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...controversy relation the Attorney-General's role defending the judiciary from criticism. This article examines the application of this articulation of the office of Attorney-General to one of the other responsibilities of the Attorney-General. The article considers whether such an articulation has led to partisan political considerations becoming more prominent in the process of appointing judges to the High Court of Australia. It is concluded that partisan political considerations have become somewhat more prominent in recent years, but most notable in this development has been the tendency for the prime minister to dominate the process at the expense of the Attorney-General, and this is something which is expected to persist.
Keywords: Attorney-General; Cabinet; appointment of judges; High Court of Australia; judicial independence
INTRODUCTION (1)
The Australian Commonwealth Attorney-General performs a wide range of functions and is unique as a minister in that some of these functions are statutory: some arise from common law prerogative; and some arise through the Attorney-General's role as a minister appointed under section 64 of the Constitution. As a minister, the Attorney-General oversees a government department and can be a member of Cabinet. S/he is responsible for the development of Commonwealth legal policy (2) and for expenditure of public funds on the court system: although, in practice Australian federal courts are responsible for their own administration (3). At common law, the Attorney-General is also nominally responsible for representing the government in court and for criminal prosecutions, although since 1984 practical control over public prosecutions has been vested in the Commonwealth Director of Public Prosecutions (4). The Attorney-General is responsible at common law for the granting of fiats for relator actions whereby people or groups who would not otherwise be considered interested parties are granted standing to participate in a public law case. S/he must also make recommendations to Cabinet with respect to judicial appointments and is also arguably bound to defend the judiciary from criticism; at least, through the institution of legal proceedings for contempt of court and also through making statements either to the public or to other members of government in some circumstances.
An understanding of the Attorney-General's role advanced by many commentators and practitioners has it that certain functions of the office should be exercised not as an ordinary politician but with at least some degree of independence from Cabinet (5). It is generally accepted that the Attorney-General's discretion to initiate public prosecutions should not be subject to Cabinet direction particularly where no case on the merits exists (6). Similarly, the Attorney-General is expected to grant fiats for relator actions independently of partisan political considerations (7). Likewise, recommendations for judicial appointment are supposed to be made based upon the "merit" of the putative appointee (8), and defence of individual judges or the institution of the judiciary from certain kinds of criticism is supposed to be made irrespective of whether or not such a defence is against the political interests of the government of which the Attorney-General is a member (9).
However, the minister who held the office of Attorney-General from March 1996 until September 2003, Daryl Williams AM QC MP, rejected this traditional understanding stating, 'it ought to be concluded that the perception that the attorney-general exercises important functions independently of politics and in the public interest is either erroneous or at least eroded' (10). His claim is based partly on the significant differences between the role of the United Kingdom Attorney-General (from which the Australian office, including those functions supposed to be exercised independently, is at least in part derived) and that of the Australian Attorney-General. Williams observed that the, 'United Kingdom attorney does not administer a department, is not responsible for the administration of justice and has no formal role in relation to the appointment of judges and magistrates' (11). He also noted that there, 'has been a convention in the United Kingdom that the attorney-general should not be a member of cabinet' while no such convention exists in Australia (12). He further observed that other functions of the Attorney-General which have been traditionally understood to be performed independently are no longer as prominent as they once may have been:
The residual right of the attorney to give directions to a director of public prosecutions is rarely exercised. While attorneys do generally retain the right to grant or refuse a fiat for the bringing of a relator action, increased use of other types of proceedings along with the widening by the courts of standing has seen relator actions, and therefore the role of the attorney in public interest litigation, decline (13).
The facts on which Williams bases his articulation of the office are, in themselves, largely uncontroversial. There are indeed significant differences between the Australian and English Attorneys-General; the creation of the DPP has meant the Attorney-General's role with respect to criminal prosecutions is minimal, and looser standing requirements have meant the Attorney-General's role in granting fiats for relator actions has declined somewhat. Moreover, the growth in the size and complexity of government has meant that the Attorney-General hardly ever personally gives legal advice to, or appears in court for, the government.
However, the application of the claim that, 'the perception that the attorney-general exercises important functions independently of politics and in the public interest is either erroneous or at least eroded' to other functions of the Attorney-General, including his or her responsibility to recommend judicial appointment to Cabinet, is more controversial (14). This article will consider one aspect of this controversy; namely, the extent to which Williams' broad claim has impacted upon the Attorney-General's role in the appointment of judges to the High Court of Australia. While the existence of the Attorney-General's role in this area is uncontroversial, the approach taken and the implications thereof have not been the subject of much academic analysis in recent years. Despite a wealth of older historical material, there is little research considering in much depth the more recent appointments of the Hawke and Keating Labor governments and the Howard Liberal-National Coalition government over the past twenty years. Certainly, little has been said about the role of the Attorney-General in these appointments. Most coverage has been mass media speculation about the identity of an upcoming appointment or generalist media and academic commentary about likely future directions in the Court's legal approach; particularly in 1997 when the current government had the opportunity to appoint three judges to the Court within eleven months (15). Despite this relative absence of detailed scrutiny, the appointment of judges to the High Court is a significant power of the Commonwealth government: decisions of the High Court undoubtedly have the potential to impact greatly upon Australia's future. White rightly observes that:
The rule of law is underpinned by a number of elements, but none of them are more important than the integrity, independence and competence of judges. The quality of the persons appointed to hold judicial office is, therefore, a foundation stone for a democratic structure and civil liberties and freedoms (16).
Consequently, a shift by the Attorney-General from an independent, "merit-based" approach to judicial appointments to one where partisan political concerns are accorded greater weight potentially has significant implications for the role of the judiciary and the rule of law in Australia. To consider the extent to which partisan political influences have shaped Williams' approach to his duty to recommend appointments to the High Court, the formal and informal framework through which the Attorney-General acts must first be understood. This is then combined with a theoretical analysis of the implications of partisan political considerations on the appointment process to derive an understanding of historical and current approaches to the appointment of judges to the High Court. Particular attention is paid to the relative influences of the Attorney-General, the prime minister and Cabinet on the appointment process as these have been important factors in the process, but relative levels of influence have fluctuated over Australia's history (17).
This article contends that Australian governments have at times appointed candidates with judicial approaches and outlooks similar to their own and that this is to some extent inevitable. Since the appointment process is inherently political, this practice is to be accepted so long as it does not undermine either the integrity of, or public confidence in, the judiciary. In practice, most appointments to the High Court have been uncontroversial with partisan influences on the appointment process not so great as to damage public confidence in the judiciary. Indeed, the High Court has enjoyed an excellent reputation across most of its history and the overall quality of appointees has been high.
All four appointments to the High Court made while Daryl Williams was Attorney-General have been relatively conservative; in line with the current government's own outlook. While no appointee has been unmeritorious, it is argued the appointments made while Williams was Attorney-General have been more consistently...
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