Should Chief Justice Black Resign?
Dr. I.C.F. Spry Q.C.
During recent years the Federal Court has become perceived as an inappropriately political body. This perception is that it has allied itself unduly with politically correct (and often left of centre) causes and has departed from requisite judicial impartiality.
The matter was well addressed recently by Mr. Philip Ruddock, the Minister for Immigration and Multicultural Affairs and one of the most highly regarded members of the Howard Ministry.
In regard to immigration matters (where the Federal Court has often over-turned decisions rejecting applications by asylum-seekers and other would-be immigrants) Mr. Ruddock considered somewhat inappropriate and foolish comments by Justice Graham Hill, who was reported to have “warned that Australians’ human rights and freedoms were at grave risk from a government contemptuous of judges”. Justice Hill’s remarks were absurd, and the fact that they were made at all reflects very badly on the Federal Court. If that Court continues to make decisions not in accordance with the law, it is indeed the duty of the Government to point out that fact.
Mr. Ruddock commented felicitously, “I do remember a time when judges who wanted to be able to involve themselves in the political process saw it as being more appropriate to resign from the bench and stand for Parliament”. 2
Mr. Ruddock commented also that the courts were “finding a variety of ways and means of dealing themselves back into the review game”, despite new laws passed late last year barring appeals against migration tribunal decisions in the Federal Court. He added that the Government would pass further legislation if the courts found ways to hear appeals against refugee or migration tribunal decisions: “The high court of Parliament is saying decisions of the tribunal should be final and conclusive.”
Mr. Ruddock’s understandable concern drew an ill-judged and significant statement by Chief Justice Black, who attempted to maintain that “members of the public might see the minister’s statements as an attempt to bring pressure on the court” in relation to appeals to which he was a party. This illegitimate attempt to prevent criticism — courts which go beyond their proper function, such as the High Court in the Mabo case, are particularly anxious to prevent proper criticism of what they do — was not successful.
Mr. Ruddock responded on 4 June that when he had stated that the courts were “dealing themselves back into the review game”, he was referring to a trend. He added, correctly, 2
“Decisions of the court are in the public domain, and criticism of particular court judgments are appropriate subjects for public debate. In this light, and as stated by the High Court in MIMA v. Jia, the Minister is an elected official accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which . . . is a matter of continuing public interest and debate.”
Of course, in different circumstances it would be the duty of the Attorney-General, in particular, and of other Ministers to defend the Federal Court against improper criticism. For example, where the High Court or the Federal Court applies the law bona fide, it is entitled to be defended. But this does not confer upon the Federal Court a right to decide cases improperly, by reason of political and personal considerations. In effect, here lies the fallacy in Chief Justice Black’s approach. It is evident that members of the Howard Government believe, on good grounds, that some at least of the members of the Federal Court are allowing personal views to interfere with the proper performance of their functions. If this is correct, as appears to be the case, it represents a very serious criticism and supports Mr. Ruddock’s comments about the appropriateness of judges resigning from the court and standing for Parliament.
Lack of Judicial Accountability
The most disgraceful aspect of the perversion by judges of legal principles by introducing their own personal opinions is the breach of the position of trust that is involved. Judges are appointed under generous arrangements entitling them to tenure and to almost absurdly munificent superannuation rights. They are appointed to administer the law, in the belief that they will discharge their functions impartially.
Judges are not chosen in order to advance their personal political views. If they were, it would be appropriate that they be elected so that some legitimacy might be obtained. But in Australia they are not elected, and moreover commonly their personal political views, in so far as they are evident from incautious judgments, are unpopular and contrary to the wishes of the great majority of Australians. For example, opinion polls show invariably that Australians are concerned to retain border protection and are opposed to the politically-correct who, often for inadequate reasons and invariably to the detriment of their country, are happy to undermine traditional Australian society. The Federal Court is a second tier court, and its members are not generally of the first rank in ability, but it appears that what they lack in ability they more than make up for in political inputs.
The Federal Court
The Federal Court was promoted by Sir Garfield Barwick, an obsessive centralist. It was intended by him to assume much of the jurisdiction of the State Supreme Courts and to exercise that jurisdiction in the interests of the Commonwealth.
On legal considerations there was no good reason for the formation of this court. The State Supreme Courts had histories of more than a hundred years and a tradition of the non-political and conscientious discharge of their duties. Apart from the unfortunate self-aggrandisement of centralists there was no reason to supplant them or provide alternative venues.
In fact, the quality of justice in the Federal Court has proved to be much lower than that in the State courts. The Federal Court has been perceived, especially in recent times, to be intransigently political, in the sense that commonly its judges temper their decisions with political correctness and lack rigour in their reasoning. Indeed, out of the scores of judges who comprise the expensive machinery of the Federal Court it is hard to identify anyone of special distinction. But it is unfortunately all too easy to identify judges whose decisions are not of high quality. Many of them have been appointed for political reasons.
Indeed, especially since Mr. Michael Black Q.C. became Chief Justice it is difficult to find any compelling reason for the existence of the Federal Court. It has been perceived to diminish the legal standards of the country. And it provides a forum for judges who are sometimes of unduly leftish political views or who are often merely mediocre proponents of political correctness.
Chief Justice Black
Mr. Michael Black Q.C. was appointed by a Labor government as Chief Justice of the Federal Court in 1991. He succeeded the greatly more distinguished Sir Nigel Bowen. The appointment of Black Q.C. (who recalls Mr. Justice Lionel Murphy) caused some surprise amongst sections of the Victorian Bar, who had regarded Mr. John Winneke Q.C. and Mr. Stephen Charles Q.C. (both now members of the Court of Appeal of Victoria) as considerably more distinguished and appropriate to succeed Sir Nigel Bowen.
The habit of political appointments (viz. appointments not simply on legal ability but by reference to political allegiances or perceived social opinions) has been habitual with the Labor Party. Although it is true that the great majority of capable silks are conservative, this does not justify legal appointments otherwise than on the basis of ability. For when once political and non-legal qualifications are seen as legitimate criteria there is no limit to the considerations that may be taken into account. Appointees might on this basis be chosen because they are homosexuals or feminists or aboriginals or for any other reason and not by reference to their legal abilities.
Too many members of the Federal Court are viewed by significant numbers of the legal profession as politically biased in the sense that they are perceived to allow (leftish) political opinions or fashionable notions of political correctness to influence their judgments. Curiously this position has not been ameliorated by appointments by the current Attorney-General, Mr. Daryl Williams, who is himself seen to be on the left side of the Liberal Party and has made no serious attempt to bring balance to the Court. Other members of the government of Mr. Howard have shown little interest in Federal Court appointments, important though they are, and have left the matter in the unreliable hands of Mr. Williams.
What then should be done with the Federal Court as it has recently developed? The best course would be to terminate it completely, as a failed experiment or one that has irredeemably miscarried. The better judges — not a majority — could be put on to the State Supreme Courts, and the others on State County Courts or on administrative tribunals. The result would be a higher standard of justice, and a reduction of judicial impropriety.
1. The Australian, 4 June 2002
National Observer No. 53 - Winter 2002