Government MPs are sounding the alarm ahead of two High Court vacancies amid concerns judges hand-picked by former attorney-general George Brandis have ventured into judicial activism, straying from a “black letter approach to constitutional interpretation”.
In a 4-3 split last Tuesday, the High Court delivered a landmark ruling that found Aboriginal people — even those born overseas — could not be considered “aliens” under the Constitution and deported on character grounds.
The decision has shocked the government, fuelling concerns about who should fill the vacancies of judge Geoffrey Nettle, who retires in December and Virginia Bell, set to depart next March.
Three of the four majority who voted in the decision last week — judges James Edelman, Michelle Gordon and Geoffrey Nettle — are Coalition appointees, which has emerged as a sore point for many government MPs.
Attorney-General Christian Porter has expressed displeasure with the High Court decision, saying he was more persuaded by the reasoning of Chief Justice Susan Kiefel, who sided with the minority.
LNP MP Amanda Stoker said judicial activism risked undermining the public’s trust in the judiciary and “mutilates the Constitution into something the drafters never intended”, resulting in practical dysfunction.
“It’s vital that the people who are appointed to our highest court understand these consequences, are able to resist the invitation to indulge interesting but activist arguments, and have a ‘black letter’ approach to constitutional interpretation,” she said.
She also said the Federalist Society in the US had succeeded in “positively cultivating a cohort of meritorious, talented lawyers whose originalist legal thinking makes them good options for appointment”, arguing that approach could be adopted in Australia.
“The development of a pipeline of people whose beliefs have been made clear through their participation and written work makes it easier to avoid political appointments while nevertheless ensuring the necessary skills and beliefs to avoid judicial activism,” she said.
Senator Stoker’s concerns were echoed by her Coalition colleague Tim Wilson, who labelled the High Court decision “disturbing”.
He said the High Court was “at its worst when progressives are appointed to use their power to reinterpret the Constitution to advance political aims”.
A number of potential replacements for the outgoing High Court judges are understood to have attracted the interest and support of senior members of Scott Morrison’s cabinet.
Federal Court judge Mark Moshinsky, a former head of the Victorian Bar Council and member of the Melbourne Jewish community. is believed to be favoured by at least one Cabinet minister.
Some legal sources believe Mr Porter could favour the appointment of WA Supreme Court judge Janine Pritchard.
Justice Pritchard has been on the WA Supreme Court for 10 years but is not considered to be as well credentialed as some other potential candidates.
Labor legal affairs spokesman Mark Dreyfus said there “should be only one criterion for appointment to the High Court and that is merit”.
“I hope we hear no more talk of American-style political partisanship in appointments, or ‘big C conservatives’,” he said.
Institute of Public Affairs research fellow Morgan Begg said the High Court’s recent decision was “radical” and the two upcoming appointments were the most consequential since Federation.
He said the philosophy of any new judges needed to be “capital-C conservative”.
“We need judges to say what the law is, not what left-leaning judges would like it to be based on their own subjective policy preferences,” he said.
Mr Begg said the US Federalist Society was a leader in entrenching legal conservatism in the profession.
The Federalist Society has played a prominent role in suggesting conservative judicial nominees to Donald Trump.
Liberal senator James Paterson, formerly at the IPA, said “the judicial philosophy of appointees should be the most important criteria, particularly for a Liberal and National government”.
Published in The Australian 20 February 2020 by Olivia Caisley and Nicola Berkovic