Judging the judges

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.

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.

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.