The leading constitutional lawyer Colin Howard called for the opening up of the process of appointment of High Court judges at a conference at the weekend. Dr Howard, formerly professor of law at Melbourne University, told the Samuel Griffiths Society that nominees for the High Court should be examined publicly by a committee, with some non-politicians, and approved by each House of Parliament.
This is reminiscent of the system in the United States where presidential nominees for the Supreme Court must be approved by the Senate. A Senate committee then examines the nominee before making a recommendation to the Senate.
In America it has resulted in detailed raking over of the personal affairs of nominees, both financial and sexual. On some occasions it has caused accusations to fly so the hearings have taken more the form of a trial than a confirmation hearing. Before Dr Howard’s suggestion were taken up, a way of preventing that would have to be obtained.
Another difficulty, which Dr Howard himself recognises, is the mindlessly combative tradition of party politics in Australia. Thus nominees would be subjected to a trial of political correctness or soundness according to the party faith of the committee member asking the questions. Such a process would block the appointment of justices _ like Latham, Barwick and Murphy _ who had previously been politicians, unless a party held a majority in both Houses which is rare these days. Any requirement of, say, a two-thirds majority in both Houses would mindlessly rule out anyone with a political background.
That said, the present selection process is shrouded in unhealthy secrecy. Of course, much the same could be said of the appointment of Governor-General. With High Court appointments, the Prime Minister of the day is obliged to consult the states, but does not have to listen to them.
As the court involves itself more in things like implied rights or major rethinks or the common law of land title people will _ rightly or wrongly _ question by what right these unelected judges do this. The virtue of the US system is that the judges are bestowed with extra legitimacy if they go through a public approval process. How that can be done in the Australian climate without the system degenerating to a political slanging match and personal witchhunt needs to be spelt out.
The telling point against the suggestion that there is a plot by one side of politics to undermine the Constitution, however, is that the majorities in all of the High Court’s most contentious judgments have been composed of judges appointed by both sides of politics.
Dr Howard made the suggestion that the High Court be moved from Canberra because it was inappropriate for it to be in a “”government town” misconceives the function of Canberra.
Canberra is the national capital and belongs to all Australians. It was provided for in the Constitution which in turn was approved by the Australian people. It should be the focus of national ideals and aspirations _ above the petty squabbling among the states. The home of the High Court should be Canberra where it should hear the major constitutional cases. It can and does move about the country for non-constitutional cases and preliminary hearings, and modern telecommunications have made it possible to conduct hearings across state boundaries.