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Judging the judges

By James McConvill - posted Thursday, 25 May 2006


Australians seldom discuss the federal judiciary. They are quite happy to have learned individuals in control of the gavel, while they themselves get on with watching the footy and sinking cans of beer.

But there has been some movement in recent times. While the footy continues and the beer still flows, we have taken at least some time to ponder how federal judges, particularly judges of the High Court of Australia, should be appointed and complaints against them handled.

This awakening was triggered by among other things, the November 2005 appointment of the second female justice of the High Court of Australia, Susan Crennan. A number of Australians asked whether it was because she is a good lawyer, or because the attorney-general wanted at least one woman on the court. The appointment was criticised for lack of transparency, so the question cannot easily be answered.

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Senator Bill Heffernan appeared in the public spotlight again in early 2006, this time implying a federal judge had been connected to a murder in Sydney. The senator made a false allegation against Justice Michael Kirby in 2002.

The idea of a commission to deal with complaints of misbehaviour against federal judges began to look like a good idea.

Section 72(i) of the Australian Constitution states: “The Justices of the High Court and of the other courts created by the Parliament - Shall be appointed by the Governor-General in Council.”

In practice decisions regarding appointment are made by the federal attorney-general with the endorsement of the prime minister and cabinet. Under the High Court of Australia Act 1979 (Cth), decisions on the appointment of justices to the High Court are to be made with some input from the state and territory attorneys-general.

Once a decision is made, Australians learn little about the newest appointment.

In 2005 the Federal Attorney-General Philip Ruddock had to appoint a new justice to the High Court. He decided on Susan Crennan, a relative newcomer to the Federal Court of Australia, but widely respected.

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At the same time, President George W. Bush was also involved in appointing two new justices to the US Supreme Court, following the death of Chief Justice William Rehnquist and the early retirement of Justice Sandra Day O’Connor.

President Bush decided on John Roberts as the new Chief Justice, and Samuel Alito as a new Associate Justice. The process of appointment of federal judges in the US, both to the Supreme Court and circuit courts, is somewhat different from that in Australia.

In the US, the executive government selects the individual to join the federal judiciary, as in Australia. Executive government nominees are subjected to what is known as a “confirmation hearing”, with the appointment conditional on a successful hearing.

The US system is frequently criticised, but is this warranted?

In considering this, we might reflect on the appointment to the Supreme Court - Samuel Alito, the Court’s 110th justice.

Alito is expected to side with the court's conservative majority on issues like abortion and executive power.

He was sworn in after a month-long confirmation hearing by the US Senate. Under the constitution, a justice of the Supreme Court must first be nominated by the President then approved by the Senate.

The senate's Judiciary Committee conducts confirmation hearings in which the nominee is questioned about their legal reasoning and philosophy, as well as aspects of their personal life. The committee then makes a recommendation to the senate, which has the final vote. The senate voted 58-42 in favour of Alito’s confirmation.

The confirmation process, and in particular the judiciary committee's confirmation hearings, is always highly charged, and never lacking in controversy. It has been criticised for deterring the finest legal minds putting themselves forward for nomination, to avoid having their personal lives exposed.

There was no shortage of press reports about Alito's dirty laundry - in particular his membership of the conservative Concerned Alumni of Princeton, but this was outweighed by the story of his life, with which many more Americans are now familiar.

Alito grew up in the working-class town of Trenton, New Jersey, the son of Italian immigrants. His father was able to go to teacher's college, rather than being consigned to working in one of the local factories, because a neighbour gave him $50 to pay for tuition. Alito was educated at public schools. His intelligence, hard work and perseverance won him a place at Princeton, from which he graduated in 1972. He then attended Yale Law School, serving as editor of the Yale Law Journal. For 15 years he was a judge on the United States Court of Appeals for the Third Circuit.

Alito's confirmation hearing leads me to question the main criticism of the process - that the best candidates will not accept nomination. Alito is a gifted lawyer who handled the confirmation process with grace and humility. Any burden involved in conducting the lengthy confirmation hearings was outweighed by the benefit of learning more about the new Supreme Court justice, and about the role of the court as one of the key pillars of power.

The most recent Supreme Court confirmation hearing has inspired many Americans to want to learn more about the Court, the law and how government works. For many young Americans Alito will have sparked dreams of becoming a Supreme Court justice.

No wonder Americans have such interest in, and respect for, the Supreme Court. While Australians often criticise America, in this, the US puts Australia to shame. Australians have little understanding of the High Court, and the other federal courts (the Federal Court, Family Court, and Federal Magistrates’ Court). One reason could be the differing appointment processes for federal judges in Australia and the US. This should change. I believe a senate committee could be formed, as in the US, to conduct confirmation hearings and make a recommendation to the full senate. The introduction of a confirmation procedure in Australia could be achieved through legislation, rather than an amendment to the constitution requiring a referendum.

There is no reason Australian federal judges, particularly at the level of the High Court, should not attract the same level of national interest and respect as American Supreme Court and sitting justices.

By 2009, three out of the current justices of the High Court will reach 70 and must retire. Given the success of the US confirmation process in fostering knowledge of, and respect for, the Supreme Court and its justices, now might be the time to introduce a similar appointment process here. The attorney-general could still select the nominee on behalf of the federal government. But then, rather than just issuing a press release, the attorney-general would need to have the appointment approved by a Senate majority.

The Howard Government is reportedly considering establishing a judicial commission to investigate complaints of misbehaviour by federal judges. There are about 150 federal judges in the four Federal courts: the Family Court, Federal Court, Federal Magistrates Court and, of course, the High Court. Yet there is no federal mechanism for investigating complaints.

Under s 72(ii) of the constitution, federal judges can only be removed if a joint sitting of the Federal Parliament passes a motion that a judge be removed for "proved misbehaviour or incapacity".

High Court Chief Justice Murray Gleeson suggests a judicial commission could present problems if it assumes any of Parliament’s constitutional authority to deal with judicial misconduct.

For a federal judicial commission to operate within constitutional boundaries, it is important the body have merely an advisory role, with a joint sitting of parliament still to decide the case for removal. Law Council of Australia President John North suggested the establishment of a body made up of retired High Court judges to hear complaints. Australian Bar Association President Glenn Martin SC wrote in The Australian that there should be an independent body, with members appointed "pursuant to an agreed protocol".

The consensus seems to be that the ultimate decision on removal should remain with parliament (perhaps because of the difficulty of changing this through a successful constitutional referendum) but a body independent of parliament should investigate complaints.

I disagree. If parliament is to eat the cake, it should be allowed to bake it, too. If it is important for parliament, the people's representatives, to have the power to remove federal judges for misbehaviour or incapacity, it should also have the power to investigate complaints. There is nothing wrong with a one-stop shop.

There should be a permanent senate judiciary committee which conducts hearings to determine the suitability of High Court (and other federal court) nominees.

If the Howard Government is to establish a means of investigating complaints against federal judges, there is no better forum than such a committee. I believe the committee should be able to investigate whether judges should enter the door - and whether they should exit.

This would depart from the US approach, where federal judges are subject to impeachment if it is alleged they have misbehaved, but a senate judiciary committee would be equally effective. A permanent bipartisan senate judiciary committee would not have an open mandate to go after any federal judge it chooses. Complaints would be referred to the committee by the Attorney-General's Department if it thought such action warranted.

The reasons for each decision by the Attorney-General's Department would be made available to the committee on a confidential basis, The committee would have only an advisory role, thus staying within the bounds of the constitution.

The committee would release its recommendation (for or against a joint sitting to consider removal), and its reasons. During the inquiry, the committee could consult widely. No doubt constitutional lawyers and academics would want to have their two cents' worth at the greatest show in town.

If the government were to establish a permanent senate judiciary committee, would the dirty laundry of investigated federal judges be aired? Probably. Would the proposed committee inject some life into the third arm of government and generate community interest in federal judges and the judicial process? Absolutely.

Critics of this proposal will inevitably trot out the Lionel Murphy affair to highlight the possible politicisation of the investigation of complaints against federal judges. But I ask: apart from the Murphy incident, and the woman dancing outside the High Court after the Wik decision, what else do Australians recall about the federal judiciary?

Not much. So bring on the senate judiciary committee proposal, and bring it on now.

The way federal judges are appointed and removed is becoming an increasingly important issue in Australia. On both, there are varied ideas and opinions on how Australian law should develop.

But now at least there seems to be agreement that change is necessary - that the appointment process lacks transparency, and is too political, and the process of removal, entrenched in the Australian Constitution, is too complicated, with no appropriate forum to deal with complaints of misbehaviour against federal judges which may lead to a call for the judge to be removed.

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Article edited by Virginia Tressider.
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About the Author

James McConvill is a Melbourne lawyer. The opinions expressed are his personal views only, and were written in the
spirit of academic freedom when James was employed as a university lecturer.

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