Justices of the High Court are appointed by the Government of the day.
Both the process of appointing them and some of the appointments themselves have drawn criticism.
Appointments that have drawn criticism have usually been on the ground that the Government of the day is trying to get Justices sympathetic to its political viewpoint appointed. The appointment process has been criticised most frequently for its failure to deliver a Court which is “representative” and because it is not an “open” process.
On the question of representativeness, criticism has been based on several grounds: that too many of its judges come from New South Wales, Victoria and Queensland (42 of 44); that there has been only one woman on the High Court Bench in its 100-year history; and that the Justices do not reflect the diverse backgrounds of Australian society as a whole.
Political leaders in the smaller States have long complained that they have been under-represented, despite the enactment in 1979 of the High Court of Australia Act which provided:
“Where there is a vacancy in an office of Justice, the Attorney- General shall, before an appointment is made to the vacant office, consult with the Attorneys-General of the States in relation to the appointment.”
Calls for parliamentary scrutiny, as in the US, have been rejected on the grounds that many well qualified candidates would not allow themselves to be nominated.
In its 100 years, the High Court has had 44 Justices – nearly all of them have been at some time senior members of the Bar. Of them, 11 have been Chief Justices. Of the Chief Justices, six have been appointed from the High Court Bench and five from elsewhere. Of those appointed from elsewhere, three had been conservative politicians: Sir Adrian Knox, Sir John Latham and Sir Garfield Barwick and two – the first Chief Justice Sir Samuel Griffith and the present Chief Justice, Murray Gleeson – were appointed from State Supreme Courts (where both were Chief Justice). Before appointment as Chief Justice of Queensland, Griffith was Attorney-General and Premier of Queensland.
In the court’s first 40 years, appointments were predominantly made straight from the Bar. Only three out of 15 came via the Bench. Since then, appointments from State Supreme Courts and later the Federal Court have been more common. There has been no full-time academic appointed, though quite a number of Justices had taught at universities or written legal textbooks before appointment. Only one woman has been appointed.
Most of the Justices have been Protestant, nominally Protestant or from Protestant backgrounds. About a dozen have been Catholic or of Catholic background. Only one Justice, Sir Isaac Isaacs, has been Jewish. And there have been none from other faiths. It is more likely that the religious background of the Justices reflects the religious composition of the Bar from which they have been drawn, rather than having any role in appointments of itself.
The family and social background of the Justices is mostly professional, public service or business. But some were sons of craftsmen. Of the 44 Justices, many more could be described of socially and politically conservative disposition than of a radical or reformist disposition.
Former Chief Justice Sir Anthony Mason has suggested that what should be sought is not so much the ideal of a High Court Justice so much as a Court with a balanced composition. This is desirable, he wrote, because of the continuing division of opinion on the major issues of federation.
Others reject concepts like “balanced composition” or a “representative Bench” as undermining both the public confidence in the judiciary and the rule of law because judges are supposed to apply the law, not represent or reflect particular views.
Victorian Labor Senator Barney Cooney rather graphically illustrated the point in Parliament on 30 May, 1994, “I think it would be wrong to appoint judges on the basis that they reflect society. If we do that . . ., five per cent of judges ought to be convicted criminals. . . . What we want is a judiciary that understands the various sections of the community.”
Another ground of criticism has concerned judicial activism. It reached its height over native title, cases implying rights into the Constituion and cases bringing foreign treaties into Australian law.
Critics of the Mabo case say that the Justices went beyond what was necessary to decide the case before them – that they held that native title could exist throughout mainland Australia when the case before them was dealing with islands in the Torres Strait with a long history of settlement, agriculture and land tenure. The critics of adventurism say that that was tantamount to legislative action which was inappropriate for the judiciary.
In November 1996 Deputy Prime Minister Tim Fischer said, “I am frustrated and angered by the delay in handing down of the decision by the High Court of Australia with regard to the Wik decision.” On March 4, 1997, Fischer said about the search for a replacement for the retiring Chief Justice Brennan, “I’m looking, as one involved, for a capital `C’ conservative person.”
The attack by Fischer resulted in Chief Justice Sir Gerard Brennan writing to Fischer rejecting the criticism on January 3, 1997. Brennan wrote, “You will appreciate that public confidence in the constitutional institutions of government is critical to our society. . . . I ask you to bear this in mind and to consider whether the making of attacks on the performance of the court of its constitutional functions is conducive to good government, even if an attack can gain some temporary political advantage.”
The court’s ruling in cases like the Tasmanian Dam case enraged states’ righters. They thought the Court was allowing the Commonwealth to get power beyond what the Constitution envisaged by using treaties as the basis for legislation in areas which had traditionally been the preserved of the states.
However, former Chief Justice Sir Anthony Mason has said that the widening of the Commonwealth’s legislative scope under the external affairs power was more a result of more matters coming within the concern of the international community than of any activism on the part of the court.
Opinions about how the High Court goes about its task will inevitably vary. The Court is faced with the task of applying a Constitution written in the 19th century to conditions in Australia in the 21st century. It has to deal with new circumstances and that may require new principles whereas the rule of law requires certainty and the exclusion of arbitrariness.
When elevated to Chief Justice in 1952, Sir Owen Dixon said, “Strict adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. . . . There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.”
That legalism, however, would not freeze the law. Novel issues require answers which can be found by the application of recognised legal techniques, so the law would develop by extending an existing principle to new circumstances not foreseen when the earlier principle was developed. Dixon’s legalism lies in contrast to with later approaches that suggested that values and policy could be taken into account in dealing with constitutional matters.
For example, Justice Mason (later Chief Justice) said in 1986, “It is impossible to interpret any instrument, let alone a Constitution, divorced from values. To the extent they are taken into account, they should be acknowledged and should be accepted community values rather than mere personal values. . . . Constitutions are documents framed in general terms to accommodate the changing course of events, so that courts interpreting them must take account of community values.”