Christian Porter’s High Court challenge

Confirmation hearings under way in the US to consider judge Amy Coney Barrett’s suitability for the Supreme Court underscore how fortunate Australia is with its system of judicial appointments. Federal Attorney-General Christian Porter has free rein to decide who should fill two High Court vacancies that will arise in coming months. Speculation is rife about who will replace sitting judges Geoffrey Nettle and Virginia Bell, who soon will reach the retirement age of 70.

Unlike in the US, the first anyone will know of the successful appointments will be when they are announced by Mr Porter. Once announced, the decision will not be open for negotiation or review. As Nicola Berkovic reports, there is great enthusiasm within legal circles to attempt to guess who the successful candidates may be. There is some debate about whether the gender balance of the court will be maintained and what the new appointments may mean for how the court will approach controversial issues in the future.

The Attorney-General has great power to exercise his discretion on judicial appointments, and with that comes a great responsibility to ensure the integrity of the nation’s highest court is preserved. One way to do this would be to seek to bolster the position of the Chief Justice, Susan Kiefel, who found herself in the minority in a 4-3 split decision in Love v Commonwealth of Australia, referred to as “the aliens case”. In that case, the High Court found that Aboriginal Australians were not subject to the alien powers in the Constitution and therefore could not be deported. Neither of the applicants in the case, both of whom were convicted criminals, was born in Australia, was an Australian citizen or had ever sought to become a citizen. Legal affairs writer Chris Merritt argued the majority decision created a race-based exception to the written text of the Constitution that had the ­effect of benefiting foreign criminals with Aboriginal ancestry. They also introduced an inconsistency into what the common law said about the relationship of Indigenous people to the land. The aliens case decision raised arguments about judicial adventurism and led to concerns the High Court could face a level of distrust that was last seen under chief justice Sir Anthony Mason in the 1980s.

Some people clearly would welcome a more activist bench and support a lessening of the Attorney-General’s powers in making appointments. There have been calls for the establishment of a judicial appointments committee made up of leading figures in the law to vet candidates and present a shortlist from which the Attorney-General can choose. This idea has been rejected by Mr Porter. Although superficially attractive, it would limit the options available to executive government. Mr Porter must be free to choose but, in doing so, must resist all temptation to stray from fidelity to the wellbeing of the law. He must make his choices free of any constraint by identity or any other politics. In The Australian’s view, the High Court and the nation would be best served by judges who are legal conservatives, as distinct from political conservatives, who will apply the law in a black-letter way. The Australian system, fortunately, relieves some of the pressure on having to navigate identity-based appointments.

Many in the legal profession still adhere to the attractions of the “hero” judge prepared to move the needle on progressive causes. Former High Court justice Michael Kirby was held in high esteem by many because of his socially progressive approach. But the record shows Mr Kirby was often in the minority view. On the other side, justice Ian Callinan was regarded as a black-letter practitioner and a steady hand. Mr Porter must wear responsibility for his choices, which will help define his political fortunes. The aliens case did little to enhance the standing of former attorney-general George Brandis, who appointed two of the majority judges to the decision. Free of political distractions, Mr Porter should seek a legal conservative with strong adherence to the original intention of the Constitution and the black letter of statute. The High Court is the last refuge for justice and must be stable and held in the highest regard.