The method by which judges are appointed is not simply an issue of constitutional governance but has significant implications on a range of discourses. The power and responsibility entrusted to the judges in modern constitutional governments makes it imperative to ensure that the selected method of appointing judges results in consistently good appointments. In this article, the author has sought to present a critical analysis of the method of appointment adopted for the appointment of the judges of High Court of Australia. The author has looked into the issues of merit and transparency and how the system is heavily dependent on the character of individuals involved in the process. It is the argument of the author that the appointment process lacks sufficient objectivity and is prone to manipulation. The author contends that any institutional process which is dependent on the assumed integrity of the stakeholders without incorporating inherent safeguards is bound to cause problems at some point of the time or other.
The High Court of Australia is the highest judicial authority of the land. In different States of Australia, there are two separate but interrelated structures of the judiciary in relation to ‘federal’ and ‘state’ matters. However, the High Court of Australia functions as the single highest court of the land in relation to both ‘federal’ and ‘state’ matters.[i] In addition to having its federal jurisdiction under Article 71 of the Australian Constitution,[ii] the High Court also functions as the Highest Court of Appeal in relation to any matter arising from State Supreme Courts, regardless of the existence of any federal element in the dispute.[iii] Though not as influential in the governmental scheme as the Federal Supreme Court of the United State of America,[iv] the High Court of Australia has earned a distinctive reputation of representing the finest attributes of any judicial body.[v]
Appointment of Judges to the High Court of Australia
The constitutional provision regarding the appointment of judges to the High Court of Australia is incorporated in Section 72 of The Commonwealth of Australia Constitution Act 1900.
Though Section 72 [i] provides that the Justices of the High Court shall be appointed by the Governor-General in Council, in reality, the actual control over the appointment process is exercised by the Federal Government.[vi] The Governor-General in Council has no independent authority on the matter and functions necessarily on the recommendations of the federal government.[vii] A similar reality can be seen also in the appointment process of state level courts where the authority is exercised by the state governments.[viii] Both the Governor-General in Council as the federal level and the Governor in Council at the state level play a formal role[ix] in the appointment of judges.[x] The real authority in this relation is exercised by the respective governments at the federal and state level.[xi]
The Australian Constitution makes no provision regarding the qualifications necessary to be a judge of the High Court of Australia. The constitution provides no eligibility criteria of any kind in order for a person to be appointed as a judge to the High Court.[xii] However, this oversight has been subsequently corrected by way of The High Court of Australia Act 1979. Section 7 of the said statute prescribes that a person shall not be appointed as a judge unless he is or has been a judge of any federal court, state court or a court of any territory or he has had at least five years of experience as a legal practitioner.[xiii] In relation to the requirement of being a judge, no parameter has been mentioned in relation to the minimum number of years for which a person must have served as a judge to be considered for appointment to the High Court of Australia.
Though there are no statutory parameters on which the fitness of an appointee is evaluated, the Report of the Senate Legal and Constitutional Affairs Committee on Australia’s Judicial System and the Role of Judges[xiv] reveals a set of characteristics which are generally taken into consideration while appointing a judge to any Federal Court including the High Court of Australia. These qualities are mostly of general nature including the commitment to professional development, legal expertise, integrity, decision-making skills and other such related qualities.[xv]
Procedure of Appointment
In the federal government, the most important role regarding judicial appointments to the High Court of Australia is played by the federal Attorney General.[xvi] It is the office of the Attorney-General which initiates the process of filling up any vacancy in the High Court. The Attorney-General is responsible for making the necessary recommendations to the cabinet of the federal government of individuals to be appointed as judges to the High Court of Australia. In the discharge of his functions in relation to the nominating appointees for the High Court, the Attorney General is not subject to any specific statutory procedure. The only statutory requirement[xvii] which he must fulfil before any appointment is made is to consult with the Attorney Generals of States in relation to the appointment.[xviii] Even in relation to this statutory requirement of consultation, no parameters exist as to the manner in which such consultation is supposed to be made. There is no clarity as to whether this consultation process can be merely nominal in substance without any real significance on the decision of the Attorney-General.[xix]
Apart from this minimal consultative process, each individual Attorney General is free to follow such process as he may deem appropriate and consult such persons as he may deem necessary.[xx] Generally, the Attorney Generals consult and seek opinions of a wide range of persons in the process of deciding upon the appointment of High Court Judges which apart from various judicial offices and professional legal bodies also includes legal academics.[xxi]
As such there is no legal requirement for the Attorney General to consult with members of the judiciary[xxii] but not unusual for Attorney Generals to consult with the Chief Justice or other members of the judicial profession as they deem necessary. However such consultation is not necessary for the validity of the appointment process and it is also not uncommon for an Attorney General to ignore any advice or recommendation by way of such consultation.[xxiii]
The report of the Senate Legal and Constitutional Affairs References Committee also discloses the practice of Attorney Generals to constitute an advisory panel for providing advice in the matter of appointment to the Federal Courts. Such an advisory panel usually consists of a senior member of the Attorney-General’s department, a retired judge of the federal or state court or a senior member of the federal or state judiciary and the Chief Justice or a nominee of the Chief Justice.[xxiv] The Advisory Panel is also empowered to conduct interview of prospective appointees in order to facilitate the preparation of its report on the nominated individuals.[xxv]
Despite this apparently wide ranging consultation, there is no definite process which the Attorney General is required to follow in respect to the modalities of the consultative process. There is no uniform or consistent manner in which opinions are sought. Usually, the Attorney-Generals are known to have been following an unofficial consultation process wherein they make personal inquiries in relation to the prospective appointees.[xxvi] However, these consultative practices are mostly unstructured and are not centred on any specific set of criteria in relation to which these inquires are made.[xxvii] There are no established or consistent parameters in relation to which views are sought about the prospective appointees.
Thus, the selection process undertaken by the office of the Attorney General is not necessarily an institutional framework of consistent practices. It depends more on the person occupying the office of the Attorney General and loose strands of traditional practices.[xxviii] The nuances of the selection process are likely to be subject to the differing philosophies of individuals occupying the office of the Attorney-General.[xxix]
After finalising his recommendations, the Attorney-General forwards the list of recommended appointees to the Cabinet of the federal government which then takes a collective decision[xxx] regarding confirming or reject the names recommended by the Attorney-General. Though the cabinet usually accepts the recommendation of the Attorney-General, there have also been instances where the Cabinet has not confirmed the recommendation of the Attorney-General and instead opted for somebody not mentioned by the Attorney-General.[xxxi] Though no clear grounds exist as the reasons for which the Cabinet would reject a candidate recommended by the Attorney-General, the limited record available shows that more often than not such rejection is prompted by political considerations not directly dealing with the merit credentials of the candidate.[xxxii] The formal recommendation to the Governor-General in Council is made by the Attorney General after approval of the nominations by the cabinet.[xxxiii]
Critical Analysis of the Appointment Process
While it is the general opinion that the existing mechanism of judicial appointment has been an overall success in securing appointment of highly qualified judges, concerns remain about the inevitable consequences of inherent deficits in the appointment process.[xxxiv] The current process of appointment relies too heavily on the wisdom of a few individuals instead of ensuring a streamlined institutional process which will make it more difficult for impropriety to seep into the mechanism. There are no built in safeguards to ensure that the appointment process is free of abuse and manipulation.[xxxv]
The first major criticism in relation to the process of appointment is concerning the opaque nature of the entire process. There is no clarity as to the effectiveness of even the consultative process statutorily mandated by the High Court of Australia Act 1979.[xxxvi] Though the Federal Attorney General is required to consult with the state Attorney Generals, there is no explanation as to the nature of the consultation.[xxxvii] There is also no clarity as to the official consequence of any such consultation and the context in which such consultation is supposed to contribute to the appointment process.
It needs to be noted that apart from the abovementioned statutorily required consultation, the entire process of appointment is left to the judgement and wisdom of individual Attorney Generals. Though it has been seen that Attorney Generals usually consult with a variety of entities when deciding upon the nomination of appointees, it needs to be noted that the same is more in the nature of a conventional practice and not a constitutional necessity. If in future, any Attorney General were to discontinue such practices, there would not be any constitutional infirmity in the decision, though it can be questioned on the grounds of propriety.
Substantial concerns also remain about the manner in which consultation takes place. There is no specific criterion on which opinion is sought about a prospective appointee. The nature of questions and the range of questions keep on varying. There is no specific attribute or quality in relation to which opinion is invited. Mostly, the opinion sough is on more general lines which cannot be shown to be based on any kind of objective assessment of the qualities of the prospective appointee. Thus even when extensive consultation is taking place, the purposive nature of the consultative process and the tangible benefits of the same is not beyond reproach. The Attorney General is not under any obligation to disclose the content of these consultations or to reveal any detail about the process by which he finalises his nominations.[xxxviii] The parameters on the basis of which the Attorney General can be said to have made his nominations are neither identifiable nor verifiable.
The decision making process of the Cabinet in relation to the recommendations of the Attorney-General has even more layers of secrecy. There is no insight into the evidence considered by the Cabinet while deciding whether to confirm or not confirm an appointee recommended by the Attorney General. As we have seen earlier,[xxxix] on many occasions, the Cabinet has refused to confirm the recommendations of the Attorney General on grounds other than professional competence.
The second major criticism in relation to the process of appointment to the High Court of Australia is the vague criteria on the basis of which appointees are selected. As we have already seen, there is no clearly articulated constitutional premise upon which the judicial appointments are based. The Attorney-General supposedly bases his recommendations on a set of qualities[xl] but there is no clear conceptualisation as to how these qualities are assessed. Though it is claimed that the appointment to judicial office is confirmed on the basis of merit,[xli] there is no documented or objectively verifiable assessment of the merit of the appointees.
Such a subjective notion of merit assessed in an opaque process of political consultation brings into question the credibility of the entire appointment process. This way, the assessment of merit acquires an inconsistent and variable conception.[xlii] It is imperative that a selection process bases on the apparent basis of merit should be evidentiary in nature. Without the objectivity of evidence, mere assertion of merit as a ground of selection is reduced to mere rhetoric.[xliii]
Such a subjective and individualized appreciation of ‘merit’ as a ground of judicial appointment has substantial repercussions on the collective institutional identity of the judiciary. An unregulated and personalized application of merit as the criterion of judicial appointment can degenerate into a biased perception of the meaning of merit. Individuals are likely to see merit in such people who share similar traits and qualities as themselves.[xliv] The idea of merit gets merged into a projected abstraction of their own self-image. Over a period of time, such practices result in a judiciary with a mostly homogenous composition which does not reflect the diversity of the society that it seeks to serve. It is rightly argued that unlike legislators, judges are not supposed to be representatives of various groups of the society. The duty of a judge is to uphold the law without any regard to religious, regional, cultural, economic or social affiliation of himself of that of the parties to the dispute.[xlv] A judge is not supposed to reflect the aspirations of his community and is instead expected to uphold the constitutional values.[xlvi] However, the confidence of people at large in the credibility of the judiciary as an institution is likely to be affected[xlvii] if the judiciary is systematically homogenous. Apart from all structural arrangements, public confidence in the judicial system is one of the non-negotiable requirements of a stable society governed by the rule of law.[xlviii] If the lack of diversity in the composition of the judiciary is believed to be indicative of exclusionary philosophies pervading the appointment process, then it is likely to distort the perception of the public towards the legitimacy of the judicial institution.[xlix]
The appointment process in Australia has been called into question on the ground that it promotes certain homogeneity[l] in the composition of the judiciary.[li] The problem identified has not been the appointment of incompetent judges but that competent candidates not having certain socio-cultural background[lii] are routinely ignored for appointment.[liii] Thus, the appointment process should be oriented to ensure that the composition of the judiciary does not slip into a default homogeneity. At the same time, it is essential to remember that the issue of diversity should be seen as a corollary to the notion of merit and not pursued at the expense of merit.[liv]
The Senate Legal and Constitutional Affairs References Committee also considered the issue of ensuring diversity in the composition of the judiciary. While the committee strongly supported the criterion of merit for judicial appointments,[lv] it recognised the value of promoting diversity within the broader framework of merit where the fundamental principle of selection on merit is not sacrificed at the altar of diversity.[lvi]
Proposal of a Judicial Appointments Commission
Considering the inherent inadequacy of the current appointment process in securing transparency, there have been suggestions to constitute a Judicial Appointments Commission which would be in charge of ensuring transparent and merit based appointment procedure for the judiciary.[lvii] There have been a variety of suggestions in relation to the proposed composition of such a body and regarding the principles on which the body will function.[lviii] However, the Senate Legal and Constitutional Affairs References Committee has not found it necessary for such a body to be constituted.[lix] Though the Committee recognised the value of having such a commission, it did not consider the creation of a judicial appointments commission to be an immediately necessary reform.[lx] Considering the fact that no governmental entity is keen on transferring the power of appointing judges from the executive to any other body,[lxi] it is unlikely for a judicial commission to be instituted in the near future.
The functioning of the mechanism for the appointment of the judges of the High Court of Australia has been depended primarily on the assumed integrity and ethics of the stakeholders involved in the appointment process rather than on any robust institutional framework. Although there is yet to be any major flashpoint, at least in public, in relation to the particular appointments made or omitted, the absence of strong institutional foundations makes that more a merit of history than any merit of logic. While no institutional structure can function properly without men of character, it is also inappropriate disregard the value of strong institutional safeguards in the cover of men of integrity. Thus, it is imperative that for a sustained assurance of transparency, certain reforms should be implemented.
[i] A R Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials 586 (5th ed., 2010)
[ii] S. 71, The Commonwealth of Australia Constitution Act 1900, Australia
[iii] Ibid, s 73;
[iv] Sir Harry Gibbs, The Appointment and Removal of Judges 17 Federal Law Review 141 (1987); The constitutional role envisaged for the High Court by the drafters of the Australian constitution was deliberately more restricted that of the Federal Supreme Court in USA.
[v] Simon Evans & John Williams, Appointing Australian Judges: A New Model 30 Sydney Law Review 295 (2008); The judiciary in Australia is held in high esteem when measured in terms of both is historical contribution and international repute.
[vi] Julie-Anne Kennedy & Anthony Ashton Tarr,The Judiciary in Contemporary Society: Australia 25 Case Western Reserve Journal of International Law 251 (1993); The executive authority in Australia is exclusively in charge of deciding upon the appointment of judges at all levels of judicial hierarchy.
[vii] Rachel Davis & George Williams, Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia 27 Melbourne University Law Review 819 (2003); The constitutional provision requiring the Governor-General in Council to appoint the judges of the High Court essentially means the decisions taken by the Governor-General in Council as advised by the federal government.
[viii] Supra 6
[ix] Supra 7, The Governor-General in Council has no active role to play in the matter of the appointment of High Court and the decision in this regard is taken entirely by the executive government at the federal and state levels.
[x] Supra 6, The role played by the Governor-General or the Governor is mainly formal in nature.
[xi] HP Lee, ‘Appointment, Discipline and Removal of Judges in Australia’ in 28, Judiciaries in Comparative Perspective (HP Lee (ed), 2011)
[xii] Supra 7, In the constitutional framework, there is no requirement of any formal qualification in order for a person to be appointed as a judge of the High Court. The constitution does not even expressly mandate that a person has to be a lawyer for being appointed as a judge of the High Court.
[xiii] S. 7, The High Court of Australia Act 1979, Australia
[xiv]Senate Legal and Constitutional Affairs References Committee, Australia’s Judicial System and the Role of Judges available at https://www.aph.gov.au/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2008_10/judicial_system/report/report_pdf.ashx last seen on 13/1/2015
[xv] Ibid at para 3.15
[xvi] Supra 6, “In practice, therefore, the Attorney General, as the executive in charge of putting forward nominations to the Cabinet, is vested with considerable responsibility.”
[xvii] Supra 13, S. 6
[xviii] Supra 11 at 29
[xix] Supra 7, Though there is a statutory requirement of consultation, there is no clarity on the extent and form of such consultative process and there is also evidence of any effect of this consultative process on the decision making process in case of judicial appointments.
[xx] Ibid,It is also an usual practice for the Attorney General to hold information discussions and consultations with different stakeholders including the Chief Justice.
[xxi] Supra 14 at para 3.12
[xxii] Supra 4, “There is no formal procedure for consultation between the executive and the judiciary or the legal profession.”
[xxiii] Ibid, “However in practice it is not uncommon for an Attorney-General to consult with the Chief Justice or with other members of the profession with regard to a prospective appointment, but sometimes an appointment may be made without consultation and sometimes advice may be received but ignored.”
[xxiv] Supra 14 at para 3.17
[xxvi] Supra 7, The consultative process is not based on any specific set of inquires on identified criteria. It is most often in the nature of seeking personal opinion in relation to prospective appointees.
[xxvii] Ibid, Also see Sir Harry Gibbs, The Appointment of Judges 61 Australian Law Journal 7 (1987)
[xxviii] Supra 11 at 28, This is also evident from a discussion paper issued by the office of the Federal Attorney General in 1993.
[xxix] Michael Lavarch, The Appointment of Judges in Australian Institute of Judicial Administration (ed), in Courts in a Representative Democracy (Melbourne 1995) 153; “If equity could be said to vary depending on the size of the Chancellor’s foot, then the selection process, for Commonwealth judges at least, can alter with each Attorney-General.”
[xxx] Supra 6, The ratification of a nomination is the collective decision of the cabinet.
[xxxi] Ibid,It has to be noted that the cabinet is not bound to accept the recommendations made by the Attorney General and its role is not merely formal. The cabinet may also reject the recommendation of the Attorney General and decide on the appointment of a different person.
[xxxii] Supra 7, Generally, there is no clarity on the nature of information available with the cabinet when it considers the candidature of any person. Thus on many occasions, it has been noticed that the grounds on which the cabinet has rejected the recommendation of the Attorney General vary from the political ideology of the candidate to the personal equations.
[xxxiii] Supra 7
[xxxiv] Supra 5, “While the collective strength and quality of the Australian judiciary is not in doubt, it is the case that particular appointments have attracted criticism, either in relation to the character and ability of the individual chosen or their conduct while in office. It is a notorious fact that judicial officers have been appointed, including to the High Court, whose character and intellectual and legal capacities have been doubted and whose appointments have been identified as instances of political patronage.”
[xxxv] Supra 11 at 27; Though generally beyond dispute, there have been instances of appointments to the judiciary seemingly due to political considerations.
[xxxvi]See Supra 17
[xxxvii]See Supra 19
[xxxviii] Supra 7, During the appointments made in 2003, though the Attorney- General conducted private interviews with the candidates, he did not reveal the nature of the conversation or the utility of such an interview in the selection process.
[xxxix]See Supra 32 and Supra 33
[xl] See Supra 16
[xli] Supra 7, Many Attorney Generals like Daryl Williams and Philip Ruddock have asserted that the selection of candidates for appointments as judges of the High Court are based only on merit.
[xlii] Supra 5, Without a definitive understanding of the term merit, the concept is likely to be used by each decision maker in an entirely subjective manner with differential emphasis of attributes.
[xliii] Ibid,The selection process should be capable of evidencing the qualities for which a person is being appointed as a judge. Without an evidentiary proof of the considerations on which the decision to appoint is based, the process becomes highly susceptible to subjectivity.
[xliv] Ibid, Without the determination of definitive criteria which constitute merit, the tendency to promote homogeneity is likely to be unregulated.
[xlv] Ibid, “Judges are not representatives of any group or constituency. Their duty is to do right to all manner of people according to law without fear or favour, affection or ill-will.Equally, the judiciary as a whole does not need to be representative of any group or constituency.”
[xlvi] Supra 4, The office of the judges is not of representative character and should never be construed as such.
[xlvii] Supra 5
[xlviii]Supra 4, “Confidence in the laws, and in the judges who administer them, is an essential condition of an ordered, stable and civilised society. The confidence of the public in the judiciary can be maintained only if the judges are seen to be not only fully competent to perform their functions, but also independent, impartial and of complete integrity…”
[xlix] Ibid, “However, it would tend to shake confidence in the judiciary if there were any reason to believe that the members of any section of society were unfairly excluded from the bench, and for that reason, where a number of candidates for appointment are of equal merit, it would no doubt be justifiable to take account of the fact that a group to which one of the candidates belonged was not fairly represented.”
[l] Supra 6
[li] Supra 5, “A further and persistent general criticism of the appointment process relates to the resulting composition of the various courts. For instance, speaking in 1983, Justice Lionel Murphy noted that when it comes to women judges we have not even reached the stage of tokenism. Such criticisms are not limited to the gender composition of the courts.”
[lii] Supra 6, “Accordingly, there is a justified complaint that the Bench tends to be almost exclusively Anglo-Celtic and upper middle class and therefore not representative of the values of Australian society as a whole which is growing increasingly pluralistic.”
[liii] Supra 5, The major issue concerning the judicial appointment process in Australia has not been that candidates with merits have not been appointed. The issue lies in the fact that many segments of people are ignored or overlooked for judicial appointments despite having the necessary merit.
[liv] Supra 4, The basic necessity to appoint judges on the basis of merit should not be sacrificed or abandoned in an effort to make the judiciary more representative of the social demography.
[lv] Supra 14 at para 3.58
[lvi] Ibid at para 3.60
[lvii] Supra 11 at 31
[lviii] For more see Supra 7 and G Barwick, The State of Australian Judicature 51 Australian Law Journal 480 (1977)
[lix] Supra 14 at para 3.89
[lx] Ibid at para 3.90
[lxi] Supra 11 at 45; There has been no indication of any interest on the part of the federal government to transfer the function of judicial appointments to a judicial appointments commission.