By Darren Sommers (Principal Solicitor) and Stephanie Koumbarakos (Trainee Lawyer)
The American Senate voted 50-48 confirming Judge Brett Kavanaugh as the most recently appointed member of the American Supreme Court. The appointment was preceded by divisive political debate after allegations surfaced that Judge Kavanaugh had sexually assaulted women while in high school and college. Judge Kavanaugh was Donald Trump’s candidate for a seat on the Supreme Court and his appointment is a source of further controversy for the Trump Administration, with protests in the USA following the appointment.
We have seen how politically charged and divisive judicial appointments can be in the USA, so how are judicial appointments made in Australia and does politics make an impact?
Well the reality is that judicial appointments in Australia come with much less fanfare, and, some say, much less consultation and transparency. The key difference about Australian judicial appointments is that the legislative branch rarely, if ever, plays a role in confirming nominees. Traditionally, the government of the day will simply select a person.
The High Court of Australia is the superior court in Australia, and our equivalent to the American Supreme Court.
Judges of the High Court and other federal courts are appointed by the Governor-General in Council in accordance with the Australian Constitution.
The process of appointment of a High Court judge involves the Attorney-General of the Commonwealth consulting with the State Attorneys-General before an appointment to the High Court is made. This involves the Commonwealth Attorney-General writing to the Attorney-General of each Australian state requesting them to nominate candidates to be considered for appointment to the High Court. Each state Attorney-General generally consults legal institutions and others within their state to collect a list of candidates from which the Attorney-General will usually select two candidates to put forward. The Commonwealth Attorney-General then considers the candidates from each State before making a recommendation to the Cabinet. Cabinet might accept the recommendation or select their own candidate (of course, we cannot know when this occurs because of the confidential nature of the Cabinet).
Judicial appointment to the High Court is also ‘merit based’. However, the criteria upon which ‘merit’ is determined in the case of an appointment is not published because of the confidential nature of Cabinet discussions. Obvious considerations constituting ‘merit’ include legal skills and experience, personal qualities and communication skills.
Because of the decision-making power yielded by Cabinet, the process of judicial appointment to the High Court has been regarded as the ‘gift of the executive government’. As a result, Australian appointments cannot be immune from political considerations and a government that approves of the views of a Judge cannot harm their chances of appointment. For example, Chief Justice Barwick served as the Attorney- General under the Menzies Government before his appointment to the High Court by the Menzies’ Cabinet. By analogy, Judge Kavanaugh has been appointed by a Republican Administration and is largely regarded as a conservative in his judicial philosophy and for his former positions within the Republican George W. Bush Administration.
However, the Australian “Piddington affair” is an example where politics of the time lead a newly appointed High Court judge to resign. Mr Piddington was an Australian Barrister who was asked by the then Attorney-General where his sympathies lie in relation to Commonwealth vs State rights. His response was that his “sympathies lie with the supremacy of the Commonwealth”. This saw widespread criticism in the press. He served for only one month on the High Court before his resignation in 1913.
At the state level, Judges are appointed by the Governor-General in council on the advice of the Attorney-General. The process involves the Attorney-General seeking expressions of interest from individuals with substantial legal experience and experience appropriate to the relevant court in which they are applying for appointment. The Attorney-General will then select an individual for appointment and make a recommendation to Cabinet. If the selection is approved by Cabinet the appointment is submitted to the Executive Council and it is signed off by the Governor and the Attorney-General.
So there you have it… that’s how judicial appointments are made in our superior courts. It’s kind of boring really when compared to America, however the lack of fanfare and public scrutiny would most likely help maintain judicial independence, even if the government of the day can impose political considerations, and not just merit, on those appointed.