resigning from the High Court before he sat on the Bench.
Herbert Evatt and Edward McTiernan were snuck onto the High Court in 1930 by a meeting of the Labor Party caucus while the Prime Minister James Scullin and his Attorney General, Frank Brennan, were overseas. Scullin and Brennan had been hotly opposed to both men. Most recently, Justice Ian Callinan's appointment by the Howard Government in 1998 - the first direct appointment from the Bar in 22 years - came after the Deputy Prime Minister, Tim Fischer, had called for the elevation of "Capital C conservative" to the court.
The coming spate of departures from the High Court and the arrival of the Gillard Government's Nicola Roxon as Attorney General - a woman who has made clear her deep misgivings about the judicial selection process - create the circumstances for big changes. Roxon, 45, worked in the law's grittier trade union spaces before entering Parliament but also acquired an insider's knowledge of the High Court by working as associate to the court's first female member, Justice Mary Gaudron.
If ever there was an Attorney General seemingly predisposed to bringing daylight to the selection of High Court judges, it is Roxon. She laid down her views while shadow attorney general, in a 2006 speech to the judges' trade union, the Judicial Conference of Australia. Roxon was speaking shortly after the law professors Simon Evans and John Williams had produced a long paper advocating that Australia adopt a modified form of Britain's Judicial Appointments Commission, which conducts an exhaustive search for top judicial talent before recommending names to the Government.
Said Roxon then: "One of the main criticisms of the current system, which this proposal would help cure, is the tendency to appoint those known to the Attorney General or those inside a very small 'legal club'. The legal world is already small enough, that drawing appointments from an even smaller sub-set can't be desirable long term. And with no disrespect to the High Court, the current over-representation of graduates from Sydney University amply demonstrates this point!"
Next week Roxon will flesh out her intentions for the High Court in a speech to a legal conference. She will say that the Government will broaden out the talent pool for the coming round of High Court appointments to include leading academics or solicitors; if she's able to deliver an academic or solicitor to the High Court then the appointment will represent the greatest departure in a century from the tight pool of judges and barristers from where the High Court has long drawn its talent.
Roxon said on March 23: "I will look at the leading figures in the legal world — whether they are men or women barristers, academics or solicitors, or whether their post code starts with 2, 3, 6 or 8."
But Roxon has not yet flagged her intentions for bringing daylight to the manner in which High Court Judges are appointed.
Roxon's predecessor as Attorney General, Robert McClelland, set up a system of panels to advise on appointing judges and magistrates to Federal Courts including the Family Court. The panels provide a shortlist of names to the Attorney General, who retains the right to make the appointments.
But while McClelland introduced changes to the way in which federal judges were appointed, he made no similar changes to the High Court appointment process. The process remains vague and it's now unfinished business on Nicola Roxon's desk, in the light of the much more transparent judicial appointment process put in place for the lower courts.
Neither the Australian Constitution nor the High Court of Australia Act sets out in any detail the process or the qualifications needed to gain a seat on the High Court. Candidates are required to be either a lower court judge or a lawyer empowered for at least five years to practice in the High Court or a state Supreme Court. Thus, legal academics or lawyers working in Government or elsewhere are generally excluded. There is only a vague requirement that the federal Attorney General consult with the states before recommending a new High Court appointment to his or her Cabinet colleagues.
The merit of sticking with the veiled system for High Court appointments or moving to a more transparent process is a debate that has flared — on and off — for the more than 30 years since Sir Garfield Barwick, the High Court's former Chief Justice, urged that Australia set up a judicial appointments commission that included the High Court. Barwick said the time had arrived for what he called a binding restraint on the power of the Government to choose High Court judges.
But hardly anything has changed for the High Court since, and opinions on the need for change are as divided as when Barwick first proposed it. Significantly, perhaps, those most involved in the selection of High Court Judges appear the least enthusiastic for reform. They include the recent Attorneys General, Labor's Michael Lavarch and the Liberal Party's Philip Ruddock, both of whom were able to re-make the High Court with new appointments.
Lavarch was barely into his 30s when Paul Keating elevated him to Attorney General in 1993 at a time when three High Court judges, including the Chief Justice, were nearing retirement. Lavarch was responsible for recommending to Cabinet the appointment of Justices Gummow, Kirby and Chief Justice Gerard Brennan. Lavarch, now Dean of the Law Faculty at the Queensland University of Technology, remembers it as a heady time when he'd confer with his Prime Minister, Paul Keating, and the famously bright foreign minister, Gareth Evans, on what names would go before the Cabinet. Keating was vitally interested in the candidates for the High Court, others now say, because he wanted to avoid the High Court widening the powers of the states to raise taxes.
Lavarch now reveals that the only time he got rolled on a big policy proposal within the Keating Cabinet was when he drew up a plan to establish a judicial appointments commission — and even then he had not included the High Court within the proposal's orbit.
That experience and his work in identifying High Court appointees have left Lavarch convinced that there is little enthusiasm nor need for changing the High Court selection process.
"Oddly, in a sense the High Court was the easiest court to make appointments to," he recalls. "Because the people you can appoint to it are almost self-evident. To get onto the High Court you've got to have a reputation and be known to have an intellect that can do the job. And the people in that category, you know, they sort of self-identify. It is never one person. There will always be half a dozen, even a dozen but no more than that, whom you can credibly point to."
He adds: "In fairness, both Labor and conservative governments on the whole — you can always point to a few exceptions — really for more than 100 years have done the right thing by High Court appointments."
Asked what qualities — other than judicial merit — would be taken into consideration by the Cabinet when making a High Court appointment, Lavarch identifies the state from which an appointee comes and gender: "To say that geography never entered the mind would be under-stating it. But gender is a more decisive consideration than geography. However, at the end of the day, if a Government thought they'd be better off getting a broad sort of world view and the only way they could do that was to appoint an Anglo-Saxon white silk out of the NSW Bar, from where 85 per cent of them have come from, they will pick another Anglo-Saxon white silk out of the NSW bar."
As well-placed sources within the Gillard Government now tell it, it was geography that got in the way of the two leading candidates from Sydney to replace the Chief Justice Murray Gleeson when he retired in 2008 after a decade on the Court. James Spigelman, the former NSW Chief Justice, and the leading Sydney silk Brett Walker were both passed over in favour of the West Australian Robert French. The departing Gleeson was from Sydney and four currently serving justices — Gummow, Heydon, Crennan and Virginia Bell — all graduated from the University of Sydney.
Philip Ruddock, the Howard Government's Attorney General between 2003 and 2007, greatly surprised not only many Labor-leaning lawyers and judges but also many of his own colleagues when he filled both vacancies on the High Court that occurred on his watch with women appointees. Justices Susan Crennan and Susan Kiefel became only the second and third women appointees to the court since its inception in 1901.
Ruddock, too, is dismissive of the need for a judicial appointments commission, believing that it also can be stacked with a membership sympathetic to the government of the day. "If you are determined to make political appointments, then you will make political appointments," he says. "If you don't have confidence in the decision-makers because you think they are going to stack it, well, then, you can set up a judicial appointments commission who will make it look like arm's length and you can still stack the commission."
Ruddock says that while Attorney General he not only consulted Government MPs about impending High Court appointments but also some of his Labor opponents in Parliament, such as Duncan Kerr, a Tasmanian barrister and formerly in the Keating Cabinet.
Both Ruddock and Lavarch ensured that they took only one name to Cabinet for each appointment to the High Court and that their Prime Minister supported their recommendation before it got to Cabinet.
By contrast, according to former Howard Government ministers, Howard's first Attorney General, West Australian Daryl Williams, took five names into Cabinet when there was one vacancy in early 2003. The court's leading conservative, Justice Dyson Heydon, got the job.
While those inside the High Court appointment process may be satisfied with the present system, others who've long followed the issue from the outside are not. One is George Williams, the leading constitutional law expert and University of NSW law professor.
Williams says there needs to be greater transparency for High Court appointments and he continues to favour a form of judicial appointments commission that would sift potential candidates and provide a shortlist to the Government. Williams is also concerned that the pool from which judicial appointees are drawn continues to be overly shallow. "Even with the female appointments, what hasn't yet occurred is ensuring that more people are considered from what you might call less traditional backgrounds. They might be people who've worked as solicitors, in government or even academics."
For now, the decision on the High Court's future selection process lies with Nicola Roxon.
She declined to be interviewed for this article, saying through a spokesperson: "I am currently considering options for the High Court appointment process and look forward to making an announcement in this area shortly."
A young Attorney General and an aging High Court bench present an opportune time to bring new light to an old ritual.