Reform of the Judicial Appointment Process: Gender and the Bench of the High Court of Australia

Beginning of article

[The judges of the High Court of Australia are appointed by the federal executive on the basis of 'merit' after an informal and secret consultation process. This system is anachronistic when compared with the judicial appointments procedures and ongoing reforms in other common law jurisdictions, and when considered against the minimum level of scrutiny and accountability now expected of senior appointments to other public institutions. It is also inconsistent with the role of the High Court in determining the law, including matters of public policy, for the nation as a whole. One consequence of the current system, including its reliance on the subjective concept of "merit" is that, of the 44 appointments to the Court, only one has been a woman. The appointments process should be reformed to provide for the selection of High Court judges by the executive based upon known criteria after the preparation of a short list by a judicial appointments commission. Without this, the current executive appointments system threatens to undermine public confidence in the Court and the administration of justice.]

CONTENTS

I  Introduction
II The Current Executive Appointments Process
     A The Law
     B In Practice
     C Limitations on the Power to Appoint?
II Women and the High Court
     A A Woman on the Bench
     B Women in 'Speaking Parts'
     C Women Associates
IV The Rhetoric of 'Merit'
     A 'Merit': The Myth of a Neutral Standard
     B Informal Networks and the Problem of Patronage
V  Giving Meaning to 'Merit': The Need for Criteria
     A Legal Knowledge and Experience
     B Professional Qualities
     C Personal Qualities

I INTRODUCTION

This year marks the centenary of the High Court of Australia. At its first sitting on 6 October 1903, the Court took up a position at the apex of the Australian judiciary. This role as part of the third branch of government has always been inherently political (in the broad, rather than partisan, sense of the term). (1) While the Court exercises its functions independently of the legislative and executive branches, the political, social and economic consequences of its decisions are obvious. Moreover, decision-making by the Court often involves difficult choices of policy and judgment. While such choices arise out of essentially legal questions, the need to make them inevitably leads to debate about the capacity of the judges to make such decisions and the legitimacy of their doing so.

As an institution exercising public authority within Australian society, the High Court necessarily generates an expectation of accountability. Of course, unlike other public institutions, a central characteristic of the Court, and of the judiciary more broadly, is its independence. (2) However, as Chief Justice Murray Gleeson has observed: 'The independence and impartiality of the judiciary are not private rights of judges; they are rights of citizens.' (3) Ultimately, judicial legitimacy (and power) rests on public confidence in the courts, in the judges themselves, and in their decisions. The centrality of such confidence to a functioning democratic system has been emphasised at all levels of the judiciary, including at the most senior by the current Chief Justice of the High Court, (4) and by its former Chief Justices. (5) As Sir Gerard Brennan, for example, has said:

   The judiciary, the least dangerous branch of government, has public
   confidence as its necessary but sufficient power base. It has not
   got, nor does it need, the power of the purse or the power of the
   sword to make the rule of law effective, provided the people ...
   have confidence in the exercise of the power of judgment. (6)

Where courts enjoy such confidence, it is the strongest protection against incursions into their independence.

Public confidence in the High Court is dependent upon its judges; and, in their selection, the Court is dependent upon the executive. The appointment of High Court judges by the government of the day is significant, not only in terms of the outcomes of that process (that is, the judges actually chosen), but also with respect to the appropriateness of the process of appointment itself. As to the former, the strong and longstanding reputation of the Court in the common law world is well-known. In this article we examine the latter issue--the process of exclusive executive appointment. We do so with the benefit of recent reforms in other comparable common law jurisdictions, particularly those made in the United Kingdom, where it is proposed that a Judicial Appointments Commission be established for appointments to all levels of the judiciary. (7)

The focus of our argument is the question of gender. This might suggest an examination of the outcomes of the appointments process. Certainly, the appointment of only one woman out of 44 judges over the first century of the High Court is a ground for serious concern (and, indeed, gender is only one aspect of a broader question of diversity on the bench of the Court). However, we are not arguing that unmeritorious candidates have been appointed by the executive, but rather that the current system prevents meritorious candidates with different backgrounds or characteristics from being adequately considered by the Attorney-General or Cabinet, and that this has the potential to undermine public confidence in the Court. The reform proposal set out in this article seeks to ensure that, rather than relying solely on the malleable concept of 'merit', the executive appointments process articulates the relevant criteria, included in which should be the concept of diversity, and operates in a sufficiently transparent and procedurally fair manner to ensure that public confidence in the Court is maintained. While we argue for reform of the method of appointment, we reject the idea that there should be prescriptive rules or a quota as to who should be chosen to sit on the Court, such as a minimum number of men or women. 'Merit' must remain the overriding standard, but it should not remain undefined.

In Part II of this article, we set out the existing (but very limited) explicit criteria and the current process for the appointment of High Court judges. In Part III we contextualise the lack of women on the High Court bench through their absence more generally from the institution, and suggest that the reasons for this reside partly in the current system of appointment and partly in structural inequalities within the legal profession itself. While reform of the appointments process will not solve these issues on its own, it will at least ensure that they are not compounded in judicial selection.

We therefore highlight in Part IV two of the principal problems with the current system, namely that it is based upon (i) the making of purely subjective assessments of potential candidates by the Attorney-General with reference to an unreviewable and unarticulated set of criteria; and (ii) a closed process of decision-making, which relies on informal networks and is not subject to any public scrutiny or involvement. We argue that these problems should be addressed through, respectively, the development of specific criteria for judicial appointments (discussed in Part V) and the creation of a formalised appointments procedure for the High Court (discussed in Parts VI and VII). We outline the scope and pace of change with respect to judicial appointments processes in other comparative jurisdictions and conclude that Australia is severely out of step.

Of course, the federal government also appoints judges to other federal courts, (8) as well as to Commonwealth tribunals, and there is similar need for reform of the appointments processes at state and territory level. (9) While many of the considerations outlined in this article are also applicable to other courts, we focus principally on the method of appointment to the country's highest court in light of its pre-eminent position in the political and judicial hierarchy.

In setting out a new process of selecting High Court judges, we are primarily concerned with the need for appropriate accountability on the part of the executive in exercising its power of appointment. The Court's role as a political institution demands that the criteria seen as relevant to appointment be articulated by the government and that the appointments process itself be formalised and made more transparent. The current system is anachronistic when compared with the judicial appointments procedures and ongoing reforms in other common law jurisdictions, and when considered against the minimum level of scrutiny and accountability now expected of senior appointments in other major public institutions, in academia and in the professions. Indeed, as the most senior legal institution in Australia, it is vital that the procedure for appointment to the Court should not only be fair but be seen to be fair.

II THE CURRENT EXECUTIVE APPOINTMENTS PROCESS

A The Law

The only provision in the Australian Constitution relating to the process of appointment to the High Court is s 72(i), which states that Justices of the Court '[s]hall be appointed by the Governor-General in Council'. In practice, this means that the Governor-General makes the appointment acting on the advice of the government of the day. Other than prohibiting the appointment of judges who have reached the retirement age of 70 years, (10) the Constitution makes no mention of qualifications or background, and contains no other procedural requirements. It does not even require that an appointee be qualified as a lawyer.

The High Court of Australia Act 1979 (Cth) is slightly more prescriptive. Section 7 requires that an appointee be a judge of a federal or state court, or have been enrolled as a legal practitioner in Australia for not less than five years. Section 6 states that, before making an appointment, the 'Attorney-General shall ... consult with the Attorneys-General of the States' (no mention is made of the Attorneys-General of the territories). However, the extent and form of consultation is not specified and it is unclear whether this process has any real effect on the appointment made by the federal government.

B In Practice

According to former federal Attorney-General Daryl Williams, appointees to the High Court are chosen on 'the essential criterion' of merit, (11) a basic policy that has been confirmed by the current Attorney-General, Philip Ruddock. (12) As for more specific criteria: 'It is enough to say that outstanding professional skills and personal qualities, such as integrity and industry, are required, together with a proper appreciation of the role of the Court.' (13) Currently, the Attorney-General consults with both the state and territory Attorneys-General prior to an appointment being made to the High Court. (14) With respect to federal appointments generally, the Attorney-General also holds confidential consultations, or 'informal discussions', with various individuals, including 'the Chief Justice (or equivalent) of the relevant court', 'legal professional bodies such as the Law Council and the Bar Association or Law Society' of the relevant state or territory, 'serving and former judges, the Attorney-General's ministerial and parliamentary colleagues, [and] appropriate community groups'. (15) In the case of the appointment of a Chief Justice, the Prime Minister may play a particularly influential role. (16) On the other hand, there is 'no formal consultation with the Opposition parties'. (17)

It does not appear that those 'consulted' are requested to assess candidates against specific criteria, but are instead simply asked for their personal opinion or 'impression'. (18) According to Sir Harry Gibbs, the extent to which the views of those consulted are actually taken into account varies, as does the extent of consultations. (19) As former federal Attorney-General Michael Lavarch has said: 'If equity could be said to vary depending on the size of the Chancellor's foot, then the selection process, for Commonwealth judges at least, can alter with each Attorney-General'. (20)

After 'consulting', the Attorney-General informs Cabinet of his or her recommendation--or recommendations, in the case of more than one vacancy. At the time of the most recent appointment made to the High Court in February 2003, the Attorney-General also conducted private interviews with candidates but did not indicate what questions were put to candidates, or how this information was used in the selection process. (21)

Cabinet then considers the Attorney-General's recommendation and may accept it or may decide on an entirely different person. (22) It is unclear what information, other than the candidate's name, Cabinet has before it when it makes its decision. However, the limited evidence available of instances where an Attorney-General's preferred candidate has not been accepted by Cabinet demonstrates that the choice has been influenced by considerations as diverse as the potential appointee's 'politics, state of origin, friendships, and the views of sitting Justices'. (23)

The Attorney-General, after securing the agreement of the nominee chosen by Cabinet, 'formally recommends' the appointment to the Governor-General. (24) In practice, then, the Governor-General in Council has no active involvement in the process and the decision is entirely in the hands of a small group in the executive. The lack of established criteria (beyond the vague notion of 'merit'), and of an entrenched process of public consultation, means that appointments to the High Court have been accurately described as being 'the gift' of the executive government. (25)

On the other hand, by clearly linking the executive to the process of judicial selection, the current system enables the executive to be held accountable pursuant to the conventions of representative and responsible government. (26) In addition, the central (and exclusive) role of the executive can produce its own level of diversity in judicial selection, for example, in the way in which governments of all political persuasions consider the extent to which potential candidates reflect their preferred judicial outlook and approach. The existing process may therefore lead to the appointment of judges who might otherwise not be selected under a more formalised process, whereby the power of appointment would be constrained politically, if not legally, by the involvement of some other body of unrepresentative 'officials'. Moreover, the judicial approach of appointees has been known to change over time following their appointment to the bench, thereby creating a further dynamic in the current system.

While we recognise the strength of such arguments in favour of the current system, we believe that the serious problems inherent in the existing appointments process require its substantial reform. We also argue (in Part VII below) that some of the potential dangers in moving to a more formalised system of appointments can be prevented through the appropriate design of such a system.

C Limitations on the Power to Appoint?

Other than the scant law on the technical qualifications of an appointee, there are effectively no formal limitations under the current appointment system on who may be chosen to sit on the High Court. There is therefore no real safety net against inappropriate appointments (with the exception of the formal, elaborate--and never successfully invoked--powers of removal for proved misconduct or incapacity). (27)

Justice Peter Young of the Supreme Court of New South Wales contends that, while an Attorney-General is not under a 'duty to recommend only the most suitable appointee' for a judicial position, he or she 'has a role under the unwritten constitution that requires independence from political or other influence when performing certain duties' including, in particular, recommending judicial appointments to Cabinet. (28) But former Attorney-General Daryl Williams takes a different view even of this limitation: 'the perception that the attorney-general exercises important functions independently of politics and in the public interest is either erroneous or at least eroded'. (29) Moreover, according to Williams, Australian Attorneys-General 'are elected members of Parliament, answerable to their party colleagues, Parliament and the electorate. They are not, and cannot be, independent of political imperatives.' (30)

Justice Young outlines the various options, and their likelihood of success, in the case of an inappropriate appointment. In his view, the relevant court could hardly decline to swear in the appointee after being explicitly directed to do the opposite by a Commission of the Governor-in-Council. A federal court might intervene in the case of an improper appointment to a state Supreme Court (on the basis that the appointment might impair the integrity of, and public confidence in, the court according to the principle established in Kable v Director of Public Prosecutions (NSW)), (31) but this is probably 'politically unrealistic'. (32) In these circumstances, Justice Young concludes that the public must simply put their faith in the appointee:

   A thinking lawyer who believes that he is being offered an
   appointment otherwise than on merit may well decline because he
   knows that the Bar may make his judicial life unbearable. Often,
   however, appointees do not realise their inadequacies. (33)

III WOMEN AND THE HIGH COURT

Despite the role of the High Court in determining the law on behalf of the nation across a full spectrum of social and political issues, it has remained a remarkably homogenous institution. Of those people appointed to the Court, '[m]ost Justices have come directly from the Bar or the judiciary. None has been a full-time academic ... [and] there has yet to be an appointment not of Anglo-Celtic background'. (34) There has also been only one openly gay Justice. (35) This general lack of diversity also holds true in regard to gender. It does so not only with respect to the judges of the Court, but also in regard to the lawyers who speak before it.

A A Woman on the Bench

Over the last century, there have been 44 appointments to the High Court. Only one has been a woman. Justice Mary Gaudron was appointed in 1987 and since her retirement in February 2003 there is no longer a woman judge (36) on the Court. Australia is unusual among its common law counterparts in having an all male bench on its highest court. (37) Both the Supreme Court of Canada and the Supreme Court of Singapore include three women (out of nine and 13 judges respectively), with Ireland, the United States and New Zealand each claiming two (out of nine, nine and eight members of their highest courts respectively). Both the Chief Justice of Canada and the Chief Justice of New Zealand are female (McLachlin CJ and Elias CJ respectively). While the highest court in the UK, the House of Lords, had up until this year never had a female judge appointed to it, the UK was exceptional in this respect, and the subject had been a matter of significant public debate. (38) The historic appointment in October this year of Dame Brenda Hale to the House of Lords, effective January 2004, further highlights Australia's unique position.

The High Court reflects other Australian courts in this respect. In 1994, the Commonwealth Senate Standing Committee on Legal and Constitutional Affairs concluded in its report entitled Gender Bias and the Judiciary that Australian judges 'are overwhelmingly male, former leaders of the Bar, appointed in their early fifties, and products of the non-government education system.' (39) Moreover, 'men of Anglo-Saxon or Celtic background hold nearly 90% of all federal judicial offices'. (40) The Standing Committee concluded that this was 'not, of itself, a reflection on those currently occupying judicial office. However, it does suggest that there are competent candidates who possess the requisite qualities for judicial office who are being overlooked.' (41) Nearly a decade later, some progress has been made in increasing the number of women on the bench, with women now comprising around 20 per cent of the judiciary. (42) However, when the senior judiciary alone is considered, women account for approximately 14 per cent of judges, (43) and when the bench of the highest court is considered, women are simply absent. Of course, the lack of women in the senior judiciary reflects their absence in the upper echelons of the profession more generally, and particularly among the senior bar which, according to the current Chief Justice, remains 'somewhat homogenous'. (44)

B Women in 'Speaking Parts"

Women are largely absent from the ranks of the lawyers who appear and speak before the High Court (as compared to those lawyers who appear before the Court as non-speaking 'juniors'). In two speeches, four years apart, Justice Michael Kirby of the High Court compared the number of women speaking in argument before the Court and found that it was static. (45) In 1996 and the first half of 1997, only six female barristers had 'speaking parts' in appeals heard by the Court, with only two in substantive appeals (as opposed to special leave applications). (46) Again, over the second half of 2000 and the first half of 2001, only six women were heard in argument before the Court. (47) Justice Kirby estimated this proportion as about two to three per cent of the total number of counsel appearing before the Court. (48) These figures reflect the proportion of women currently at the senior bar. For example, in 2002, women comprised 37 per cent of all practising solicitors in New South Wales. (49) Yet, as at February 2003, only 13.5 per cent of all barristers holding New South Wales practising certificates were women, (50) and only nine out of 295 (or approximately three per cent) of the senior bar were female. (51)

C Women Associates

The proportion of women on the High Court bench and of those speaking before it can be contrasted with the figures relating to judges' associates (that is, those generally recent graduates who commonly work for a Justice for a year, providing legal research and other assistance). According to a study of High Court associates over 1993-2000, approximately 47 per cent of associates were female. (52)

This contrast between counsel and associates in the High Court reflects the prevalence of women at the entry level and the lower echelons of the legal profession, and their under-representation in its upper tiers. (53) Despite several decades of growing representation of women among law graduates and new entrants into the profession (including more than a decade of equal representation among both groups), (54) this has not translated into seniority. Women comprised over 10 per cent of the profession at the start of the 1980s, rising to over 25 per cent by the beginning of the 1990s, (55) and since then increasing to over 35 …