Progressive doublespeak would be regressive for the High Court

By JAMES D. CATLIN

Concerns over the foreshadowed appointments to the High Court by Attorney-General Christian Porter take progressive cant and doublespeak to new levels — ­although, of course, there is never a ceiling.

https://www.theaustralian.com.au/business/legal-affairs/progressive-doublespeak-would-be-regressive-for-the-high-court/news-story/12601c3c1820ef3424ee380efe995486

The argument goes like this. Left-wing (let’s call them “progressive”) judicial appointments are not political. They are double plus good. Judges who think we are in a Westminster system defined by a strict separation of powers where elected representatives make the laws and unelected judges apply them according to strict rules of interpretation are dangerous. The latter are said to undermine public confidence in the courts and inherently and uniquely lack independence through the nature of their appointments.

This argument can be simplified: power for we, not for thee. State and federal ALP governments, when elected, will appoint as they see fit, as they have for over a century according to their constitutional power and will continue to do so.

Attorney General Christian Porter. Picture: Joel Carrett/AAP
Attorney General Christian Porter. Picture: Joel Carrett/AAP.

Their record of appointments is sometimes cringeworthy. Implying that the Coalition’s Christian Porter is an unsafe pair of hands is rich, to say the least.

What can be glimpsed in the current calls to tie his hands is the emergence of the loser’s veto seen in Brexit and unspectacularly demonstrated by the Democratic Party in the US in the appointment of Justice Brett Kavanagh.

A bulwark of western and particularly Anglo democracy is the sharing of power. The progressives will get their turn. If you want to undermine confidence in not just the legal system but the whole political system, do what the Democrats and British Labor did and imply that when centre right political parties are elected to power they should miss their turn.

One arguably legitimate basis for the Democrats’ conduct in trying to block the appointment of a swing judge to the Supreme Court is not replicated with Australia’s High Court: the basis in fear. The Democrat bogey was that Roe v Wade, a particular talisman of the US left, would be overturned.

At least the Democrats could formulate a feared conservative agenda. What is the monstrous agenda of arguably regressive constitutional change that the Coalition could achieve by the two new appointments? Winding back the treaty power? Return of income taxation to the states? There is none. The greatest volume of radical legal change in Australia comes from parliaments, not commonwealth constitutional interpretation. That is admirable. But judicial adventurism in lower courts can be reversed on appeal or set aside by legislation.

Impressionist constitutional interpretations are not so easily dislodged, if at all. Legal “conservatives”, with their preference for stable precedent, are disinclined to change.

The term “legal conservative” is a misnomer designed to refer to politics, when it in fact refers to respect for precedent and the avoidance of sudden, revolutionary changes. How will confidence in the judicial system be changed, let alone worsened, from the conventional approach to appointments simply being maintained?

Calls for a panel to assume the role of appointments are misplaced. The UK, free from the complexity of a federal system, has its Judicial Appointments Commission. But in the UK, the executive still has the final say on appointments. So it is with Canada’s Supreme Court and New Zealand’s Supreme Court.

Canada has experimented with testing of applicants by small panels of MPs. There was a panel assisting with appointments to Australia’s Federal Court that was abandoned in 2013.

But who wants another bloated quango, remote from the threat of democratic processes, to decide on appointments to the High Court?

Forget contribution of expertise to judicial appointment decision-making. No one can seriously suggest the resources of the Attorney-General’s Department and the Department of Prime Minister and Cabinet, with advice from the various bar councils and professional law associations, is insufficient to vet appointments.

The fundamentals guiding appointments are well known. The person must be “sound”, have legal talent with proven judicial ability and a disinclination to sacrifice legal impartiality for political or commercial interests.

The appointee should be inclined to respect the constitutional reservation of significant constitutional change to the democratic process: referendums.

Appointments should assist in the bench representing a range of expertise, skills and experience. Here is another, perhaps novel, attribute to be considered in making appointments. Humility.

Judges marked to be champions and the ambition to leave a mark are more inclined to activism. They are visible on both sides of the imaginary political fence.

James D. Catlin is a member of the Victorian Bar.

 

 

 

 

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