Howard Government, Howard judiciary, Howard legislature

There is an old Chinese saying that goes “may you live in interesting times”.

Surely the latter half of 2005 will be one of those times. For the first time in 25 years, a party in power will obtain control of the Senate. But that is not the only institution in which the Howard Government could seek to extend the influence of its own brand of radical conservatism.

A rare High Court vacancy will occur in November when Justice Michael McHugh turns 70. Jockeying for position has begun with Attorney-General Phillip Ruddock’s recent announcement that he is holding “informal discussions” with contenders to fill the position.

The appointment comes at a time of increasing pressure for more transparency and independence within the system that elects judicial representatives. Even assuming our nation’s top judges remain hale and hearty, there is potentially a second High Court vacancy to be filled using the existing process before the next election.

The interaction between the judiciary and the executive has always been fascinating. For example, at the height of the native title debate in 1997, former National Party leader, Tim Fischer, asked for conservatism from the High Court. The inference at the time was, of course, that the High Court had lost its political independence and that the conservative side of politics would best be served by the appointment of a conservative to the court.

Then Attorney-General Daryl Williams refused to defend the High Court’s independence by stating that it had never been the role of the first law officer of the Commonwealth to defend the judiciary from political attack.

In fact, the role of the attorney-general as the defender of the judiciary is embedded in our judicial system’s English common law history. Although the attorney-general has no statutory responsibility in this regard, it is a long standing convention that the attorney has a special non-partisan responsibility to safeguard the independence of our courts; this is despite being a partisan member of parliament and in the cabinet.

Now that this principle has been completely undermined by the actions of successive attorneys-general in the Howard Government, it is perhaps time to look at new and different ways of defending the independence and stature of our High Court judges.

Political attacks on the justices of the High Court - which play a role in undermining its inherent authority - may be blunted if we can point to transparency and independence in their appointment.

Earlier this year, the Chief Justice of the High Court, Murray Gleeson, and the Federal Court’s Justice Ronald Sackville both raised the issue of the appointments process. Justice Sackville has personally endorsed the idea of an independent judicial commission to make recommendations to the government for future judges.

Currently there is very little guidance being provided to the government on the appointment process for High Court judges, and the process remains largely in the attorney-general’s head. The Constitution states that appointments to the High Court are to be made by the Governor-General in council, but like all elements of the Governor-General’s role in the day-to-day business of government, he (or she) accepts the recommendation of the party in power. The High Court of Australia Act requires that before making an appointment, the attorney-general shall consult with the state level attorneys-general.

The first major problem with this method is that the Act does not specify the nature of the consultation. The ambiguity of this provision can result in consultation that may not be extensive or even meaningful. The second major shortcoming lies in the fact that the attorney-general is not bound to take the advice seriously. Former Queensland Premier Borbidge once described the consultation process as “uniformly disappointing [and] the obligation to consult largely empty”.