High Court Reform Australia

LAWS1206 ESSAY

U5800382

INTRODUCTION

Esteemed former Chief Justice, Sir Harry Gibbs, asserted that public confidence ‘in the judiciary can be maintained only if the judges are seen to be not only fully competent to perform their functions, but also independent, impartial and of complete integrity’ and thus, the best method of appointing Justices ought to be in place to fulfill these qualities and allow this confidence to thrive. Therefore, this essay will argue that the current method of appointment of Justices to the High Court should be reformed to better serve the fundamental principles of the Rule of Law and Separation of Powers. This will be argued in accordance with the assertion that the ideal method of reform is informed by what is

Whilst the United States Senate approval model is successful due to its heightened transparency, it should not inform Australia’s reform as it is ‘clearly inappropriate for Australia’ because it ‘infects the appointment process with a partisan flavour that is alien to Australia’s constitutional traditions’. Rather, inspiration for reform should be yielded from the United Kingdom’s model due to its ‘shared legal history’ with Australia and because its ‘model of commission… is sufficiently well-constructed to form the basis for a successful new system’. However, ultimately, Australia’s reform should be distinct to protect its legal traditions.

Thus, by being informed by the United Kingdom’s model, Australia’s reform should be two fold. The first limb being the creation of a commission for judicial appointment and the second being a sound articulation of the requisite of ‘merit’ by said commission.

A Commission for Judicial

A predominant criticism is that its implementation is highly idealistic in nature if it requires constitutional alteration: a process renowned for its extremely high threshold.

Should a reform proposal attempt to alter the requirement that High Court Justices‘[s]hall be appointed by the Governor-General in Council’, it would require the proposed law to be ‘passed by an absolute majority of each House of the Parliament’. If successful, it will then only be ‘presented to the Governor-General’ for assent if ‘in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law’. The high threshold of the double majority is clearly reflected in the low success rate of passed referendums.

However, if, as is the present case, the reform does not attempt to abdicate the Executive’s role but just instills a recommending committee, this laborious mode of implementing reform need not occur and may instead, come in ‘simple legislative amendment’. Thus, critique that implementation of reform is idealistic due to a referendum requirement is clearly