THE CURRENT PROCESS for selecting judges to the High Court has a “clubby” feel, which gives the impression it is about who you know more than anything else, the shadow federal Attorney-General claimed last week.
Nicola Roxon has urged the Government to consider gender, geography and philosophy when filling the looming vacancy in the High Court, which will need to be filled when Justice Michael McHugh retires in November this year.
In a speech to the ACT Women Lawyers’ Association, Roxon called for a debate on reforming Australia’s “informal” and “secretive” processes for judicial selection.
“Our High Court judges are selected on the say so of the Governor-General, acting on a recommendation of Cabinet. The High Court Act requires the Attorney-General to consult with the state counterparts in relation to appointment, but other than that there are no rules governing the process. The current Attorney-General has said he will consult with the Chief Justice, professional associations and possibly other judges. But these consultations are all informal and secretive,” Roxon said.
“I have a number of concerns with this opaque process — first and foremost, it has a clubby feeling to it. It generates a sense that selection to our most important bench is based more on who you know than any objective criteria.
“With no disrespect to the current Court, this sense of clubbiness cannot help but be confirmed when you note that all seven judges are men, five of them are from NSW, four graduated from Sydney University and three of them have been presidents of bar associations. It creates an impression that the pool for judicial appointments is small and closed,” Roxon said.
There should be a national discussion about improving the selection process, Roxon argued. “Pointing to America in horror is not a sufficient reason to cling to the status quo. There are plenty of models that would provide more transparency and merit protection without the intense, and often unfair scrutiny that occurs in the United States,” she said.
The diversity of High Court judges needs to be broadened, Roxon claimed. She reminded her audience of Justice McHugh’s warning late last year that “when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution”. She said it would be a fitting for the Government to take this concern on board when picking Justice McHugh’s replacement.
She condemned the argument that only merit should determine the next appointment, adding that “it would be scandalous chauvinism to suggest that no woman would rank in the top seven of our legal minds”. This is what is suggested, she said, when merit is used to deny their appointment.
“The next appointment to the High Court must be a woman. It is almost beyond belief that in 2005 Australia does not have a woman on its highest appellate and constitutional court. As you would all be aware, the High Court has only had one female judge in its entire 102 year history, Mary Gaudron,” Roxon said.
She rejected the argument that “the pool of qualified women is just too small”. While this argument recognises that more women should be on the High Court, it attributes the problem to sexism in the lower levels of the legal profession which acts as a barrier to women gaining the experience necessary to become a judge, she said.
But, she said, it can be assumed that the vacancy should be filled by a current judge from the Federal Court, a state or territory supreme court or court of appeal. “This is a logical starting point as most High Court judges, including six of the current seven, have been recruited from those courts.
“There are currently 33 female judges in this pool. These are 33 women who are already considered suitable for high judicial office in this country. There is doubtless one — and surely many more — who would be suitable to serve on the High Court.”
It is essential that the Government appoints a woman to fill the upcoming vacancy, Roxon argued. “I must say that I take no pleasure in having to call for a woman to be appointed to the bench in 2005. It would not be have been necessary if the Howard Government had managed to appoint female candidates in one or two of the last four appointments they have made. We have already gone two years with an all-male bench and it will be at least another two if this opportunity is missed.”