LAW: by Peter WestmoreNews Weekly
Roxon set to make key High Court appointments
, September 1, 2012
With the retirement of two of the High Court’s seven justices within the next year, the left-wing federal Attorney-General, Nicola Roxon, has an extraordinary opportunity to shape the High Court for years to come. The court determines some of the most important issues in the land.
Appointments to the High Court occur relatively infrequently, but two vacancies will arise before the next election.
On reaching the mandatory retiring age, Justice Bill Gummow will retire in October, and Justice Dyson Heydon will retire next March. Both are black-letter lawyers.
Ms Roxon has already flagged that she would give higher consideration to issues of “diversity”, as well as merit. In one speech, she said, “[W]e have been less than successful in appointing lawyers from academia, the ranks of solicitors or law reformers in any significant numbers.”
She continued: “Gender should be considered when we evaluate the diversity of our judiciary. But so should professional, geographic and cultural background. All are important factors for the community when they consider how representative the judiciary is of their interests, of how confident they are in it.”
Interestingly, the issue of diversity in judicial appointments was also a preoccupation of former High Court Justice Michael Kirby. He said, “In courts, diversity is also a protector of intellectual rigour, as each judge measures his or her opinions against those colleagues who may approach judging in a slightly different way and sometimes come to different conclusions about the law’s requirements and how to express them.”
The problem with the issue of diversity is that the current High Court is more diverse than any of its recent predecessors. Of its seven members, three are women, and the seven justices come from four states, Queensland, New South Wales, Victoria and Western Australia. Chief Justice French comes from Western Australia.
While Labor governments have been more willing than their opponents to appoint judicial activists, an issue which preoccupies some government members is that a number of recent decisions of the High Court have recently gone against the government.
One notable example of this was when the High Court judged the Gillard Government’s deal with Kuala Lumpur to locate asylum-seekers in Malaysia to be unlawful. While the government’s public comments over this decision were muted, there is no doubt that the High Court’s ruling caused massive resentment.
Some government members mistakenly consider that the High Court is responsible for the Labor government’s complete failure to deal with the asylum-seeker influx, and for the collapse in the government’s popular support.
Separately, when the High Court ruled in June that the Commonwealth’s financial support of the National School Chaplains Program was unconstitutional, it cast doubt on the legality of a range of other Commonwealth-funded programs.
It has also inhibited the Commonwealth’s ability to set up similar schemes without obtaining parliamentary sanction or the co-operation of the states.
Within the legal profession, Nicola Roxon’s decision to replace a panel, headed by a former chief justice of the High Court, Gerald Brennan, to recommend appointments to the Federal Court, also raised eyebrows.
One of the other members of the replaced panel was the Federal Court’s Chief Justice Patrick Keane. The newly-appointed panel consists of a retired Federal Court judge, Margaret Stone, Law Council president Catherine Gale and a senior officer in the Attorney-General’s Department.
While the government’s frustration with the High Court will undoubtedly influence future appointments, concern over the High Court’s increasing centralism over the years may also have influenced recent appointees.
Dr Augusto Zimmermann, senior lecturer in law at Murdoch University in WA, referred to this problem in a recent article in Policy magazine.
Dr Zimmermann pointed out that the Commonwealth Constitution was drafted as “an instrument of government intended to distribute and limit government powers. Hence, one of the basic characteristics of Australia’s constitution is its express limitation on federal powers.”
After tracing the role of the High Court over the past century in augmenting the power of the Commonwealth at the expense of the states, he said, “The continual expansion of the Commonwealth powers has resulted in a federation far removed from that originally envisaged by the framers.
“Since the 1920s, the High Court has allowed the Commonwealth to expand its powers to the point where many of the advantages of federalism have either been lost or are not being realised to their full extent.
“This court needs to understand that the federal structure of the Australian Constitution, particularly its limited powers conferred upon the central government as opposed to the powers which should have continued with the states, ‘by no means implies that federal legislative power is to be accorded interpretative priority’. Quite the contrary.”