The Role of the Commonwealth Attorney-General in Appointing Judges to the High Court of Australia
Donegan, Paul, Melbourne Journal of Politics
Daryl William's statement while attorney-general that, 'it ought to be concluded that the perception that the attorney-general exercises important functions independently of politics and in the public interest is either erroneous or at least eroded' generated significant controversy in relation to the Attorney-General's role in defending the judiciary from criticism. This article examines the application of this articulation of the office of Attorney-General to one of the other responsibilities of the Attorney-General. The article considers whether such an articulation has led to partisan political considerations becoming more prominent in the process of appointing judges to the High Court of Australia. It is concluded that partisan political considerations have become somewhat more prominent in recent years, but most notable in this development has been the tendency for the prime minister to dominate the process at the expense of the Attorney-General, and this is something which is expected to persist.
Keywords: Attorney-General; Cabinet; appointment of judges; High Court of Australia; judicial independence
The Australian Commonwealth Attorney-General performs a wide range of functions and is unique as a minister in that some of these functions are statutory: some arise from common law prerogative; and some arise through the Attorney-General's role as a minister appointed under section 64 of the Constitution. As a minister, the Attorney-General oversees a government department and can be a member of Cabinet. S/he is responsible for the development of Commonwealth legal policy (2) and for expenditure of public funds on the court system: although, in practice Australian federal courts are responsible for their own administration (3). At common law, the Attorney-General is also nominally responsible for representing the government in court and for criminal prosecutions, although since 1984 practical control over public prosecutions has been vested in the Commonwealth Director of Public Prosecutions (4). The Attorney-General is responsible at common law for the granting of fiats for relator actions whereby people or groups who would not otherwise be considered interested parties are granted standing to participate in a public law case. S/he must also make recommendations to Cabinet with respect to judicial appointments and is also arguably bound to defend the judiciary from criticism; at least, through the institution of legal proceedings for contempt of court and also through making statements either to the public or to other members of government in some circumstances.
An understanding of the Attorney-General's role advanced by many commentators and practitioners has it that certain functions of the office should be exercised not as an ordinary politician but with at least some degree of independence from Cabinet (5). It is generally accepted that the Attorney-General's discretion to initiate public prosecutions should not be subject to Cabinet direction particularly where no case on the merits exists (6). Similarly, the Attorney-General is expected to grant fiats for relator actions independently of partisan political considerations (7). Likewise, recommendations for judicial appointment are supposed to be made based upon the "merit" of the putative appointee (8), and defence of individual judges or the institution of the judiciary from certain kinds of criticism is supposed to be made irrespective of whether or not such a defence is against the political interests of the government of which the Attorney-General is a member (9).
However, the minister who held the office of Attorney-General from March 1996 until September 2003, Daryl Williams AM QC MP, rejected this traditional understanding stating, 'it ought to be concluded that the perception that the attorney-general exercises important functions independently of politics and in the public interest is either erroneous or at least eroded' (10). …