The Federal Government gets the chance to fill two High Court vacancies in the near future. Sir Daryl Dawson has decided to retire this year and early next year the Chief Justice Sir Gerard Brennan turns 70 and is forced to retire under provisions of the Constitution that came in to force in 1977.
Incidentally, one might lament the passing of that referendum question. Previously High Court judges were appointed for life. This paper was on of the few papers who argued against it. Two chief justices, Sir Harry Gibbs and Sir Anthony Mason were forced to retire under its provisions. Since they retired both have shown they have an enormous amount to contribute and both could easily have remained on the Bench.
There has been a great deal of discussion recently about the High Court. It has been accused of unwarranted activism; of deciding cases on social and policy values rather than strict legalistic reasoning; of finding implied terms in the Constitution that are discernible on a strict reading of the words; of extending central power by interpreting the powers of the Commonwealth very widely and so on.
The Deputy Prime Minister has called for the appointment of a capital C conservative to replace Justice Brennan. It was a bizarre call on both macro and micro counts. Justice Brennan is to a large extent conservative and he found in favour of the pastoralists in the Wik case.
At least two state premiers have called for more effective consultation in the appointment of High Court judges, which at present lie in the hands the federal government, subject to a statutory requirement to consult the states, but no requirement to take the slightest notice of anything the states might say.
But federal politicians, of whatever ilk, will not easily give up the present unfettered power, however much they mouth the platitudes of states rights. This states-rights-in-name government will listen to the states politely and appoint precise whomever it sees fit. This is more a question of power than principle
If the Government imagines it can change the complexion of the court with these two appointments, it is mistaken. It will be very hard pushed to find someone acceptable in the ranks of the bar or the bench anywhere in Australia as legally traditionalist as Justice Dawson. And in the case of the replacement for Justice Brennan, a replacement is not likely to be any more or less capital C conservative. Justice Brennan’s judgements show a remarkable independence and unpredictability. He was with the majority in Mabo and in the minority in Wik; he has almost invariably been in the majority in finding in favour of the Commonwealth in foreign-affairs cases, but has almost invariably found on narrow grounds.
The central difficulty here is that the political major critics of the High Court see the court from their own world view: as a numbers game. But the court is not like that and never has been.
That is not to deny the fact that the floating majority of judges in the court in the days of Chief Justice Sir Anthony Mason did not put a new stamp on judicial approach. More judges more often were willing to state that value judgements; community values and policy were legitimate reasons for coming to a decision. That is not such a new or a bad thing. Common-law judges have been doing it for centuries. The difference, though, in the case of Australia’s High Court in the past decade and a half is that the judges have been more open about the process.
They have not been timorous souls.
The state premiers and National Party politicians who think this can or should be changed by a crude numbers game in appointing their own sort to the bench are very much mistaken. They completely misunderstand the nature and genius of the common law.
That said, the disquiet expressed by the premiers and federal National Party politicians cannot be ignored. It calls for two responses. Indeed, these responses have been suggested by some in the judiciary. The first is for greater public scrutiny of possible High Court appointees. This suggestion was put by the most recent High Court appointee, Justice Michael Kirby. He gave the very sensible rider that Australia should not use the US system under which appointees get a grilling by a Senate committee.
The virtue of greater public scrutiny, even if purely in the form of the media looking at speeches, writings and judgments of prospective appointees, would be that the public would by and large see a group of very careful people giving very cautious conclusions. Alas, it therefore does not make very good copy.
Anyone, for example, who read the Federal Court judgments of Justice William Deane before his appointment to the High Court would have seen the writing on the wall, but it is not the sort of research that would engage a Fischer or a Borbidge keen for the instant grab of the surprised or affronted.
The second response, is that judges need to be more expansive with the reasons for decisions when those reasons are policy or value driven. Often judges are very short on giving reasons derived from policy. (Alas, they are often far too long-winded when it comes to presenting legal and precedent-based reasons for decisions.)
Whether these happen is not of enormous moment. Ultimately whoever is appointed and however they are appointed become independent judges constrained by deciding only the cases that come before them and the necessity to hear them in public and give reasons publicly for their decisions.
Political attacks on the High Court are not new; they go back to the earliest days of federation. Mostly they have been predicated on the horror of power being taken from politicians. So we need not be too alarmed.