Secret Vetting Taints Court Selection

Tony Walker - Financial Review

Albert Bathurst Piddington (1862-1945) is not a name that resonates, but in a week when it emerged that Attorney-General Daryl Williams has been conducting an "executive search" to fill the High Court vacancy, Piddington made a brief cameo appearance.

Piddington was, it seems, one of those fairly rare commodities in public life: a man of principle. He was the only individual to have accepted nomination to the High Court, and then to have withdrawn because questions were raised about his independence of mind.

Appointed by William Morris Hughes in early 1913, Piddington had committed to paper - in a cable from overseas - that he was "in sympathy with the supremacy of Commonwealth powers".

So what? it might be asked a century later, but such was the outcry from the Sydney and Melbourne Bars, not to mention a vitriolic campaign stoked by The Bulletin, that Piddington withdrew.

An ungrateful Hughes, who had been hammered by his opponents for seeking to stack the High Court and who had a history of turning on friends and foes alike, accused the hapless Piddington of "cowardice".

Perhaps no other statutory appointment, with the possible exception of governor-general, excites as much potential angst as that to the High Court - and few, if any, other appointments in the federal government's purview are subject to the same extent to prime ministerial whim.

Observing John Howard in parliament this week defending Assistant Treasurer Helen Coonan over her family's business dealings, one might have concluded that Howard was preparing for a second career at the Bar - or perhaps the bench.

The point is that Howard fancies himself as a bit of a legal eagle, and so is predisposed to be even more intrusive in the selection process of a High Court appointee than might otherwise be the case. It is also a fact that Howard's dominance politically these days means that, even more than usual, he will view such an appointment as completely within his own gift.

A caution here: Howard's record in making appointments to high judicial - or vice-regal - office is far from unblemished. The selection of Peter Hollingworth as Governor-General was clearly a mistake, even if Hollingworth was only the third cab off the rank.

What is absolutely certain is that while Attorney-General Daryl Williams might be responsible for vetting potential candidates for the vacancy caused by Mary Gaudron's retirement, Howard will regard this appointment as perhaps his last opportunity (before considering his own retirement on his birthday on July 26 next year) to put his stamp on the court - and ensure a conservative majority of four out of seven.

This is why considerations of gender and geographic balance may weigh less heavily than might otherwise be the case; although it would be unfortunate if Howard eschews the opportunity to balance the court, not because it would be politically correct, but because it would be the right thing on equity grounds.

Just as it was a mistake not to appoint a woman as governor-general when he had the opportunity, so it would be an error not to replace Gaudron with a woman. This would send an unfortunate signal that among the dozen or so outstanding female jurists in the country with claims to the position, not one measures up.

The curmudgeonly argument holds that the best person, male or female, should get the job, but this begs the question of how you measure who is best. What criteria might be applied to deciding who is the better candidate - clarity of judgement, scholastic achievement, learned dissertation, political reliability, prime ministerial golfing partner, thumbs up from Mrs Howard?

The point is that at the end of the day, if the appointment is effectively in the hands of one man (or even a small coterie) then judgement about who might be most suitable will inevitably be subjective. The alternative is to make the selection using a machine, or a representative panel, as some have suggested.

Since no government, Labor or conservative, will yield its right to make High Court appointments - the history of federation is littered with contentious political appointments from Evatt to Barwick to Murphy - we are, whether we like it or not, subject to an executive government, or cabinet, process.

When cabinet sits down to consider the issue, possibly at its two-day session next week, it might think about the following before rushing to embrace a choice that does not necessarily reflect the broader community.

My own back-of-the-envelope survey tells me that of the 43 judges of the High Court since federation - the new appointee will be the 44th - the vast majority have been white Anglo-Saxon Protestant males, like John Howard.

There have been a handful of Catholics, several Jews and one woman, the aforementioned Mary Gaudron. NSW has dominated with 23 appointees; Victoria has 12; Queensland 6; Western Australia 2; South Australia, Tasmania and the Territories, nil.

Twenty-nine judges have been conservative appointees, and 14 Labor. All the chief justices from Griffith to Gleeson, with the exception of Frank Duffy, have been conservative choices.

In other words, High Court appointments have overwhelmingly followed a certain pattern. Nothing in the speculation surrounding the process this time suggests a departure from the norm.

Indeed, the names mentioned, including Dyson Heydon and Roger Gyles from NSW, and John Doyle and John von Doussa from South Australia, would fit a mould more or less intact since federation - Caucasian, predominantly Protestant and male, although Doyle and von Doussa at least have the virtue of being from a state that has not yet been represented on the highest court in the land.

It is worth noting that von Doussa was Williams's choice to replace John Toohey, but he got rolled by Howard who favoured the big "C" conservative Ian Callinan from Queensland.

In light of all this, a speech given by Williams to the Monash University Law School Foundation in May 1997 on judicial independence and the High Court makes interesting reading.

Criticising the US Senate confirmation process for Supreme Court justices, Williams said: "To ascertain a candidate's approach to significant issues, the candidate would be expected to give answers, in the abstract, to the very questions which might arise for consideration on the bench in a factual context. That is likely to undermine in advance public confidence in an independent and impartial judiciary."

A reasonable question in view of these sentiments is: what is better, an opaque process in which there is no monitoring of discussions between a minister and an individual, or something that is transparent? Albert Piddington might have preferred the latter.