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

Article excerpt

[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. …