The last thing we need is a politicized judiciary
For politicians and rock stars, publicity is like oxygen. For members of some other professions – central bankers and public servants, for instance – publicity is generally thought of as undesirable. Happily, most Australian judges would place themselves in the latter category. Unhappily, the federal Labor Party has revealed that it would like to alter the method of judicial appointment, with the covert intent of creating a more politicised and activist judiciary.
Most Australians are unaware of how unique our apolitical judiciary is. In the United States for example, the probing public confirmation hearings of new Chief Justice John Roberts before the Senate Judiciary Committee, set to be repeated even more harshly with President Bush’s latest nominee for the Supreme Court, are indicative of the politicised process of judicial appointment to which Americans are accustomed.
The US judicial confirmation process comes complete with intervention from lobby groups and even television advertisements attacking nominees. In some states, judges are directly elected by the voters! Unsurprisingly, the judiciary is a polarised and polarising element of US society.
Australia’s model of judicial appointment is rather different. Cabinet appoints judges to the High Court, usually on the recommendation of the Attorney-General. In practice, the Attorney-General consults members of the profession, but he does so in private and has no legal obligation to do so. This mirrors the traditional British approach, where the Lord Chancellor determines judicial appointments.
While there have been a few appalling appointments, such as former Labor Attorney General Lionel Murphy, governments of both persuasions have generally shown restraint and wisdom in their judicial selections. As a result, polls show that Australian judges enjoy a relatively high level of public respect.
The United Kingdom recently created an unelected judicial appointments commission to determine the criteria for appointment, supplanting much of the role of the Lord Chancellor. This model arose out of the politically correct desire to ensure that the judiciary becomes more ‘representative’, meaning that appropriate proportions of female, gay, black and disabled judges sit on the Bench (judicial conservatives need not apply). Accordingly, it is populated by appropriately bien pensant New Labour types.
In the context of the United Kingdom’s adoption of the European Convention on Human Rights into its domestic law, through the Human Rights Act 1998, judges are being called upon to make an increasing number of politicised decisions. Through the judicial appointments commission, the British Left are successfully entrenching a judicial culture which will ensure that the cases fall their way.
Now Nicola Roxon, federal Labor’s Shadow Attorney-General, has suggested in an opinion piece in the Age that Australia should reform its own judicial appointment processes. Unsurprisingly, Roxon is not impressed with the democracy and transparency of the American system, which has seen Republicans win public support for their promises to appoint judicial conservatives. Rather, she prefers the unaccountable British approach – a commission which will no doubt be stacked with members drawn from left-leaning legal professional bodies and academia, and which will be sure to deliver the sort of activist jurists Roxon would like to see.
Roxon portrays this proposal as a half-way house on the spectrum of transparency, somewhere between the executive secrecy of the Australian model and the robust and often unfair scrutiny of the politicised US model. In truth, a judicial appointment commission is not a compromise position, but an extreme one.
Both the US and Australian models retain a measure of democratic accountability: the people may not elect the judges (though they do in some US states), but they do at least elect those who select the judges. Roxon’s system is designed to add an extra layer between the voters and the judges: voters elect the government which
appoints the commission which selects the judges.
The benefit of this system to the Left is obvious. Where a Labor government would be pilloried for selecting activist judges to overrule the popular will on political issues like aboriginal land rights and asylum seekers, a judicial appointments commission would give it political cover to argue that it had merely implemented the recommendations of its expert commissioners.
Roxon’s article attracted little attention, perhaps because of its absurd context. It commenced with congratulation of Attorney General Phillip Ruddock for his appointment of Justice Susan Crennan, partly on the grounds that she is a good jurist, but principally because she has no penis. Then, having stated what an excellent appointment the current system has yielded, Roxon claimed that it is clearly broken and needs radical reform.
Yet rather than dismissing Roxon’s foray as absurd, conservatives should be grateful for this window into her thinking, and frightened by the implications for Australia’s apolitical judiciary should Labor be elected. Accordingly, conservatives must consider pre-empting Roxon’s proposals with changes of their own.
While the current model of executive appointment has served us reasonably well, it is politically difficult to defend due to its lack of transparency. Instead of allowing advocates of judicial activism the luxury of attacking it on this ground, conservatives should consider a move to defuse the issue by including the legislature in the process of deliberating over judicial appointments, while broadly maintaining the principles of the Westminster system.
Such a model might take the form of insisting upon judicial confirmation hearings in front of a joint parliamentary committee, with the Attorney General retaining a discretion to override the committee. Alternatively, or additionally, parliamentarians might be afforded the opportunity to veto objectionable nominations, although one might make this more difficult by requiring a two-thirds majority in both houses.
There are any number of alternative proposals which might be devised to insert a measure of transparency to the judicial appointment process. By adopting such a proposal now, conservatives would deprive a future Labor government of an excuse to introduce an undemocratic model of judicial appointment which would ultimately entrench the political prejudices of a left-leaning profession in the composition of the High Court Bench.