JUSTICE MURRAY Gleeson has defended the judicial appointment process in a speech to the Judiciary of the Commonwealth of the Bahamas earlier this month, entitled “The Role of a Judge in a Representative Democracy”.
The Chief Justice drew from a range of examples and disciplines to examine the importance of judicial independence in the face of conflicting public demands placed upon top judges. Gleeson also espoused his own observations about judicial method, offering insights gained over his 10 years as Chief Justice of the Supreme Court (appointed in 1988) and 10 years as Chief Justice of the High Court (since May 1998).
During his tenure, the Chief Justice has been an outspoken advocate of judicial independence in the face of increasing pressure from the executive government and public criticism of court decisions. He argued that while all public authorities must be “willing and able” to justify their exercise of power, the suggestion that the judiciary should be elected does not stand up to closer scrutiny.
“That judges are unelected is consistent with the general scheme of separation of powers,” he said. “Judicial decisions are open to criticism. It is not unusual for critics, especially members of the political class, and professional commentators, to speak of ‘unelected judges’. They are not doing this to suggest that it would be better if we had a system of election of judges. There is no significant support for that idea in Australia.”
Gleeson examined the potential consequences if judges were compelled to “campaign” for office. “A candidate would need to explain why he or she would make a good judge and, indeed, a better judge than the alternative candidates. That would involve some kind of representation as to how judicial power would be exercised once it was gained, and some kind of prediction about what opponents would be likely to do,” the Chef Justice said. “Courts and judges are not meant to have agendas, and judges are not meant to seek popularity.”
He stressed that the judiciary is not an anomaly, and identified several other “non-elected” powerbrokers active in the decision-making process affecting Australians. “I have never heard it said, for example, that the commissioner of taxation, or the secretary of the Treasury, or the governor of the Reserve Bank should be elected,” Chief Justice Gleeson said. “In the case of many forms of public power, especially those that ought to be free from political influence and the pressures of party politics, it is desirable that they be exercised by people who do not need popularity.”
In a cautionary note, Gleeson warned the judiciary against bending to the will of the Parliament. Quoting Mistretta v United States, a Supreme Court of the United States decision that has been cited in High Court of Australia judgments, Chief Justice Gleeson said: “‘The legitimacy of the judicial branch ultimately depends on its reputation for impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action’.”
Elaborating on this point, the Chief Justice said: “That the colours of judicial action are neutral, and that the judiciary’s reputation for impartiality and non-partisanship is essential to its legitimacy, are ideas that do not always sit well with commentary calling for a heightened level of judicial engagement with issues described as matters of policy. What was said in Mistretta was directed at the executive and the legislature, but there is in it a warning for judges. Nobody wants judges to cloak political work in the neutral colours of judicial action,” Chief Justice Gleeson said.
“This heightened interaction between Parliaments and courts, and increased political interest in even quite mundane forms of judicial decision-making, has intensified the need for judges to be conscious of the difference between political and judicial legitimacy,” he said.
Chief Justice Gleeson is due to retire from the High Court in August 2008, in accordance with the constitutional requirement that judges retire at the age of 70.
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