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Our High Court needs a visionary

By James McConvill - posted Wednesday, 10 August 2005

The United States is presently in the midst of what Michael Gawenda of The Age described as a “cultural war” arising from President George W. Bush’s nomination of John Roberts to be the country’s next Supreme Court justice. Under the United States constitution, the power to nominate Supreme Court justices is vested in the president, with the advice and consent of the Senate.

Both conservatives and (small "l") liberals have reportedly pooled tens of millions of dollars, to be used for lobbying and advertising to influence the outcome of the impending US Senate confirmation proceedings. Liberals are concerned the appointment of John Roberts, a good ol' boy who graduated from Harvard Law School and once worked for Republican president Ronald Reagan, could tip the court further to the Right, and in doing so cast a threat to women’s rights (particularly in relation to abortion), gay rights and affirmative action (among other things) as future cases come before the court for determination. As Indiana University law Professor Charles Gardener has commented, “The escalating battle for control of the Supreme Court is thus symbolic of a larger struggle within the nation itself”.

This most recent nomination process in the US is of particular interest in Australia, given that in November, Justice Michael McHugh of the High Court of Australia - this country’s most superior court - is to retire. Under the Australian constitution, High Court justices must retire when they reach 70. What is different about the judicial appointment process in Australia compared to the US, however, is the absence of confirmation proceedings. Rather, the decision regarding who is appointed to the High Court is the responsibility of the federal attorney-general, in consultation with the Cabinet. Hence, we will not be exposed to the same type of jockeying and campaigns going on in the US over the nomination of Roberts.


But this does not mean that the next appointment to the High Court is not of importance and general interest. Far from it. The High Court is guardian of our constitution, and decides many complex and significant decisions which define our rights and shape our society. In its first hundred years of operation, for example, the High Court decided: that the Commonwealth could essentially control the imposition of income taxes (thus changing the dynamics of federalism); that banning the Communist Party was beyond the power of the Menzies Government; that the Commonwealth Parliament could utilise its treaty-making power to stop the construction of the Franklin Dam; and that Indigenous native title in Australia survived British settlement in 1788.

Further, Australia is in the midst of its own “cultural war”, as a result of existing and proposed legislative programs of the Howard Government, and government control of the Senate. Given that the High Court has confirmed on numerous occasions it has the power to review the legality of laws passed by the Commonwealth Parliament, it will play an important role in overseeing our own nation’s battle. The expected constitutional challenge of the government’s proposed new industrial relations laws is but one example.

In the 1980s up to the mid-1990s, the High Court was an incredibly strong and internationally renowned institution, with a clear majority of its justices demonstrating a mix of intellectual rigour, sound judgment, and compassion. But then the foundation of our democracy changed in 1996 with the election of the Howard Government, and slowly the vitality, respectability and pure excitement of the High Court has dwindled.

Since 1996, we have seen four retirements from the court, each replaced by a Howard Government appointment. The only true talent left on the court, in my view, are both Hawke-Keating government appointments, Justice Michael McHugh and Justice Michael Kirby. Justice Kirby will go down in history as the brightest mind and warmest individual to have graced the High Court bench.

With a majority of conservative appointments, our High Court faces its greatest challenge. While the High Court is unlikely to have to deal with such contentious issues as the death penalty and abortion any time soon, it will most certainly be asked to determine the constitutionality of a growing number of Howard Government initiatives designed to centralise power in Canberra (industrial relations, ports, water etc). If Howard’s power grab is endorsed by the High Court, the very core of Australia’s federal system, which has guaranteed us stable government for over a century, will be in jeopardy.

That the High Court faces our nation’s cultural war comprised of a majority of conservative goverment appointees should concern us all. To defend our nation from a centralisation of conservative, self-interested might, what is needed is a real talent to join the bench in November, joining hands with Justice Kirby to restore balance and depth to the court. We need a gifted intellect with a broad mind and a strong sense of social justice.


Who then is the best choice?

Gareth Evans. While Evans is now the head of the International Crisis Group and jet-setting around the world, he is needed back at home. Evans once decried that he suffered from relevancy deficit syndrome after 1996. This is one sure-fired way to overcome it. A duo of Justice Michael Kirby and Evans at the apex of judicial power in this country would be a beautiful thing.

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First published in The Australian on July 29, 2005.

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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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