Executive and High Court Appointments
Dr Max Spry
Politics and Public Administration Group
10 October 2000
Vision in Hindsight
Vision in Hindsight is a Department of the
Parliamentary Library (DPL) project for the Centenary of
Federation.
The Vision in Hindsight: Parliament and the
Constitution will be a collection of essays each of which
tells the story of how Parliament has fashioned and reworked the
intentions of those who crafted the Constitution. The unifying
theme is the importance of identifying Parliament's central role in
the development of the constitution. In the first stage, essays are
being commissioned and will be published, as IRS Research Papers,
of which this paper is the eighth.
Stage two will involve the selection of eight to
ten of the papers for inclusion in the final volume, to be launched
in conjunction with a seminar, in November 2001.
A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assists DPL with the management of the
project.

Centenary of Federation
1901-2001
|
Contents
Major Issues
Introduction
The Framers' Vision
Appointments to the Executive
Ministers of State
Other Executive Appointments: the Public Service
Appointments to the Judiciary
Options for Selecting High Court Judges: a Brief
Overview
The Current Position-Appointment by
the Governor-General in Council
Appointment by the Executive Following Formal Consultation with a
Judicial Appointments Commission
Appointment a Judicial Appointments Commission or by the Executive
on the Recommendation of the Commission Appointment by
Parliament
Constitutional Commissions
Parliamentarian's Views
Conclusion
Endnotes
Appendix 1: Judges of the High Court
Bibliography
Major
Issues
In a democratic system of government, how should
appointments to senior executive and judicial positions be made? Is
it necessary that Ministers also sit in Parliament? How are senior
public servants-departmental heads-to be chosen? Should High Court
judges be elected by the people, by Parliament, or should they be
appointed by the government of the day? And what role, if any, has
Parliament in the selection and appointment of persons to these
positions?
The Constitution requires that Ministers be
chosen from those elected to Parliament. However, as was pointed
out during the convention debates in the 1890s this is not
essential for responsible government. It is possible for Ministers
to be appointed directly from the community. Since then there has
been only very isolated criticism of the constitutional requirement
for Ministers to sit in Parliament.
The method of appointing other executive
officers-for example, senior officers of the Public Service-has,
however, been subject to considerable debate and discussion. In
recent years attention has focussed on what is seen by some
commentators as the increasing politicisation of the Public
Service-whether at the Commonwealth or State level. The debate over
how best to select and appoint public servants is not new and, as
will be discussed below, was considered by those who drafted the
Commonwealth Constitution.
The selection and appointment of judges in
Australia is also not free of controversy. The debate about how
best to select judges is, however, somewhat sporadic, and tends,
usually, to immediately precede or follow an actual appointment,
particularly an appointment to the High Court. This debate is more
often than not carried out by members of the media and academic
commentators. While members of the Commonwealth Parliament may
criticise an individual appointment, such criticism almost never
extends to proposals for a reform of the selection process.
Judges on Australian courts, whether Federal or
State, are appointed by the government of the day. While it is true
that there has been no concerted or sustained campaign to change
the manner in which judges are chosen, it is also true that in
recent years there has been some level of dissatisfaction with the
way in which judges are chosen and there have been calls for reform
to the appointment process.
Academics, the media, members of the legal
profession and judges themselves have all put forward proposals for
change. This Research Paper does not, however, set out to rehearse
in detail these arguments. Rather, its focus is on the role of the
Federal Parliament in that debate, and in particular in relation to
how High Court judges are selected.
Introduction
The Commonwealth Constitution provides that
persons appointed to the Commonwealth Executive-Ministers-must hold
seats in Parliament. Writing in 1994, David Hamer expressed doubts
about the continued reliance on Ministers being chosen from the
ranks of government supporters elected to Parliament. He asked why
not 'fill some Ministerial vacancies with highly qualified
individuals from the community?' This would lead, Hamer suggested,
to an overall improvement in the quality of
Ministers.(1) Bob Hawke, in the 1979 Boyer Lectures,
also suggested that the Ministry should be open to persons not
elected to Parliament.(2) While Hamer and Hawke have
criticised the constitutional requirement for Ministers to be
Members of Parliament, there has been very little discussion,
whether in or out of Parliament of alternative methods of selecting
and appointing Ministers. This paper briefly outlines the views of
the delegates to the Constitutional Conventions on this issue.
In recent years, at least, there has been
considerably more discussion on how best to appoint-and indeed
terminate the appointment of-other members of the Executive,
namely, public servants, particularly in the context of concern
over the arguably increasing politicisation of the Public Service
at Commonwealth and State levels. This paper outlines the views of
the drafters of the Constitution on the appointment of Commonwealth
public servants and considers briefly the views of Parliamentarians
in 1901 and in more recent times.
Appointments to judicial office have attracted
considerable attention over the past century, and they continue to
do so. There is an abundance of articles, books, papers and
speeches by judges, academics, journalists and others, in Australia
and elsewhere, on how best to select candidates for judicial
office.(3) For example, former High Court Chief Judge,
Sir Harry Gibbs, in a speech given at the opening of the
Queensland Supreme Court Library's Rare Books Room said:
Although everyone would pay lip service to the
notion that judges should be independent, it is not unnatural for
some members of government, like most people, to prefer to hear
what they want to hear rather than what they ought to hear. ...
Similarly, nowadays everybody would pay lip service to the notion
that appointments to the bench should be made on merit, which of
course includes character and temperament as well as ability and
experience. ... Political appointments have not been unknown in
Australia, but they are never acknowledged as such. At one time in
Queensland religion seemed to be a determinative factor but those
days fortunately have long since gone. A more recent heresy is that
the bench should be representative and that the sex of the aspirant
or perhaps his or her ethnic origin should be a more important
consideration than merit.(4)
Sir Harry Gibbs also called for reform to the
existing appointment process:
It is difficult to suggest any workable
alternative to appointments by the government. However, society
would benefit if the process of making judicial appointments were
required to be more transparent. One way in which that could be
done would be for the law to provide that the Attorney-General
should consult, say, the Chief Justice, the President of the Bar
Association, and the President of the Law Society, and that the
Attorney-General should, at the time of making an appointment,
reveal the recommendations that had been made. The Attorney-General
would not be obliged to appoint any of the candidates who were
recommended but if he or she departed from the recommendations, it
would be necessary to account to the public for the departure.
There may be other ways of ensuring that judicial appointments are
made openly, in a way that reveals that they are made on merit, and
not as a result of patronage, ideology or
idiosyncrasy.(5)
In Australia discussion and critical commentary
often centres on appointments to the High Court and, just as often,
immediately precedes or follows an actual High Court
appointment.(6) While appointments to the Federal and
Family Courts, and the State Supreme, District and Magistrates
Courts are very important, this Research Paper focuses on the
appointment of federal judges, and in particular, appointments to
the High Court. The High Court is of special significance in
politics and law in Australia. It is the final court of appeal and
the interpreter of the Constitution.
As Professor Brian Galligan (University of
Melbourne) notes: 'From the very beginning of the Federation
discussion it was asserted that the court would play a vital role
in the federal system.'(7) Speaking of the proposed High
Court during the Constitutional Convention Debates, Dobson (Tas.)
said on 19 April 1897:
It is something far above the lawyers. It is the
rights and protections of citizens. Mr Wise has pointed out that
this judiciary is an inherent part of the Constitution, and I would
remind members that it is to be the interpreter of the
Constitution.(8)
The fundamental importance of the High Court to
the success of the Federation is also reflected in the following
statement made by Barton (NSW) on 23 March 1897:
It seems to me that if we are to have Federation
in all its strength and power we are forced to the conclusion that
the power which will best hold the Federation together, and will
best preserve the honour of the Constitution, is the peaceful
arbitrament of a Federal Court.(9)
A brief survey of the literature on the most
appropriate means of selecting judges soon reveals some common
themes. Judges may be chosen by popular election, that is, by those
electors enrolled to vote for candidates for the House of
Representatives and the Senate. Although in some states of the
United States of America judges may be chosen by popular election,
in Australia, to date, this method of selecting judges has almost
invariably received short shrift, and will not be further discussed
in this paper.(10)
The debate in Australia, on the other hand,
concentrates on how best to appoint judges. While many words have
been written on this subject, advocates for change, in this country
at least, have not been overly creative, and surprisingly few
alternatives have emerged. In short, the most often repeated
alternatives involve variations of the following:
-
- appointment by the Governor-General in Council (the present
position)
-
- appointment by the Executive following formal consultation with
a Judicial Appointments Commission
-
- appointment by a Judicial Appointments Commission, and
-
- appointment by Parliament.
The Framers' Vision
It is a commonplace that the Australian polity
is a mixture of the British system of 'responsible government' and
that of federalism derived largely from the example of the United
States. Simply put, responsible government means that the Executive
Government, chosen from those elected to Parliament, is accountable
to Parliament, and through Parliament to the people.
Sir Samuel Griffith (Qld), speaking during the
Convention Debates on 4 March 1891, said that the system of
responsible government 'is the best that has yet been invented in
the history of the world for carrying out the good government of
the people.'(11) According to Wise (NSW), despotism and
government by bureaucracy could only be avoided by a 'strict
adherence to responsible government and to the parliamentary system
as we know it today.'(12) 'We find in responsible
government', Deakin (Vic.) suggested, 'the promptest, the most
sympathetic means of expression and execution of the popular will
consistent with the deliberate consideration of the problems to be
solved.'(13) Playford (SA) too commented that it would
be 'a mistake to go away from the old responsible government under
which we have been brought up.'(14) And, as Isaacs
(Vic.) noted on 26 March 1897:
Responsible government is the keystone of this
federal arch.(15)
Appointments to the
Executive
Ministers of
State
Addressing the Convention on 4 March 1891,
Griffith said that while all the delegates were well aware of the
system of responsible government there were 'many misapprehensions'
as to the essence of that system.(16) The notion that
Ministers must hold seats in Parliament, Griffith continued, is a
mere 'accident of responsible government'; the essence of that
system is that 'Ministers are appointed by the head of state, the
Sovereign, or her representative, and that they may hold seats in
Parliament.'(17) In contrast, under the United States
system, Ministers must not sit in Parliament. Further:
The origin of this difference lies in the fact
that the framers of the American Constitution had been frightened
by the tendency then lately exhibited in the United Kingdom of
ministers to overawe Parliament, and they thought it extremely
desirable to separate the Executive and legislative branches of
government, following the arguments of a great writer-I should
rather say a celebrated writer-of those days, Montesquieu, the
wisdom of whose observations and the accuracy of whose deductions
and assumption of principles may be, I submit with great respect,
very open to doubt. But the Americans adopted that system-that the
Executive shall be entirely dissociated from Parliament, and
therefore may not sit in Parliament.(18)
The system adopted in the United States,
Griffith continued, has proven to be unwise, and not as conducive
to good government as that where 'Ministers are intimately
associated with Parliament.'(19) Thus Griffith proposed
that the Constitution should provide that Ministers may sit in
Parliament not that they must do so.(20) This was not
without precedent. Queensland, for example, did not in the late
nineteenth century, and still does not, constitutionally require
Ministers to hold seats in Parliament-although in practice this has
always been the case.
In the event, the draft Constitution Bill
adopted by the Constitutional Convention on 9 April 1891
provided that the Governor-General may appoint Ministers of State
to administer the Executive Government of the Commonwealth.
Further, such officers hold office during the pleasure of the
Governor-General and shall be capable of being chosen and sitting
in Parliament. According to this draft Bill a person could be
appointed a Minister although not a member of Parliament.
However, matters did not rest there, and
delegates returned to this issue in the 1897.
Sir Richard Baker (SA), on 23 March 1897,
queried whether responsible government-the Cabinet system-was
consistent with true Federation. He feared that if the Cabinet
system was adopted Federation would be killed or it would kill the
Cabinet system. The system adopted by the United States, whereby
the Executive was disassociated from Parliament was also
unsatisfactory. Baker therefore advocated the adoption of the Swiss
system whereby 'the Executive is elected directly by Parliament,
and not one branch of Parliament, but by two
branches.'(21)
In light of Baker's proposal, Dr Quick (Vic.)
also mooted the notion that the Executive be elected by Parliament,
arguing that 'an Executive elected by the Federal Parliament would
be one that would come within the essence of responsible
government, namely, a government dependent on the will of the
people as expressed in the Federal Parliament.'(22)
And, Dr Cockburn (SA) speaking on 17 September
1897 also expressed support for the 'principle of an elective
Ministry' suggesting that rather than destroy the principle of
responsible government, it would 'make each Minister more directly
responsible than ever to Parliament.'(23) However,
Cockburn was confident that the 'principle of an elective Ministry'
would not be adopted by the Convention. His confidence proved well
founded and the delegates showed little enthusiasm for a Ministry
elected by Parliament.
In the event, on 17 September 1897 it was agreed
by a vote of 21 to 14 that after the first Commonwealth election,
no Minister shall hold office for longer than three months unless
elected to Parliament. Barton noted that this additional
clause-requiring Ministers to be elected to Parliament-was inserted
'as a safeguard to responsible government.'(24)
And on 16 March 1898 the draft Constitution
adopted by the Convention included s. 64 (Ministers of State) as we
now know it.
Section 64 provides:
Ministers of State.-The Governor-General may
appoint officers to administer such departments of State of the
Commonwealth as the Governor-General in Council may establish.
Such officers may hold office during the
pleasure of the Governor-General. They shall be members of the
Federal executive Council, and shall be the Queen's Ministers of
State for the Commonwealth.
Ministers to sit in Parliament.-After the first
general election no Minister of State will hold office for a longer
period than three months unless he is or becomes a Senator or a
member of the House of Representatives.
There seems little enthusiasm, either inside or
outside Parliament to change the manner in which Ministers are
appointed, notwithstanding the proposals put forward by Hamer and
Hawke. Hamer suggests that as ministerial office 'is regarded as
one of the spoils of electoral victory ... an attempt to amend the
Australian Constitution to eliminate the requirement of a minister
to be a member of one of the two houses would face implacable
resistance from politicians (of both sides) and would certainly
fail.'(25)
Other
Executive Appointments: the Public Service
The drafters of the Constitution also turned
their minds, albeit briefly, to how best to appoint persons to the
Commonwealth Public Service, or at least how best to guard against
their improper dismissal.
Wise (NSW) was concerned to prevent the
development in Australia of a 'spoils' system, which he considered
a 'drawback to the public life of the United
States.'(26) To this end, Wise advocated including in
the Constitution a clause providing that public servants shall only
be removed for cause assigned. Wise argued:
My real object is to put into this Constitution
a clause which will establish a custom, which will ripen into a
law, and will prevent civil servants from being removed from office
for purely political reasons.(27)
Turner (Vic.) opposed Wise's proposed clause
suggesting that the United States practice is unlikely to be
adopted in Australia:
They have an Executive not responsible to
Parliament. Here the Executive will be responsible to Parliament,
and I do not think would ever dare to take this step of dismissing
a large number of public servants for the purpose of putting their
friends into their places. If a Ministry in our colony were to do
that they would not sit on the Treasury benches for twenty-four
hours.(28)
Similarly, Trenwith (Vic.) said that in the
United States the Senate is not responsible to Parliament, and
further, the 'immense amount of logrolling' that goes on there
'could not happen here.'(29) Trenwith was also concerned
about the damage to the reputations of public servants dismissed
for cause, as well as their future employment prospects-who for
example would employ a public servant dismissed for reasons
publicly stated?
Sir John Downer (SA) too opposed Wise's
amendment but on the basis that the amendment was not a matter to
be dealt with in a Constitution. Downer continued:
Having established a Government which shall be
responsible to Parliament, we may fairly leave the control of
officers in the hands of the Government, without introducing
provisions which might do the greatest injustice to
individuals.(30)
In rejecting the amendment, Isaacs too said it
was 'not a matter for the Constitution at all. We are not framing a
code. We are not legislating in a Federal
Parliament.'(31) Further Isaccs stated that no colony in
Australia would 'dream of dismissing civil servants, if they had it
in their power, for political reasons.'(32)
Moreover, Isaacs while agreeing that public
servants should not be dismissed for political reasons, and stating
that he was prepared to support real protections for public
servants, said that the amendment proposed by Wise would merely
give the illusion of protection. The amendment proposes that a
public servant can only be dismissed for a stated cause. But, said
Isaacs, as no authority is to be established to monitor the reasons
given, to decide whether the reason 'is right or wrong or
justifiable or not' the protection offered is only
illusory.(33)
Finally, Symon (SA) said:
Suppose a man is dismissed, and a reason has to
be assigned. The reason would simply be 'because his services are
no longer required.' You would never be able to pin a Government
down to a reason when they wished to get rid of an undesirable
civil servant. To carry the amendment would be to introduce words
having no real effect, affording no real protection, and beneath
the dignity of the Constitution.(34)
In the event the amendment was rejected by 28
votes to eight votes.
Section 67 of the Constitution, dealing with the
appointment of public servants, provides:
Appointment of civil servants.-Until the
Parliament otherwise provides, the appointment and removal of all
other offices of the Executive Government of the Commonwealth shall
be vested in the Governor-General in Council, unless the
appointment is delegated by the Governor-General in Council or by a
law of the Commonwealth to some other authority.
The Commonwealth Parliament opened on 9 May
1901. Less than one month later, on 5 June 1901, Sir William
Lyne (Nationalist Protectionist Union Party), Minister for Home
Affairs in the first Barton Protectionist Government, introduced
the Public Service Bill into the House of
Representatives.(35)
An overriding concern of those who contributed
to the debate over the Public Service Bill was to ensure that
political patronage played no part in appointments to, or
promotions within, the Commonwealth Public Service. Mr Ewing
(Protectionist) noted that the first great principle of the Bill
'appears to be that it is absolutely free of political
influence.'(36) Deakin (Protectionist), too, considered
it in the interests of the Service and the public 'to banish the
personal element and political patronage.'(37) Mr Hume
Cook strongly approved 'of having the Public Service Act ... free
from political control.'(38) And, Mr Salmon agreed with
'honourable members in desiring that that service shall as far as
possible be absolutely of a non-political
character.'(39) The only way this could be obtained,
Salmon continued, was by the introduction of 'fair, equitable, and
just legislation'. Further:
It is only by the proper treatment of those
employed in the service of the public, that we can hope to make
that service a success as a non-political organisation. So long as
we fail by legislation to make proper provision for the tenure of
office, the conditions under which the men work, the hours during
which they labour, and especially the amount of remuneration paid,
so that they shall not be subject to capricious treatment by any
particular officer in their department, so long shall we have
appeals to the highest authority-the Parliament-in order to remedy
their grievances.(40)
In guarding against political patronage, the
debate over the Public Service Bill also drew attention to the need
to guard against, what Ewing referred to as, 'bureaucratic
influence, or what might be called departmental favour or
patronage.'(41) Similarly, Lyne did not wish to see
'social influence' substituted for political
influence.(42) Salmon stated that the law enacted by the
Parliament must be such that it will be 'impossible for any man to
be foisted on the Public Service either by a Minister or by a
Member of Parliament, or by the exercise of social
influence.'(43)
Quick (Protectionist) commended to the House the
provisions of the Bill relating to appointments to the Public
Service. A potential appointee must first pass both physical and
educational examinations. He is also required to serve a
probationary period of six months, during which time his fitness
and aptitude for office may be assessed. These provisions, Quick
contended, 'will put entry of a person into the Service absolutely
beyond the reach of political patronage, political influence, or
nepotism of any kind.'(44)
Speakers on the Bill, while preferring a decline
in political influence, nevertheless voted for the retention of
parliamentary control over the Public Service.(45)
The Public Service Act 1902 (Cwlth)
provided for entry to the Service by 'open, competitive, and
written examinations', appointments at a junior level with more
senior positions closed to outside entrants.(46) As the
1959 Report of the Committee of Inquiry into Public Service
Recruitment, the Boyer Report, observed, the system of appointment
'was adopted at a time when the evil effects of political patronage
and official nepotism were still vivid in the minds of legislators
and electors.'(47)
In 1920, the first Public Service Commissioner
(1902-1916), Duncan McLaughlan, provided his Report of the Royal
Commission on Public Service Administration. McLaughlan recommended
that appointment and promotion of departmental heads 'should be
made by the Governor-General on the recommendation of the
Commissioner, and that where the Governor-General is unable to
accept any such recommendation, the matter should be made subject
of a report to Parliament.'(48) This would ensure,
McLaughlan continued that such appointments were free 'from any
suspicion of outside influence.'(49)
The Public Service Act 1902 (Cwlth) was
replaced by the Public Service Act 1922 (Cwlth), however,
McLaughlan's recommendation was not adopted.
In 1959 the Boyer Report stated that s. 54 of
the Public Service Act 1922 (Cwlth) 'embodies the
principle that the Executive Government should have the final word
in the appointment of its chief policy advisers.'(50) At
that time s. 54(1) provided that subject to s. 54(2) all First
Division appointments were to be made by the Governor-General on
the recommendation of the Board of Commissioners. Section 54(2),
however, provided that 'notwithstanding anything contained in this
Act, appointments may be made by the Governor-General without
reference to the Board.'
The Boyer Report noted that while generally the
Board of Commissioners was consulted in relation to First Division
appointments, s. 54(2) left open the 'making of a purely political
appointment, should any future Government be so
minded.'(51) It was therefore recommended that
legislation be enacted requiring the Government to consult with the
Board of Commissioners before appointments are made at this level.
The Report also recommended that 'any departure from the
recommendation of the Board should be required to be notified to
Parliament.'(52) The recommendation was not adopted, and
s. 54(2) remained in the Act until its repeal in 1976 by the
Public Service Amendment (First Division Officers) Act
1976 (Cwlth).
From time to time, departmental head
appointments have been subject to some degree of controversy. After
becoming Prime Minister Gorton (Liberal) replaced the then head of
the Prime Minister's Department, Sir John Bunting, with Mr Len
Hewitt, 'a long term friend of the Prime Minister'.(53)
This, it has been said, caused resentment in the Public Service-not
because of Bunting's removal (he was appointed head of the new
Cabinet Secretariat)-but because of the 'needlessly humiliating
manner' in which it was done.(54)
In 1974, Mr Katter (CP) criticised the then
Whitlam Labor Government for its 'unique ability ... to provide
jobs for the boys' which had led to a 'complete dropping of morale
in the Public Service of this nation.'(55) Mr Katter
criticised, for example, the appointment of Mr John Menadue. In
1974, Mr Menadue had been appointed Secretary to the Department of
Prime Minister and Cabinet. The Whitlam Government appointed 21
departmental heads between 1972 and 1975, 'seven from outside the
Service. This kind of turnover was quite without precedent in
Australian political history.'(56)
In response to Mr Katter, Dr Gun (ALP) noted the
large number of appointments, particularly to ambassardorial
positions, made by Liberal-Country Party Governments and
concluded:
Perhaps the most overt political appointment of
the lot was the appointment of the present Chief Justice of the
High Court [i.e. Barwick] who was becoming a threat to the then
Prime Minister.(57)
Little more was said on this issue at the time
and Dr Gun went on to address the 'dangerous practice of the sale
to children of chocolates which are packaged to resemble
cigarettes.'(58)
The 1976 Royal Commission on Australian
Government Administration, the Coombs Report, described the
prevailing practice of appointing departmental heads as
follows:
In practice the minister and the Prime Minister
in most cases consult the [Public Service] Board, and
recommendations receive Cabinet approval before being submitted to
the Governor-General.(59)
The Coombs Report made a number of
recommendations in relation to the appointment of departmental
heads. First it recommended the abolition of the designation,
'permanent head', and the use of the term 'head of department'.
Further it recommended that vacancies at the departmental head
level be advertised, that a panel appointed by the Prime Minister
and the relevant Minister following consultation with the Chair of
the Public Service Board nominate a short list of potential
appointees, that the Minister be able to nominate a candidate, that
a short list in order of preference be given to the Prime Minister
and the Minister and that the relevant Minister and Cabinet approve
the selection.(60) The Report also advocated the
rotation of departmental officers but rejected the notion of fixed
term contractual appointments.(61)
In introducing the Public Service Amendment
(First Division Officers) Bill 1976 in November 1976, Liberal Prime
Minister Malcolm Fraser said that 'the political neutrality of the
Public Service' was an important foundation of the parliamentary
system of government.(62) Fraser continued:
One of the best safeguards of the political
neutrality of the Public Service is a system of
appointment-particularly of appointment to senior positions-which
minimises the possibility of appointment for purely partisan
reasons and increases the chance of making the best possible
appointment.(63)
To this end, s. 54 of the Public Service
Amendment (First Divisions Officers) Act 1976 (Cwlth) provided
that appointments in the First Division were to be made by the
Governor-General, and in the case of a departmental head, the
appointment was to be made on the recommendation of the Prime
Minister. The Prime Minister had to first receive a report from a
committee which included at least two departmental heads and was
chaired by the Chairman of the Public Service Board.
Section 54 of the Public Service Amendment
(First Divisions Officers) Act 1976 (Cwlth) distinguished
between appointees drawn from within the Public Service from
outside candidates. Outside candidates were appointed for a period
not exceeding five years, but subject to reappointment: s. 54(8).
The appointment of a candidate from outside the Public Service
could be terminated by the Governor-General prior to the end of the
five year period if the Prime Minister making the recommendation to
terminate the appointment was of a political party different to the
Prime Minister who recommended the appointment: s. 54(9).
In 1984 the Hawke Labor Government introduced
the Public Service Reform Act 1984 (Cwlth), repealing the
appointment provisions inserted by the Fraser Government in 1976.
In the second reading speech to the Public Service Reform Bill
1984, then Minister Assisting the Prime Minister for Public Service
Matters in the Hawke Labor Government, the Hon. John Dawkins MP,
said that the provisions introduced by the Fraser Government 'are
gratuitous and they place inappropriate power in the hands of the
public servants involved.'(64) This Bill, Dawkins
continued, requires the Governor-General to appoint departmental
heads on the recommendation of the Prime Minister, after the Prime
Minister has obtained a report from the Chair of the Public Service
Board.(65)
In indicating support for the Bill, Mr Ruddock
(Liberal) said that the proposed legislation could change the
nature of the Public Service from having a 'capacity to offer
apolitical advice'. However Ruddock noted that should this occur,
the Opposition will draw it to the public's
attention.(66) And Mr Connolly (Liberal) stated:
Under the new arrangements the Government may
appoint people from outside as heads of departments. ... we [i.e.
the Opposition] believe that it is essential that it always be
incumbent upon the government of the day to be ultimately
responsible not only for the quality of public administration but
also for the appointment of those officers who ultimately are
responsible for the application of policy as required by the
government of the day.(67)
After two years before the Parliament, the
Public Service Act 1999 (Cwlth) was enacted in late 1999
by the Howard Coalition Government. It was described by the
responsible Minister, the Hon. Dr David Kemp MP, as 'the biggest
overhaul and reform of the Australian Public Service in more than
75 years.'(68) The Hon. Peter Reith MP, noted that the
Public Service Bill 1997 'provides a wholly new conceptual
framework.'(69) Further, Minister Reith noted that 'the
employment decisions for which secretaries are responsible must be
made without nepotism, patronage, administrative favouritism or
political influence.'(70)
In relation to the appointment of departmental
heads, s. 58 of the Public Service Act 1999 (Cwlth)
provides that the 'Prime Minister may appoint a person to be
Secretary of a Department for a period of up to five years'. In
relation to appointments to the office of Secretary of the
Department of Prime Minister and Cabinet the Prime Minister must
first receive a report from the Public Service Commissioner. In
relation to other head of department appointments the Prime
Minister must receive a report from the Secretary of the Prime
Minister's Department. As the Explanatory Memorandum to the Public
Service Bill 1997 points out, s. 58(1) is similar to the previous
Act except that the appointment power now rests with the Prime
Minister rather than the Governor-General.
This brief overview of the various processes in
place from time to time over the past 100 years for appointing
departmental heads may suggest a very limited role of Parliament in
that process. There has not, for example, been any legislative
requirement for Parliament to approve the appointment of
departmental heads, and proposals to increase Parliamentary
scrutiny by, for example, requiring reports to Parliament in
certain circumstances have not been adopted.(71)
But does this reflect disinterestedness on the
part of Parliament? Perhaps not. There is, after all, no
Constitutional requirement for the employment of Commonwealth
public servants, including senior public servants, to be governed
by legislation. Nevertheless, Parliament has seen fit to regulate
by legislation, Public Service employment-including the employment
of departmental heads-over the past century, and continues to do
so. It is true that Parliament does not have a direct role in the
selection and appointment of departmental heads, or other public
servants for that matter. Perhaps there is general agreement
amongst Parliamentarians with the view expressed by Minister
Dawkins in the mid-1980s that decisions concerning departmental
heads 'have always been ultimately and properly for the government
of the day.'(72)
This view would no doubt have found considerable
support amongst the framers of the Constitution. As Barton noted in
the context of appointments to the High Court, encumbrances should
not be placed on the right of the Executive to make appointments
'to offices high or small'.(73)
Appointments to the
Judiciary
The method of appointing federal judges, that
is, by the Governor-General in Council, has remained unchanged
since Federation. Indeed, the method of appointing federal judges
is the same as that proposed in the draft Constitutional Bill
adopted by the Constitutional Convention on 9 April 1891. Clause 3
of chapter 3 of the draft Bill provides in part:
The Judges of the Supreme Court and of the other
Courts of the Commonwealth shall be appointed ... by the
Governor-General by and with the advice of the Federal executive
Council.
In the late nineteenth century, spurred on by
economic, security and immigration concerns, the delegates to the
Constitutional Conventions sought to create a Federation from a
number of independent, self-governing colonies. The Parliaments of
the various colonies were jealous to protect their legislative
powers and the proposed Federal Parliament was to have only those
powers given to it by the Constitution.
The Convention delegates understood that the
role of the High Court would be pivotal to the success of the
proposed Federation. Essentially, the delegates considered that the
Court would decide disputes between the Commonwealth and the States
as to their respective legislative powers. As Trenwith said on 1
February 1898:
If at any time a difference arises between a
state Parliament and the Federal Parliament as to the powers of
either, the High Court will be the tribunal to finally decide the
issue.(74)
Similarly in April 1897, Trenwith said:
We want to create a unification in a central
body for specific purposes, but we are extremely anxious that the
central body shall deal with nothing else but what we submit to it.
Therefore, we shall have a strong and dignified custodian of the
Constitution.(75)
And on 20 April 1897, Downer stated:
I look upon this part of the Bill as the most
important of all, because this court is what we have to look to,
what all the States have to look to, for the protection of the
Constitution.(76)
The framers of the Constitution did not consider
the High Court to be a protector of human, or individual rights, a
role more recently ascribed to the Court by some commentators. The
role of the High Court has been succinctly stated by David
Solomon:
The High Court of Australia stands at the peak
of the of legal system. Since 1986 it has been the ultimate court
of appeal for all Australian courts. It is responsible for
determining the meaning of the Commonwealth Constitution, and it
has the final say on the meaning of laws passed by the
Commonwealth, State and Territory Parliaments. It also determines
the common law for Australia ...(77)
The framers regarded it as settled that judges
chosen to sit on the High Court would be appointed by the federal
executive. Given their adherence to, and understanding of,
responsible government, they considered the people would hold the
government accountable should improper appointments be made. For
example, in rejecting the proposal that restrictions should be
placed on the appointment of politicians to the federal judiciary,
O'Connor (NSW) noted that the people must be left to judge 'and to
watch over the purity of the administration.'(78) Barton
too did not believe impediments should be placed in the way of the
Executive making appointments to offices, high or low:
The Executive of the Commonwealth are, in a
constitutional sense, the guardians of every right and privilege of
the people, and being the constitutional guardians of the people,
their right in the choice of appointment to offices high or small
should not have an encumbrance placed in its
way.(79)
They were, however, keen to ensure that the
Court would be independent of the Executive and Parliament and that
it would be strong. For example, a proposal put forward by Glynn
(SA) that, initially at least, the High Court would consist of a
Chief Justice and the Chief Justices of the States,(80)
was strongly opposed by a number of delegates and failed to win the
support of the Convention.
Barton, for example, maintained that the High
Court should be open to talent, wherever that talent may reside.
Downer agreed, stating:
I would not limit the area of selection in the
slightest degree; but I would do two things. I would do this-I
would say that a Judge of the Federal Court should not occupy the
dual position of Judge of the Federal Court and Judge of any state
court.(81)
Further, Barton argued that Glynn's proposal
would lead to suspicion that the judges on the High Court were not
impartial and that they were appointed to represent the State from
which they came. Glynn's proposal would lead:
to a suspicion that the Chief Justices chosen
from the various states were intended to be in some sort of way the
representatives of provincial interests, and that is was not
intended that the court in its impartiality should be
representative of the Commonwealth as distinct from the
provinces.(82)
Symon (SA) made similar criticisms. The Federal
Executive should not be limited as to who it may appoint to the
High Court. Further when a judge is appointed from a State Supreme
Court he should resign his position on that Court. Otherwise, Symon
said:
You are sending an arbitrator from each state to
sit on the judicial bench, who will go, as arbitrators often do, as
a partisan.(83)
There was also a concern, expressed by Higgins
(Vic.) that if Gylnn's proposal was accepted High Court judges may
in practice be elected. After all Higgins reminded the delegates
there is nothing in the Constitutions of the States to prohibit the
States from choosing their Supreme Court judges by election:
It is quite true, and very happily so, that
under the different Constitutions of the different states of
Australia it is the practice to appoint the Chief Justice and all
Judges of the Supreme Court during good behaviour. But there is
nothing to hinder the Judges being made elective as in America. ...
and I can only say from my slight experience of the working of the
American courts, that I sincerely hope we shall never have our
Judges elected.(84)
In order to maintain the independence of the
High Court, the delegates argued that the Constitution should
provide for a minimum number of judges, and that the judges, once
appointed, could only be removed by the Governor-General on an
address from both Houses of Parliament on the basis of proved
misbehaviour or incapacity.(85) The proposal, that there
be a minimum number of judges, was to guard against the temptation
of an Executive dissatisfied with a decision of the Court simply
not making appointments until it secured a bench of its liking. The
delegates were well aware the decisions of the Court may not always
be popular and hence the Court needed to be protected.
Options for Selecting High Court Judges: a
Brief Overview
The Current
Position-Appointment by the Governor-General in Council
The Constitution says very little about the
selection and appointment of High Court judges. The Constitution
provides that High Court appointees must be less than 70 years of
age and that the Court shall consist of a Chief Justice and at
least two other Justices. At present, the High Court consists of
seven judges: the Chief Justice and six Justices. There have been
seven judges on the Court since 1947. From 1903 to 1906 there were
three judges; from 1906-1912 there were five judges; from 1912 to
1931 there were seven judges; from 1931-1947 there were six
judges.(86)
Section 72 of the Constitution provides for the
appointment, tenure and remuneration of federal judges. As to
tenure, a federal judge may only be removed by the Governor-General
on an address from both Houses of Parliament on the 'ground of
proved misbehaviour or incapacity.' A federal judge must retire at
age 70.
On the appointment process itself, the
Constitution is very brief. Secton 72 relevantly provides:
The Justices of the High Court and of the other
courts created by the Parliament-
Shall be appointed by the Governor-General in
Council
As Jacobs said in 1938:
High Court judges are appointed by the
Governor-General in Council; other judges by the Governor in
Council. In reality of course, the appointments are made by the
Federal and State ministries on the recommendation of the Federal
and State Attorneys-General. The actual part played by the
Attorney-General when an appointment is made, no doubt varies in
different cases. His Ministerial colleagues may or may not agree to
appoint his nominee, and may overrule him. Theoretically, I
suppose, an Attorney-General should resign his position in such a
case, though I have never heard of so strange a thing
happening.(87)
And, as former High Court Chief Justice, Sir
Anthony Mason has observed, in practice, the appointment of judges
by the Governor-General in Council 'means an appointment by Cabinet
on the recommendation of the Attorney-General.'(88)
In 1975 a NSW Legislative Assembly Select
Committee Report on the appointment of High Court judges
recommended the establishment of a High Court Appointments
Commission made up of the Commonwealth and State Attorneys-General.
The Commission would play an advisory role in relation to High
Court appointments, with appointments being made by the
Governor-General on the advice of the Federal
Executive.(89) This advisory Commission was never
established.
Although there was no Constitutional or
legislative requirement for the federal executive to seek the views
of anyone, in 1978, the then Attorney-General in the Fraser
Coalition Government, Senator Durack, gave an undertaking that he
'would consult with State Attorneys-General about future
appointments by that Government to the High Court.'(90)
Durack did not, however, 'consult on a formal basis with
professional bodies because I felt there could be some possible
conflict of interest.' Further:
My practice was to consult on a informal basis
with a number of people whose views I respected. The idea was, in
the first place, to get a short list from which a final
recommendation would be made.
There was usually prior discussion with the
Prime Minister and some other members of Cabinet about possible
appointees. This would have been on an informal basis. I only put
one name to Cabinet but other names would have been raised by
colleagues in both the prior informal process as well as in
Cabinet.(91)
In 1979 the High Court of Australia Act
1979 (Cwlth) was amended by the insertion of s. 6 which
provides that the Commonwealth Attorney-General is to consult with
the State Attorneys-General before an appointment to the High Court
is made.
The High Court of Australia Act 1979
(Cwlth) only requires consultation: the Commonwealth
Attorney-General is not required to seek the approval of the State
Attorneys-General. Further, while not required to do so, the
Attorney-General usually consults more widely, including, for
example, senior members of the judiciary and the legal profession.
This was recently acknowledged by Justice Michael Kirby. In
advocating 'a more open procedure of consultation and appointment',
his Honour said:
The procedure of consultation is now quite
formalised. The federal Attorney-General also takes considerable
time in consulting judges, legal professional groups, political
parties and others.(92)
In 1997 the then Premier of Queensland, Mr
Borbidge speaking about the consultation process particularly as it
relates to s. 6 of the High Court of Australia Act
1979 (Cwlth), stated that the 'experience of the States has
been uniformly disappointing. The obligation to consult is largely
empty.'(93)
The process of appointing judges to the High
Court of Australia is not unique. Indeed, appointment to the
superior courts in each of the Australian States and Territories,
in Great Britain, Canada and New Zealand is by the government of
the day. Further, 'in most jurisdictions where judges are appointed
by the Executive, no clear standardised procedures exist beyond
statutory requirements of professional
qualifications.'(94)
Appointment
by the Executive Following Formal Consultation with a Judicial
Appointments Commission
Appointment by the Executive following formal
consultation with a Judicial Appointments Commission is, to some
extent, a formalisation of the existing ad hoc procedure. A
Judicial Appointments Commission would be tasked with developing
and promulgating appropriate selection criteria and possibly
interviewing potential appointees. The Attorney-General would then
be required to consult with the Commission on possible judicial
candidates. The Commission would most likely consist of a
membership appointed by the Executive, and including, for example,
the Chief Justice of the High Court and perhaps representatives
from the State Supreme Courts, State Attorneys-General, senior
members of the legal profession, legal academics and community
representatives.
Writing in 1980, John Basten, then Senior
Lecturer in Law, University of New South Wales, succinctly
summarised the underlying rationale for this model:
It is perfectly acceptable in a democratic
system that an elected minister should be able to appoint public
officials. The Attorney-General effectively holds and, in my view,
should retain that power. On the other hand there is a need for a
body that can assist in selecting and vetting candidates for
appointment.(95)
High Court Judge, Justice Michael Kirby, has,
however, criticised the proposal arguing that a Judicial Commission
'has all the hallmarks of an institutional arrangement that could
deprive our judiciary of the light and shade that tend to come from
the present system.'(96) Further, in rejecting Sir
Garfield Barwick's proposal for the introduction of a judicial
commission, Senator Peter Durack said in 1980:
I think that the traditional English methods
under which the Executive exercises and accepts responsibility for
judicial appointments provides the appropriate balance. It would be
regrettable if we developed a judicial class remote from the
concerns and feelings of the community.(97)
Appointment
a Judicial Appointments Commission or by the Executive on the
Recommendation of the Commission
Under this model the power of appointment is
effectively taken out of the hands of the Executive and placed with
a Judicial Appointments Commission. Some variants of this model
transfer the power of appointment to the Judicial Appointments
Commission. Even where the Commission is tasked only with making
recommendations to the Executive, which retains the power of
appointment, the role and power of the Executive is clearly limited
as it can only choose from the candidates recommended to it.
Membership of the Commission would most likely
include senior judges, senior members of the legal profession,
legal academics and perhaps community representatives.
Parliamentary representation may or may not be included.
This model is quite different to the current
regime, and indeed, to the formal consultative model referred to
above. South Africa has adopted a version of this model in relation
to appointments to its courts, including to the South African
Constitutional Court.
The South African Constitutional Court consists
of a President, a Deputy President and 9 other judges. The
President of South Africa appoints the President and Deputy
President of the Constitutional Court 'after consulting the
Judicial Service Commission and the leaders of the parties
represented in the National Assembly.'(98) The South
African President also appoints the other judges of the
Constitutional Court after consulting the President of the Court
and the leaders of the parties represented in the National
Assembly. The following procedure must be followed:
-
- The Judicial Service Commission must prepare a list of nominees
with three names more than the number of appointments to be made,
and submit the list to the President.
- The President may make appointments from the list, and must
advise the Judicial Service Commission, with reasons, if any of the
nominees are unacceptable and any appointment remains to be made.
- The Judicial Service Commission must supplement the list with
further nominees and the President must make the remaining
appointments from the supplemented list.(99)
The Judicial Service Commission consists of 23
members as follows:
-
- three senior judges, including the President of the
Constitutional Court
-
- the Justice Minister
-
- two barristers, nominated by the Bar
-
- two solicitors, nominated by the profession
-
- a legal academic designated by university teachers of law
-
- six members of the National Assembly (three of whom must be
members of the Opposition)
-
- four permanent delegates of the National Council of Provinces,
and
-
- four persons designated by the President following consultation
with leaders of all political parties in the National
Assembly.(100)
The Judicial Service Commission may determine
its own procedures.(101) For example, it conducts
interviews with potential candidates for judicial office in public
and indeed transcripts of interview are published on the
Internet.(102)
One of the key concerns with the previous method
of appointing judges-that is by the Executive-was the way in which
the entire process was shrouded in secrecy. However, in a recent
review of the Judicial Service Commission, Lecturer in Law at the
University of London, Dr Kate Malleson has noted that while the
interviews of candidates may be in public, 'very few observers
attend in person. ... The effect of the current arrangements is
that the majority of the country probably have no greater knowledge
of the judges who are being appointed or the process by which they
are chosen than they did under the old appointment
process.'(103)
Sir Garfield Barwick, in 1995, suggested that
High Court judges should be chosen by a Judicial Appointments
Committee following the receipt of nominations from the Executive.
Sir Garfield's proposal, and his earlier, more general proposals,
aired in 1977, are discussed further below.
Appointment
by Parliament
Again there are various versions of this model.
The Executive might nominate candidates who are then subjected to
scrutiny and ratification by, for example, a joint sitting of both
Houses of Parliament, one House of Parliament (say, the Senate) or
by a Joint Parliamentary Committee. Alternatively, Parliament may
elect judges from, for example, candidates nominated by the
Executive.
This model is most often associated with the
system adopted in the United States for appointments to the Supreme
Court, as well as other federal courts.
Article II, s. 2 of the United States
Constitution provides in part that the President:
shall nominate, and by and with the advice and
consent of the Senate, shall appoint ... judges of the Supreme
Court.
There are no standard procedures or guidelines
that must be followed by a President in selecting a nominee for the
Supreme Court, so that the process may, and does, vary from one
President to the next. By way of example, however, Goldman and
Slotnick have described the nomination and appointment process in
relation to federal judges during the Clinton
Administration.(104) Before the President puts forward a
nomination to the Senate a relatively extended screening process is
carried out.
First the White House counsel's office sends a
list of potential nominees to the Justice Department. The Justice
Department then assigns lawyers to individually vet each nominee.
The lawyer reviews all the printed material written by or about the
nominee. The lawyer than conducts a one to two hour telephone
interview with the nominee. References are then sought from a wide
range of people, including for example, judges before whom the
nominee has appeared, co-counsel and opposing counsel. A working
group within the Justice Department then meets and considers the
material gathered by each lawyer. Senior members of the Justice
Department may then interview the nominee, and if he or she is
successful assessments will be obtained from the FBI and the
American Bar Association. Finally, a joint White-House-Justice
Department committee (the Judicial Selection Group) will meet and
decide whether to recommend nomination to the
President.(105)
The President then forwards his nomination to
the Senate, for consideration by the Senate Judiciary Committee.
The staff of individual Committee members will then investigate the
nominees, the members are lobbied by a range of groups and hearings
are usually held.
Critics of the process of judicial appointment
suggest that it has become too political and that the system has
broken down. However, Watson and Stookey argue that any attempt to
choose Supreme Court judges on the basis of 'objective merit'
rather than political deliberations is doomed to
fail.(106) In 1992, then presidential candidate, Bill
Clinton was asked whether judicial appointments should only be made
from a list of candidates prepared by a commission of lawyers and
others. Clinton's answer was:
It's an interesting idea and worth
consideration. Ultimately, however, judicial appointments are the
fundamental responsibility of the president.(107)
Constitutional
Commissions
Since Federation there have been a number of
commissions or conventions set up to review the operation of the
Constitution, the most recent in 1998. The 1998 Convention focused
on whether Australia should move from a constitutional monarchy to
a republic, and if so, how the president of that republic should be
chosen. The Convention was not invited to review the Constitution
generally, and it did not consider the issue of whether the current
procedure for appointing High Court judges should be amended.
The appointment process was, however, considered
by Constitutional Conventions in the mid-1970s and the late
1980s.
The Australian Constitutional Convention 1973-85
considered it unnecessary to make a recommendation with respect to
the appointment of federal judges. Further, proposals that the
Constitution be amended to provide for State participation in the
appointment of High Court judges or that the Commonwealth must
first confer with the States before making an appointment, were not
accepted.(108)
In its 1988 Report, the Constitutional
Commission 1985-88, set up by the Hawke Labor Government in
December 1985, recommended that 'no alteration be made to the
Constitution relating to the appointment of federal
judges.'(109)
Parliamentarians'
Views
Very few Attorneys-General, or indeed other
Parliamentarians, have offered their views on how members of the
judiciary should be chosen. In a paper delivered to the Judicial
Conference of Australia in November 1996, the then president of the
Australian Bar Association, Mr Gotterson QC, observed:
I suggest that we may glean in the apparent
reticence of Attorneys-General to write candidly upon the subject,
a strong desire on the part of the Executive government of all
political colours for the maintenance of the current constitutional
arrangements whereby judges are appointed by the Governor-General
in Council or a Governor in Council.(110)
While there has been criticism in Parliament
following the appointment of some High Court judges, the
Parliamentary Debates do not reveal any overall dissatisfaction
with the method of appointment itself.
The reaction to the appointment of Albert
Piddington to the High Court in 1913 is an illustrative example.
Piddington was appointed after Attorney-General Hughes (then Labor)
first confirmed Piddington's views on the supremacy of Commonwealth
powers in relation to those of the States.(111) While
there was considerable unrest following the announcement of
Piddington's appointment, particularly from the New South Wales and
Victorian Bars, and from the media,(112) Parliament
itself did not however call for changes to the process of
appointment. In the event, Piddington resigned before taking his
seat on the Court.
In September 1913, Dr Maloney criticised the
appointment of Piddington to the InterState Commission, arguing if
Piddingtom was not good enough for the High Court he was not good
enough to serve on the InterState Commission. Maloney observed that
'because a few members of the Lawyers' Trade Union (i.e. the Bar
association) did not think he was fit to be a High Court judge'
Piddington 'climbed down'.(113) Maloney then called for
judges to be elected by Parliament, observing that when Parliament
elects judges 'there will be more justice in the
land.'(114) Maloney's call was, however, not responded
to.
In 1930, while Prime Minister Scullin and
Attorney-General Brennan were overseas, the Labor Caucus
'instructed cabinet to make two appointments to the High
Court',(115) and Justices Evatt and McTiernan were
appointed in December 1930. There was some debate in Parliament
following their appointments, Archdale Parkhill (UAP) suggesting
there was 'something sinister about the
appointments'(116) and Opposition Leader Latham-himself
a later appointee to the High Court-moved a motion of no confidence
in the Government. There were no calls for wholesale changes to the
method of appointment-quite the contrary. On 17 March 1931, Mr
Latham criticised the Government of the day for straying from its
proper duty:
The Government has the grave responsibility of
appointing judges. In Great Britain, and in all the dominions under
the British Crown, the people, the Parliaments, and the governments
have, up to the present, sternly resisted any appointment of judges
by votes of electors, or by votes of any political party. This
objection to any system of electing judges is an essential part of
responsible government as we know it.(117)
In his response, Mr Scullin agreed that he,
along with the Attorney-General, Mr Brennan, had protested the
appointments of Justices Evatt and McTiernan in their absence, and
continued:
I take the view that no suspicion of political
influence should surround an appointment to the High Court. I
always have, and always will, hold that view.(118)
Earlier, on 11 March 1931, Scullin had, with
some irony, reminded the House that the Opposition, when in
Government, had appointed serving politicians to the Bench and
asked whether:
such appointments to the High Court by a Labor
Government savour of political partisanship, while similar
appointments made by a non-Labour government are in a different
category.(119)
The appointment of Lionel Murphy,
Attorney-General in the Whitlam Labor Government, to the High Court
in early 1975 again illustrates the theme that while there may be
opposition, indeed in some cases strident opposition, to individual
appointments, Parliamentarians have been most reluctant to call for
changes to the appointment process itself.
For example in relation to the appointment of
Murphy to the Court, Mr Viner, Liberal Member for Stirling, said on
19 February 1975:
There can be no doubt of the constitutional
propriety of the actions of the Prime Minister (Mr Whitlam),
through his Government, and of the advice which his Government gave
to the Governor-General to have the then Attorney-General appointed
to the High Court.(120)
Sir Garfield Barwick, Attorney-General in the
Menzies Government and Chief Justice of the High Court from 1964 to
1981, however rejected the prevailing method of appointment in
favour of appointment by a judicial services commission. Barwick
considered appointment by the Executive alone was
inappropriate,(121) arguing in 1995 that:
Left to politicians, the appointments are not
always made exclusively upon the professional standing, character
and competence of the appointee. At times, political party
affiliation, or at least an expected affinity in judgment to the
philosophies of the party, form some of the criteria for choice.
Sometimes party-political considerations are the dominant reason
for it, even to the point of choosing the appointee merely to
resolve a possible threat to the leadership.(122)
Barwick's attitude on the inappropriateness of
the system of appointment by the Executive seems to have been
formed in the mid-1970s. And, we may only speculate as to the
extent to which the appointment of Murphy to the High Court
consolidated Barwick's views. In 1977 he said that the time had now
arrived for the Executive's unrestricted power of appointment to be
curtailed, and he suggested the introduction of a judicial
commission to advise the Executive on appointments.(123)
Further, Barwick said:
Some may prefer to pass the actual choice of
appointee to such a body; others may prefer that recommendations
only may be made by it; yet others may prefer to require the
submission by that body of a short panel of names, outside of which
the Executive Government may not go; or may not go without public
explanation of the reason for doing so.(124)
Barwick did not, in 1977, express his own view
on the preferable approach. In 1995, however, he stated he
preferred the model whereby the Executive put forward possible
candidates from which the judicial commission would choose.
Barwick proposed that a 'standing commission,
presided over by the appropriate Chief Justice and consisting of
senior representatives of the Bar and solicitors, representatives
of academic lawyers and of an appropriate section of the general
public' should replace appointment by the
Executive.(125) The Executive, represented by the
Attorney-General would put forward names to the commission. The
commission would consider the candidates put forward and either
appoint them to the court or request the Attorney-General put
forward further names. According to Barwick, 'the initiative should
remain with the Executive, but the commission would have the final
say.'(126) In this way, Barwick argued, the Executive
would likely put forward only candidates of 'professional eminence,
competence, integrity and capacity for
judgment.'(127)
Lionel Murphy, High Court Justice from 1975
until 1986, also expressed concerns about the process of appointing
judges. However, he did not advocate turning the power of
appointment over to a judicial services commission. Indeed he may
well have opposed the establishment of such a body as he was
concerned at 'the tendency for executive power to slide away from
the elected to appointed officers and bodies is a remarkable
feature of our political life.'(128) Rather, Murphy
considered more effort should be focused on achieving balance in
those appointed to the judiciary.
[I]t is extremely important what kind of person
is appointed to the courts. In many countries there seems to be a
reasonable balance of social classes, of races, of sexes. ... In
Australia no attempt is made to achieve any
balance.(129)
When Labor Shadow Attorney-General, Senator
Gareth Evans published a paper, The Politics of Justice: An
Agenda for Reform, in which he argued that High Court judges
should continue to be appointed by the government of the
day.(130) Evans stated:
[T]here is no point at all in the government of
the day being coy or hypocritical about the appointment of judges.
It should not relinquish the power of appointment to anyone else,
and should use such opportunities to appoint to the Bench men-and
women-who are known to be in general sympathy with its own aims and
perspectives. This will happen anyway, just as appointments have
always been made on this basis in the past. The notion that it is
possible for the benches of the courts of the land, and especially
the High Court, to be composed of wholly disinterested, wholly
dispassionate, ideological eunuchs is another one of those fairy
stories which we should have all outgrown.(131)
However, Evans was not advocating the
appointment of 'malleable party hacks' to the
Court,(132) and he continued listing six criteria he
considered essential for appointment: intellectual capacity,
intellectual creativity, intellectual integrity, experience of the
'real political world', personal integrity and 'a capacity to
inspire general respect and confidence.'(133)
And former Attorney-General Durack has recently
disclosed the qualifications that he considered a potential
appointee should possess.
The appointee was required to be:
-
- An absolutely first rate lawyer at the top of the legal
profession. In view of the structure of the profession in Australia
that virtually dictates that the person is either a judge of a
superior court or a leading barrister.
- A person of impeccable character, integrity, and independence.
- An adherent of established legal doctrine, e.g. deciding cases
according to legal principles.
Having chosen a list on that basis I would then
have regard to a number of other matters. The person needed to have
a sense of public duty and preferable some experience in
Constitutional cases as well as the workings of Government and
Parliament. However most leading barristers would almost certainly
have had briefs from government on constitutional and
administrative matters. It seemed obvious that a judge of the High
Court should have a sound understanding of the Federal system.
Known support for the government of the day
should not be, and was not, required. I was looking for someone who
would uphold the principles of the law.(134)
In September 1993 the then Labor
Attorney-General, Michael Lavarch published a discussion paper,
Judicial Appointments-Procedure and Criteria. The
discussion paper stated that the aim of the judicial selection
process should be to:
-
- make the selection process visible, and hence increase public
confidence in the judiciary
-
- ensure the best possible candidates, and
-
- ensure no artificial barriers prevent the consideration of
women and members of other groups on the basis of merit.
Further, in his address to the Australian
Institute for Judicial Administration in late 1994, Mr Lavarch
noted the importance of broadening the pool of potential
appointees, as well as the need to carefully develop selection
criteria.
On Friday 19 November 1993, Senator Carr (ALP)
asked Senator Bolkus, the Minister representing the
Attorney-General in the Senate what the Government was doing to
'implement its commitment to broadening the selection procedure for
the judiciary?'(135) After advising the Senate of the
appointment of Ms Sally Brown to the Family Court, Senator Bolkus
noted the there had been a positive community response to Mr
Lavarch's discussion paper and that he, that is Mr Lavarch, hoped
to be in a position to formulate proposals in the new year. Senator
Bolkus continued:
It is very much the government's objective to
have a judiciary which is much more reflective of the population,
indeed much more reflective of the entire legal
profession.(136)
Little, however, seems to have come of the
discussion paper.
More recently, Senator Andrew Murray (AD), has
suggested that a Judicial Appointments Committee be established to
recommend appointees to the High Court.(137) While the
Committee would recommend potential appointees, appointment would
be made by the Governor-General in Council. The Committee would
consist of the Commonwealth Attorney-General, one representative
each from the Australian Bar Association and the Law Council of
Australia, one academic (constitutional law), one community
representative and two representatives form the States. Senator
Murray argued:
The aim of the appointment process to the High
Court should be to:
-
- make the selection process transparent and
open to scrutiny
-
- ensure that appointment is on the basis of
merit, and
-
- ensure no artificial barriers prevent the
appointment of women and other under represented groups
(emphasis in original).(138)
Senator Murray did not envisage a greater role
for Parliament in the appointment process. Quite the contrary:
The Democrats' view is that the need for the
three arms of Australian government to be independent precludes a
greater role for Parliament in High Court
appointments.'(139)
Conclusion
The framers of the Constitution were imbued with
the notion of responsible government. To this end they required
Ministers to hold seats in Parliament. There is almost no interest,
either in or out of Parliament to amend the Constitution to allow
Ministers to be chosen by other means-be it by Parliamentary
election or by the appointment of talented members of the community
who are not elected to Parliament. In relation to other executive
appointments-to for example, the Public Service-those
Parliamentarians who joined in the debate over the Public
Service Act 1902 (Cwlth) were keen to ensure a Public
Service free of political patronage and influence. Their speeches
indicate an experience of the evils of a Public Service infected by
political influence and patronage and a desire to see it
eradicated.
The framers saw the High Court as playing a
pivotal role in the Federation and hence desired to see a strong
and independent Court. Adhering to the principle of responsible
government the framers considered that the appointment of judges to
the High Court must be made by the Executive. Since Federation
there has been criticism of individual appointments to the Court
and there have been some calls for changes to the appointment
process. Parliamentarians, themselves, however, have been most
reluctant to advocate change to the appointment process. Further,
to alter the method of appointing judges to the Court would alter
fundamentally the structure of Australia's system of government,
and those who advocate such change should clearly articulate their
underlying political philosophy.
Endnotes
-
- David Hamer, Can Responsible Government Survive in
Australia?, Centre for Research in Public Sector Management,
Belconnen, ACT, 1994, p. 73.
- R. J. L. Hawke, The Resolution of Conflict, Boyer
Lectures, Australian Broadcasting Commission, Sydney, 1979, pp.
23-24.
- See, for example: S. Cooney, 'Gender and judicial selection:
should there be more women on the courts?' (1993) 19 Melbourne
University Law Review 20; S. Fredman, 'Allies or subversives?
The judiciary and democracy', (1998) 32(3) Israel Law
Review 407; H. Gibbs, 'The appointment and removal of judges',
(1987) 17(3) Federal Law Review 141; B. Harris,
'Appointments to the Bench-the role of a Judicial Services
Commission (1993) 15 Adelaide Law Review 191; L. King,
'The Attorney-General, politics and the judiciary', Paper delivered
at the Judicial Conference of Australia November 1999; M. Kirby
The Judges, Australian Broadcasting Commission, Sydney
1983; T. Lawrence, 'Judicial Appointments-A system fit for change',
(1993) 33 Medicine, Science and Law 280; K. Malleson,
'Assessing the performance of the Judicial Service Commission',
(1999) 116(1) South African Law Journal pp. 36-49; A.
Marfording, 'The need for a more balanced judiciary: the German
approach' (1997) 7 Journal of Judicial Administration 33;
A. Mason, 'The State of the Judicature', (1994) 68 Australian
Law Journal 125; D. Meagher, 'Appointment of Judges', (1993)
2(3) Journal of Judicial Administration 190; P. Nicholson,
'Appointing High Court judges: Need for reform?', (1996) 68(3)
Australian Quarterly 69; D. O'Sullivan, 'Gender and
Judicial Appointment' (1996) 19(1) University of Queensland Law
Journal 107; S. Shetreet, Judges on Trial: A history of
the appointment and accountability of the English Judiciary,
North-Holland Publishing Co., Amsterdam 1976; R. Thomson, The
Judges, Allen & Unwin, Sydney 1987; M. Vranken, 'Judicial
appointments in Belgium and the aftermath of the Dutroux Affair',
(1999) 9 Journal of Judicial Administration 70; R. Watt,
'Judicial Appointments within a Federal Structure', (1996-97)
Lawasia pp 51-64; and G. Winterton, 'Appointment of
Federal Judges in Australia', (1987) 16(2) Melbourne University
Law Review 185.
- Sir H. Gibbs, Oration delivered at the opening of the Supreme
Court Library's Rare Books Room, 11 February 2000, available
at: http://www.courts.qld.gov.au/library/rbr_gibbspeech.htm
- ibid.
- See for example, debate concerning the proposed appointment of
Robert Ellicott to the High Court, Sydney Morning Herald,
29 January 1981, Canberra Times, 30 January 1981 and
Sydney Morning Herald, 30 January 1981; and the
appointments of J. Callinan, Australian, 19 December
1997, Courier Mail, 19 December 1997, J. Murphy,
National Times, 17 February 1975, Nation
Review, 27 February 1975 and of course Albert Piddigton in
1913, see: D. Hodgkinson 'Albert Bathurst Piddington and
appointments to the High Court of Australia', Brief,
September 1999, pp. 26-27.
- B. Galligan, Politics of the High Court, University of
Queensland Press, St Lucia, Qld, 1987, p. 48.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, Govt. Printer, Adelaide
1897, 19 April 1897, p. 937.
- ibid., 23 March 1897, p. 25.
- At a speech to the Queensland Farmers' Federation in Brisbane
on 18 February 1997, the then Queensland Premier, Mr Borbidge, put
forward a number of suggestions aimed at stimulating discussion
about the appointment of High Court judges. One suggestion was that
High Court judges be elected at a referendum. This option, Mr
Borbidge said 'recognises that all Australians are directly
affected by High Court decisions, and that when it comes to our
fundamental law, the principle of democratic participation should
apply.' Also for a discussion of 'judicial activism' and calls for
increased political accountability of the High Court see: G.
Craven, 'Judicial Activism in the High Court-A response to John
Toohey' (1999) 28 University of Western Australia Law
Review, 214 at p. 223. In 1987, George Winterton remarked that
selecting judges by popular election 'is not really worthy of
serious consideration': 'Appointment of Federal Judges in
Australia' (1987) 16 Melbourne University Law Review, 185
at p. 192. For a brief discussion of the system of election in the
United States, see: E. Skordaki, Judicial Appointments: An
international review of existing models, London, 1991, pp.
11-12.
- Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, Govt. Printer, Sydney,
1891, 4 March 1891, p 36.
- Official record of the debates of the Australasian Federal
Convention; third session, Melbourne, 20th January to 17th March,
1898, Govt. Printer, Melbourne, 1898, vol. 2., 22nd February to
17th March 1898, 10 March 1898, pp. 2198-2199.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., 26 March
1897, p. 288.
- Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, op. cit., 5 March 1891,
p. 60.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., 26 March
1897, p. 169.
- Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, op. cit., 4 March 1891,
p. 34.
- ibid.
- ibid., p. 35.
- ibid.
- ibid., p. 40.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., 23 March
1897, p. 29.
- ibid., 26 March 1897, p. 184.
- Proceedings of the Australasian Federal Convention held at
Parliament House, Sydney, September 2nd to September 24th, 1897,
Govt. Printer, Sydney, 1897, 17 September 1897, p. 791.
- ibid., p. 794.
- Hamer, Can Responsible Government survive in
Australia?, op. cit., p. 189.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., 19 April
1897, p. 916.
- ibid.
- ibid., pp. 916-917.
- ibid., p. 917.
- ibid.
- ibid., p. 919.
- ibid.
- ibid.
- ibid., pp. 919-920.
- Senate and House of Representatives, Debates, 5 June
1901, p. 743.
- ibid., 13 June 1901, p. 1112.
- ibid., p. 1299.
- ibid., p. 1093.
- ibid., p. 1131.
- ibid.
- ibid.
- ibid., p. 1080.
- ibid., p. 1133.
- ibid., 19 June 1901, p. 1259.
- ibid., 13 June 1901, p. 1267, per Mr McCay.
- Report of the Committee of Inquiry into Public Service
Recruitment, [Boyer Report], Australian Government Printer,
Canberra, 1959, p. 5.
- ibid.
- Report of the Royal Commission on Public Service
Administration, Government Printer, Melbourne, 1920, p. 50.
- ibid.
- Report of the Committee of Inquiry into Public Service
Recruitment, op. cit., p. 28.
- ibid.
- ibid.
- A. Reid, The Gorton Experiment, Shakepeare Head Press,
Sydney, 1971, p. 45.
- ibid.
- House of Representatives, Debates, 31 October 1974, p.
3260.
- S. Encel, 'Commentary on E. Campbell Ministers, Public Servants
and the Executive Branch', in Labor and the Constitution
1972-1975, Gareth Evans, ed., Heinemann, Melbourne, 1977,
p. 160.
- House of Representatives, Debates, 31 October 1974, p.
3262.
- ibid.
- Royal Commission on Australian Government Administration,
[Coombs Report], AGPS, Canberra, 1976, p. 98.
- id., at pp. 98-99.
- id., at p. 100.
- House of Representatives, Debates, 18 November 1976,
p. 2865.
- ibid.
- House of Representatives, Debates, 9 May 1984, p.
2152.
- ibid.
- ibid., s, 30 May 1984, p. 2429.
- ibid., 30 May 1984, p. 2378.
- Public Service Bill Passed-a New Act for a New
Century, Ministerial Press Release, 20 October 1999.
- House of Representatives, Debates, 26 June 1997, p.
6461.
- ibid., 26 June 1997, p. 6463.
- Although in one jurisdiction in Australia, namely the
Australian Capital Territory, employment contracts of departmental
heads must be tabled in the Legislative Assembly: see s. 31A
of the Public Sector Management Act 1994 (ACT).
- J. S. Dawkins, 'Reform in the Canberra system of public
administration', Australian Journal of Public
Administration, March 1985, 59 at p. 65.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., 17 April
1897, p. 753.
- Official record of the debates of the Australasian Federal
Convention; third session, Melbourne, 20th January to 17th March,
1898, op. cit., vol. 1, 20th January to 22nd February 1898, 1
February 1898, p. 367.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., , 19
April 1897, p. 940.
- ibid., 20 April 1897, p. 956.
- D. Solomon, The political impact of the High Court,
Allen & Unwin, North Sydney, 1992, p. 3. The Constitution
provides for appeals to the Privy Council. Section 11 of the
Australia Act 1986 (Cwlth) ended appeals from the State
Supreme Courts to the Privy Council, and for practical purposes the
High Court is now the final court of appeal in Australia.
- Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5, 1897, op. cit., 17 April
1897, p. 749.
- ibid., p. 753.
- Official record of the debates of the Australasian Federal
Convention; third session, Melbourne, 20th January to 17th March,
1898, op. cit.. v.1. 20th January to 22nd February 1898, 28 January
1898, p. 265.
- ibid., p. 276.
- ibid., p. 269.
- ibid., p. 270.
- ibid., p. 280.
- Constitution, s. 72(ii).
- E. Neumann, The High Court of Australia: A collective
portrait 1903-1972, 2nd ed., University of Sydney, Sydney,
1973, p. 8. See Appendix 1 for Table of High Court Judges.
- P. A. Jacobs, 'The mode of appointing judges', Australian
Law Journal, 1938, 227 at pp. 277-228. In his article,
Jacobs went on to recommend that judicial appointments should be
made by the relevant Chief Justice, or failing that by the
Executive on the recommendation of the relevant Chief Justice.
- Quoted in R. Gotterson, 'The appointment of judges', Paper
presented at the Judicial Conference of Australia, pp. 6-8,
November 1998.
- Report from the Select Committee of the Legislative Assembly
upon the appointment of judges to the High Court of Australia
Sydney, Government Printer, Sydney, 1975, p. 21.
- Durack, Memorandum provided to author, 30 May 2000.
- ibid.
- M. Kirby, 'Modes of appointment and training of Judges-a common
law perspective', Speech given at the ICJ/CIJL and CAJ Seminar,
Belfast, 8 June 1999.
- Borbidge, Speech to the Queensland Farmers' Federation,
Brisbane, 18 February 1997.
- E. Skordaki, Judicial Appointments: An international review
of existing models, Law Society, London, 1991,
p. 12.
- J. Basten, 'Judicial accountability: a proposal for a judicial
commission', 52(4), Australian Quarterly, 1980, 468 at p.
477.
- M. Kirby, The Judges, Australian Broadcasting
Commission, Sydney, 1983, p. 23.
- Quoted in R. Thomson, The Judges, Allen & Unwin,
Sydney, 1986, p. 82.
- Section 174(3).
- Section 174(4).
- Section 178.
- Section 178(6).
- For example, the Commission's interview with Associate
Professor Catherine O'Regan is at: http://www.law.wits.ac.za/court/oregan.html.
Some of the questions put to Associate Professor O'Regan, who was
in fact appointed a Judge of the Constitutional Court, include
questions about her age, the age of her children, how she would
rate the South African Constitution in comparison with other
Constitutions, whether she had ever been an active member of a
political party and the appropriate method of appointing judges to
the Constitutional Court.
- K. Malleson, 'Assessing the performance of the Judicial Service
Commission', 116(1), South African Law Journal, 1999, 36
at p. 45.
- S. Goldman and E. Slotnick, 'Picking judges under fire', 82(6),
Judicature, 1999, p. 265.
- id., at pp. 265-266.
- G. Watson and J. Stookey, Shaping America: The politics of
Supreme Court appointments, HarperCollins College Publishers,
New York, 1995, p. 219.
- ibid.
- Australian Constitutional Convention, Melbourne, September
1975, pp. 24-26, 'Standing Committee D', Report to Executive
Committee, 1 August 1974, p. 34.
- Constitutional Commission, Final Report, vol. 1,
Canberra, AGPS, 1988, p. 398.
- R. Gotterson, 'The appointment of judges', Paper presented at
the Judicial Conference of Australia, 6-8 November 1998.
- Galligan, Politics of the High Court, op. cit., p. 93.
- ibid.
- Senate and House of Representatives, Debates, 3
September 1913, p. 833.
- ibid.
- Galligan, Politics of the High Court, op. cit., p.
107.
- Senate and House of Representatives, Debates, 12 March
1931, p. 154.
- ibid., 17 March 1931, p. 271.
- ibid., p. 274.
- ibid., 11 March 1931, pp. 96-97.
- House of Representatives, Debates, 18 February 1975,
p. 512.
- G. Barwick, Radical Tory, Federation Press, Sydney,
1995, p. 230.
- ibid.
- G. Barwick, 'The State of the Australian Judicature', 51,
Australian Law Journal, 1977, 480 at p. 494.
- ibid.
- G. Barwick, Radical Tory, op. cit., p. 230.
- ibid.
- ibid.
- Quoted in J. Hocking, Lionel Murphy: A political
biography, Cambridge University Press, Cambridge, 1997, p.
279.
- id., at p. 225.
- G. Evans, 'The Politics of Justice: An Agenda for
Reform', Victorian Fabian Pamphlet, Melbourne,
1981.
- id., pp. 13-14.
- id., at p. 14.
- id., at pp. 15-16.
- Durack, Memorandum provided to author, 30 May 2000.
- Senate, Debates, 19 November 1993, p. 3282.
- id., pp. 3282-3283.
- Senator Andrew Murray 'Judging the Judges': Improving the
procedures for judicial appointments to the High Court of
Australia, Self Published, 1997, p. 4.
- id., at p. 3.
- Andrew Murray and Felicity Maher, 'Judging the Judges',
Alternative Law Journal, August 1998, 185 at p. 186.
Appendix 1: Judges of the High
Court
Judge
|
Years of Service on Court
|
Age on Court
|
State
|
Prior Political Experience
|
Colonial and State
|
Commonwealth
|
1. Griffith C.J.
|
1903-19
|
58-74
|
Qld
|
M.L.A.;
Minister;
Chief Justice; Lieut-Governor
|
-
|
2. Barton J.
|
1903-20
|
54-71
|
NSW
|
M.L.A.;
M.L.C.;
Minister
|
M.H.R.;
Prime Minister
|
3. O'Connor J.
|
1903-12
|
52-61
|
NSW
|
M.LC.;
Minister
|
Senator;
Minister
|
4. Isaacs J.
and C.J.
|
1906-30
(C.J. 1930
|
51-75
|
Vic.
|
M.L.A.;
Minister
|
M.H.R.;
Minister
|
5. Higgins J.
|
1906-29
|
55-78
|
Vic.
|
M.L.A.
|
M.H.R.;
Minister
|
6. Piddington J.
|
1913*
|
51
|
NSW
|
M.L.A.
|
-
|
7. Gavan Duffy
J. and C.J.
|
1913-35
(C.J. 1931-35)
|
61-83
|
Vic.
|
-
|
-
|
8. Powers J.
|
1913-29
|
60-76
|
Qld
|
M.L.A.;
Minister
|
Crown-Solicitor
(non-Parl.)
|
9. Rich J.
|
1913-50
|
50-87
|
NSW
|
(NSW Supreme Ct)
|
-
|
10. Knox C.J.
|
1919-30
|
55-66
|
NSW
|
M.L.A.;
|
-
|
11. Starke J.
|
1920-50
|
49-79
|
Vic.
|
-
|
-
|
12. Dixon J.
and C.J.
|
1929-64
(C.J. 1952)
|
43-77
|
Vic.
|
-
|
-
|
13. Evatt J.
|
1930-40
|
35-46
|
NSW
|
M.L.A. (Labour)
|
-
|
14. McTiernan J.
|
1930-76
|
38-84
|
NSW
|
M.L.A.;
Minister (Labour)
|
M.H.R.
|
15. Latham C.J.
|
1935-52
|
58-75
|
Vic.
|
-
|
M.H.R.;
Minister
|
16. Williams J.
|
1940-58
|
51-69
|
NSW
|
(NSW Supreme Ct)
|
-
|
17. Webb J.
|
1946-58
|
57-69
|
Qld
|
(Qld Supreme Ct)
|
-
|
18. Fullagar J.
|
1950-61
|
58-69
|
Vic.
|
(Vic. Supreme Ct)
|
-
|
19. Kitto J.
|
1950-70
|
47-67
|
NSW
|
-
|
-
|
20. Taylor J.
|
1952-69
|
51-68
|
NSW
|
-
|
-
|
21. Menzies J.
|
1958-74
|
51-67
|
Vic.
|
(Non-Parl. Member of Young Nationalists and Liberal Party)
|
22. Windeyer J.
|
1958-72
|
58-71
|
NSW
|
-
|
Senate pre-selection candidate
|
23. Owen J.
|
1961-72
|
62-72
|
NSW
|
(NSW Supreme Ct). State candidate
|
-
|
24. Barwick C.J.
|
1964-81
|
60-77
|
NSW
|
-
|
M.H.R.;
Minister
|
25. Walsh J.
|
1960-73
|
60-64
|
NSW
|
(NSW Supreme Ct)
|
-
|
26. Gibbs J.
and C.J.
|
1970-87 (C.J. 1981-87)
|
53-70
|
Qld
|
(QLD Supreme Ct)
|
(C'w Bankruptcy Ct)
|
27. Stephen J.
|
1972-82
|
48-59
|
Vic.
|
(Vic. Supreme Ct)
|
-
|
28. Mason J.
|
1972-95
(CJ 1987-95
|
47-70
|
NSW
|
(NSW Supreme Ct)
|
Solicitor-General
|
29. Jacobs J.
|
1974-79
|
56-61
|
NSW
|
(NSW Supreme Ct)
|
Liberal candidate
|
30. Murphy J.
|
1975-86
|
52-64
|
NSW
|
-
|
Senator;
Minister
|
31. Aickin J.
|
1976-82
|
60-66
|
Vic.
|
-
|
-
|
32. Wilson J.
|
1979-89
|
57-67
|
WA
|
Solicitor-General
|
-
|
33. Brennan J.
|
1981-98
(CJ 1995-98
|
53-70
|
Qld
|
-
|
(Aust. Indust. Ct;
Law Reform Cm;
Federal Ct)
|
34. Deane J.
|
1982-95
|
51-64
|
NSW
|
(NSW Supreme Ct)
|
(Federal Court;
T.P. Cm)
|
35. Dawson J.
|
1982-97
|
48-64
|
Vic.
|
Solicitor-General
|
-
|
36. Gaudron J.
|
1987-
|
44-
|
NSW
|
Solicitor-General ;
NSW 1981-87
|
(Dep Pres Aust Conciliation & Arbitration. Comm.)
|
37. McHugh J.
|
1989-
|
54-
|
NSW
|
(NSW Supreme Ct)
(NSW Court of Appeal)
|
-
|
38. Gummow J.
|
1995-
|
53-
|
NSW
|
-
|
(Federal Court)
|
39. Kirby J.
|
1996-
|
57-
|
NSW
|
(NSW Supreme Court);
(NSW Appeal Ct);
(Pres. Ct of Appeal)
|
(Dep Pres Aust Conciliation & Arbitration. Comm.)
|
40. Hayne J.
|
1997-
|
52-
|
Vic.
|
(Vic. Supreme Ct)
(Vic. Crt of Appeal)
|
-
|
41. Callinan J.
|
1998-
|
61-
|
Qld
|
-
|
-
|
42. Gleeson C.J.
|
1998-
|
60-
|
NSW
|
(C.J. NSW Supreme Court)
|
-
|
* Piddington resigned without commencing work on
Bench: cf. L.F. Fitzhardinge, William Morris Hughes: vol.
1, Syd., 1964, pp. 271-83
Source: Australian National Government,
L.F. Crisp, Longman Cheshire, Melbourne, 1984, pp. 66-67.
Bibliography
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September 1975, 'Standing Committee D', Report to Executive
Committee, 1 August 1974, Government Printer, Melbourne.
Barwick, G., Radical Tory, Federation
Press, Sydney, 1995.
Barwick, G., 'The State of the Australian
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