The Process of Appointing Justices to The High Court of Australia

The process of appointing justices to the High Court of Australia is neither fair nor efficient to a substantial extent as depicted by the criteria for appointment and the absence of selection committees. The criteria for appointment are based on merit, which is an imprecise concept that lacks fairness and transparency, while the absence of selection committees reinforces the lack of efficiency and consultation when appointing justices. However, the process of appointing justices to the High Court of Australia is highly efficient as opposed to the US as it is highly politicised. 

The criteria for appointment are neither rigorous nor transparent, thus the process of appointing justices to the High court of Australia lacks fairness and efficiency. The limited selection criteria highlight merit as a significant factor for appointments, and it is this ‘imprecise concept, which has the potential to reproduce informal networks of power and privilege’.  ‘No word is more used or abused in this context than merit’ , as the concept becomes subjective due to its ambiguity. Consequently, Professor Kim Rubenstein notes that politicians only see reflections of themselves in the gene pool of potential High Court appointees.  Thus, highlighting the lack of impartiality as those who appoint new judges will select those who share the professional, social, and gender characteristics of their predecessors. Chief justice of Western Australia, Wayne Martin, has described Australia’s judiciary as ‘pale, stale, and male’,  which is why enlisting quotas in judicial appointments can ensure the diversity that is currently lacking. However, a strength of Australia’s process of appointing justices to the High Court is that the limited criteria increase the efficiency of the appointments by the Prime Minister as they can quickly replace justices. Overall, judicial appointments should be made based on clearly defined criteria and by a publicly declared process, therefore the current process of appointing justices to the High Court of Australia is neither fair nor efficient.  

The process of appointing justices to the High Court of Australia is neither fair nor efficient, thus reinforcing the necessity of selection committees. S6 of the High Court of Australia Act 1979 (Cth) provides that the Commonwealth Attorney-General must consult with the State Attorneys-General before an appointment is made to a vacant office in the High Court. This contrasts with the Supreme Court of the United Kingdom as the Constitution Reform Act 2005 depicts that the selection committee must consult senior judges, the Lord Chancellor, the First Minister in Scotland, the First Minister in Wales, and the Judicial Appointments Commission in Northern Ireland.  Hence depicting the significance of deliberation in creating a fair and efficient system. On the contrary, weaknesses include that it doesn’t ensure the diversity of candidates and is dominated by judges. Additionally, the United States Constitution (Article II, Section 2, clause 2) states that the President ‘shall nominate, and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court.’ This system highlights how assessment panels ensure fairness and efficiency when appointing justices as input from the Senate might draw new Supreme Court candidates to the President’s attention or inform a President of their objections to a prospective nominee.  On the contrary, Australia’s system of consultation between the Commonwealth Attorney-General and the State Attorneys-General is futile and impractical as it lacks a diverse range of opinions. Senator Brandis further confirms this by questioning whether it is appropriate for there to be a preliminary decision-making forum prior to the decision by Cabinet.  Therefore, there should be two sets of decision makers on judicial appointments in order to ensure fairness and efficiency. 

On the contrary, the process of appointing justices to the High Court of Australia is highly efficient as opposed to the US. The US utilises input from the legislature which enables accountability through consultation, however, the prevalence of political ideologies when appointing justices has resulted in an unjust and highly inefficient system. Candidates must face a series of hearings in which the nominee answers questions before the Senate Judiciary Committee, who vote to send the nomination to the United States Senate. While this process may appear to enable scrutiny, the questions and voting favour political leanings as opposed to fairness and efficiency. The Supreme Court has been ‘weaponised to skew political power’  as ‘most Presidents … will be inclined to select a nominee whose political or ideological views appear compatible with their own’.  Thus, by favouriting political views over racial and gender diversity, the Supreme Court lacks fair decision-making and equal opportunity.

The current process of appointing justices to the High Court of Australia is neither fair nor efficient to a substantial extent as the criteria for appointment emphasises the lack of diversity and the absence of selection committees reinforces the ineffective consultation process. Therefore, enlisting clearly defined criteria that are open to the public will create the political accountability that is currently lacking, and the use of selection committees will ensure the careful deliberation of potential candidates. Other areas of improvement include quotas and applications for judicial appointments that address the selection criteria and incorporate references with evidence of qualifications. Justices reflect the community at large therefore to ensure fairness and efficiency reforms must be implemented.