Bryan Palmer has an article on ozpolitics that what is deemed constitutional is ultimately in the hands of the Judicial and not legislative fiat. The High Court under the doctrine of separation of powers is the highest authority to interpret the Australian constitution. But our Westminster style of constitutional law makes government complex and unknowable from the citizen's point of view. It is a fair expectation, in my opinion, that a constitutional system can be read explicitly by a citizen to understand the limits of their government.

Overreach

I recently made a quick comment on Polemica about the report from the Department of Education on establishing an Australian Certificate of Education. In that comment I pointed out that Part V of the Australian Constitution contains no explicit language on education.

While I think an Australian Certificate of Education is a good example of rampant anti-federalism; demanding compliance from the states, without explicit authority, and most likely without funding; there is warning in there for the constitution to move so far from its concrete bounds that it isn't easily understandable.

The constitution acts as the citizens contract with government. It places distinct limits on the actions of the executive, legislative, judicial and government. If the weight of legislation that has been judged by the high court is sufficiently outside of an explicit reading of the constitution it becomes not readily knowable to the citizenry.

Government evolves into an arcane area of complexity and specialisation beyond the general understanding of the citizenry. Since government is drawn from the people, this is a barrier to civic participation and understanding.

In analogy to the principle of make enough laws and everyone is a criminal; a poorly written constitution that is not explicit, will ultimately result in nearly everything being constitutional.

If a citizen is trying to understand whether education is a valid area of federal authority, then they will look to the constitution for that word. I think it is fair that they would expect to find it.

Judicial Doctrines

It does not help that differing doctrines have been followed by the Australian High Court since its inception. From Samuel Griffiths' highly states' rights denial of the constitution he helped write, to Lionel Murphy's doctrine of the constitution being a living and breathing document that the judicature can breath life into - if the referendum process cannot.

We give the Judicial branch tenure with the goal of making them non-political positions, presumably populated by specialists. Yet most of the appointments are highly political and judges are more likely to be drawn from the political ranks than the heights of legal achievement.

This structure provides an entropy of growth that is incapable of contracting. The only possible outcomes are the stasis or expansion of constitutional law- not contraction.

Conclusion

Australia does have a Westminster tradition where constitutional law can be embodied across many acts and court decisions. This is an ineffective way to reign in expansive central government; a particular problem in federal systems where the central government will vie for tax and policy authority with the states.

Possible solutions;

• A tight and inflexible constitution at the federal level
• An energetic executive arm that can force bills to be tested by the judicial for constitutionality before they are signed into law (Think workchoices, if it is over-turned it will cause problems for employers having to return to the state systems. If there was doubt, it should have been tested before becoming law)
• A bicameral judicature with a lower jury chosen from the citizenry to actively review executive actions and legislative bills. (I know of one CFC entry being written with a highly innovative approach to the judicature!)
• Periodically rejuvenate the constitution to collapse it to a single bill/document (Canada and Queensland recently did this)

With globalisation moving activity from small arcane groups of the elite to the wider citizenry, the tight industrial structures are starting to collapse and fray under the pressure.

Westminster government is an industrial structure. It will have to introduce ratification, sortitionist and spontaneous citizen involvement in government itself. This is necessary just to remain relevant, let alone strengthening the civic, social, cultural and economic health of Australia.

One of the best examples of group wisdom is the economy. It is a highly decentralised structure. Mutual funds, index funds and spyders are examples of trader simplifying the system for citizens. Like any good market, the mountain came to Muhammad, and not the opposite.

Australian constitutional government will have to do the same, and come to its citizens.

Senator Andrew Bartlett has an article on why Judges should not be elected . Andrew suggests that a judicature sensitive to re-election will perform for a majority, with the goal of re-election, at the expense of minority rights. Andrew also points out the problem of political donations polluting the judicial process. The idea of an elected judicial brings into tension the balance between specialist, representative and crowd wisdom.

Andrew argues against it from the point of political and legal equality;

Community standards can play a part in determining a reasonable interpretation of same parts of the law and in sentencing. Evolving standards and understanding are part and parcel of the evolution of the common law.

However, this sort of thing should only be at the margins, as it is crucial the law is applied as impartially and consistently as possible. It is crucial that marginalised people or those from minority groups are not treated more harshly or unfairly by a justice system, just because they are from outside the mainstream. Reality will always fall short of the ideal, but these remains ideals worth striving for.

Implicit in Andrew's in statement is that an elected judicial is more likely to follow majority public opinion which is no guarantee of preserving minority rights. A basic function of a representative republican system is that the minority respect the will of the majority while the majority respect the rights of the minority. Representative system cease to function in a liberal democratic sense when that is broken.

Australian High Court judges are appointed by nomination from the Executive Cabinet and after consultation with the State Attorney-Generals (since 1979). There is no qualification for a High Court judge, any joe-bloe can be one, but it is usually a political appointment. There is no confirmation process for High Court judges like there is in the US system, another area where Australia falls down on checks and balances between Executive and Legislature.

A good immediate improvement, that would be cheap and bolster the Senate's legislative independence, would be the creation of a confirmation process in the Senate for judicial appointments.

One of the purposes of an appointed judicature is to fulfil the specialist role. Tenure is intended to raise the judicature above day to day concerns of political retribution and public opinion so that they can make legal decisions without being influenced politically. The goal is a legal specialist that is impervious to political influence.

The Westminster system, as practiced by Australia, minimises the chances of that goal by having no confirmation process to determine the specialist qualifications of the judge. The lack of a confirmation process and a deliberative role from the states enables a politically influenced judicature to be nominated by the Executive Cabinet.

The High Court of Australia is to represent the state's interest, as such it makes sense to have the state's house - the Senate - conduct the confirmation process.

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Andrew Murray made a speech in the Senate Hansard for October 12th on the subject of appointed judges and the need for legislative oversight of executive appointments to the High Court. Andrew Bartlett, another Senator from the Australian Democrats recently touched on the same issue writing that Judges should not be elected . SSR also covered the issue where Alan argued for a Missouri Plan style of appointing judges.

I have reproduced Andrew Murray's speech in full.

Unusually for me, during the last parliamentary sitting I took leave from the Senate for an afternoon, to go to Sydney to attend the Magna Carta lecture. The invitation from the British High Commission was hard to resist given the historical significance of the Magna Carta and the quality of the speaker. Signed 800 years ago, in 1215, this charter of freedoms and values is one of the bedrocks of democracy. The Magna Carta has been kept alive and is a charter that continues to resonate in the modern world. Australia has its own copy, which is proudly displayed here in Parliament House.

The lecture was titled `The role of judges in a modern democracy' and was delivered by Lord Falconer of Thoroton. He is the Lord Chancellor and Secretary of State for Constitutional Affairs in the United Kingdom. Needless to say, he is a man of vast experience and considerable wisdom. The basic tenet of his address was that the judiciary's role is subtly changing, particularly in relation to politics. It is a change that is occurring without the need to effect any constitutional change. It is also a change that is establishing a new form of relationship between the executive, the legislature and the judiciary. He stated:

We want them to undertake in a non-political way the resolution of issues which have either in the past been regarded as political or which are becoming more political.

To illustrate this, he focused on sentencing and human rights as areas where judges in the modern democracy seem to demonstrate many of the pressure points in the relationship between the public, the executive, the legislature and the judiciary. Drawing on the democratic ideal of equality before the law, he stated that the personal rights and freedoms of each individual can only be given effect to by protection under the law. The extent of this protection, he remarked:

... will involve judgements on whether executive action has exceeded the limits of freedom and freedom from discrimination to which the individual is entitled in a modern democracy.

However, I do not intend to elaborate on these aspects of his address--which is available on the web for those interested. Rather, I am going to focus on the fundamentals that Lord Falconer considers are essential for a modern and successful judiciary, in particular a better framework for appointing judges. This is an issue which has long concerned me. There have been renewed calls from within and outside of the judiciary for a revised judicial appointments process. This has long been demanded. Back in 1998, Felicity Maher and I jointly published an article entitled `Judging the judges' in the August edition of the Alternative Law Journal. In it we argued that, to ensure public confidence in our nation's highest court and its pronouncements, High Court justices must be perceived as the most meritorious and as completely independent. We argued for a transparent process, but in Australia the procedures to appoint justices to the High Court remain clouded in secrecy.

Under section 72 of the Commonwealth Constitution, only two requirements need be satisfied. They are that appointments must be made by the Governor-General and that appointees are to be less than 70 years of age. Additionally, the High Court of Australia Act 1979 sets out two further requirements: section 6 states that, before appointments are made, the Commonwealth Attorney-General must consult with the states' attorneys-general; and section 7 states that a candidate must have served as a judge of a court or must have been admitted as a barrister or solicitor for not less than five years. These requirements are an insufficient safeguard because the modern practice of government allows a blatantly partisan executive too much discretion in appointing High Court justices.

The increasing public perception seems now to be that, when a government is able to choose who is to fill judicial vacancies, it will more likely than not to choose those sympathetic towards the views of the party in power--that that party looks for attitudes and philosophies in candidates that it likes. Whether that is fair or unfair, that is quite a common perception. My heart froze at the horrifying confirmation that this was the coalition government's agenda when the then Deputy Prime Minister declared that what was needed in Australia were capital `C' conservative judges. I could feel the breath of tyranny, and an assault on liberty, in those words. What a slur he put on every judicial appointment with those words! Not only that but this was a dangerous thing to do, because, if as judgements accumulate those judges end up being perceived as partisan to one side of politics, public confidence in the independence of the judiciary will suffer.

This is most true when great and hotly contested political decisions are at stake, such as on government advertising practices, freedom of information laws and industrial relations laws. It may not be fair, but, as the old adage goes, it is much easier to lose a reputation than to gain one, and in a democratic system of checks and balances public perception is a big factor.

On another front, the consequence of the existing judicial appointments system is a history of predominantly white, Anglo-Saxon, eastern states men on the High Court bench. It is a bench that to date has not reflected the diversity of communities they judge. Lord Falconer stressed in his address that a system of appointing judges must clearly demonstrate to the public that selection is made on merit, that selection is divorced from politics and that selection reflects the society they are to judge. We need judges each with different world views. We need the mix to include those who have been outspoken on the rule of law, those who have been activists and those who are left, right and in the centre. What we do not need is to have even a hint that the scales of justice might be unbalanced through the appointment of judges or magistrates who the government or the public believe will defer to the government line because of patronage.

In his closing remarks, Lord Falconer stated that judges require an indefinable wisdom when making decisions, a wisdom that ensures public confidence is retained. He stated:

They must seek to give effect not to their personal views but to the values inherent in their legal system. Those values must reflect the society that system serves ... Our societies can ask for no more from their judges, but, to make our system work, our societies must expect no less.

Australian society can indeed ask for and expect more in our system. Political parties here occasionally complain about judicial appointments but, once in power, have made little administrative or legislative change to make the process more transparent. Not so in the United Kingdom. A more transparent and democratic process of appointing judges was ushered in under reforms announced by Prime Minister Blair in June 2003.

This process now involves a judicial appointments commission that recommends candidates to the Lord Chancellor, who then has limited power to reject those candidates. The expressions of interest process and the selection process are transparent, and appointment recommendations are based solely on merit. The task of setting out the criteria against which merit is tested lies with the commission. Although the final decision still remains in the hands of the government, those on the short list have all been ticked off by an independent body. No longer is the partisan political executive the sole selector of who should judge their society.

And neither should it be here. There are many countries where judicial appointment commissions exist. These include Ireland, Canada, South Africa, Israel, France, Germany, Italy, the Netherlands, Portugal and Spain. Numerous states in the United States also have them, and we are all aware how presidential nominees for the Supreme Court are put through close scrutiny by the parliament in the United States.

The Australian Democrats believe that a new process of appointing judges should be implemented here to ensure full public confidence and trust in the High Court. Three principles underlie our model. First, the candidate search and appointment procedures must be completely transparent, second, that merit is the fundamental selection criterion, and third, that there are no discriminatory obstacles for suitably qualified women and minority group representatives.

The appointment process should be depoliticised, even if that politicisation is just a perceived politicisation. This can be achieved by implementing a two-pronged model, one similar to the new United Kingdom system. The first prong is the creation of an independent judicial appointments committee and the second prong is the publication of selection criteria in a protocol periodically reviewed by the committee. This model can be achieved without resorting to the rigorous elements required for constitutional change under section 128 of the Constitution.

Instead, section 6 of the High Court of Australia Act could be amended to provide for the establishment, constitution and functions of a judicial appointments committee. Further, section 7 could be amended by adding to the qualifications requirement a protocol of criteria to be drafted by the committee. General recognition of the principles of equal opportunity, independence and integrity could also be given statutory force.

Reforms to achieve such a model are central to a modern and robust democracy. They are central to the separation of powers doctrine, whereby the judiciary is completely and transparently independent from the executive and legislature. Lord Falconer remarked:

... each part of the state needs a clear understanding of the interdependency of each of their roles. The legislature [and executive] cannot pass laws which they suspect the courts will ... construe in a way which does not deliver their intent.

If the political system fails in its decisions, as it is bound to do periodically, we need an independent judiciary that can address those failings in law, with no public perception that the bench is stacked and the process tainted.

The Chief Justice of Australia is alert to the task that is presently at hand, recently remarking that, in the contest between the new laws that address national security and that in the process transgress upon our liberties, the judiciary will be called upon to make decisions that may not be at all popular. He stressed the need to hold to the strongest traditions attached to judicial determination and the rule of law.

So back to the capital `C' conservative judges that the then Deputy Prime Minister told the world we should and were going to get. Unfortunately for them, and despite their obvious ability and merit, the Howard government's judicial appointments have to live with those political remarks and are affected by them in public perception terms. They can only prove the perception wrong by their conduct and judgements. And it is in the area where there is a great political clash that they will be watched most closely.

The recent High Court decision in Michael McKinnon v Secretary, Department of Treasury is a case in point. The applicant's case obviously had merit because it was a split decision, but the effect of the decision was a blow to accountability and public scrutiny in the public interest. It did nothing for the spirit of freedom of information. News Ltd chairman and chief executive Mr John Hartigan stated in the Australian on 7 September the decision was:

... extremely disappointing ... not just for The Australian newspaper but for Australians everywhere who value freedom of information and freedom of speech

Other commentators have remarked negatively on some of the prevailing judgements in the court. Former New South Wales Auditor-General Tony Harris, coming as he does from a strong accountability background, in the Australian Financial Review on 12 September noted that in the Work Choices advertising case, this majority judgement was based on an `obscure aside' which was not part of the statute and which overrode the principle endorsed by the parliament requiring appropriations to be used for specified outcomes. Effectively, the 3-2 split decision gave the government unfettered discretionary power over spending departmental appropriations. We currently await another decision, with the High Court now considering a third politically contentious case--that is, whether the Commonwealth's corporation powers validate the federal government's hostile takeover of the states' industrial relations power.

To conclude, I will briefly return to Lord Falconer's speech. Not only did it reveal the need to protect the essential principles of the rule of law and the separation of powers; it also revealed how it is possible to strengthen the law and judiciary in modern democracies and deal with a necessary tension that must exist between the political and judicial worlds. Former Labor chief of staff Michael Costello, in an opinion piece on Lord Falconer's address published in the Australian on 15 September, concluded his piece with these words:

We do have Australians who can speak with the quality and gravitas of a Falconer. Unfortunately, neither our Prime Minister nor our Attorney-General are among them: not from any incapacity but because the Howard Government has proven intolerant of constraints on prime ministerial power.

I can only trust that, when Labor eventually comes to power, steps will be taken to ensure that the principle of an independent judiciary is reinforced and that we will never ever hear a Labor Deputy Prime Minister saying that they will appoint capital `L' Laborites to counteract Mr Howard's capital `C' conservatives. We need a judicial appointments system that frees us from the fear of such taints or perceptions. The health of our democracy demands it.

Murray's solution is to create an independent judicial appointments committee and have transparent oversight by "publication of selection criteria in a protocol periodically reviewed by the committee". Murray spoke that the High Court Act would have to be amended to give the committee statutory authority.

This sounds similar to a Judicial Council which would present a short list to the Executive to choose a candidate which they could appoint to the Judicature.

More

• Questions Without Notice Judicial Appointments Process - Murray, Ellison

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The Judicial Appointments Commission in the UK is pretty new, it was only implemented in April this year, and won't choose its first High Court Judge until October, 2006. The commission has fifteen members on it including two legal professionals, five judges, a tribunal justice, a magistrate, and six citizens (lay people) including the chairman. They are also backed by a staff of one hundred people. The make up is interesting as it collapses specialist with informed citizenry and excludes the political specialists - ie politicians.

From Wikipedia the current board is made up of;

Chairman:The Right Honourable The Baroness Prashar, CBE

Professional: Mr Edward Nally, Mr Jonathan Sumption, OBE, QC

Judicial: The Right Honourable Lord Justice Robin Auld, The Honourable Mr Justice John Goldring, The Right Honourable Lady Justice Heather Hallett, Her Honour Judge Frances Kirkham, District Judge Charles Newman

Tribunal: His Honour Judge David Pearl

Lay justice: Dame Lorna May Boreland-Kelly

Lay: Professor Hazel Genn, Sir Geoffrey Inkin, Ms Sara Nathan, Mr Francis Plowden, Ms Harriet Spicer

There was a recent Times article by Frances Gibb on the new arrangements titled; Taps on the shoulder make way for job applications. The article writes that is an important modernisation of the judicial process for England and Wales. The article points out some of the issues faced in prior appointment of judges;

Then there is the infamous automatic consultations with 75 senior judges. "Everything we have seen . . . confirms our previously stated view that traditional automatic consultation should end." It was wasteful of judicial time and of limited value, with judges unwilling to be too critical of applicants. Whether candidates were known by senior judges was also a key factor in their success. Only 18 women applied and no applicants indicated an ethnic origin other than white.

Instead, the commission suggests the idea of "structured reference-taking" using properly qualified senior selection experts, although this would be costly and could be done only with a smaller list of candidates. There should also be interviews, it says, as part of the assessment process.

Finally, there is the role of the Lord Chancellor. The audit revealed one occasion when the Lord Chancellor "appeared to favour someone other than the top candidate (or candidates) favoured by the selection panels" and by the senior judges. The Lord Chancellor's candidate was still within the handful judged to be in the "outstanding" category; but he regarded him as "better fitted" to the nature of the vacancy in question. In the end he appointed the candidate he preferred.

In circuit judge appointments, there had been four candidates where the Lord Chancellor declined to follow the presiding judges' advice -- and no detailed reasons were given. Under the new system, set up under the Constitutional Reform Act 2005, the Lord Chancellor will not be able to appoint a candidate unless he or she is recommended by the new commission.

The Westminster system is a creaky old construct and Australia carries many of the worst excesses of absolute executive power that pop up in it. Judicial appointments is one. Australia needs a system at the federal level, which either draws specialists into the decision making, or takes advantage of our federal character and brings the states in as well. Any appointment remains the Executive's decision, but also must be overseen by a legislative confirmation.

I am in favour of some form of independent Judicial Council which gives a short-list to the Executive to choose with a final check and balance of a Senate confirmation to make sure the process of short-listing and appointment isn't being abused.

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The purpose of the executive having the power to pardon is to stop judicial tyranny. It is a check on the judicature from another branch of government to stop arbitrary judicial decisions. President Bush commuting Libby's sentence was not for this purpose. it was political. There is an argument that there should be some check and balance on the executive's power in this area.

From the Cunning Realist:

We also know now that Congress must find a way to restrict permanently the executive's ability to grant clemency. It won't be easy. But the Libby precedent will make the pardon process little more than a get-out-of-jail-free card for rogues willing to commit crimes involving war and national security with the tacit understanding that, if discovered, they will do less time behind bars than Paris Hilton.

The key, of course, is timing and the executive's lack of accountability. At the very least, the White House's unfettered ability to intervene after a presidential election and before the next administration takes office must be eliminated.

In Australia pardons are within the domain of the executive, but because it is not explicitly spelled out and there is little precedent or convention to guide it, there is a wariness of doing so. As the recent episode of journalists being prosecuted in Victoria showed.

It comes after Victorian Premier Steve Bracks said he would consider such a request, although he warned that pardons were rare, with the last example believed to have been in the 19th century.

"That will be treated on its merits and we usually receive legal advice on those matters," he said.

"Pardons are an extraordinary, rare thing and have occurred very infrequently over the history of this state, but they will be treated on the merits of the case presented to the (Victorian) Attorney-General (Rob Hulls)."

Because the Governor is the one who actually does the pardon, but acts upon the advice of the Executive Council, it would be the political executive asking for it.

I think I prefer the Australian system here, because the judicial system is trusted to pass just sentences within the bounds of legislative requirements.

However, once there is a pardon for political reasons, the executive cabinet will have asserted sovereignty over the pardon process and there will likely be a flood of them for political reasons - especially in an executive that is acting illegally and getting hauled infront of the courts.

The US system is predicated on checks and balances where the Westminster is not - instead 'responsible government' is supposed to suffice. Consequently there is going to have to be some kind of further check on the pardoning power in the US system to stop political pardons and commutations. The obvious choice is to have the Senate approve the pardon.

Another method would be to form a group of sortitionists, a citizen body, which must vote a super majority on each pardon/commutation. Then again, that is what the jury was for a court case (and a jury was who found Libby guilty).

It might be wise for Australia and the States to also institute a similar check and balance; just in case.

Irfan Yusuf:

Albrechtsen must have skipped her undergraduate law lecture where the concept of common law as judge-made law was explained. Then again, given the key role the common law plays in Australian law, it seems Albrechtsen may have skipped attending lectures altogether.

Irfan links to the Catholic Encyclopedia on Common Law.