Amid vigorous national debate around the Charter, the term "unelected judges" has been deployed, providing an opportunity for reflecting upon the role of the nation's judiciary. 

Chief Justice French said the term has been used to debate how the enactment of a Human Rights Charter would confer power on "unelected judges" to make decisions that should be reserved to elected officials. 

"In a statutory charter such decisions might affect the way in which Acts of Parliament are interpreted and applied and official powers exercised". At the same time, the term has been used to suggest that the judiciary could be exposed to political controversy because such decisions are political in character, he said. 

The concern, Chief Justice Robert French told the John Curtin Institute of Public Policy in Perth, is an associated subtext with the term "unelected judges". 

"It is what might be called in contemporary political discourse a kind of dog-whistle signal suggesting a lack of democratic legitimacy in what judges do. And it conveys the not to subtle suggestion that judges see themselves as philosopher kings whose mission in life is to sculpt the nation's laws according to their own values," he said.

But the judge used the current debate as a means to weigh up the pros and cons of elected judges. While the judicial task remains the same irrespective of the mode of a judge's appointment, "the elected judge's burden of maintaining public confidence and avoiding concerns about impartiality and conflict of interest appears to be more difficult". 

If our judges were popularly elected, would they have a mandate to do more than they presently do as appointed judges, the Chief Justice asked.

VIEW ALL

Chief Justice French raised debates around the proper approached to constitutional interpretation, noting that “constitutional interpretation inescapably involves choices about meaning and application”. 

But the decisions judges make may have political consequences, the judge said. “This is particularly so of decisions involving the extent and limits of the power of the Parliament and the Executive, but we do not expect that their political significance of political consequence will influence their outcome,” he said. 

On top of this, the interpretation of statutes, and the words used, see judges making decisions about the outcomes of particular cases according to legal standards rather than precise legal rules. The result is “judge-made” common law rules in which words like “reasonable” or “unconscionable” or “good faith” are used. This is not a new phenomenon, but involves value judgements. 

Australian judges are not popularly elected, and the idea of it has generally not been popular, nor seriously considered, in this country. The notion of popularly elected judges making decisions that involve value judgements has generally been rejected, the Chief Justice noted. 

Sir Anthony Mason, a former Chief Justice of the High Court, wrote in 1997: “The election of judges is bound to compromise their independence because it entails their campaigning for office and because it exposes the judges to the pressures of possible removal in consequence of popular disapproval of their judicial decisions.”

Other commentators have noted that judicial elections can become “blatantly political contests between partisan judges”, as well as financial contests. 

While he generally rallied against elected judges, the Chief Justice accepted that it cannot be said the appointment process for unelected judges is perfect. 

In a stirring conclusion, the Chief Justice noted that “in any event”, unelected judges will be appointed by elected officials. 

“What those unelected judges decide may or may not have political significance. It may or may not be popular. It may or may not attract the approval of the government or the media of the day.  

“What we expect of our unelected judges is that because they are unelected and because they are not beholden and do not appear to be beholden to campaign commitments or campaign financiers, they will be able to discharge the official oath or affirmation requiring that they decide the cases that come before them without fear or favour, affection or ill will.”