Usually judges outlast the governments that appoint them. Politicians face regular elections by a fickle public. Judges, on the other hand, are appointed till age 70 in the federal sphere.
But the Howard Government has been in place for more than 11 years. It has appointed five of the seven High Court judges. Now it has outlasted its second appointment – Justice Ian Callinan, who is due to reach the compulsory retirement age set by the 1977 amendment to the Constitution on September 1. A new appointment must be made. Who is it likely to be? What effect will the appointment have?
The other two justices – William Gummow and Michael Kirby – were appointed by the previous Labor Government.
The appointment of High Court judges is, in effect,is the gift of the Prime Minister, though the High Court Act requires the Federal Attorney-General to consult with state Attorneys-General. That change was made by The Fraser Government after suggestions that the wicked, centralist socialists in the Labor Party would stack the court with their own kind and trammel states rights.
It fact the process is fairly meaningless. NSW Attorney-General John Hatzistergos has accused the Commonwealth of ignoring state recommendations to other bodies and the president of the Australian Bar Association, Stephen Estcourt, among others, wants an overhaul of how High Court judges are selected.
In all, though, the Howard Government’s appointments to the High Court – unlike other bodies – have been relatively free from political bias and jobs for mates. That can perhaps be put down to the fact that it is not difficult for conservative governments to find conservative judicial appointments because the cream of the legal profession are fairly conservative, as is the judicial process itself, whereas a reformist government seeking a reformist appointment has to pick someone who wears their activist or reformist attitudes on their sleeve.
Federal Attorney-General Philip Ruddock can simply ignore the states’ suggestions. He also consults state and territory Bar associations. Again he can ignore them. However, the process is at least useful in ensuring no-one gets overlooked or that anyone with a skeleton in the closet is not likely to get appointed. This is more possible these days, than say 30 years ago, because there are so many judges and the Federal Attorney could not be expected to know all of them.
Of the five Howard appointments (six if you count the elevation of Gerard Brennan to the Chief Justiceship), Callinan was perhaps the most controversial on a couple of accounts. He was appointed in February 1998 shortly after former Deputy Prime Minister Tim Fischer called for the appointed of a “capital-C conservative” – a reaction to High Court land-rights decisions unfavourable to the National Party cause.
Callinan, before and after his appointment, has been an unabashed states’ righter. It is difficult to see how the Government could find and appoint someone to replace those states’ rights credentials. Indeed, Callinan’s states’ rights views have been so strong that he would have struck down the Government’s industrial-relations laws on the ground they would have usurped state industrial-relations laws – but he was in the minority.
So it seems that the court is to become slightly less conservative and in favour of states’ rights with the next appointment.
Callinan also comes from Queensland. The big question is whether his replacement will come from Queensland. It would be difficult for the Government to appoint from NSW or Victoria given all of the other six justices come from those states.
That said Ruddock has consistently said that appointments are made “on merit”. State representation; the “need” for more women or the “need” for representation of a particular segment of society should be ignored, he says.
It is perhaps easier to rule out than rule in prospective appointments. NSW and Victoria are probably out, though Commonwealth Solicitor-General David Bennett (NSW) is in with a chance despite being over 60 because he has argued very difficult cases for the Howard Government on immigration, security and workplace laws. He might have a better chance when the next vacancy comes up next year, if the Government is still in power.
Tasmania has no candidate who the legal profession would think suitably qualified. South Australia has its Chief Justice and former Solicitor-General John Doyle who is highly regarded as a lawyer, but at 62, probably two old. Governments like to get 10 years out of their judges. He should have been appointed years ago.
An appointment directly from the Bar of any state is unlikely. Other than Callinan, it has been 30 years since there was an appointment straight from the Bar. Other appointments have all been judges, Attorneys-General or Solicitors-General. There are more courts with more judges these days, so Governments can see someone’s judicial flavour rather than choosing from the Bar where a person’s judicial leanings are less obvious.
Two female Western Australian Supreme Court are a chance. Justice Christine Wheeler was the first female senior counsel in the state and Justice Carmel McLure. Justice McLure worked for former Liberal Attorney-General Senator Peter Durack in the Fraser Government.
The Chief Justice of Queensland Paul de Jersey has been mentioned. He is 58. He has spoken out about judicial activism. But you would have to query whether a Chief Justice from any of the three main eastern states would take an appointment as a puisne judge on the High Court.
Queensland Supreme Court Justice and former Queensland Solicitor-General Patrick Keene is a possibility.
But as it happens there is a fairly neat alignment of circumstances for the Government that it can safely appoint a Queenslander and win applause across the legal professional spectrum and among people who would like to see more women on a court that has only had two women members in its 104 year history. Susan Kiefel is a judge of the Federal Court of Australia, based in Brisbane. She is highly thought of in the profession and would be a safe, fairly conservative judicial appointment – certainly not a judicial activist.
Whoever wins the next election will get to make appointments in 2008 and 2009. Then there are no appointments till 2015, presuming no deaths or early retirements.
The surprising thing is that since Callinan’s appointment in 1998, there has not been much public debate about the way High Court judges are appointed, given the huge influence the court has – directly and indirectly – over our lives.
Perhaps there is a lesson there for governments: if you go for good legal competence and good judicial track records in lower courts, agitation for changes to the appointment method that might reduce or constrain your power over appointments will go away.