Last week, the US and Australia finalised new appointments to their respective nations’ most important court. Our high court and the US supreme court sit at the pinnacle of their legal systems, but the contrast between the two appointment processes could not be starker.
The US appointment was unashamedly political, with the judicial nominee subjected to a Senate confirmation hearing and accompanying public debate made even more acrimonious by a bitter presidential election campaign. The Australian appointments occurred quietly and out of the public gaze, with the process attracting little attention beyond legal circles.
Yet both courts play the same role. Each is the arbiter of the most important legal decisions, directing the development of the common law and being the final word on what the constitutions of each nation allow governments to do.
So why is the Australian appointment process devoid of scrutiny, allowed to unfold in the shadows of cabinet confidentiality and undisclosed “consultations” with state governments, the chief justice and maybe a few legal peak bodies?
The Australian appointment process is ruled by political custom and unwritten conventions of practice. The buzzword used to guide and justify decisions on candidates for judicial appointment is “merit”. But beyond a candidate having a legal career that is well regarded, what merit entails is not set out but rests in the mind of each attorney general and prime minister.
This means that for any given high court appointment the potential pool of candidates is large. Federal court and state supreme court judges, solicitor-generals, and a handful of senior barristers are all credible starters.
Going from this long list of contenders to a small group of serious choices will be based on similar considerations played out so publicly in the US: namely what posture or world view the federal government would like to see reflected in the big-ticket decisions of the high court. Generally, this is not about how an area like contract law will develop, but about the question of the division and scope of power allocated to the branches of government by the constitution.
Historically the federal government, conservative and Labor alike, has wanted the high court to take an expansive view of commonwealth government power and a narrow view of areas of state government dominance. This has been achieved through decisions on financial power, or a wide reading of the powers given to the federal parliament to make laws overriding inconsistent state law.
The federal executive – ministers and their departments – have also sought a high court that favours extensive scope for the executive to make decisions and run programs with limited parliamentary approval.
Conservative federal governments have always been sceptical about proposals such as a bill of rights, which invite the courts to further scrutinise the exercise of executive and parliamentary power. Equally, conservative governments in particular prefer high court judges who will be reluctant to find human rights-flavoured implications in the constitution, such as the implied freedom of political communication initially developed under the high court of Chief Justice Anthony Mason in the 1990s.
So, absent a public confirmation process, how does the attorney general divine where a potential appointee sits on these issues of public and legal policy?
This is done indirectly through a review of previous judgments or writings and speeches delivered by a candidate. Peers in the legal profession will be canvassed and the opinion of the high court chief justice will be gained – although this might be to assess if an appointee would be happily greeted by the current judges rather than obtaining a view as to the candidate’s outlook on specific legal issues. State governments are asked to submit names for consideration but normally the states won’t be given an opportunity to comment on the final shortlist.
Diversity on the court is considered, but as a subsidiary criterion. And to date, for the high court at least, it’s a narrow concept of diversity based on geography – not all the judges can come from Sydney, for instance – and, for the last decade or so, gender balance. As the number of women on the superior courts has inched upwards, now between 30% and 40%, it always possible to have several women in a shortlist of high court candidates.
Diversity in terms of reflecting the cultural and racial makeup of the Australian population is not yet a factor and judges still are overwhelmingly drawn from economically and socially advantaged backgrounds.
Being able to appoint high court judges is one of the great prizes of winning federal elections. The court shapes Australia. It decided that native title survived British colonisation, ruled on whether the commonwealth could nationalise the banks, and whether persons denied refugee status could be indefinitely detained, whether a deputy prime minister was disqualified from parliament because of a parents’ distant foreign nationality and, shortly, whether a state can close it borders to deal with a pandemic.
No prime minister will ever give away the power to make these appointments and none to date have seriously entertained even lifting the curtain to allow public to glimpse the process.