Ruddock and the rule of law - who rules and whose law?
Ruddock's apparent response to an opinion piece in the Australian regarding flaws in the process of selecting federal judges could not have been published at a worse time. Given that the government has just subverted judicial process and undermined the rule of law by locking up Haneef after he'd been granted bail, Ruddock's "opinion" piece, provocatively titled "Protection from judicial rule", appears all the more hypocritical.
Much of Ruddock's article is a rant against what he calls "judicial activism". His definition of judicial activism is "judges trying to apply "contemporary values", "the contemporary needs and aspirations of society", "the relatively permanent values of the Australian community", and all the other attempts to substitute subjective preferences for the rule of law". If his argument is that judges should have no regard to community values or the framework in which the laws that they apply and make (in the case of common law) operate, the argument is plainly misguided. He also deliberately refrains from mentioning in which exercises of judicial power these so-called "subjective preferences" are, in his opinion, impermissible. Is he referring to statutory interpretation, Constitutional interpretation, common law, equity? Or is he merely taking pot shots?
It is inappropriate for the Attorney General to make generalised and vague attacks on judges who he perceives as "activists". Even if it was not inappropriate, a newspaper article is certainly not the forum for any considered criticisms. It suggests that what is intended is a mere publicity stunt that does not allow for elaboration or proper debate. For example, one aspect of his argument that begs further examination is whether he includes judges having reference to (objective and well established) international human rights norms under his blanket claims of "activism". If he does, his argument that "activism" involves substituting "subjective preference for the rule of law" fails and is exposed for what it is - a hypocritical attack by a member of the government that defines justice as a decision in its favour and "judicial activism" as anything that doesn't deliver the outcomes it desires.
Ruddock's attempt to explain how the process of selection of judges is open and transparent is as disingenuous as his rant against "judicial activism". Consider this statement:
The most noticeable feature of the current approach for appointing judges is its accountability.
The ministers who collectively decide about appointments are all members of parliament and are all held responsible for the decisions we make. We are held accountable to the parliament, and also to the electorate. In other words, voters have the final say.
…
Cabinet makes appointments decisions in this way. First, there is consultation, both formal and informal. For High Court appointments I am obliged to consult with state attorneys-general. Apart from that, my colleagues and I are free to consult as widely or as narrowly as appropriate.
Does he really expect anyone to take this argument seriously? A decision made by government ministers in cabinet (with the associated secrecy attaching to such decisions) is hardly the model of transparency. The idea that ministers will be held accountable to the electorate for their selections of federal judges is laughable. How many people are aware of these appointments? What percentage of the electorate can name the judges of the High Court? What percentage even knows how many there are? When it comes to issues that influence voters at election time, selection of judges isn't even a blip on the political radar. As for consultation, while the A-G does have to consult with the state A-Gs, he is not obliged to pay any heed to their views and can otherwise consults or not consult as he sees fit.
But even as he attempts to convince us that the government's approach to judicial appointments is objective, balanced and inclusive (those of us who recall the government's promise to appoint "capital-C conservatives" may be pardoned for not being convinced), Ruddock himself conveniently proves that his position is little more than politically motivated hypocrisy. He gloats that "the debate about judicial activism in Australia is over" and that the number of so-called judicial activists "is drying up". This is in effect a confession that the government has been choosing its judicial appointees in accordance with a particular ideological standpoint - a hostility to progressivism.
Although he as good as confirms that the appointment process has been politicised, he nonetheless attempts to disguise the bias in government's approach by the oldest device in the book - he paints his own standpoint as neutral, allowing him to portray contrary viewpoints as deviating from the norm and therefore biased and unbalanced. But in attempting to paint his politicised approached as balanced, he fails to answer his own question: "Balanced in whose mind?"
And although Ruddock is right to say that Australia "has seen some of the very best lawyers in the common law world serve in the Australian judiciary" and to list Griffith, Isaacs, Latham, Dixon, Barwick, Kitto and Windeyer as judges who "had international reputations and contributed to the standing of the court", he deliberately omits some equally distinguished and globally recognised jurists, such as Sir Anthony Mason, Sir William Deane and Michael Kirby, all of whom Ruddock would no doubt describe as "judicial activists".
As the government is deliberately eroding civil liberties, subverting legal processes, abandoning Australian citizens to the tender mercies of the US military "justice", undermining transparency and accountability and increasing the executive power, it is not protection from "judicial rule" that Australians should be concerned about. The more pressing question is who will protect us from increasing abuses of government power or indeed from the hypocritical and misleading arguments of its ministers.
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