Next year Justice Michael McHugh of the High Court will turn 70 and retire. Appointed in 1989 by Prime Minister Bob Hawke, McHugh is the longest serving judge on the Court. His replacement will be selected by the federal government, the fifth such appointment by Prime Minister John Howard.
Over more than a century, only one of the 44 judges of the High Court has been a woman. Justice Mary Gaudron joined the Court in 1987 and retired in 2003. While Australia now has no women on its highest court, four of the nine judges of the Canadian Supreme Court and two of the nine judges of the US Supreme Court are women. Every other comparable nation has at least one woman on its highest court.
This was the subject of a recent speech by McHugh. In a frank assessment, he pointed out that “unless we redress the present gender imbalance in judicial appointments, there is an ever-increasing risk in the society of today that the public support on which the legitimacy of the judiciary rests will erode”. Without such confidence, judges cannot do their job and the justice system is undermined. The lack of women, as McHugh stated in regard to the few women who speak before the Court, draws the “inescapable conclusion” that the “discriminatory, systemic and structural practices in the legal profession” continue to have a serious impact.
A further problem that McHugh did not mention is the way that High Court judges are chosen. The Constitution says nothing about who should be appointed. It makes no mention of qualifications or background and does not even require that an appointee be a lawyer. It merely states that appointments to the Court are made by the Governor-General. In practice, this means that the decision is made by the federal government of the day.
This process is seriously inadequate. It lacks even the most basic criteria to guide the selection and means that appointees are usually said to be the “best person for the job” or that they have been chosen “on merit”. In fact, governments choose one person from a range of talented candidates and the choice is influenced by considerations ranging from politics to personal friendships. Under a process affected by who you know and your ability to navigate the male-dominated bar, it is not surprising that so few women come into contention for the High Court.
The system needs to be changed. The failure to appoint a woman to the High Court since 1987 is inconsistent with the number of qualified female lawyers in Australia. Moreover, the government has been willing to turn from the ranks of senior judges to the ranks of barristers when considering suitable candidates, thereby increasing the potential pool of women candidates. The government should now also look beyond such traditional sections of the profession to other areas in which women have excelled. Academics have frequently been appointed to the Supreme Courts of Canada and the US, and have been regarded as some of the leading judges on those Courts.
Australia should also follow the lead of countries such as Canada, the United Kingdom and New Zealand and consider a judicial appointments commission. The commission should include at least one person who is not a lawyer and should assist the government by preparing a short-list of names after assessing people against agreed criteria. While the final say should remain with our elected representatives, the process should be reformed to ensure that meritorious candidates from diverse backgrounds are not overlooked because of structural problems such as the potential for patronage and the lack of appropriate selection criteria.
There should not be a “women’s seat” on the High Court, nor any form of quota. Instead, judges should be drawn from the range of suitably qualified men and women in the senior ranks of the legal profession (considered broadly). Appointees should be chosen against known criteria for their legal skills and other professional and personal attributes.
There should also be consideration of the fact that a High Court without women will be diminished in its decision-making capacity and in its ability to be reflective of the Australian community and legal profession. The High Court should not be composed of seven women. Equally, it should not be composed of seven men.
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