High Stakes for High Court Appointments

In the coming months the Attorney-General, Nicola Roxon, and the Cabinet will have an opportunity to have a lasting effect on the law, legal culture and government, irrespective of the outcome of the next federal election.

Much has been written about Roxon’s desire to look ‘outside the square’ for Australia’s next justices. But she wouldn’t have to look hard to find capable judicial officers that stick out in contrast to the white, Anglo-Saxon, male judge hailing from one of the eastern states.

It was not until the appointment of Justice Wilson in 1979 that a Western Australian was appointed to the High Court, and not until Justice Gaudron was appointed in 1987 that a woman sat on our nation’s highest court.

Since Federation, only four states have been represented on the High Court. Western Australia has had three justices, including the current Chief Justice, Queensland has had seven, Victoria has had twelve, and New South Wales has had 27. No South Australian, Tasmanian, Northern Territorian, or ACT local has ever sat on the High Court.

Some will argue that the legal system need not be representative of the population; that the legislature is the chief representative arm of government. Yet the dominance of particular cultural, social and gender—even geographic—types imputes to the judiciary an implicitly oppressive character.

A majority of barristers continue to be men, with the result that most cases are argued from a male-dominated bar table to a male-dominated judiciary. Three of nine United States Supreme Court Judges are women, while Lady Hale is the only woman on the Supreme Court of the United Kingdom and Chief Justice Sian Elias is the only woman on the Supreme Court of New Zealand.

It raises the question, whose justice?

The legal profession is changing and there is no shortage of qualified female judges and advocates. Chief Justice Marilyn Warren (61) of the Supreme Court of Victoria, Western Australia Court of Appeal President Carmel McLure (56), and, particularly, Justice Susan Kenny (58) of the Federal Court are just three potential names.

Annabel Crabb wrote of a two-year old girl that stood outside the High Court when Justice Heydon was sworn into the High Court. Standing with her mum, she held a sign that asked, ‘Mum, can women be High Court judges?’

By appointing a female judge to the High Court, Roxon would send a strong signal to young girls and women that the traditional mould of the profession is being broken down. The nation that was one of the first to extend suffrage to women would become the first with a majority of women on its highest court. That’s something of which we could all be proud. Even if we pretend that judicial appointments are meritocratic and unbiased, there’s no evidence to suggest that the best person for the job is necessarily a man.

Yet recent pronouncements by the High Court will niggle at the back of Roxon’s mind in the selection process. The political importance of the Court’s composition is highlighted by their rejection of the Government’s Malaysia Agreement in Plaintiff M70 and their recent restriction of the scope of executive power in Williams v Commonwealth of Australia.

Just as the Obama administration is not likely to appoint a justice that opposed a woman’s right to choose or universal healthcare, the values and thinking of candidates is an important consideration. In particular, the almost inevitable election of an Abbott-led conservative government may lead Roxon to lean towards progressive judges or those who see a limited role for executive government.

We cannot afford, for example, for Julian Assange to become a second David Hicks, or to see a High Court hostile to internationalism and cosmopolitan ethics.

Two safe options would be professor of constitutional law and advocate George Williams, or former Minister for Justice and (briefly) Attorney-General in the Keating Government and recent appointment to the Federal Court, Justice Duncan Kerr.

Whether strategy or signalling will prove decisive in the appointment process will soon be evident. What is clear is that either way, Roxon has the opportunity to re-make the Court in her image.