Attorney-General Philip Ruddock said this week that he would have informal meetings with candidates to replace High Court Justice Michael McHugh who turns 70 in November and must retire under constitutional amendment of 1977.
Ruddock would do well to heed the words of McHugh himself, but I do not imagine he will.
At a dinner to welcome new senior counsel to the High Court earlier this year McHugh bemoaned the fact that there was no female member of the High Court bench and that Justice Mary Gaudron, who retired in 2003, was the only female judge in the court’s 100 year history.
He warned that “the legitimacy of the judiciary rests upon the support and confidence of the Australian people. The continued failure to appoint a qualified female to our highest court runs the risk of slowly eroding that support. Over time a court that does not reflect the diversity of society at large, that is denied the potentially distinctive perspective that a female Justice may bring to the law and that is socially and culturally homogenous in its male membership may not retain public confidence.”
Ruddock, by law, has to consult the state and territory attorneys-general, but he does not have to take any notice of them – particularly if they are of different political persuasion.
Unlike the US, there is no confirmation hearing for court appointees in the Senate. The Government’s word is first and last.
Chief Justice Murray Gleeson has opposed any idea of formal interview, especially questions about legal attitudes, which in the case of the High Court involves political and philosophical attitudes about executive and central power. After all, the High Court’s constitutional role is to determine the extent of Commonwealth legislative and executive power within the limits of the cases that come before it.
The Commonwealth Attorney-General has on occasions sought to “stack” the court – usually to little avail. In one famous case in 1913, then Attorney-General (and later Prime Minister) William Hughes asked the brother-in-law of Albert Piddington to sound out whether Piddington thought the Commonwealth should have greater or lesser powers. Piddington was on a ship to England and replied to his brother-in-law’s cable with a cable saying: “In sympathy with supremacy of Commonwealth powers”.
The cables leaked. Piddington resigned before taking up his position.
Appointments are important for the Commonwealth politically. There is usually some Commonwealth legislative desire in the wind that might by stymied by an unfavourable High Court view. Right now, it is the extent to which the Commonwealth can use its corporations power to impose a national industrial-relations system. The Commonwealth would also like to get rid of all those embarrassing cases of judicial “interference” in its brutal treatment of refugees.
How nice, then, to have some sound chap who detests unions and does not give a fig about the human rights of wretched foreigners. Often a Government appoints someone it thinks might be favourable to its view of the world, but he – and it so often is he – changes once on the Bench.
Even with the best will in the world, choosing on merit alone is not easy. “The best lawyer for the job” is a myth.
The skills required of a High Court judge are diverse; they cannot be measured on a linear scale as in an exam in simple arithmetic which can order candidates from best to worse. And the law at that level is not just a technical skill – applying the right formula and getting the “right” answer. The High Court plays a huge (often little noticed) role in Australian life because its decisions flow down the legal chain to affect virtually every aspect of Australian life.
In a typical year, it hears and writes judgments on only about half a dozen major constitutional questions that the Commonwealth will be desperately interested in; 60 civil cases that affect the commercial, personal and family lives of virtually everyone in the nation; and 20 or so criminal matters. (It deals with hundreds of other lesser applications.)
Given that balance, it is more important that the new appointment is someone in whom the public at large can have confidence in to do right by them than someone the Commonwealth might have (almost certainly misplaced) confidence in to look at things its way.
This leads us back to McHugh’s statement of the importance of having a woman on the High Court bench.
More than half the students graduating from Australian law schools and approximately half of those entering the legal profession each year are women. But in NSW only 14.7 per cent of barristers are women, and only three per cent of senior counsel are women. The ACT’s figures are worse.
Justice Michael Kirby said that in his 18 months on the High Court Bench he heard more than 200 barristers argue their cases, but heard only six women.
Women just don’t get a fair share of speaking parts. So they have less chance at judicial appointment. McHugh called it “systemic and structural discrimination”.
In the face of it, it makes so-called appointment on merit a bit hollow.
Justice Ron Sackville of the Federal Court, who is chair of the Judicial Conference of Australia, has called (in a personal opinion) for more openness in High Court appointments. He wants public selection criteria and a formal interviewing process – not private tete a tetes with the Attorney-General. But that might level the playing a bit for women – so do not hold your breath.
For what it’s worth, my guess is that the Howard Government will run true to past form on appointments in general – appoint mates and like-minded people. It would not surprise me if former Attorney-General Daryl Williams was given the nod – though it might surprise Howard after the event that Williams might show more independence and spine than when a member of Howard Government.