A forgotten election issue
I was very interested to read an article in the Australian by Professor George Williams about the impact the next election will have on the composition of the High Court of Australia. With the political focus on WorkChoices, Iraq, indigenous affairs and the non-exploding car bombs in UK it is quite understandable that even those of us who usually pay attention to such things would forget that the winner of the next election will get to appoint two out of three High Court justices as Callinan, Gleeson and Kirby retire before 2009. Howard will get to replace Callinan who retires in September. Let's recall that in its first term the Howard government appointed Ian Callinan in order to begin the process of stacking the Court with "capital-C conservatives". The apparent motivation was the Wik decision, which the government (with its habit of defining justice as a decision in its favour) maligned as an example of impermissible "judicial activism". Those of us who read the decision of course know that it was backed up by solid reasoning and in no way endangered people's backyards. But I digress…
Throughout his 11 years in power Howard seized his chance to stack the Court with conservative appointees (that is not to say that any of them are in any way incapable or undeserving of appointment). Of the seven judges on the present Court, only two were appointed by a Labor government and one of them (Justice Gummow) is no less conservative that most Howard government appointees. Of course, as Williams points out, predictions about a judge's ideological leanings may prove wildly wrong. The prime example - Sir William Dean - appointed by a Liberal government and expected to be a conservative jurist, proved to be one of the most progressive (as well as one of the most brilliant) High Court justices in Australian history.
However, Williams is undoubtedly correct that the High Court after 11 years of Howard government is a very different Court to that at the start of Howard's rule. It is little wonder that Justice Kirby is fast approaching a 50% dissent rate, not through any errors of legal analysis but because of genuinely different (and I'd say often superior) perspectives.
A further term in government for the Liberal party will doubtless entrench the ideological lean of the Court for many more years to come. As Williams points out - in US this would be an election issue, in Australia it barely rates a mention. It should be an issue - we are talking about the highest court in the land, the ultimate guardian of the Australian common law and the Constitution. It's important. Even if you are not a lawyer.
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