Roxon’s High Court dilemma

At a time when the court’s decisions are making life complicated for the government, Nicola Roxon is faced with two new appointments to the bench. Andrew Lynch looks at the factors she’ll be taking into account

09 July 2012



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“Gender should be considered when we evaluate the diversity of our judiciary,” says the attorney-general (above). “But so should professional, geographic and cultural background.”
Photo: Alan Porritt/ AAP Image

EVEN more anticipation than usual surrounds the question of whom the Gillard government will appoint to take up the two vacancies caused by the departure of Justices William Gummow and Dyson Heydon from the seven-member High Court of Australia in coming months. Speculation about potential successors always builds when any member of the court approaches the mandatory retirement age of seventy, but there are two reasons why the announcement has particular significance this time around.

The first is that in the course of its brief life, the government has suffered major setbacks at the hands of the court – setbacks which, given its tenuous grip on parliamentary authority, have been seriously unwelcome. The court’s declaration that the government’s agreement with Malaysia for the transfer of asylum seekers arriving by boat was outside the scope of the current legislation has ensured that this issue remains in a state of excruciating deadlock. Then, when it found last month that the Commonwealth’s financial support of the National School Chaplains Program was unconstitutional, a majority of the court effectively signalled that hundreds of government schemes established without specific legislative approval were also in doubt. As a result, in the last week of June, when parliament was in the throes of yet another bout of asylum policy debate, it also proved necessary to hastily enact a law intended to avoid the collapse of many of these programs. Even if the law manages to do that – and the federal opposition and most academic commentators have expressed serious doubt on that score – the decision in the Chaplains case has certainly inhibited the Commonwealth’s ability to set up similar schemes without obtaining parliamentary sanction or the cooperation of the states.

All of which meant that the most dramatic parliamentary sitting week in a long time was largely due to the High Court’s having thwarted the federal government’s ambitions. That is not a criticism of the court, and nor is it to suggest the decisions were in any way politically motivated. But it is an undeniable political fact. The newly installed Senator Bob Carr, perhaps more accustomed to the tradition of state governments merrily laying into the courts, most typically on sentencing issues, was the only federal parliamentarian to openly attack the court for its role in generating the chaos around him. But you can bet he wasn’t the only one thinking it.

When a government finds itself discomforted by decisions of the High Court, there is just one thing it can do about it – seek to change the court by appointing new justices who it suspects will be more sympathetic, through their methodology or judicial philosophy, to its legislative agenda. Justices have been appointed to the US Supreme Court in this way with a brazenness that the rest of the common law world finds frankly distasteful. But it is not unknown in Australia. The controversy that followed the court’s decisions on native title and implied constitutional rights in the 1990s led not simply to criticism of the court on par with that made by Carr last week, but also to an unabashed declaration by John Howard’s deputy prime minister, Tim Fischer, that in replacing retiring justices the hunt was on for “capital C conservatives.”

We are unlikely to see any member of the current government, and especially not the attorney-general, Nicola Roxon, express a similar sentiment about the upcoming judicial vacancies. But the grief the government has been dealt by court decisions will inevitably have sharpened the strategic considerations in the selection of new justices. To some degree, these are always a factor. We know that governments going back as far as the pre–first world war administration of prime minister Billy Hughes have attempted to ensure that appointments to the High Court will be ones that are more likely to assist their political agenda. That this exercise frequently produces disappointment is a credit to the calibre of those who have been appointed to our highest court – but it still doesn’t stop governments trying.

So the stakes are high in getting the “right” people on the court – which in the present political landscape means those whose constitutional methodology is likely to afford a generous understanding of Commonwealth power. Given the almost unbroken series of blows that the court has inflicted over many decades to the interests of the states in disputes with the Commonwealth, that goal feels distinctly retro. But it is a measure of just how surprising some of the court’s recent decisions have been in placing real constraints on Commonwealth power that a potential nominee’s perceived “centralist tendencies” are likely to be a big plus. The situation would scarcely be any different under an Abbott-led government – indeed, in his book Battlelines the opposition leader made it abundantly clear that he probably has less time for the interests of the states than any conservative leader in Australia to date.

AGAINST this backdrop is the second factor, quite without precedent, which is fuelling heightened speculation about the forthcoming High Court appointments. Attorney-general Roxon, the first female ever to hold that office, has been explicit in her ambition to use the appointments as an opportunity to broaden the diversity of experience on the nation’s highest court.

To provide some context, forty-eight justices have been appointed to the High Court since its establishment in 1903. Just four of those have been women, three of whom are currently serving and none of whom are due to retire. In this sense, while the underrepresentation of women among the judiciary generally remains an important issue in Australia, the High Court’s gender balance is not the pressing issue it was just a few years ago. This means that less obvious forms of diversity are receiving attention. It is striking, for instance, that the High Court has yet to reflect even the first wave of post–second world war immigration, never mind those from outside Europe that have occurred since. But although greater ethnic diversity is frequently raised in discussions about the future of the Australian judiciary, this is rarely so in connection with the High Court – in marked contrast to its prominence in debates in the United States over the composition of the Supreme Court, for instance, where most recently Barack Obama’s appointment of self-described “wise Latina woman” Sonia Sotomayor was seen as a significant breakthrough.

Instead, the dominant call in recent years has been for a larger number of justices to be appointed from the less populous states. There have been more appointments from New South Wales, the nation’s oldest and most populous state, than from all other states and territories combined. To date, twenty-six appointees to the court have been from New South Wales, twelve from Victoria, seven from Queensland, three from Western Australia and none at all from either South Australia or Tasmania. The court is presently comprised of three justices drawn from New South Wales, two from Victoria, and one each from Queensland and Western Australia. This is comparatively diverse compared to the High Court of just six years ago, which had five members from New South Wales and just one each from Queensland and Victoria. It was during this time that the dominance of the “larger” states in sourcing High Court judges started to attract renewed criticism. University of Queensland law professors James Allan and Nicholas Aroney have said that this historical bias towards appointments from New South Wales would be “nothing less than incredible” to Canadian or American observers.

Roxon’s interest in enhancing diversity on the High Court goes back to her days as shadow attorney-general opposite Philip Ruddock. Back then, she was most concerned about the court’s reversion to an all-male institution after the appointment of Justice Dyson Heydon to replace retiring Justice Mary Gaudron. But she generally decried the “clubbiness” of the Sydney-centric selection process. Both then and in speeches this year about her looming decision on the new justices, Roxon has signalled that geography is one necessary element of diversity. But she has also referred to other attributes, notably the value of different prior professional experience:

[W]e have been less than successful in appointing lawyers from academia, the ranks of solicitors or law reformers in any significant numbers.

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.

This stance is very much in step with developments in other comparable legal jurisdictions, where the matter of judicial appointment receives far more sophisticated debate and attention than has customarily been the case in Australia. Even so, the focus on looking for candidates whose professional experience prior to judicial appointment lies elsewhere than a glittering career at the bar is notable. It is perhaps the most radical and intriguing aspect of Roxon’s diversity agenda.

It is conceivable, however, that the two considerations that bear on Roxon’s selection of candidates for appointment to the court may exist in tension with each other. This is particularly so in respect of the weight to be given to geographical diversity. Any hope the government has that the appointments present an opportunity to shore up Commonwealth power under the Constitution, or at least to forestall the court’s placing any more shackles on it, is likely to make it wary of appointing a justice from one of the “smaller” states in case he or she proves to be overly wedded to the idea of our foundational legal document as a “truly federal Constitution.” (The words are those of Tasmania’s Andrew Inglis Clark, an influential figure in the drafting of the Constitution, quoted by Chief Justice French, who hails from Western Australia, at the outset of his opinion against the Commonwealth in the Chaplains case.) This sort of reasoning is unapologetically crude – a survey of the decisions of judges over the court’s history does not provide a simple correlation between their state of origin (to borrow an expression) and the ability to describe them as pro-states, states-righters or federalists. But it is not baseless. Among the ten justices who have been appointed from outside New South Wales and Victoria there have certainly been prominent proponents of restraining Commonwealth powers – including Chief Justice Harry Gibbs and Justice Ian Callinan (Queensland) and Justice Ronald Wilson and the present chief justice (Western Australia). Just what we might expect from a justice appointed from South Australia, let alone Tasmania, is probably something a beleaguered Commonwealth government is happy to leave untested.

Just how Nicola Roxon will balance her own commitment to judicial diversity on our highest court with her government’s interest in seeking to curb the court’s current tendency to constrain Commonwealth power will be fascinating to see. It is certainly not impossible to tick both boxes but it undeniably renders the selection process a complex one.

ROXON’s emphasis on greater diversity also intersects with the standard, and undeniably crucial, criterion of “merit.” Although it has long been the sole public justification given for judicial appointments, little attempt has traditionally been made to flesh out the specific qualities that add up to merit. This has changed in recent times. Various academic studies have attempted to articulate a richer meaning of the term, and many of these are reflected in the criteria now used in both Australia and the United Kingdom.

Making appointments to the High Court still remains the unfettered prerogative of the federal attorney-general, but under reforms that apply to appointments to all other federal courts, introduced by her predecessor, Robert McClelland, the attorney-general now receives names for consideration from an advisory panel that looks for the following “requisite qualities for appointment”:

• legal expertise
• conceptual, analytical and organisational skills
• decision-making skills
• the ability (or the capacity quickly to develop the ability) to deliver clear and concise judgements
• the capacity to work effectively under pressure
• a commitment to professional development
• interpersonal and communication skills
• integrity, impartiality, tact and courtesy
• capacity to inspire respect and confidence.

These approximate the qualities identified by academics and professional bodies and were endorsed by the Senate Legal and Constitutional Affairs Committee’s 2009 Inquiry into Australia’s Judicial System and the Role of Judges. The criteria used by the independent Judicial Appointments Commission in Britain are more extensive but essentially similar.

Even with the advent of these more calibrated understandings of merit, there are differences of opinion about whether it should be the sole criterion or whether it is simply a threshold issue after which diversity issues can be squarely addressed. A report earlier this year by Britain’s House of Lords Select Committee on Judicial Appointments, for example, argued emphatically both that “diversity and merit are distinct concepts” and that “merit should continue to remain the sole criterion for appointments.” This maintains the distinction established by Britain’s Constitutional Reform Act that the Judicial Appointments Commission is to make selections “solely on merit” but is under a statutory duty to “have regard to the need to encourage diversity in the range of persons available for selection for appointments.”

That approach has influenced the Australian debate. In proposing a detailed appointments model for Australian judges drawing substantially on the precedent of the Judicial Appointments Commission, law professors Simon Evans and John Williams acknowledged the representative value of a diverse judiciary and its importance for public confidence in the administration of justice. They didn’t go further than suggesting that an Australian commission could, like its British exemplar, “encourage people from diverse backgrounds to apply for judicial office” while maintaining that “merit remains the sole selection criterion.” The 2009 Senate Committee inquiry considered these arguments before concluding that an approach that, like the United Kingdom’s, “emphasises merit and promotes diversity” is “worthy of consideration.”

By contrast, consider the view expressed in 2008 by the current Australian solicitor-general, Stephen Gageler SC, that a belief that appointments are made on merit alone is “naive.” Gageler surmised that “at any time there would be fifty people in Australia quite capable of performing the role of a High Court justice.” Obviously, some will meet the essential attributes more strongly than others. But beyond that point, Gageler argued, “wider considerations can, and ought legitimately to be, brought to bear. Considerations of geography, gender and ethnicity all can, and should, legitimately weigh in the balance.”

This view of merit as a threshold beyond which considerations of diversity may legitimately be addressed was also expressed by several high-profile witnesses, including judges themselves, to the House of Lords Select Committee. As law professor Cheryl Thomas told their lordships, “we are not talking about diversity allowing someone who actually is not capable of doing the job to be chosen because they would somehow create a more diverse judiciary.”

Roxon’s candour about her wish to enhance diversity has, so far, aroused little objection from the profession or the public. But it will be interesting to see whether this is provoked by the announcement of the new justices themselves. As broader political consideration of the issue in both Britain and Australia illustrates, the relationship between merit and diversity remains contentious. While the apparent orthodoxy that the two are distinct is uncontroversial, this should not necessarily mean they are insulated from each other. Nor does it dictate that diversity should not operate as an express criterion guiding appointments.

THOUGH it certainly had prominent detractors just a generation ago, the case for a judiciary that is more representative of the community’s own diversity is broadly accepted these days. It is rare, though, to see diversity appraised as a matter of legal significance. Yet doing so seems crucial if the case for judicial diversity is to move into the realm of how we assess one individual over another in terms of what she or he will add to a court as a decision-making institution. Focusing not simply on how the courts are perceived by the community but also on how they are composed so as to best discharge their functions gives us the opportunity to engage the issue of diversity with that of merit in a more nuanced way. As British academic Erika Rackley has written, “Anyone truly concerned with ‘maximising’ merit – with ensuring our judiciary is as good as it can be – has a reason to seek diversity.”

But this argument – that diversity is essential rather than secondary in its relationship to “merit” – is a more complex one to make than simply highlighting the benefit of securing public confidence in a more representational judiciary. Several decades of empirical studies of judicial decision-making in the United States have been nothing but inconclusive in establishing that differences in judicial background based purely on ethnicity or gender produce distinctive approaches to legal problems. This is basically because, as law professor Sherrilyn Ifill argues, the empirical approach has been largely misguided:

Too often our conception of what people mean when they talk about “better” decision-making or the way race or gender might affect judicial decision-making is that we’re talking about affecting case “outcomes.”… But judicial decision-making is not just about outcomes; it is also about the process of decision-making.

The difficulty in tracing the impact of an individual’s background on his or her judicial work does not mean that it has no impact – that the judge, as a person, is not a product of personal and professional experiences and that these are never relevant to the way she or he decides cases. Even the most restrictive of contemporary theories of adjudication acknowledge the impossibility of denying this is so. But the role played by individual attributes in conjunction with the many legal and institutional influences and restraints on judicial decision-making is highly complex. It is hardly surprising to anyone who knows anything about law that it would elude attempts at measurement, even relatively sophisticated ones. Baroness Hale, the only woman among the twelve judges on Britain’s Supreme Court, has pithily observed that “a point of view is not the same as an agenda.” There, in a nutshell, is the difficulty for those who seek to draw bright lines between judicial diversity and the decisions that individual judges reach.

Instead of looking in vain for empirical confirmation that courts, just like any other grouping of individuals, are likely to benefit from a membership that is more diverse than homogenous, we might simply listen to the first-hand accounts of judges themselves. After all, they are the only ones who really know how multi-member courts fulfil their responsibilities as collegial institutions. Invariably, those judges who speak about diversity happily acknowledge its qualitative importance to the decision-making process. Australia’s Justice Michael McHugh was clear:

In many cases, women lawyers bring a different approach to solving legal problems. And in the Law… attitudes and approaches in Law are all important. Law is not an exact science. At the margins of legal doctrine, the approach of individuals is frequently decisive.

In her evidence to the House of Lords Select Committee, Baroness Hale was explicit on the relevance of diversity to the productive use of disagreement by a multi-member court at the “margins” to which McHugh referred. She said that “in disputed points you need a variety of perspectives and life experiences to get the best possible results,” and went on:

You will not get the best possible results if everybody comes at the same problem from exactly the same point of view. You need a variety of dimensions of diversity. I am talking not only about gender and ethnicity but about professional background, areas of expertise and every dimension that adds to the richer collective mix and makes it easier to have genuine debates.

Justice Michael Kirby, the High Court of Australia’s “Great Dissenter,” has been similarly frank in explaining the connections between diversity, judicial disagreement and the quality of legal decisions: “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.” For these reasons he has stressed that “a realisation of the importance of diversity is an obligation of those who temporarily enjoy the privilege of selection and appointment” of judges.

Since judicial diversity is squarely on the table as an objective, why limit the case for it to the beneficial effect that a more representative bench has on public confidence in the courts? Picking up from these statements from judges themselves, why not also emphasise the more substantive justification that underpins its importance – that diversity informs and assists judicial deliberation by multi-member courts of the complex legal issues that fall for them to determine. Having worked as an associate to Justice Mary Gaudron, when she was the lone woman on the High Court, Roxon almost certainly has a better appreciation of this than any of her predecessors as attorney-general.

The conclusions reached by parliamentary inquiries in both Australia and the United Kingdom in recent years suggest, however, that politicians are reluctant to make the more substantive argument that a diverse judiciary is likely to result in better and stronger courts. This reluctance appears to stem not simply from concerns about complicating the usefulness of merit as a standalone justification, but also from the difficulty of having a frank discussion with the community about the contestable nature of law and the degree of choice in legal decision-making.

But while the representational justification is undoubtedly an easier one to sell, the public’s ability to grasp the role of disagreement in the law should not be underestimated. While a chronic inability to develop consensus about important legal questions can be destabilising, publicly reasoned justifications for different results can assure the community of the thoroughness of courts’ consideration of the issues and the independence of its judges.

The simple fact that appellate courts are comprised of an odd number of several judges, rather than a single individual sitting alone, suggests that courts are, by design, institutions that have the capacity to capture, and benefit from, differing perspectives. Consequently, the only indefensible stance on judicial appointment would be a commitment to homogeneity.

Roxon is determined we won’t see more of the same on the High Court. Beyond their eligibility as lawyers of the highest quality, we have been warned, in effect, to expect the unexpected in the next two appointments. If she can pull it off, this injection of further diversity into the court may just be her most significant legacy. •

Andrew Lynch is Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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3 Comments

  1. Terry Jessop added this comment on 10 July 2012 | Permalink

    What a dilemma for Nicola Roxon.

    The sort of bolshie High Court appointee that I imagine she would normally be attracted to, is exactly the sort of appointee that would be more likely to come forth with the type of inconvenient judgments that have caused problems for Julia Gillard.

    However, considering that it is Tony Abbott who will most likely have to endure such judgments, perhaps Nicola will just go with her first instinct and appoint the most left wing Justice she can find, who will in the near future make Tony Abbott’s life hell.

  2. Ange T Kenos added this comment on 13 July 2012 | Permalink

    While I am a Victorian, I must ask why no South Australian or Tasmanian has ever been deemed worthy of such an appointment.

    Then there is the issue of women and how John Howard wrongly ignored the seniority of Mary Gaudron because of his ultra conservative views. But what about ethnic persons? South Australia has just ‘received’ their first Hellenic/ Greek Chief Justice. Yet Hellenic judges across the nation are in paltry low numbers.

    And I could go on. Consider a non practising person but an academic, well versed and qualified in the law.

    Ban any politician within five years of leaving office. Nahhh, that won’t happen.

    Anyway, the decision will be the AG’s and she has a chance to bring the court into modern 21st century Australia, something that Tony Abbott would do his utmost to reverse.

  3. John Smith added this comment on 13 July 2012 | Permalink

    oh how nice it would be for someone of the ilk of Michael Kirby. It is said that the CJ of the HC determines through a process of persuasion the outcomes of his court. It is time for a ‘great dissenter’, either male or female to be appointed, not out of sheer bloody-mindedness, but just to add that other dimension to merit and diversity. Whilst the AG does have the remit to appoint, I wonder how much influence the PM will have on an appointment knowing that the writing is on the wall for her government to fall!

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